Ospina v. Trans World Airlines, Inc., s. 1134

• Decision Date: 03 September 1992
• Docket Number: Nos. 1134,1155,D,s. 1134
• Citation: 975 F.2d 35
• Parties: Alberto OSPINA, deceased, by his executors, Thomas C. Coughlin, Margoth Ospina and Tamara Ospina, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant, Frigitronics Inc., Intervenor. Mohsen YOUSSEF, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant, Frigitronics Inc., Intervenor. ockets 91-9245, 91-9247.
• Court: U.S. Court of Appeals — Second Circuit

Page 35

975 F.2d 35

Alberto OSPINA, deceased, by his executors, Thomas C.

Coughlin, Margoth Ospina and Tamara Ospina, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant, Frigitronics Inc., Intervenor.

Mohsen YOUSSEF, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant, Frigitronics Inc., Intervenor.

Nos. 1134, 1155, Dockets 91-9245, 91-9247.

United States Court of Appeals Second Circuit.

Argued May 21, 1992.

Decided Sept. 3, 1992.

John N. Romans, New York City (Michael J. Crofton, Lawrence S. Rosen, Joan E. Lambert, Katten Muchin & Zavis, of counsel), for appellant TWA.

Fredric Lewis, New York City, for appellee Estate of Alberto Ospina.

Nicholas Gilman, Washington, D.C. (Gilman, Olson & Pangia, of counsel), for appellee Mohsen Youssef.

Before: MESKILL, Chief Judge, PRATT, Circuit Judge, and NICKERSON, ^* District Judge.

MESKILL, Chief Judge:

This case involves the precautions that airlines must take in order to receive the shelter from liability that the Warsaw Convention provides to carriers in all cases except those involving willful misconduct, see 49 U.S.C.App. § 1502 note. Trans World Airlines, Inc. (TWA) argues that insufficient evidence existed to support the jury's finding of willful misconduct. We agree with TWA and reverse the district court's denial of TWA's motions to set aside the verdicts.

BACKGROUND

As TWA Flight 840 approached the Athens airport on April 2, 1986, a bomb exploded, killing four passengers and injuring others. Although the bomb created a large hole in the fuselage, the airplane landed safely. The Judicial Panel on Multidistrict Litigation consolidated the ensuing suits, which were referred to the United States District Court for the Eastern District of New York, Weinstein, J. All of the suits settled, with the exception of the two now before this Court on appeal. Plaintiff Youssef, who was seated some distance from the explosion, suffered injuries. Plaintiff Ospina, who was seated near the bomb, was blown out of the airplane and died. Both actions seek damages from TWA. After a bifurcated trial, judgments were entered in plaintiffs' favor.

The importance of the information in this case to the security and safety of commercial airlines and their passengers requires extraordinary treatment. Prior to the commencement of the liability phases of the proceeding below, the United States made a limited appearance in the action for the purpose of expressing its concerns about the disclosure, discussion and evaluation of airline security materials. So as not to jeopardize the safety of the traveling public, the district court ordered that the trial be closed to the public at such times as sensitive, anti-terrorist airline security information was to be disclosed, discussed or evaluated. Although the press had the right to review daily copy of the trial transcript, the United States received an initial opportunity to redact those portions of the transcript containing sensitive airline security information. At the conclusion of the trial, some exhibits were made available to the public while others--namely, those concerning sensitive information--were filed under seal.

The jury returned verdicts in plaintiffs' favor. The district court refused to set aside the verdicts or to grant a new trial. 778 F.Supp. 625 In rejecting TWA's motions, the district court did not reveal those facts on which liability rested. Instead, it stated that "[i]t is enough to say that the jury verdicts, finding TWA's delicts the equivalent of willful misconduct, were more than justified." Thereafter, prior to our hearing of this appeal, TWA moved this Court for an order requiring that appendices and briefs in these appeals be filed under seal. We granted the motion.

DISCUSSION

The parties agree that the Warsaw Convention, a multilateral treaty governing the international carriage of passengers, baggage and cargo by air, see Chan v. Korean Air Lines, 490 U.S. 122, 123-24, 109 S.Ct. 1676, 1678-79, 104 L.Ed.2d 113 (1989), governs this case. The Convention's overriding purpose was "to limit air carriers' potential liability in the event of accidents." In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1270 (2d Cir.) (citations omitted), cert. denied, --- U.S. ----, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991). Toward this end, Article 17 of the Convention, as modified by the Montreal Agreement, limits carrier liability to $75,000 per claimant. See 928 F.2d at 1280. However, Article 25 of the Convention provides that a plaintiff may recover compensatory damages if he can show that the carrier engaged in willful misconduct. ¹

Plaintiffs' theory at trial was that TWA wrongfully neglected to perform certain acts that could have prevented the bombing. To be held culpable for willful misconduct in a case based on an omission, the defendant "must either have known that [the omitted act] was necessary for safety, or his duty to [perform the omitted act] must have been so obvious that in failing to [perform] it his conduct would be reckless, rather than negligent." Pekelis v. Transcontinental & Western Air, 187 F.2d 122, 125 (2d Cir.) (footnote omitted), cert. denied, 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374 (1951). Thus, plaintiffs needed to show that TWA omitted to do an act (1) with knowledge that the omission of that act probably would result in damage or injury, or (2) in a manner that implied a reckless disregard of the probable consequences. See Republic Nat'l Bank of New York v. Eastern Airlines, 815 F.2d 232, 238-39 (2d Cir.1987). A lesser standard would undermine the purpose of the Convention and would contradict Article 25(1)'s plain language.

TWA argues that a reasonable jury could not have found "willful misconduct" in this case. In reviewing the verdict to determine if it could have been produced by a reasonable jury, we view the evidence in the light most favorable to the non-moving parties and give them the benefit of all inferences that the evidence supports. See, e.g., Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962).

TWA stresses that it complied with Federal Aviation Administration (FAA) procedures and the laws of each country in which it operated. Plaintiffs counter by pointing to a threat that existed on Flight 840 and by emphasizing certain acts not performed by TWA that they claim TWA should have performed, which acts, plaintiffs claim, might have led to detection of the bomb that caused their injuries. In making this argument, plaintiffs emphasize that the FAA required airlines thoroughly to search the cabin and cockpit areas of airplanes to eliminate any hidden weapons, and that TWA failed to utilize two procedures which, although not specifically required by the FAA, would have uncovered the bomb that exploded on Flight 840.

As it did below, this case turns on whether plaintiffs introduced sufficient evidence to support the jury's verdict in plaintiffs' favor, a necessarily fact-specific inquiry. However, due to the unusual circumstances of this case, a detailed explanation of the probity of the record evidence might, in the wrong hands, endanger the traveling public. Having reviewed the record, we do not believe that a reasonable jury could have concluded that TWA's acts and omissions constituted willful misconduct. TWA's failure to take certain measures in searching the cabin--which defendants stress and plaintiffs apparently concede no airline regularly employed at that time--did not provide evidence of willful misconduct. Moreover, none of TWA's other acts or omissions violated a specific FAA requirement, and each of TWA's acts complied with all positive FAA safety procedures and regulations as well as the laws of the countries in which TWA operated. Nor do we believe that a reasonable jury could have concluded, based on the record in this case, that a specific threat existed that was sufficient to raise to the level of willful misconduct TWA's failure to employ the security measures pointed out by plaintiffs. Of course, if TWA had searched the place where the bomb was hidden, the bomb would have been discovered. That would be true in any case involving a hidden bomb. However, the test for willful misconduct is not 20-20 hindsight.

CONCLUSION

The parties raise a number of other issues that do not affect our decision, and we need not reach them. The judgment of the district court is reversed.

NICKERSON, District Judge, dissenting:

In my opinion these cases present not just an issue of whether there was sufficient evidence to support the jury verdict, but also an important question of law...