Lee v. Air Can.

• Decision Date: 10 January 2017
• Docket Number: 14–cv–10059 (SHS)
• Citation: 228 F.Supp.3d 302
• Parties: Lisa LEE, Plaintiff, v. AIR CANADA and John Doe, True Name Unknown, Defendants.
• Court: U.S. District Court — Southern District of New York

228 F.Supp.3d 302

Lisa LEE, Plaintiff,

v.AIR CANADA and John Doe, True Name Unknown, Defendants.

14–cv–10059 (SHS)

United States District Court, S.D. New York.

Signed January 10, 2017

David Paul Kownacki, Law Office of David P. Kownacki, P.C., New York, NY, for Plaintiff.

Andrew J. Harakas, Philip Richard Weissman, Clyde & Co. US LLP, New York, NY, for Defendants.

OPINION & ORDER

SIDNEY H. STEIN, U.S. District Judge.

Plaintiff Lisa Lee has sued defendant Air Canada, seeking damages for injuries allegedly received on board a flight operated by defendant. Lee alleges that she was injured when a piece of luggage that a fellow passenger was attempting to place into an overhead compartment above plaintiff's seat fell and hit her on the head. This claim is governed by the Montreal Convention, which authorizes passengers to recover damages for injuries sustained in international flights.

Defendant Air Canada has now moved for summary judgment dismissing this action pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that the incident that caused Lee's alleged injuries was not an "accident" within the terms of the Montreal Convention and Air Canada is therefore not liable. Alternatively, Air Canada seeks judgment limiting its liability pursuant to Article 21 of the Montreal Convention, Lee has, for her part, moved for summary judgment in her favor on liability on the grounds that the incident was indeed an "accident" and therefore the carrier is liable.

Because this Court concludes that plaintiff's injuries were caused by an "accident," plaintiff's motion for summary judgment on liability is granted and Air Canada's motion for summary judgment on the issue of liability is denied. Air Canada's request for the alternative relief of judgment limiting its liability is granted.¹

I. BACKGROUND

On May 13, 2013, plaintiff Lisa Lee boarded Air Canada flight AC703 at LaGuardia Airport in New York, bound for Toronto, Canada. Verified Complaint dated Oct. 31, 2014 ("Complaint") at ¶ 5, Ex. A in Notice of Removal, dated Dec. 22, 2014. Lee was sitting in her assigned aisle seat when she was struck on the head by the carry-on roller bag of another passenger, Vadim Mezhibovski.² Supp. Rule 56.1 Statement ¶¶ 9–10. Mezhibovski's own assigned seat was five rows behind that of Lee. Id. ¶¶ 3, 14. After he had walked to his seat, he noticed that the overhead bin by his seat was full, id. ¶ 15, and decided to walk back toward where Lee was sitting, against the flow of other boarding passengers, "where he had noticed available overhead bin space," id. ¶ 18. Mezhibovski found space for his bag above Lee's seat, id. ¶ 19, and as he lifted his bag to place it in the overhead bin, he was "bumped" or "struck" on the leg by a passenger—or that person's bag—who was "passing down the aisle." Id. ¶ 20. As a result, Mezhibovski "lost his balance" and dropped his bag, id. ¶ 21, which struck Lee "on her head and hand," id. ¶ 41. After speaking with flight attendants, Lee decided to disembark the plane to seek medical help. Id. ¶¶ 31–32.

At the time of the incident, Air Canada's flight attendants were "stationed throughout the cabin" and were "performing their assigned duties," including "greeting passengers, directing the passengers to their assigned seats and generally monitoring the cabin for safety." Id. ¶ 24. There is no evidence that the flight crew made any announcement or warning concerning passenger flow during the boarding process. Id. ¶¶ 42, 47–48. One Air Canada flight attendant—Catalina Ramirez—saw Mezhibovski's bag fall but "could not prevent the bag from striking [Lee]" as she was five to eight rows away and "there were other passengers in the aisle." Id. ¶¶ 25, 27. Ramirez "immediately responded to the incident" by "check[ing] on" Lee to see if she was alright, id. ¶ 28, seeking ice for her, id. ¶ 29, and "immediately" notifying her supervisor, id. ¶ 30.

The parties do not dispute that Mezhibovski's bag was fully compliant with Air Canada's baggage policies, id. ¶ 17; that neither federal regulations nor Air Canada's policies required cabin crew members to help Mezhibovski place his bag into the overhead bin, id. ¶ 34, Report of Melanie G. Melton Wahrmund dated Feb. 23, 2016 ("Wahrmund Report"), at 10–11, Ex. J to Decl. of Andrew J. Harakas dated Apr. 22, 2016 ("Harakas Decl."); and that the number and positioning of the flight attendants on the flight was consistent with federal regulations and industry standards, Supp. Rule 56.1 Statement ¶¶ 7, 23.

II. DISCUSSION

A. The Summary Judgment Standard

Summary judgment is appropriate if there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56.

In determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida , 375 F.3d 206, 219 (2d Cir. 2004). "Nonetheless, the party opposing summary judgment ‘may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence’ in support of its factual assertions." Alston v. Microsoft Corp. , 851 F.Supp.2d 725, 731 (S.D.N.Y. 2012) (citing D'Amico v. City of New York , 132 F.3d 145, 149 (2d Cir. 1998) ). When "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

"When considering cross-motions for summary judgment, a court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004) (internal quotations and citations omitted).

B. The Definition of an "Accident" Under the Montreal Convention

1. The Montreal Convention

The parties agree that, because Lee's injuries occurred on board an aircraft in international carriage, Lee's claims are brought pursuant to the Montreal Convention of 1999,³ which superseded the Warsaw Convention⁴ in 2003. See Ehrlich v. Am. Airlines, Inc. , 360 F.3d 366, 371 n.4 (2d Cir. 2004).

When the Warsaw Convention was negotiated and enacted in the first half of the twentieth century, its "cardinal purpose" was to "achiev[e] uniformity of rules governing claims arising from international air transportation." El Al Isr. Airlines, Ltd. v. Tseng , 525 U.S. 155, 169, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999). Since the Warsaw Convention was drafted while the airline industry was in its infancy, it sought to "limit the liability of air carriers in order to foster the growth" of that industry. Ehrlich , 360 F.3d at 371 n.4 (internal quotations and citations omitted).

Toward the end of the twentieth century, the state parties to the Warsaw Convention negotiated a treaty—the Montreal Convention—to replace the Warsaw Convention and its associated "hodgepodge of supplementary amendments and intercarrier agreements." Ehrlich , 360 F.3d at 371 n.4 (internal quotations and citations omitted). Unlike its predecessor, this new treaty clearly "favor [ed] passengers rather than airlines." Id. It eliminated the Warsaw system's "arbitrary caps" on air carrier liability and held carriers "strictly liable for the first 100,000 [Special Drawing Rights ("SDRs")⁵ ] of proven damages for each passenger...." Letter of Submittal from Deputy Secretary Strobe Talbott, U.S. Dep't of State, June 23, 2000, reprinted in Message from the President of the U.S. Transmitting the Montreal Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal May 28, 1999 ("Transmittal Letter"), S. Treaty Doc. No. 106–45.

Despite the differences between their overarching purposes, the Montreal Convention retained a number of provisions that had been present in the Warsaw Convention. The most important of these, for present purposes, is Article 17, which provides:

The 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 or in the course of any of the operations of embarking or disembarking.

Art. 17(1), Montreal Convention. In other words, once an incident is determined to be an "accident" that occurred on board the aircraft or in the course of embarking or disembarking, the carrier is strictly liable.

The state parties to the Montreal Convention understood that Article 17(1) was to be "construed consistently with the precedent developed under the Warsaw Convention and its related instruments," Article-by-Article Analysis of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal May 28, 1999, reprinted in Transmittal Letter, S. Treaty Doc. No. 106–45, and courts have followed this lead, see Baah v. Virgin Atlantic Airways Ltd. , 473 F.Supp.2d 591, 596–97 (S.D.N.Y. 2007).

2. Defining an Article 17 "Accident"

Although the Montreal and Warsaw Conventions allow for an injured passenger to recover damages from an air carrier only in the event of an "accident," neither treaty defines the term. The United States Supreme Court filled this void in a 1985 case, Air France v. Saks , 470 U.S. 392, 405, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), by declaring clearly and unanimously that an "accident" arises "only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger." The Saks court directed the inferior courts to apply its definition both "flexibly" as well as "broadly," citing with approval the fact that "lower courts ... have interpreted Article 17 broadly enough to encompass torts committed by terrorists or fellow passengers." Id. The Supreme Court further...