Ferguson v. Trans World Airlines, Inc., Civ.A. 1:98CV2887CAP.

• Decision Date: 07 April 2000
• Docket Number: No. Civ.A. 1:98CV2887CAP.,Civ.A. 1:98CV2887CAP.
• Parties: Phyllis FERGUSON, Plaintiff, v. TRANS WORLD AIRLINES, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

135 F.Supp.2d 1304

Phyllis FERGUSON, Plaintiff, v. TRANS WORLD AIRLINES, INC., Defendant.

No. Civ.A. 1:98CV2887CAP.

United States District Court, N.D. Georgia, Atlanta Division.

April 7, 2000.

COPYRIGHT MATERIAL OMITTED

William R. Waldrop, James O. Wilson, Jr., Waldrop & Wilson, Marietta, GA, for Plaintiff.

Lisa Lynn Ballentine, David Michael Brown, Tracie Y. Johnson, Smith Gambrell & Russell, Atlanta, GA, for Defendant.

ORDER

PANNELL, District Judge.

The plaintiff filed the instant wrongful death action, alleging that the defendant's negligence proximately caused her husband's death. This matter is currently before the court on the defendant's motion for summary judgment.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case was originally filed in the state court of Fulton County, Georgia, Civil Action No. 98-VS-144001-H, and was removed to this court pursuant to 28 U.S.C. §§ 1332 and 1441. The plaintiff is the spouse of William Ferguson (the "decedent"). The defendant, Trans World Airlines, Inc. ("TWA"), is a commercial airline, providing passenger service throughout the United States and abroad. The decedent, a chronic smoker, had a long history of breathing difficulties and had been diagnosed with some pulmonary difficulties. On September 10, 1996, the plaintiff and her husband were passengers on TWA Flight 24 from Seattle, Washington, to Atlanta, Georgia, with a midway stop in St. Louis, Missouri. The total scheduled flying time of the flight was three hours and forty-five minutes. Shortly after the plane left Seattle, the decedent reported to Flight Attendant John Hunter that he was having difficulty breathing. Attendant Hunter asked whether the decedent wanted a bottle of oxygen, and the decedent responded affirmatively. Consequently, Attendant Hunter administered the decedent a portable bottle of oxygen. Thereafter, either Attendant Hunter or one of the other flight attendants notified Captain Carl Catlin, the pilot in command, that the decedent was having difficulty breathing and that oxygen had been provided to him.

The oxygen bottle provides approximately one hour of oxygen. After the decedent placed the oxygen mask on his face, he slept for about an hour. Having exhausted the oxygen bottle, the decedent awoke and was unable to breathe. The plaintiff called for the flight attendants, who, after discussing the propriety of giving the decedent another bottle of oxygen for approximately twenty minutes, provided him with a second bottle of oxygen and placed the mask on him. As the decedent's condition continued to deteriorate, Flight Attendant Charles, concerned for the decedent, explained to the plaintiff that the decedent should be examined by paramedics before he was allowed to board his connecting flight from St. Louis to Atlanta. Captain Catlin was informed of the decedent's deteriorating condition, and he asked that paramedics meet the plane in St. Louis. Shortly thereafter, the decedent complained to the attendants that he wasn't receiving sufficient oxygen. Attendant Charles tried to convince the decedent that although the bag was not fully inflated he was receiving oxygen at the highest flow rate.

The decedent, the plaintiff, and the attendants continued to discuss whether the decedent was receiving adequate oxygen. Meanwhile, the decedent's breathing continued to worsen; consequently, Attendant Hunter retrieved a third oxygen bottle. Then, Attendant Hunter asked if there was a doctor on board. Dr. Kenneth Smith, a neurosurgeon, after "quite a while" came to the decedent's seat and briefly spoke with him. Dr. Smith did not perform any form of physical examination but assured the attendants that he would be fine and that there was no reason to divert the plane from St. Louis. Simultaneous with Dr. Smith's discussion with the decedent, William Sult, a registered nurse, evaluated the decedent. Although Nurse Sult disagreed with Dr. Smith's evaluation and felt the decedent was in danger, he did not verbally contradict Dr. Smith's assurances to the flight attendants. Despite his assurances that the decedent could "make it" to St. Louis, Dr. Smith later testified that the decedent "was breathing hard ... looked like he was doing satisfactorily, but ... there was obviously something wrong with him." After the cursory examination by Dr. Smith, the decedent's condition dramatically deteriorated.

Some time thereafter, Nurse Sult and Dr. Smith returned to the decedent. Dr. Smith attempted to inject Epinephrine into the decedent's heart; however, there were no cardiac needles in the plane's emergency kit. Nurse Sult with the aid of Dr. Smith administered Cardiac Pulmonary Resuscitation ("CPR") for approximately 45 minutes until the plane landed and they were relieved by an emergency medical team. The decedent was pronounced dead-on-arrival at the hospital in St. Louis.¹

II. LEGAL DISCUSSION

The defendant seeks summary judgment in its favor on all the plaintiff's claims, by arguing that (1) the plaintiff cannot establish essential elements of her wrongful death claim and (2) the defendant did not breach any standard of care owed to the decedent by failing to equip its aircraft with enhanced medical kits or defibrillators. Conversely, the plaintiff argues that the defendant breached its heightened duty of care as a common carrier, and the defendant's flight crew failed to comply with the defendant's written policies and procedures and abdicated their responsibility to determine the decedent's medical condition. Further, the plaintiff contends that Captain Catlin failed to timely divert the aircraft.

A. CHOICE OF LAW

Initially, the parties disagree as to the applicable state law to apply to the plaintiff's claims. The plaintiff argues that Georgia's choice of laws doctrine requires that Missouri statutory law be followed. Accordingly, the plaintiff has pled Missouri's wrongful death statute as applicable to this claim, pursuant to O.C.G.A. § 9-11-43(c). Further, the plaintiff argues that the non-statutory or common law claims of negligence must be decided under Georgia law, because Georgia applies its own interpretations of the common law. See Shorewood Packaging Corp. v. Commercial Union Insurance Company, 865 F.Supp. 1577 (N.D.Ga.1994). To this end, the plaintiff argues that the court in interpreting a Missouri wrongful death statute must use Georgia common law in order to apply the common law negligence elements of duty, breach and causation. The court notes that in practice the plaintiff's argument would lead the court to apply Georgia law. Conversely, the defendant contends that Missouri statutory and common law are controlling, simplistically but correctly arguing that the "law of the place where the tort or wrong has been committed is the law by which liability is determined." Risdon Enterprises v. Colemill Enterprises, 172 Ga.App. 902, 324 S.E.2d 738 (1984).

Despite the difficulty in determining the injury's situs, the parties appear to agree that Missouri's wrongful death statute should apply. It is the interpretation of the elements of that statute and general negligence claims that are in contention. The plaintiff has pled and sufficiently proved Missouri law. The last events necessary to make the defendant liable for the decedent's death, however, occurred over either Kansas or Missouri. These events non-exclusively include Captain Catlin's decision not to divert the plane over Kansas, Missouri, or any of the states along the flight path from Seattle to St. Louis. The facts are unclear just where and when the pilot made his several decisions not to divert the plane. The injury determinative events also include the abrogation of the flight crew to make a decision regarding the decedent's care to Dr. Smith. Again, the facts are unclear as to over what state that decision was made. Given the plane's altitude (from 29,000 to 37,000 feet), speed and pitch variances, it is highly unlikely that any further discovery would satisfactorily determine where any of these decisions were made. Finally, the decision not to include cardiac needles, defibrillators, pulse oximiters or other cardiac care emergency medical implements were most likely made by TWA at its headquarters in Missouri. Accordingly, the exact situs of the injury or tort is basically impossible to determine. See Baltimore Football Club, Inc. v. Lockheed Corp., 525 F.Supp. 1206 (N.D.Ga.1981).

In diversity cases, federal courts apply the law of the forum in which they sit. See Cambridge Mutual Fire Insurance Company v. City of Claxton, 720 F.2d 1230, 1232 (11th Cir.1983). As the forum state in this diversity action, Georgia's choice-of-law rules control. See Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); American Family Life Assur. Co. v. United States Fire Co., 885 F.2d 826, 830, reh'g denied, 892 F.2d 89 (11th Cir.1989). "Georgia adheres to the traditional choice of law system." Broyles v. Bayless, 878 F.2d 1400, 1402 (11th Cir.1989). In tort actions, as here, Georgia courts look to the law of the state where the injury was incurred. See Risdon Enterprises, 172 Ga. App. at 902, 324 S.E.2d at 738. Under Georgia law, the lex loci delicti, or place of the tort or wrong, determines the substantive rights of the parties. See Risdon Enterprises, 172 Ga.App. at 902, 324 S.E.2d at 740 (citing Ohio Southern Express Co. v. Beeler, 110 Ga.App. 867, 868(1), 140 S.E.2d 235 (1965)). "`The place of the wrong is the place where ... there takes place the last event necessary to make an actor liable for an alleged tort.'" Wardell v. Richmond Screw Anchor Co., 133 Ga.App. 378, 210 S.E.2d 854 (1974) (quoting Brooks v. Eastern Air Lines, 253 F.Supp. 119, 121 (N.D.Ga. 1966)). The only exception to enforcement of a rule of foreign law is where the result will violate the public policy of this state. See Terry v. Mays, 161 Ga.App. 328, 329, 291 S.E.2d 44 (1982). Neither Missouri's wrongful death statu...