Dizon v. Asiana Airlines, Inc.

• Decision Date: 06 March 2017
• Docket Number: CV 16–01376–BRO (MRWx)
• Citation: 240 F.Supp.3d 1036
• Court: U.S. District Court — Central District of California
• Parties: Bonifacio DIZON v. ASIANA AIRLINES, INC.

240 F.Supp.3d 1036

Bonifacio DIZON

v.ASIANA AIRLINES, INC.

CV 16–01376–BRO (MRWx)

United States District Court, C.D. California.

Filed March 6, 2017

Frank Phillip Agello, Raj D. Roy, Roy Legal Group, Northridge, CA, for Bonifacio Dizon.

Jennifer J. Johnston, Michael Cutler, Richard A. Lazenby, Condon and Forsyth LLP, Los Angeles, CA, for Asiana Airlines, Inc.

ORDER RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [25]

BEVERLY REDD O'CONNELL, United States District Judge

I. INTRODUCTION

Currently pending before the Court is Defendant Asiana Airlines, Inc.'s ("Defendant") Motion for Summary Judgment. (Dkt. No. 25 (hereinafter, "Mot.").) After considering the papers in support of and in opposition to the instant Motion, as well as oral argument of counsel, Defendant's Motion is GRANTED.

II. FACTUAL BACKGROUND

On March 3, 2015, Plaintiff Bonifacio Dizon ("Plaintiff") took the return leg of a roundtrip flight from Los Angeles, California, to the Manila, Philippines, with a layover in Incheon, South Korea. (Dkt. No. 27–4 (hereinafter, "SUF") ¶ 1.)¹ Plaintiff did not reserve any disability assistance before his flight. (SUF ¶ 2.) Approximately halfway through the flight from Manila to Incheon, Plaintiff began to experience pain in his knee, and was given Tylenol by the flight crew. (SUF ¶¶ 4–5.) Plaintiff asked the flight crew if there was a nurse or physician on board the flight, but does not recall the crew's response to his request or whether they searched for a medical professional on board. (SUF ¶ 6.)² In addition, Plaintiff does not recall asking the cabin crew to take him to a hospital, though he was provided with wheelchair assistance when exiting the aircraft in Incheon and throughout his layover there. (SUF ¶¶ 8, 10.) According to Plaintiff, he made repeated requests for assistance and "cries for help" that went unanswered by the flight crew. (SUF ¶ 13.)

While in Incheon, Plaintiff does not recall asking anyone for medical assistance because he was afraid he would be required to pay the medical expenses. (SUF ¶ 11.) Plaintiff then boarded the flight from Incheon to Los Angeles, though he did not ask for disability accommodations because he did not believe such a request was required when he was visibly in pain. (SUF ¶ 14.) On the flight. Plaintiff asked for and was provided with another Tylenol to help alleviate his pain. (SUF ¶ 16.) According to Defendant, Plaintiff's flight arrived in Los Angeles at approximately 1:40 p.m. on March 3, 2015.³ (SUF ¶ 17.) Plaintiff was provided with wheelchair assistance from the time he exited the plane until he reached the baggage claim. (SUF ¶¶ 18–19.) Plaintiff does not recall asking for medical assistance upon landing in Los Angeles, and the flight crew did not call him an ambulance or provide him with any other medical assistance. (SUF ¶ 20.)

Plaintiff's friend picked him up from LAX airport. (SUF ¶ 21.) Plaintiff did not ask his friend to take him to a medical provider, because he did not want to be a burden, and he believed the best course of action was to go home, rest, and continue to take Tylenol. (Id. ) On March 6, 2015, Plaintiff's wife drove him to Kaiser Permanente, Panorama City for treatment. (SUF ¶ 25.) Plaintiff does not recall seeking medical treatment between when he landed on March 3, 2015, and when he ultimately was taken to the hospital. (See SUF ¶¶ 23–25.) Plaintiff was ultimately diagnosed with deep vein thrombosis ("DVT").⁴ (See Declaration of Bonifacio Dizon (Dkt. No. 27–2) (hereinafter, "Dizon Decl.") ¶ 26.) He was admitted to Kaiser Hospital and stayed there for approximately two months. (Dizon Decl. ¶ 27.)

III. PROCEDURAL HISTORY

Plaintiff first filed this action on February 26, 2016. (Dkt. No. 1 (hereinafter, "Compl.").) Plaintiff brings three causes of action: (1) violation of the Montreal Convention; (2) negligence; and, (3) intentional infliction of emotional distress. (See id. ) Defendant filed the instant Motion on December 16, 2016. (See Mot.) On February 6, 2017, Plaintiff timely filed his Opposition. (Dkt. No. 27 (hereinafter, "Opp'n").) On February 13, 2017, Defendant timely replied. (Dkt. No. 28.) The Court held a hearing on Defendant's Motion on February 27, 2017. (See Dkt. No. 30.)

IV. LEGAL STANDARD

Summary judgment is appropriate when, after adequate discovery, the evidence demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A disputed fact is material where its resolution might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party. Id. The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may satisfy that burden by showing "that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. 2548.

Once the moving party has met its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the non-moving party must go beyond the pleadings and identify specific facts that show a genuine issue for trial. Id. at 587, 106 S.Ct. 1348. Only genuine disputes over facts that might affect the outcome of the lawsuit will properly preclude the entry of summary judgment. Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ; see also Arpin v. Santa Clara Valley Transp. Agency , 261 F.3d 912, 919 (9th Cir. 2001) (holding that the non-moving party must present specific evidence from which a reasonable jury could return a verdict in its favor). A genuine issue of material fact must be more than a scintilla of evidence, or evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer, Inc. , 198 F.3d 1130, 1134 (9th Cir. 2000).

A court may consider the pleadings, discovery, and disclosure materials, as well as any affidavits on file. Fed. R. Civ. P. 56(c)(2). Where the moving party's version of events differs from the non-moving party's version, a court must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

Although a court may rely on materials in the record that neither party cited, it need only consider cited materials. Fed. R. Civ. P. 56(c)(3). Therefore, a court may properly rely on the non-moving party to identify specifically the evidence that precludes summary judgment. Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996). The district court is "not required to comb the record to find some reason to deny a motion for summary judgment." See Forsberg v. Pac. Nw. Bell Tel. Co. , 840 F.2d 1409, 1418 (9th Cir. 1988) ; see also Carmen v. S.F. Unified Sch. Dist. , 237 F.3d 1026, 1031 (9th Cir. 2001) ("The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.").

Finally, the evidence presented by the parties must be admissible. Fed. R. Civ. P. 56(e). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of fact and defeat summary judgment. Thornhill Publ'g Co. v. GTE Corp. , 594 F.2d 730, 738 (9th Cir. 1979). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson , 477 U.S. at 253, 106 S.Ct. 2505.

V. DISCUSSION

Defendant argues that they are entitled to summary judgment on Plaintiff's claim under the Montreal Convention and that the Montreal Convention preempts Plaintiff's state law claims. (See Mot.) Plaintiff contends that Defendant has failed to meet its burden of establishing that there is no triable issue of fact and that his state law claims survive. (See Opp'n.) The Court will address each argument in turn.

A. Plaintiff's Montreal Convention Claim

Plaintiff's first cause of action arises under the terms of the Montreal Convention.⁵ (See Compl.) "Article 17 of the Warsaw Convention^[6]... imposes liability on an air carrier for a passenger's death or bodily injury caused by an 'accident' that occurred in connection with an international flight."Olympic Airways v. Husain, 540 U.S. 644, 646, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004 (footnote omitted). Article 17(1) of the Montreal Convention "provides that a carrier is 'liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft of in the course of any of the operations of embarking or disembarking.' " Narayanan , 747 F.3d at 1127 (quoting Montreal Convention, art. 17(1)). Thus, there are three elements to a claim arising under Article 17: (1) there has been an accident; (2) that caused the passenger's injuries; and, (3) the accident occurred while on board the aircraft or in the course of embarking or disembarking the aircraft. See E. Airlines, Inc. v. Floyd , 499 U.S. 530, 535–36, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991). The parties agree that the third element is met here, but Defendant argues that Plaintiff cannot establish the first two elements of his claim.

1. Whether Plaintiff Suffered an "Accident"

An "accident" is defined as "an unexpected or unusual event or happening that is external to the passenger." Air France v. Saks , 470 U.S. 392, 405, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) ; accord Naranyan , 747...