Kruger v. Virgin Atl. Airways, Ltd.

Decision Date30 September 2013
Docket NumberNo. 11–CV–2954 (NGG)(RER).,11–CV–2954 (NGG)(RER).
Citation976 F.Supp.2d 290
PartiesLynne KRUGER, Maxwell Kruger, Lawson Kruger, and Sheldon Kruger, Plaintiff, v. VIRGIN ATLANTIC AIRWAYS, LIMITED, Defendants.
CourtU.S. District Court — Eastern District of New York


Thatcher A. Stone, New York, NY, for Plaintiffs.

Christopher Carlsen, Clyde & Co. LLP, New York, NY, for Defendants.



Lynne Kruger (Mrs. Kruger), Sheldon Kruger (Mr. Kruger), and their adult sons Maxwell and Lawson Kruger filed this action alleging breach of contract, false arrest, malicious prosecution, intentional infliction of emotional distress, negligence, and loss of consortium against Virgin Atlantic Airways, Limited (VAA). The court received a motion for summary judgment from both Defendant and Plaintiffs. The court referred both motions to Magistrate Judge Reyes for a Report and Recommendation (“R & R”). On August 13, 2013, Judge Reyes returned his Report and Recommendation to this court. (R & R (Dkt. 48).) Plaintiffs objected to portions of the R & R, and their objections are now before the court. For the reasons explained below, Magistrate Judge Reyes's Report and Recommendation is ADOPTED.

A. Facts

Except where otherwise noted, the following facts are undisputed. On August 22, 2010, Plaintiffs bought four non-refundable round-trip tickets for a family vacation. They planned to travel on Virgin Atlantic Airlines from Newark, New Jersey, to Delhi, India via London. (R & R at 305–06.) All tickets were e-tickets purchased online and subject to VAA's Conditions of Carriage. ( Id.) Plaintiffs' departure flight from Newark was originally scheduled for December 23, 2010. ( Id.) On December 21, 2010, Defendant informed Plaintiffs via e-mail that their flight from Newark to London's Heathrow Airport had been cancelled due to “on-going runway restrictions” at Heathrow. These restrictions were the result of a snowstorm in London. ( Id.) Plaintiffs attempted to book another VAA flight to London, but were unsuccessful. Ultimately, they booked flights to Bermuda and then to London's Gatwick Airport, from which they were able to travel to Heathrow. (Pl. Obj. to R & R (Dkt. 49) at 6.) They then used their existing tickets to fly with VAA from London to Delhi. (R & R at 305–06.)

Plaintiffs took their planned January 9, 2011, return flight from Delhi to London on VAA No. 301. ( Id. at 306.) The flight from Delhi was divided into different sections, “upper class,” premium economy, and economy. ( Id.) Plaintiffs were seated in economy class. Plaintiffs' section of economy was set to deplane through a door in the middle of the aircraft, the L2 door. But economy and premium economy passengers were not allowed to disembark until after the upper class passengers had left the plane. ( Id.) Due to delays in Delhi, the flight arrived late. (Skinner Decl. in Supp., Ex. 5 to Def. Mot. for Summ. J. (Dkt. 42) ¶ 8 (“Skinner Decl.”).) Plaintiffs were anxious to make their connecting flight, VAA No. 17, to Newark. (L. Kruger Dep., Ex. 1 to Pl. Mot. for Summ. J. (Dkt. 43) at 40–44 (L. Kruger Dep.).)

Mrs. Kruger was seated in row thirty-eight of the economy section. When the plane landed, she was the first passenger from the economy and premium economy sections to reach the L2 door. (R & R at 306.) Leanne Skinner was working as a flight attendant on flight 301, and was charged with watching the L2 door and insuring that upper class passengers had priority in leaving the plane. ( Id.) Mrs. Kruger asked Ms. Skinner if she could disembark before the upper class passengers in order to make her connecting flight. Ms. Skinner said no. ( Id. at 306–07.) Mrs. Kruger asked repeatedly if she could pass, receiving the same response. ( Id.) Finally, the upper class passengers had all departed, and Ms. Skinner stood aside to let the economy and premium economy passengers through. ( Id.) Parties disagree about whether VAA announced that it was holding the plane to Newark. ( Compare L. Kruger Dep. at 42:5–14, with Skinner Decl. ¶ 8.)

As Mrs. Kruger exited the aircraft, her shoulder came into contact with Ms. Skinner's chest. (R & R at 306–07.) Ms. Skinner claims to have been in pain and that she sat down while the rest of the passengers left the plane. ( Id.) At her request, the captain of the aircraft called the police. ( Id.)

Ms. Skinner and VAA accuse Mrs. Kruger of intentionally “barg[ing] into Skinner and calling her a “bitch.” ( Id.) Mrs. Kruger maintains that she tripped, and she believes that she may have been intentionally tripped by Skinner. At her deposition, she testified: “I don't know if it was the flight attendant that tripped me. All I know is that when I stumbled, I saw a blue flight attendant shoe.” ( Id.) After the incident, Mrs. Kruger joined her family heading towards Gate 22 for their connecting flight.

Plaintiffs stopped at a transfer counter. They handed over their passports and boarding passes to a VAA staff person. Another staff member picked up their documents and walked them to the gate. ( Id. at 307; see also S. Kruger Dep., Ex. 8 to Pl. Mot. for Summ. J. at 33:13–17, 37:20–24, 38:22–25 (“S. Kruger Dep.”).) Gate 22 consists of a glass-enclosed seating area, from which passengers can directly board the plane, and a check in desk at the entrance to the area. (Def. Reply in Opp'n (Dkt. 50) at 6.) Passengers cannot enter the interior area without checking in at the desk. (Brunning Decl. in Supp., Ex. 6 to Def. Mot. for Summ. J. ¶ 5.)

Mr. and Mrs. Kruger might have been in line to check in to the Gate for a short while. (R & R at 307; S. Kruger Dep. at 39:11–12.) Defendant's staff stopped them. ( Id.) They informed Mrs. Kruger that the police wanted to question her in connection with the incident with Ms. Skinner. Ms. Skinner had also walked to Gate 22 and was there, with police, when the Krugers arrived. ( Id.) After questioning both Ms. Skinner and Mrs. Kruger, police told Mrs. Kruger that they wanted to speak with her further at the station. ( Id.) The rest of the Kruger family was free to leave. The Krugers' sons, Maxwell and Lawson, boarded flight 17 as scheduled. Mr. Kruger decided that he could not leave the U.K. without his wife. ( Id.) All four of the family's bags were checked under Mr. Kruger's name; they were off-loaded because he was not travelling on the flight. ( Id.) Plaintiffs assert that Defendant's staff handled this transaction in a harsh and abusive manner, calculated to shame and scare them. (Second Am. Compl. (Dkt. 23) ¶ 48.)

Police arrested Mrs. Kruger. (R & R at 307.) She was not placed in handcuffs or physically restrained. ( Id.) The police then drove her and Mr. Kruger to the police station in a police van. Mr. Kruger waited at a nearby hotel while police questioned Mrs. Kruger. After approximately five hours, police released Mrs. Kruger in the early hours of the morning. (Data Protection Act Request (Kruger arrest record), Ex. 7 pt. 3 to Pl. Mot. for Summ. J.) She was not charged with any crime. ( Id.)

Mr. and Mrs. Kruger returned to the United States on a British Airways flight later that day. ( Id.) As a “customer relations gesture,” Defendant refunded the $400.06 cost of Mr. Kruger's ticket from London to Newark. ( Id. at 5.) Defendant sent Mrs. Kruger a letter banning her from any future travel with the airline. ( Id. at 6.) On April 12, 2012, Defendant refunded the cost of the Krugers' outbound, Newark to Heathrow flight, in the amount of $1,414.20. ( Id.)

Mrs. Kruger states that she has been seriously psychologically affected by the arrest. (Second Am. Compl. ¶¶ 48–49). She was taken to the hospital for a panic attack on July 3, 2011. (L. Kruger Dep. at 112:20–116:8.) She describes her relationship with her husband as severely strained. ( Id. at 159:19–24.) A psychologist who treated her for a period in 2011 describes a number of anxiety-related ailments and states that [a]ll of her symptoms are consistent with the condition of Post–Traumatic Stress Disorder.” (Olson Ltr., Ex. 10 to Pl. Mot. for Summ. J.)

B. Procedural History

The Krugers filed this lawsuit against VAA and Jane Doe 1 (later identified as Ms. Skinner), as well as VAA employees Paul Brunning and Andrew Blackwell. (Compl. (Dkt. 1).) They alleged breach of contract, negligence, loss of consortium, intentional infliction of emotional distress, false arrest, and false imprisonment. ( Id.) Plaintiffs later amended their complaint to remove all claims against individual defendants, leaving VAA as the sole defendant. (First Am. Compl. (Dkt. 3).)

Plaintiffs filed motions for a pre-motion conference to request partial summary judgment and to amend their complaint on February 28, 2012. (Mot. for Pre–Mot. Conf. (Dkt. 17); Mot. to Amend (Dkt. 18).) Defendant opposed the motion because discovery was not yet complete. (Resp. in Opp'n (Dkt. 21).) The court referred the issue to Magistrate Judge Reyes for an R & R. (Feb. 29, 2012, Referral.) On June 14, 2012, Plaintiffs filed a second amended complaint to add a claim for malicious prosecution. (Second Am. Compl.)

Following further discovery, the parties moved for summary judgment on January 4, 2013, (Defendant) and January 11, 2013, (Plaintiffs). (Dkts. 42–43.) Judge Reyes issued his R & R recommending that Defendant's motion for summary judgment be granted and that Plaintiffs' motion be denied on August, 13, 2013. Objections to the R & R were listed as due on August 30, 2013, and Plaintiffs filed their objections on that date. On September 5, 2013, Defendant filed its reply. (Dkt. 50.) Defendant later filed a motion to withdraw the timeliness of objections argument contained in its original reply. (Dkt. 51.)


The court reviews portions of the R & R to which a party makes no objection for clear error. U.S. Flour Corp. v. Certified Bakery, Inc., No. 10–CV–2522 (JS), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012). If one of the parties objects to a...

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