The opinion of the court was delivered by: BIUNNO
BIUNNO, Senior District Judge.
This is a suit for personal injury claimed to have been sustained by the plaintiff while a passenger on one of the defendant's aircraft on a commercial flight that had left Kennedy Airport in New York, flown to Anchorage, Alaska, and had left there headed for Tokyo, Japan. There were to be later stops down to Hong Kong and eventual return to New York. The ticket for the flight was evidently part of a tour organized by ABC Tours in Union, New Jersey.
The factual account, which appears from the deposition testimony of plaintiff and his wife is brief and obviously not in dispute. They had purchased tickets for an air tour to the Far East, with Japan Airlines as the air carrier. They left from Kennedy on a non-stop flight of some 6.5 to 7 hours, to Anchorage, Alaska, where they stayed perhaps an hour. The plane then left for the remaining hop to Tokyo, Japan, the first tour stop.
About a half-hour to one-hour after takeoff from Alaska, plaintiff began to feel a discomfort which he attributes to a hiatus hernia which had developed some 5 or 6 years back, and which had been managed by avoiding spices and the like, by taking digestive aids such as Maalox, but which had occasionally "acted up" with no discernable pattern. Except for one instance, in June of the year before, he had managed each episode by moving about, lying down, getting up a bubble of "gas", and, on occasion deliberately causing himself to vomit. The exception in June of the year before was an occasion when these efforts resulted in some internal bleeding for which he was hospitalized and treated without surgery. He was told after that incident that surgery to repair the hernia should be considered on an elective basis.
On the flight, when his condition flared up, he was not able to achieve relief. His wife asked a stewardess if there was some place on the plane where plaintiff could lie down, but was told there was not because all seats were filled. He tried to lie down on the two seats he and his wife had, but the space was too narrow. He could not lie down in an aisle because passengers walking about could step on him. One or the other must have made some request, though neither recalls it, or perhaps it was radioed ahead as a precaution, but there was a wheelchair waiting for plaintiff at the airport in Tokyo. They were transported by bus with their baggage to their hotel, checked in, but plaintiff could not relieve his discomfort.
A physician was called and plaintiff was taken to a Tokyo hospital. After examination and treatment, it was recommended that the couple return to New York for medical treatment. This was done (at some extra expense as they had left their tour group), and surgery was performed to repair the hiatus hernia. There has been no recurrence since.
The complaint is in three counts. The first is grounded on negligence in failing to have a place on board the plane to lie down. The second asserts liability without fault under the Warsaw Convention. The third asserts willful and wanton conduct in failing to provide a space to lie down, as a basis for punitive damages.
Suit was filed in Superior Court of New Jersey and removed here for diversity jurisdiction, 28 USC § 1332.
A letter order by the Magistrate after a status conference in May directed that the purser on board the flight be made available for depositions; and that all fact discovery be completed by August 15, 1983. It required plaintiff's experts reports (if any) to be served no later than August 15th, and defendant's experts reports to be served no later than September 15th.
Another paragraph directed that the substantive law of New Jersey was to apply in the case unless one party or the other filed a motion returnable not later than July 15, 1983 to show why the substantive law of another jurisdiction should apply. There has been no such motion.
The motion to dismiss rests on matters outside the pleadings, such as plaintiff's airline ticket, his and his wife's deposition. The court considers these proof matters, and so is required by Rule ...