Magan v. Lufthansa German Airlines

• Decision Date: 17 January 2002
• Docket Number: No. 00 Civ. 5788(NRB).,00 Civ. 5788(NRB).
• Citation: 181 F.Supp.2d 396
• Parties: John J. MAGAN, Plaintiff, v. LUFTHANSA GERMAN AIRLINES, Defendants.
• Court: U.S. District Court — Southern District of New York

181 F.Supp.2d 396

John J. MAGAN, Plaintiff, v. LUFTHANSA GERMAN AIRLINES, Defendants.

No. 00 Civ. 5788(NRB).

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

January 17, 2002.

Abram I. Bohrer, Bohrer & Lukeman, New York City, for Plaintiff.

Peter Vetro, Gallagher, Gosseen, Faller, Kaplan & Crowley, Garden City, NY, for Defendant.

MEMORANDUM AND ORDER

BUCHWALD, District Judge.

Plaintiff John J. Magan brings suit against defendant Lufthansa German Airlines ("Lufthansa") for damages arising out of an incident aboard a Lufthansa jet bound from Munich, Germany, to Sofia, Bulgaria. Lufthansa moves for summary judgment on the grounds that the incident did not constitute an "accident" within the meaning of Article 17 of the Warsaw Convention. For the reasons that follow, the motion is granted.

BACKGROUND

On March 27, 1999, Mr. Magan was aboard Lufthansa flight # 5318 from Munich to Sofia on a British Aerospace Avro 146, an eighty-seat jet airplane (the "Avro 146"). The Avro 146 is known as a "high wing" aircraft because its wings are mounted across the top of the fuselage. One consequence of this design is that the cabin ceiling height is lower in that portion of the cabin where the wings come over the top. Thus, while the ceiling height above the aisle is generally about 7'0" high, this "center tank" reduces the ceiling height to about 6'3" and runs from approximately the fifth to eighth rows. Deposition of Captain Brend Melcher at 75-76.

On the flight in question, Mr. Magan was seated in row 7, underneath the wing. Deposition of John J. Magan at 38. After eating the on-board meal, Mr. Magan rose from his seat and walked to the lavatory, located in the front of the aircraft, next to the pilot's cabin. While he was there, the captain made an announcement that the plane was going to enter an area with slight turbulence and instructed the passengers to return to their seats and fasten their seat belts. Mr. Magan heard this announcement, finished up in the lavatory, and proceeded back to his seat. As he was making his way back to his seat, the plane experienced some turbulence, and Mr. Magan "us[ed] the backs of the passenger seats to negotiate [his] way" back to his seat. Magan Dep. at 42-43. En route, however, Mr. Magan, who is 6'4", bumped his head into the center tank and may have lost consciousness. He suffered injuries to his face and head, and also claims to suffer from "cluster headaches" as a result of this collision. Mr. Magan brought suit against Lufthansa, the owner and operator of the Avro 146, for damages arising out of this incident.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is properly granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In reviewing the record, we must assess the evidence "in the light most favorable to the non-movant and ... draw all reasonable inferences in his favor." Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir.1990). The mere existence, however, of an alleged factual dispute between the parties will not defeat a motion for summary judgment. Rather, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505 (internal quotation omitted). Finally, we observe that summary judgment "is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986) (quoting Fed.R.Civ.P. 1).

B. Applicable Law

The parties and the Court agree that this dispute is governed by the Convention for the Unification of Certain Rules Relating to International Transportation by Air, concluded at Warsaw, Poland, October 12, 1929, 49 Stat. 3000, 1934 WL 29042 (1934), as modified by Montreal Protocol No. 4, S.P. Exec. Rep. No. 105-20 (1998) (collectively, the "Warsaw Convention").¹ Def.'s Mem. at 7; Pl.'s Mem. at 3. There is also no dispute that the Warsaw Convention is plaintiff's sole remedy for any injuries sustained aboard the Avro 146. Def.'s Mem. at 7; Pl.'s Mem. at 3. See Warsaw Convention Art. 24; El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 160-61, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999). In other words, if plaintiff's injury is not compensable under the Warsaw Convention, he "will have no recourse to an alternative remedy." Tseng, 525 U.S. at 160-61, 119 S.Ct. 662.

Article 17 of the Warsaw 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.

Thus, Lufthansa may be liable to Mr. Magan only if he establishes that the incident that caused his injuries was an "accident" within the meaning of Article 17. Air France v. Saks, 470 U.S. 392, 396, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). This is a question of law. Id. at 406, 105 S.Ct. 1338 (discussing the courts' "duty to enforce the `accident' requirement of Article 17").

In the Saks case, the Supreme Court defined an Article 17 accident as "an unexpected or unusual event or happening that is external to the passenger." Id. at 405, 105 S.Ct. 1338. As this definition is to be "flexibly applied after assessment of all the circumstances," Id. at 405, 105 S.Ct. 1338, the Second Circuit has recognized many different types of "accidents," from a hijacking, Pflug v. Egyptair Corp., 961 F.2d 26, 29 (1992), to sexual molestation by a fellow passenger, Wallace v. Korean Air, 214 F.3d 293, 297 (2d Cir.2000). Nevertheless, "when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply." Saks, 470 U.S. at 406, 105 S.Ct. 1338. The Second Circuit has made clear, moreover, that "`not every identifiable incident or occurrence during a flight is an accident within the meaning of Article 17 even if the incident or occurrence gives rise to an injury.'" Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99, 102 (2d Cir.1997), rev'd on other grounds, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (quoting Quinn v. Canadian Airlines Int'l Ltd., No. 35558/91U, 1994 Ont. Sup. C.J. Lexis 1127, at *10 (Ct.Just. May 30, 1994)).

C. Turbulence as an Article 17 "Accident"

With this broad definition in mind, we turn to the incident at bar. In this case, we are called upon to determine whether the turbulence encountered by the Avro 146 constituted an "accident" within the meaning of Article 17.² No court in our Circuit has directly addressed the dual issues of whether turbulence can ever constitute an Article 17 accident, and, if so, what level of turbulence will suffice.³ As discussed below, we hold that some types of turbulence can indeed constitute an Article 17 accident and, specifically, that the Federal Aviation Administration (FAA) turbulence classification system provides a sensible and accepted reference to distinguish between turbulence that qualifies as an accident and turbulence that does not.

At the outset, it is obvious that turbulence aboard commercial jets is neither an "unexpected" nor "unusual" occurrence. Saks, 470 U.S. at 396, 105 S.Ct. 1338. Rather, as the FAA has acknowledged, "turbulence happens." See Press Release, Federal Aviation Administration, FAA Launches Educational Campaign to Raise Awareness About Turbulence (Dec. 17, 1996), available at http://www.dot.gov/affairs/1996/apa21296.htm ("`passengers need to be aware that unpredicted turbulence does happen,' said [FAA Acting Administrator Linda Hall] Daschle"). In fact, as any frequent flyer will attest, turbulence is a rather common occurrence. From 1981 to 1987, according to the FAA, there were "342 reports of turbulence affecting major air carriers." Facts About Turbulence, at http:// www.faa.gov/apa/turb/Facts/fact.htm. In other words, some turbulence is part of "the usual, normal, and expected operation of the aircraft," and, therefore, is not an Article 17 accident. Saks, 470 U.S. at 406, 105 S.Ct. 1338; see Quinn, 1994 Ont. Sup. C.J. Lexis 1127, at *10 (since "up to some level of severity [turbulence] is a common-place of air travel," the turbulence experienced by plaintiff was not an Article 17 accident as construed in Saks); Lunn v. British Airways, 7/14/2000 N.Y.L.J. 28, (col.3) (1st Dep't) (where plaintiff was neither thrown from his seat nor into any objects, no other passengers complained of injury or air turbulence, and defendant's agent did not recall "anything more than the normal level of air turbulence every flight encounters," no Article 17 accident occurred).

It is also clear, however, that at some point, turbulence can be so severe as to constitute an Article 17 accident. Strong turbulence has the capacity to injure and even kill airline passengers. See Facts about Turbulence (according to the FAA, from 1981 to 1987, three passengers died, eighty suffered serious...