Waters v. Port Authority of New York & New Jersey

• Decision Date: 14 August 2001
• Docket Number: No. CIV A 98-5794 WHW.,CIV A 98-5794 WHW.
• Citation: 158 F.Supp.2d 415
• Parties: John J. WATERS, Plaintiff, v. The PORT AUTHORITY OF NEW YORK & NEW JERSEY, Alitalia Airlines, Continental Airlines, Josephine Tyburski, ABC Corporation A-M (names being fictitious), ABC Corporation, N-Z (names being fictitious), John Does 1-10, Jane Does 1-10, Defendants.
• Court: U.S. District Court — District of New Jersey

158 F.Supp.2d 415

John J. WATERS, Plaintiff, v. The PORT AUTHORITY OF NEW YORK & NEW JERSEY, Alitalia Airlines, Continental Airlines, Josephine Tyburski, ABC Corporation A-M (names being fictitious), ABC Corporation, N-Z (names being fictitious), John Does 1-10, Jane Does 1-10, Defendants.

No. CIV A 98-5794 WHW.

United States District Court, D. New Jersey.

August 14, 2001.

COPYRIGHT MATERIAL OMITTED

Mark Gertner, Freeman and Gertner, P.C., South Orange, NJ, Attorneys for Defendants.

Patricia Moores, Eugene Massamillo, Biedermann, Hoenig, Massamillo & Ruff, P.C., New York, NY, Attorneys for Defendants.

Carmen E. Mendiola, Law Offices of Carmen E. Mendiola, Jersey City, NJ, Attorney for Plaintiff.

AMENDED OPINION

WALLS, District Judge.

Defendants Alitalia Linee Aeree Italiane S.p.A. ("Alitalia"), Continental Airlines ("Continental"), Josephine Tyburski ("Tyburski"), and the Port Authority of New York and New Jersey ("PATH") (collectively, "defendants") move for summary judgment on all counts of the First Amended Complaint. Pursuant to Fed. R.Civ.P. 78, this motion is decided without oral argument and is granted.¹

BACKGROUND

Plaintiff John J. Waters ("Waters") seeks to recover damages for injuries allegedly sustained in connection with his transportation aboard Alitalia Flight 611 from JFK to Rome, Italy on December 22, 1997, and his return flight home on Alitalia Flight 610 on January 3, 1998. He also seeks injunctive relief to prevent Continental and Alitalia from engaging in discriminatory conduct in the future. Plaintiff, who uses a wheelchair because of his multiple sclerosis, alleges that defendants (1) failed to provide him with proper "meet and assist" services when he boarded Flight 611; (2) failed to assign him a bulkhead seat aboard Flight 611; and (3) failed to transfer him from his seat to a transfer chair upon his arrival in New York on Flight 610.

Plaintiff flew from JFK to Rome, Italy on Alitalia Flight 611 in December 1997. Plaintiff traveled with his sister, Kelly Waters, his brother-in-law, and a family friend. He was issued a Continental ticket for this trip through the redemption of his sister's Continental One-Pass miles. Plaintiff states that when he checked in for the flight, he requested bulk head seats and assistance in boarding the aircraft, because he is in a wheelchair and is unable to walk or stand. According to plaintiff, the agent informed him that he and his family members were assigned three bulk head seats and that plaintiff would receive assistance to board the aircraft. Defendants do not dispute this fact. Plaintiff and his family pre-boarded flight 611.

Plaintiff testified at his deposition that he was met at the gate and wheeled through the jetway by an individual he believed to be an Alitalia gate agent. At the aircraft door, he was met by two unidentified individuals with a transfer chair. Plaintiff claims that the two individuals refused to transfer plaintiff from his wheelchair to the transfer chair. His family members moved him from his wheelchair onto the transfer chair in the jetway immediately outside the door to the aircraft. Once on the transfer chair, the two individuals wheeled plaintiff to what defendants claim was plaintiff's assigned seat. Plaintiff asserts that he informed the two individuals that he was assigned a bulkhead seat and not the seat three-quarters of the way into the cabin where he was wheeled. Plaintiff further asserts that the two individuals then told him that he had to transfer himself to the seat that was assigned to him. Plaintiff states he advised the two individuals that he was unable to transfer by himself and that he was physically unable to sit in the assigned seat. Plaintiff does not present any evidence that the seat to which he was wheeled was not actually the seat listed on his boarding pass, notwithstanding what he had been told by the gate agent.

According to plaintiff, one of the two individuals then stated that he was going to find out about the bulkhead seat. That individual left and did not return. The other man stayed with plaintiff for five minutes and then left. Plaintiff states that he was left unattended in the aisle of the plane for about 20-25 minutes, strapped to the transfer chair. Defendants, however, claim that plaintiff refused to allow the meet and assist services men to transfer him to his assigned seat when he did not hold a boarding pass for a bulkhead seat. They further claim that at plaintiff's own insistence, plaintiff waited in the aircraft aisle for 20-25 minutes while his seat assignment was debated. Plaintiff claims that none of the flight attendants nearby offered him any assistance. Instead, other passengers were permitted to board the flight while plaintiff remained in the aisle. Plaintiff claims that he was unattended and unable to move, and that other passengers who attempted to pass him bumped into him, hitting him with their bags and causing him to fear that he might fall out of the transfer chair. After passengers began to board, plaintiff's family members moved plaintiff from the transfer chair to an aisle seat in one of the bulk head rows. Plaintiff and his sister both testified that plaintiff and his family were afraid that he would be injured if he remained in the aisle. Plaintiff's family members took the two seats next to plaintiff in the bulkhead row.

At some point, Alitalia's station manager at JFK, defendant Josephine Tyburski, was summoned onto the flight to handle the alleged seating dispute. Tyburski had the responsibility to assist individuals with disabilities in boarding a flight. According to plaintiff, Tyburski informed him that he had to move his seat, and he responded that he was unable to move. Defendants claim that plaintiff refused to move from his bulkhead seat. The passengers originally assigned to the seats in plaintiff's row sat in other seats. According to defendants, plaintiff testified he had only the following exchange with Tyburski:

Miss Tyburski approached me in a very angry frame of mind. And she instructed me, that's not your seat, move. My response was, move me. And she looked at me and turned around in a huff and said, well, now I have to write a letter. And that was the last I spoke with her.

Plaintiff Dep. Tr., at p. 46.

Plaintiff remained in the bulkhead seat for the rest of the flight. Plaintiff contends that during the flight, no flight attendant apologized to him for the incident, although several Alitalia employees approached plaintiff's sister to inquire whether she was alright.

Plaintiff also contends that when he returned home on Alitalia flight 610 on January 3, 1998, plaintiff was one of the last people on the flight to exit the aircraft. He claims that two unidentified individuals boarded the plane with a transfer chair but did not know how to transfer him from the aircraft seat onto the transfer chair. He testified that his sister and brother-in-law then transferred him from the aircraft seat onto the transfer chair. Again, when he arrived in the jetway, the two individuals did not know how to transfer him back to the wheelchair, so his sister and brother-in-law transferred him from the transfer chair onto the wheelchair. According to defendants, Flight 610 transpired without incident, because plaintiff testified that he was provided meet and assist services in New York, was provided with a transfer chair, and agreed that the flight transpired without incident.

Plaintiff claims that as a result of these incidents, he sustained "mental and emotional anguish and distress, indignity, embarrassment and humiliation" and was "smacked in the head with carry-on bags" and coats while waiting in the aisle. See Compl., at ¶ 44. In his answers to interrogatories, plaintiff claims the following:

... physical, mental and emotional anguish, emotional distress, stress, anxiety in flying, loss of sleep for a period of 23 days, constipation for a period of 12 days, loss of weight, exacerbation of his multiple sclerosis.

Plaintiff's Answers to Alitalia's First Set of Interrogatories, No. 6. According to defendants, Plaintiff testified at his deposition that he was not injured as a result of any incident on Flight 611 and sought no medical attention for his head. He did testify that he visited a nurse at the suggestion of a relative to make sure everything was normal, which it was. However, plaintiff also testified he suffered constipation for 12 days and experienced anxiety in flying, sleep loss for 12 days and loss of weight for twelve days while on vacation. Furthermore, he stated he experienced an exacerbation of his multiple sclerosis symptoms, in that his upper body strength became weaker. See Plaintiff Dep., at 62:7-63:9. However, plaintiff also testified that he never discussed with his physician whether his experience aboard flight 611 was in any way connected to his loss of upper body strength. Id. at 65:1-5.

He further claims that Continental is responsible for this incident because it operated a "code-share" arrangement with Alitalia. Plaintiff testified that he personally never dealt with anyone at Continental with regard to his trip. His sister, Kelly Waters, made plaintiff's travel arrangements. Ms. Waters testified that she spoke with Continental to transfer her One-Pass miles to use on the trip to Rome. She also testified that she spoke with a Continental representative named "Chico" in August 1997 to make a reservation for the plaintiff. Alitalia's representative, Josephine Tyburski, testified that Continental has no operations at JFK, did not operate Alitalia Flight 611 or 610 and did not have a code share agreement with Alitalia for any flights originating at JFK. A code share agreement produced in discovery indicates that such an arrangement existed between Continental and Alitalia but that JFK was not designated among the routes in the agreement. Continental claims that had plaintiff been on a code share flight, his...