McCarthy v. Northwest Airlines, Inc.

Decision Date01 May 1995
Docket NumberNo. 94-2282,94-2282
PartiesEileen M. McCARTHY, Plaintiff, Appellant, v. NORTHWEST AIRLINES, INC., Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Marvin H. Greenberg, with whom Bonnie L. Karshbaum, Woburn, MA, was on brief, for appellant.

Patricia A. Wilson, with whom John J. Bonistalli, Boston, MA, was on brief, for appellee.

Before SELYA and CYR, Circuit Judges, and COFFIN, Senior Circuit Judge.

SELYA, Circuit Judge.

Following an accident that occurred in the course of international air travel, plaintiff-appellant Eileen M. McCarthy filed a suit for damages against defendant-appellee Northwest Airlines, Inc. (Northwest). Concluding that the Warsaw Convention stood in the way, the district court grounded the suit. See McCarthy v. Northwest Airlines, Inc., 862 F.Supp. 17 (D.Mass.1994). Plaintiff appeals. We affirm.


Because the district court granted summary judgment in the defendant's favor, we array the material facts in a way that puts the best face on the plaintiff's claims without distorting them.

On July 2, 1990, the plaintiff and her sister departed Boston via Northwest en route to the Orient. They flew to Tokyo and stayed for four days. At that point their itinerary called for them to fly to Osaka and then on to China. The sisters repaired to the airport and, since they had not yet obtained boarding passes, they joined a queue that had formed at the Northwest ticket counter.

When the sisters reached the desk, they expressed uncertainty about whether time had grown too short. The plaintiff claims that they told the Northwest ticket agent that they were perfectly willing to take a later flight in order to avoid rushing. The agent brushed aside their concerns, tagged their luggage, issued boarding passes, and led them "at a fast trot" in the general direction of the customs area. Still following the agent (who retained possession of their passports, tickets, and boarding passes), the sisters took an escalator accessible to the general public from one level of the terminal building to a lower level. The escalator malfunctioned and McCarthy fell.

Although the plaintiff sustained an injury, she proceeded through customs, entered a bus that drove her to the approximate point of departure, and thereafter boarded the airplane that took her to Osaka. She continued on to China as she had planned. Upon her return to the United States, she consulted a physician who determined that she had broken her knee. The doctor's diagnosis led to both a lengthy convalescence and a suit for damages. 1


Summary judgment has a special niche in civil litigation. Its "role is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993). The device allows courts and litigants to avoid full-blown trials in unwinnable cases, thus conserving the parties' time and money, and permitting courts to husband scarce judicial resources.

A court may grant summary judgment "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 any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We have discussed this rule in a cascade of cases, see, e.g., Coyne v. Taber Partners I, 53 F.3d 454, 457-58 (1st Cir.1995); National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995), cert. den., --- U.S. ----, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993); Wynne, 976 F.2d at 794; United States v. One Parcel of Real Property (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992); Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 351-52 (1st Cir.1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115-16 (1st Cir.1990); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st Cir.1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48-49 (1st Cir.1990), and it would serve no useful purpose to rehearse all the particulars of those discussions. For purposes of this case, it suffices to outline the manner in which the rule operates.

Once a properly documented motion has engaged the gears of Rule 56, the party to whom the motion is directed can shut down the machinery only by showing that a trialworthy issue exists. See National Amusements, 43 F.3d at 735. As to issues on which the summary judgment target bears the ultimate burden of proof, she cannot rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Garside, 895 F.2d at 48. Not every factual dispute is sufficient to thwart summary judgment; the contested fact must be "material" and the dispute over it must be "genuine." In this regard, "material" means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. See One Parcel, 960 F.2d at 204. By like token, "genuine" means that "the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party...." Id.

When all is said and done, the trial court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor," Griggs-Ryan, 904 F.2d at 115, but paying no heed to "conclusory allegations, improbable inferences, [or] unsupported speculation," Medina-Munoz, 896 F.2d at 8. If no genuine issue of material fact emerges, then the motion for summary judgment may be granted.

Because the summary judgment standard requires the trial court to make an essentially legal determination rather than to engage in differential factfinding, appellate review of an order granting such a motion is plenary. See Pagano, 983 F.2d at 347; Garside, 895 F.2d at 48.


We bifurcate the body of our opinion. First, we explicate the Warsaw Convention, the etiology of Article 17, and the accepted analytic approach to Article 17 cases. Next, we shine the light of our gleaned understanding on the case before us.

A. The Legal Landscape.

Generally speaking, the Warsaw Convention, formally known as the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), note foll. 49 U.S.C. app. Sec. 1502, 2 arose out of a perceived need to provide a fledgling industry with a uniform set of legal rules that would govern accidents occurring in international air travel. Under the Convention, air carriers are absolutely liable, up to a preset monetary ceiling, for any accident in which a passenger suffers bodily injury or death as long as the accident "took place on board the aircraft or in the course of any of the operations of embarking or disembarking." Id., art. 17, 49 Stat. at 3018.

"Treaty interpretation is a purely legal exercise," In re Extradition of Howard, 996 F.2d 1320, 1329 (1st Cir.1993), but the terms "embarking" and "disembarking" as used in this treaty are less than mathematically precise. Just as legislative history can inform the meaning of an inexact statute, however, so, too, can the history of a treaty inform its meaning. See Cook v. United States, 288 U.S. 102, 112, 53 S.Ct. 305, 308, 77 L.Ed. 641 (1933). Thus, we look back in time to gain a better comprehension of the language that the drafters employed.

The Warsaw Convention was the product of ponderous deliberation. Conferees who met in Paris in 1925 appointed a committee of experts, the Comite Internationale Technique d'Experts Juridique Aeriens (CITEJA), to prepare a suggested accord. CITEJA's recommendations were considered at a second conference, held in Warsaw in 1929. CITEJA recommended extending accident coverage to passengers "from the time [they] enter the airport of departure until the time when they exit from the airport of arrival." Minutes, Second International Conference on Private Aeronautical Law, October 4-12, 1929, Warsaw 171 (R. Horner & D. Legrez trans. 1975) (Warsaw Minutes). The breadth of the proposed language inspired heated debate. See, e.g., Warsaw Minutes at 49; see also Day v. Trans World Airlines, Inc., 528 F.2d 31, 35 (2d Cir.1975) (reviewing history of Article 17), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976).

In an effort to accommodate conflicting views, a French delegate, Prof. Georges Ripert, suggested that the article should "employ a general formula 'during air carriage' in leaving to the courts the duty of deciding in each case if one is within the contract of carriage." Warsaw Minutes at 73; see also Martinez Hernandez v. Air France, 545 F.2d 279, 283 (1st Cir.1976) (discussing Ripert proposal), cert. denied, 430 U.S. 950, 97 S.Ct. 1592, 51 L.Ed.2d 800 (1977). The delegates embraced Ripert's idea, see Warsaw Minutes at 83, and the drafting committee couched the compromise in substantially the form now embodied in Article 17. See id. at 166.

The single substantive issue presented in this appeal is whether plaintiff was injured while "embarking" within the meaning of Article 17. Though the Supreme Court has not yet had occasion to define the words "embarking" or "disembarking" in the context of Article 17, the Court has generally read Article 17 parsimoniously. See, e.g., Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 552, 111 S.Ct. 1489, 1502, 113 L.Ed.2d 569 (1991) (holding that Article 17 does not allow recovery for harm unaccompanied by some physical manifestation of injury); Air France v. Saks, 470 U.S. 392, 406, 105 S.Ct. 1338, 1345, 84 L.Ed.2d 289 (1985) (adopting...

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