Potter v. Delta Air Lines, Inc., 95-50934

• Decision Date: 06 November 1996
• Docket Number: No. 95-50934,95-50934
• Citation: 98 F.3d 881
• Parties: Elizabeth POTTER, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 881

98 F.3d 881

Elizabeth POTTER, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.

No. 95-50934.

United States Court of Appeals, Fifth Circuit.

Nov. 6, 1996.

William E. Hornbuckle, III, Ronald Lamar Clark, Hornbuckle & Clark, San Antonio, TX, for Plaintiff-Appellant.

Ron A. Sprague, R. Matt Lair, Gendry and Sprague, San Antonio, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before KING, SMITH and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Elizabeth Potter appeals a summary judgment in favor of Delta Air Lines, Inc. ("Delta"), on her Warsaw Convention and state law negligence claims. Finding no error, we affirm.

I.

As part of a tour package, Elizabeth and James Potter bought a round-trip airline ticket to Europe. During a flight from Atlanta to Dallas, as part of the European trip, Mrs. Potter was seated in row 22, seat A (the window seat). Her husband was in row 22 seat B (the aisle seat). A "rude," "hostile," and "intimidating" man occupied seat 21-B, directly in front of Mr. Potter. The rude man had caused a scene at the beginning of the flight by having a confrontation with the woman sitting next to him in seat 21-A. The flight attendant had moved the woman to another seat, and another passenger had taken her place.

About one hour into the flight, Mrs. Potter went to the lavatory. When she returned, the passengers in seats 21-A and 21-B had fully reclined their seats. ¹ The rude man in 21-B, the aisle seat, was asleep. Then, in Mrs. Potter's counsel's words:

Mrs. Potter's husband was going to have the man move his seat forward, but Mrs. Potter did not want that to happen for fear of the way that man acted earlier on the flight. Because of the confrontation, she did not wish to engage the man in conversation, nor to wake him when he was asleep.

Instead, Mr. Potter got up so that Mrs. Potter could pass. ²

As Mrs. Potter turned to enter the row and sit down, she twisted her knee. Specifically, her foot remained anchored to the carpet in the aisle while the rest of her body turned, resulting in a torn knee ligament.

II.

Mrs. Potter seeks damages from Delta for the injury. She filed suit in Texas state court, alleging claims under state law and the Warsaw Convention. ³ Delta originally removed the action on the basis of diversity jurisdiction and later added federal question jurisdiction as a basis for removal. ⁴

The district court denied Mrs. Potter's motion to remand. Delta moved for summary judgment and for protection from discovery, stating specific objections to Mrs. Potter's interrogatories. Mrs. Potter responded, filing affidavits and deposition excerpts. The district court, on Mrs. Potter's motion, permitted her to file additional summary judgment evidence and extended the time for doing so. The court then granted Delta's motion for protection, denying Mrs. Potter discovery on certain issues, including--inter alia--the design and manufacture of the airplane seats and carpet.

Finally, the court granted summary judgment to Delta, making two relevant holdings. First, the court held that the Warsaw Convention supplied the exclusive cause of action for Mrs. Potter's injury--i.e., that the Convention completely preempts state law where the former applies, and that the Convention applies here. Second, the court held that Mrs. Potter had failed to prove an element of her Warsaw Convention cause of action--i.e., that an "accident," as that term is used in the Convention, caused her injury.

III.

We review a grant of summary judgment de novo. See Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate "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).

Mrs. Potter first contests the holding on her Warsaw Convention claim, arguing that she did show that her injury was caused by an "accident," as such term is used in article 17 of the Convention. ⁵ Liability under article 17 "arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger." Saks, 470 U.S. at 405, 105 S.Ct. at 1345 (emphasis added). Because this definition is to applied flexibly, and because "[a]ny injury is the product of a chain of causes, [ ] we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger." Id. at 406, 105 S.Ct. at 1346 (emphasis added).

Mrs. Potter argues that the rude, hostile man sleeping in the fully reclined seat in the row in front was an unusual or unexpected event external to her. Assuming arguendo that a rude, hostile passenger is unusual or unexpected, he himself is not an "event or happening." Similarly, neither a fully reclined seat nor the act of sleeping in it is an unusual or unexpected event or happening on an airplane.

Thus, the circumstances of this case simply do not fit into the definition of "accident" established in Saks. As a result, Mrs. Potter's Warsaw Convention claim is without merit.

IV.

Having determined that Mrs. Potter has failed to create a genuine issue of material fact regarding whether her injury was the result of an "accident," we now address whether her state law claims for negligence are preempted by the exclusive cause of action provided in article 17. Mrs. Potter does not contest that article 17 provides the exclusive remedy for actions maintained under the Warsaw Convention, but she asserts that where an injury is not compensable under article 17, a separate cause of action for damages lies under state law. Whether article 17 preempts all state law causes of action, not just state remedies, is res nova in this circuit.

We have held previously that the Warsaw Convention creates the cause of action and exclusive remedy for article 18 ⁶ claims and that it preempts state law "in the areas covered." Boehringer-Mannheim Diagnostics, Inc., v. Pan American World Airways, 737 F.2d 456, 458-59 (5th Cir.1984), cert. denied, 469 U.S. 1186, 105 S.Ct. 951, 83 L.Ed.2d 959 (1985). We further defined "areas covered" broadly, noting that they encompass the "field" in which the Convention has enacted law. See id. at 459. Mrs. Potter notes correctly that the specific holding in Boehringer-Mannheim is inapposite to the instant case, both because article 18 covers damage to checked luggage while article 17 covers personal damage and because the language of the two articles differs.

Article 18 covers damages resulting from an "occurrence," whereas article 17 is limited to damages resulting from an "accident." Because "occurrence" extends more broadly to cover most instances of damages to checked luggage, whereas "accident" is limited to "an unexpected or unusual event or happening that is external to the passenger," see Saks, 470 U.S. at 405, 105 S.Ct. at 1345, Mrs. Potter asserts that most problems associated with checked luggage will be reparable under article 18, making recourse to state law for noncognizable claims merely duplicative.

Given article 18's broad scope, Mrs. Potter thus argues that the Boehringer-Mannheim court properly construed article 24(1) ⁷ to preempt state law "in the areas covered" by the Warsaw Convention. Boehringer-Mannheim, 737 F.2d at 458. She reasons that because state law causes of action will not be cumulative where there is no "accident" under the Convention, they should not be preempted. Mrs. Potter thus reads the preemption language in article 24(2) ⁸ to prohibit state law causes of action only where a claim has been adjudicated an "accident" and deemed compensable under the Warsaw Convention. ⁹ We disagree.

We note first that " 'treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.' " Saks, 470 U.S. at 396, 105 S.Ct. at 1341 (citation omitted). "The terms of the convention must be construed broadly in order to advance its goals." Floyd v. Eastern Airlines, 872 F.2d 1462, 1473 (11th Cir.1989) (citation omitted), rev'd on other grounds, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991).

Because the Convention has not expressly preempted state law, we examine the test for non-express preemption, which requires that we determine whether (1) the area requires uniformity vital to national interests such that allowing state regulation "would create potential frustration of national purposes," see San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959); (2) there is evidence of congressional design to preempt the field, see Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); or (3) the state statute actually conflicts with the federal provision. See Block v. Compagnie Nationale Air France, 386 F.2d 323 (5th Cir.1967), cert. denied, 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968). We conclude that the subject matter of the Convention requires uniformity and thus provides the exclusive cause of action under article 17 for personal injuries and death.

A primary function of the Warsaw Convention is to foster uniformity in the laws governing international air carrier liability. See Zicherman v. Korean Air Lines Co., --- U.S. ----, ----, 116 S.Ct. 629, 636, 133 L.Ed.2d 596 (1996); Swaminathan, 962 F.2d at 390; In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1988, 928 F.2d 1267, 1275 (2d Cir.), cert. denied, 502 U.S. 920, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991); Eastern Airlines, 872 F.2d at 1473; Boehringer-Mannheim, 737 F.2d at 459. Uniformity with respect to liability is required in order...