McDowell v. Continental Airlines, Inc.

• Decision Date: 07 April 1999
• Docket Number: No. 96-7238-Civ.,96-7238-Civ.
• Citation: 54 F.Supp.2d 1313
• Parties: Carolyn McDOWELL, individually and as Personal Representative of the Estate of John McDowell, deceased, Plaintiffs, v. CONTINENTAL AIRLINES, INC., a Delaware corporation authorized to do business in the State of Florida, Defendant.
• Court: U.S. District Court — Southern District of Florida

54 F.Supp.2d 1313

Carolyn McDOWELL, individually and as Personal Representative of the Estate of John McDowell, deceased, Plaintiffs, v. CONTINENTAL AIRLINES, INC., a Delaware corporation authorized to do business in the State of Florida, Defendant.

No. 96-7238-Civ.

United States District Court, S.D. Florida.

April 7, 1999.

Tod N. Aronovitz, Aronovitz & Associates, P.A., Miami, FL, Steven M. Frei, Haight Tramonte Siceliano Flask & Yeonas, Vienna, VA, for plaintiffs.

Dennis M. O'Hara, Gregory Mark Palmer, Wicker Smith Tutan O'Hara McCoy Graham & Ford, P.A., Fort Lauderdale, FL, for defendants.

ORDER

GONZALEZ, District Judge.

THIS CAUSE has come before the Court upon Defendant's Motion for Summary Judgment, filed February 8, 1999 (D.E.# 77). The Motion has been fully briefed and is ripe for disposition.

I. BACKGROUND

On May 18, 1996, John McDowell and his wife, Carolyn, boarded a charter flight operated by Continental Airlines as flight number 2000 at Newark, New Jersey. The destination of Flight 2000 was Nassau, Bahamas.

At one point during the flight, somewhere between forty-five minutes and over one hour prior to landing in Nassau, Mr. McDowell became ill and collapsed. As it later turned out, Mr. McDowell had suffered a heart attack.

After Mr. McDowell collapsed, Continental flight attendants announced a medical emergency over the public address system and asked for any medical personnel on board to report to the back of the plane. Two people responded. One was a registered nurse and the other a cardiovascular surgeon.

The doctor and the nurse tended to Mr. McDowell. The doctor looked through the plane's emergency medical kit, but found that it was not well equipped with medicine or equipment for the present emergency situation.

The doctor asked the lead flight attendant how soon the plane could land. The doctor informed her that it was important to get Mr. McDowell on the ground and to a hospital as soon as possible.

The flight attendant contacted the cockpit and then informed the doctor that it would be about forty-five minutes. The doctor continued to inquire as to how soon the plane could land and to assert the importance of getting Mr. McDowell on the ground. About fifteen minutes after the initial inquiry, the flight attendant checked with the cockpit again and informed the doctor that the flight would land in Nassau, the intended destination.

No one from the cockpit ever spoke to the doctor or Mrs. McDowell. It is in dispute whether anyone from the cockpit ever came to the rear of the aircraft to assess the situation.

The doctor informed the flight crew that an ambulance must be waiting when the plane arrived in Nassau. The doctor also stressed that the ambulance must be equipped with all of the proper cardiac equipment and the ambulance crew must be ready to take over ongoing resuscitative efforts of the patient.

Upon arrival, the doctor discovered that the ambulance did not have bicarbonate soda or calcium medication, both of which the doctor felt were necessary for the proper treatment of Mr. McDowell.¹

The ambulance crew was also unable to intubate Mr. McDowell properly and was unable to properly start the I.V.

Mr. McDowell died shortly after arriving at the hospital.

At the hospital, the treating physician told Mrs. McDowell that by the time her husband arrived in the Bahamas, his condition was too advanced to save him. The physician also told Mrs. McDowell that he felt the plane should have landed in the United States.

Mrs. McDowell later filed the instant suit alleging that Defendant negligently and through willful misconduct failed to divert the aircraft to the nearest major airport, failed to properly equip its aircraft with emergency medical equipment, and failed to secure necessary immediate medical attention for Mr. McDowell.

Defendant filed this Motion arguing that summary judgment is appropriate because the Warsaw Convention (the "Convention")² provides the exclusive remedy for personal injury suffered on board an aircraft engaged in international travel, and the acts and events alleged do not constitute an "accident" as required by Article 17 of the Convention.

II. SUMMARY JUDGMENT STANDARD

The 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). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The Court must "view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997) (citation omitted).

The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

The movant bears the burden of pointing out to the Court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548.

After the movant has met its burden under Rule 56(c), the burden of production shifts, and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). According to the plain language of Fed. R.Civ.P. 56(e), the nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading," but instead must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. 1348.

Essentially, so long as the nonmoving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the evidence advanced by the nonmoving party "is merely colorable, or is not significantly probative, then summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

III. DISCUSSION

Defendant argues that summary judgment is appropriate because the instant case is governed by the Warsaw Convention and Plaintiff cannot state a claim thereunder since she cannot prove that the injury was caused by an "accident" as required by Article 17.

Plaintiff responds (A) that Defendant has failed to produce any material evidence that the contract of carriage incorporated the Warsaw Convention; (B) that the Bahamas is not a signatory nation to the Warsaw Convention, and therefore this case does not fall thereunder; (C) that the injury was caused by an "accident" under Article 17; and (D) that the injury was caused by Defendant's "wilful misconduct" under Article 25.

A. THE CONTRACT OF CARRIAGE

Plaintiff claims that Defendant has introduced no material evidence that the contract of carriage incorporated the Warsaw Convention liability limitations.

Defendant has in fact introduced such evidence. Defendant submitted the affidavit of Ilyse Prokocimer-Karkowski. Ms. Prokocimer-Karkowski is the president of Prokocimer International Enterprises, Inc., d/b/a Nassau/Paradise Island Express. Her company issued the flight coupon for Mr. McDowell's flight to Nassau. Ms. Prokocimer-Karkowski's affidavit states that the passenger coupon retained by the passenger incorporates the Warsaw Convention limitations of liability on its reverse side.

Plaintiff has introduced no evidence at all to contradict the statements in this affidavit. As stated above, the non-movant must come forward with some affirmative evidence to create an issue of material fact. Anderson, 477 U.S. at 257, 106 S.Ct. 2505.

Plaintiff may not merely make conclusory allegations casting doubt upon Defendant's evidence. See Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. 1348. While the Court is to view all evidence and factual inferences in a light most favorable to the nonmoving party, Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988), there must exist more than some alleged factual dispute between the parties. Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505.

The Court finds that Plaintiff has failed to establish a genuine factual issue as to contract of carriage's incorporation of the liability limitations contained in the Warsaw Convention.

B. THE BAHAMAS AS SIGNATORY NATION

Plaintiff next asserts that the instant action is not covered by the Warsaw Convention because the flight was not between "two Warsaw Convention signatory nations" as required by Article 1(2).

Plaintiff claims that the Bahamas is not a signatory nation to the Warsaw Convention.

This Court agrees with Defendant that Plaintiff is incorrect. The Bahamas is indeed a signatory nation to the Convention. See Treaty Affairs Staff, United States Department of State, Treaties in Force 323 (1996).

Therefore, the court finds that Plaintiff's second argument fails.

C. "ACCIDENT" UNDER ARTICLE 17

Defendant argues that Plaintiff's cause of action is precluded because the acts and events on Flight 2000 do not constitute an "accident" under Article 17. Therefore, Plaintiff has no cause of action under the Warsaw Convention. Defendant claims that since...