Narkiewicz-Laine v. Aer Lingus Ltd.
| Decision Date | 21 August 2015 |
| Docket Number | No. 14 CV 50098,14 CV 50098 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | Christian Narkiewicz-Laine, Plaintiff, v. Aer Lingus Limited, et al., Defendants. |
MEMORANDUM OPINION AND ORDER
This case involves a claim under the Convention for the Unification of Certain Rules for International Carriage by Air, in which Christian Narkiewicz-Laine ("Plaintiff") alleges he was injured when a flight attendant struck him in the head with a bag as she walked down the aisle of an Aer Lingus Limited ("Defendant") airplane. Currently, pending before the Court is Defendant's summary judgment motion ("Motion"). Dkt. # 39. The Motion is fully briefed. Dkt. ## 39, 40, 46, 47. Additionally, on August 18, 2015, the Court held a telephonic hearing regarding the Motion. For the reasons stated below, the Motion is granted, in part, and denied, in part. This matter is set for a telephonic status hearing on August 27, 2015, at 1:30 p.m.
Plaintiff is a resident of Illinois and citizen of the United States. Defendant is a foreign company, with its principal place of business in Dublin, Ireland.Jurisdiction is provided under 28 U.S.C. § 1331 because Plaintiff's claims arise under the Unification of Certain Rules for International Carriage by Air, Art. 33, May 28, 1999, S. Treaty Doc. No. 106-45 (2000), available at 1999 WL 33292734 (2000) (hereinafter "Montreal Convention"), as well as under diversity jurisdiction, 28 U.S.C. § 1332(a).
On May 12, 2012, Plaintiff was a passenger on Aer Lingus flight EI629, traveling from Helsinki, Finland to Dublin, Ireland. Plaintiff was travelling with Kieran Conlon, who was seated next to Plaintiff in the same row. Another passenger was seated across the aisle from Plaintiff.
During the flight, Plaintiff claims that while he was sleeping, he was struck in the head by a piece of luggage or handbag that a flight attendant was carrying down the aisle. After being struck, Plaintiff looked back and saw a flight attendant pushing past passengers; she was carrying a bag. According to Conlon, passengers were in the aisle, lined up to use the restroom. Although Conlon's eyes were closed, he heard a flight attendant say "excuse me, excuse me". Conlon then heard a "thud" and Plaintiff swear. Plaintiff then walked back to the galley and confronted the flight attendants.
Plaintiff claims that after he returned to his seat, he saw a blue light and smelled something metallic. Plaintiff also felt "fuzzy," "semiconscious" and "terrified". Plaintiff also believed that the flight may have been hijacked. Plaintiff did not request medical attention during the flight.
Both Plaintiff and Conlon have made sworn statements regarding the possible consequence of Plaintiff allegedly being struck by the bag. According to Plaintiff, he believed that he suffered a seizure and that he has a history of seizures from a previous head injury. Conlon claims that Plaintiff's "appearance was similar to other people [he] observed suffering from seizures in the past." Indeed, in 2002, Plaintiff was involved in a traffic collision, resulting in a head injury. Consequently, he was prescribed and was taking anti-seizure medication on May 12, 2012. The 2002 head injury caused dizziness, vertigo, headaches and memory loss. But Plaintiff had not had a seizure since 2007.
After the flight arrived and Plaintiff and Conlon spoke with the flight crew, an ambulance was called for Plaintiff. The ambulance took Plaintiff to Beaumont Hospital in Dublin, Ireland for medical treatment. Plaintiff was treated and released. He flew home two days later without incident. Upon returning home, Plaintiff was treated by his primary care physician, at which time he complained of dizziness, vertigo and headaches. According to the medical records, Plaintiff complained of being "hit in head by piece of luggage - had a seizure."
Plaintiff has identified no expert witnesses under Federal Rule of Civil Procedure 26(a)(2). To be clear, Plaintiff has not identified retained expert witnesses who are required to write and provide reports under Rule 26(a)(2)(B). He has also failed to identify expert witnesses who are not required to write and provide reports, but for whom Plaintiff would be required to submit a summary report, under Rule 26(a)(2)(c).
In contrast, Defendant has identified a retained expert witness, who has provided a report under Rule 26(a)(2)(B). Defendant's expert witness is a neurologist named Dr. Jeffrey Loeb. Among other things, Dr. Loeb opined that, to a reasonable degree of medical certainty, Plaintiff did not suffer a seizure when he was allegedly hit on the head with the bag, nor did the blow aggravate a preexisting seizure condition. Instead, Dr. Loeb opined that Plaintiff suffered a panic attack, unrelated to any bodily injury.
In relevant part, Plaintiff's Complaint alleges the following: Dkt. #1, p. 2. The Complaint then goes on to allege the following: "As a proximate result [sic] being struck on the head as a result of Defendants' negligence Plaintiff was injured, suffered a seizure and a reoccurrence of seizure and post-seizure symptoms, including vertigo, nausea, loss of concentration, incurred medical expense, suffered loss of driving privilege, and an aggravation of pre-existing seizure disorder." Id. (Italics added.)
Defendant's Motion focuses on Plaintiff's allegations that the "accident" caused a seizure, a reoccurrence of seizure symptoms, and aggravated a pre-existing seizure disorder. Defendant's argument is logical and straight-forward. First, Plaintiff failed to identify any expert witnesses under Rule 26(a)(2), both retained expert witnesses and non-retained expert witnesses. Second, without an expert witness, Plaintiff cannot present evidence that being struck on the head with a bag can cause a seizure or an aggravation or reoccurrence of a seizure disorder. Third, because Plaintiff cannot establish a causal link between the hit to the head and Plaintiff's alleged seizure and seizure issues, Defendant is entitled to summary judgment.
Defendant's syllogism is correct - as far as it goes. The Motion's focus is over the extent of a "bodily injury." But Plaintiff's failure to establish that the accident caused a seizure or seizure related issues does not mean that Plaintiff has failed to present a triable issue of material fact. Despite the lack of an expert to supportcausation, on this summary judgment record, as a result of the physical impact of being hit on the head with a bag (i.e., an accident), while on board Defendant's aircraft, he suffered a bodily injury (namely, headaches, nausea and dizziness). In other words, Defendant is not entitled to judgment as a matter of law. A legal claim still survives, albeit a very small and not very strong claim. Under the facts that the Court must accept as true for summary judgment purposes, an accident occurred resulting in a bodily injury.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment shall be granted if the movant shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Johnson v. Saville, 575 F.3d 656, 659 (7th Cir. 2009). In making this determination, the non-movant is entitled to reasonable inferences drawn by the court, not every conceivable inference. Gleason v. Mesirow Financial, 118 F.3d 1134, 1139 (7th Cir. 1997). A dispute is "genuine" when the evidence is such that a reasonable jury could return a verdict in favor of the non-movant. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Accordingly, if a plaintiff has not put forward evidence to support every element of his claim, summary judgment should be granted. Griffen v. Potter, 356 F.3d 824, 828 (7th Cir. 2004); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). And a fact is "material" if it would affect the outcome under the governing, substantive law at issue in the case. Anderson, 477 U.S. at 248.
This case involves the Montreal Convention, which became law, when the treaty was approved. The Montreal Convention superseded the Warsaw Convention.2 The applicable article under the Montreal Convention, as it would have been under the Warsaw Convention, is Article 17. Indeed, the explanatory note states "[i]t is expected that this provision will be construed consistently with the precedent developed under the Warsaw Convention and its related instruments." The relevant portion of Article 17 states the following: "The carrier is liable for damages sustained in case of . . . bodily injury of a passenger upon condition only that the accident which caused the . . . injury took place on board the aircraft." Montreal Convention, Art. 17(1). Accordingly, the elements of a plaintiff's claim for bodily injury are (1) an accident, (2) that took place on board the aircraft, (3) which caused (4) an injury. Gupta v. Austrian Airlines, 211 F. Supp. 2d 1078, 1082 (N.D. Ill. 2002); see also Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535-36 (1991) (). In analyzing Article 17 of the Warsaw Convention, the Supreme Court was forced to interpret the French term "blessure." Eastern Airlines, 499 U.S. at 536.3 In doing so, the Court noted that there was agreement that the term "blessure" meant "physical impact." Id. at 536 n.4.
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