Fishman by Fishman v. Delta Air Lines, Inc.

• Decision Date: 05 January 1998
• Docket Number: D,2038,Nos. 1818,s. 1818
• Citation: 132 F.3d 138
• Parties: Penina FISHMAN, an infant by her mother and natural guardian, Michelle FISHMAN; Michelle Fishman, individually, Plaintiffs-Appellants, v. DELTA AIR LINES, INC., Defendant-Appellee. ockets 96-9345, 96-9457.
• Court: U.S. Court of Appeals — Second Circuit

Page 138

132 F.3d 138

Penina FISHMAN, an infant by her mother and natural guardian, Michelle FISHMAN; Michelle Fishman individually, Plaintiffs-Appellants, v. DELTA AIR LINES, INC., Defendant-Appellee.

Nos. 1818, 2038, Dockets 96-9345, 96-9457.

United States Court of Appeals Second Circuit.

Argued June 3, 1997.

Decided Jan. 5, 1998.

Elliot B. Pasik, Mineola, NY (Carole A. Burns & Associates, Mineola, NY, on the brief), for Plaintiffs-Appellants.

George P. McKeegan, New York City (Thomas A. McShane, Elizabeth B. Kane, McKeegan, McShane & Drago, P.C., New York City, on the brief), for Defendant-Appellee.

Before: MESKILL, JACOBS and LEVAL, Circuit Judges.

JACOBS, Circuit Judge:

Infant plaintiff Penina Fishman, while travelling as a passenger aboard an international flight, was scalded when a stewardess applied an over-hot compress to alleviate the child's earache. The child and her mother sued Delta Air Lines, Inc. ("Delta") under the Warsaw Convention, as well as for negligence and intentional torts in applying the compress, failing to advise the child's mother of the injury while the plane was aloft, and refusing to provide medical assistance when the plane landed. On this appeal, we consider whether all the child's claims are preempted by the Warsaw Convention and, if so, whether the two-year period of limitation under the Warsaw Convention is tolled (under New York law) during the child's minority. There are some other and subsidiary questions, including whether the mother's claims for emotional harm are similarly preempted.

The complaint was filed in the United States District Court for the Southern District of New York two years and three months after the flight. Judge Cedarbaum granted Delta's motion to dismiss on the ground that plaintiffs' suit was untimely.

We affirm.

BACKGROUND

We summarize the facts that bear upon the issues addressed on appeal, and we assume that the material facts alleged in the complaint are true. See Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.1992) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)).

On November 9, 1993, plaintiff Michelle Fishman and her two children were aboard a Delta flight from Tel Aviv to New York with a stopover at Orly Airport in Paris. Mrs. Fishman sat between her children with Penina, two years old, in the aisle seat on her right. During the descent at Paris, Penina began crying and touching her ear. The child, who had a cold, was evidently suffering from the change of air pressure. The stewardess suggested that a cup containing a warm cloth be placed over the ear. When this poultice was applied to Penina's right ear, scalding water in the cup dripped on the child's neck and shoulder, causing burns. Mrs. Fishman asked the crew to administer first aid before disembarkation, but the crew refused to do so. After a further confrontation at the gate, the child was rushed to Orly's first aid station and treated with topical ointment and a bandage.

The plaintiff mother and child arrived in New York on November 9, 1993. The complaint against Delta was filed on February 22, 1996. Michelle Fishman alleged claims on the infant's behalf under Article 17 of the Warsaw Convention, as well as claims under New York law for negligence by the stewardess in inflicting the burn, and for the negligent or intentional denial of medical treatment both when the stewardess initially walked away, and later, aboard the plane after landing. Mrs. Fishman also filed claims on her own behalf under New York law for negligent and intentional infliction of emotional distress, and denial of Penina's services. Plaintiffs further assert (for the first time on appeal) an implied cause of action based on Delta's alleged failure to comply with 14 C.F.R. § 121.309(d), which requires an airline to maintain and use first aid kits for the protection of airline passengers.

On September 12, 1996, Judge Cedarbaum granted Delta's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(5), on the ground of untimeliness. See Fishman v. Delta Air Lines, Inc., 938 F.Supp. 228 (S.D.N.Y.1996). The district court (i) considered the claims of both mother and child as falling within the scope of the Warsaw Convention; (ii) concluded that the two-year period of limitation in Article 29(1) of the Convention cannot be tolled by reason of infancy; and (iii) dismissed on the ground that the complaint was filed after the two-year period had expired. Id. at 230-31.

The chief questions presented on appeal are whether the torts alleged may be construed as arising from an "accident" under the Warsaw Convention and, if so, whether the period of limitation may be tolled during infancy.

DISCUSSION

A. Preemption under Article 17 of the Warsaw Convention: The "Accident" Requirement.

We consider first whether plaintiffs' state law claims are preempted by the Warsaw Convention. See Pflug v. Egyptair Corp., 961 F.2d 26, 29 (2d Cir.1992). All state law claims that fall within the scope of the Convention are preempted. See In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273 (2d Cir.1991).

Article 17 of the Convention provides:

The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

49 U.S.C. § 40105 note (emphasis added). A claim falls within the scope of this provision if the "passenger's injury is caused by 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, 1345, 84 L.Ed.2d 289 (1985). It is enough if in the chain of causation there is "some link " that was an unusual or unexpected event external to the passenger. Id. at 406, 105 S.Ct. at 1345.

The district court identified the scalding as the "accident" under the Warsaw Convention. On appeal, the plaintiffs cast their claims chiefly in terms of what happened afterward--the tortious refusal of medical care--and argue that such claims do not arise out of the normal operation of aircraft, and in any event are not accidental in nature. Plaintiffs rely on a line of cases in which the tortious failure of airlines to give medical aid to passengers suffering health emergencies was held to fall outside the Warsaw Convention. See, e.g., Abramson v. Japan Airlines Co., 739 F.2d 130, 133 (3d Cir.1984) (preexisting hiatal hernia); Tandon v. United Air Lines, 926 F.Supp. 366, 369-70 (S.D.N.Y.1996) (heart attack); Walker v. Eastern Air Lines, Inc., 775 F.Supp. 111, 114 (S.D.N.Y.1991) (asthma attack); Fischer v. Northwest Airlines, Inc., 623 F.Supp. 1064, 1065 (N.D.Ill.1985) (heart attack).

Judge Cedarbaum distinguished these cases on the valid ground that all the claims asserted on behalf of Penina and her mother arose from the scalding by a flight attendant--an unexpected, unusual event that was external to both Fishmans. Her reasoning, which we approve, was as follows:

The underpinning of the claims of both mother and child is the scalding of Penina by a flight attendant, an unexpected event that was external to both Fishmans. The precipitating cause, the "accident," cannot be artificially separated from its results as Fishman attempts to do in order to avoid the Warsaw Convention. Because Penina's injuries and Michelle's were caused by an "accident" within the meaning of the Warsaw Convention, the Convention provides the exclusive remedy and the state law claims are preempted.

Fishman, 938 F.Supp. at 230 (emphasis added; citation omitted).

Plaintiffs seize on and dispute the court's observation that "Penina had no pre-existing condition," and point to record facts that Penina suffered serial colds and ear infections, and had narrow eustachian tubes, all of which predisposed her to earache caused by the pressure change of the descent at Orly. However, we agree with Judge Cedarbaum that the injury here is not the earache, but the application of scalding water to treat it. The earache was caused by the change in air pressure, which is part of the normal operation of the plane as it descends, and was not an accident. All the harm alleged by both plaintiffs flows from the scalding, which is easily seen as accidental.

Mrs. Fishman argues that her personal claims are solely for emotional harm and are therefore outside the scope of Article 17. We conclude that these claims for emotional harm are subject to Article 17 nevertheless because the claims arise from an accident--the scalding of her child. As we have already stated, Article 17 premises a carrier's liability on whether "a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger." Saks, 470 U.S. at 405, 105 S.Ct. at 1345; cf. Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99 (2d Cir.1997) (Warsaw Convention does not cover claim for personal injuries not arising from an accident). However, while all claims resulting from an "accident" are within the ambit of Article 17, not every such claim is compensable. The Supreme Court expressly held in Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991), that damages for purely mental injuries are not recoverable. Id. at 534, 552, 111 S.Ct. at 1492, 1502. Thus, when Mrs. Fishman emphasizes that the only harm she suffered is emotional, she proves too much. Such claims are within the scope of Article 17 and therefore preempted, but she cannot recover any damages for such injuries under Floyd. Cf. In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273-76, 1282 (2d Cir.1991) (Article 17 permits only compensatory damages, but preempts state law claims for punitive damages). Accordingly, we hold that all of the claims of both Penina and ...