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September 9, 1992


The opinion of the court was delivered by: ALFRED J. LECHNER, JR.

LECHNER, District Judge

 This is an action by plaintiffs Theodora Kantonides ("T. Kantonides") and her husband Andreas Kantonides ("A. Kantonides") (collectively, the "Kantonides") against defendant KLM Royal Dutch Airlines ("KLM"). Jurisdiction appears to be appropriate pursuant to 28 U.S.C. § 1332.

 Currently before the court is the motion of KLM for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the complaint (the "Complaint"), filed 19 July 1991. *fn1" For the reasons set forth below, summary judgment is granted.


 For the purposes of this motion, KLM does not contest the Kantonides' recitation of the facts surrounding the accident. KLM 12G, P 3. T. Kantonides and A. Kantonides are husband and wife and are residents of New Jersey. Kantonides Dep. at 5-6. T. Kantonides is fifty-nine years old. Id. at 5. KLM is a foreign corporation with its principal place of business in Amsterdam, the Netherlands. Answer, P 1. The Kantonides purchased round trip tickets for travel on KLM to Larnaca, Cyprus. Complaint, P 2-3. KLM provided the Kantonides with round trip air transportation between New York and Cyprus. Id., P 5.

 On the morning of 24 July 1989, the Kantonides departed from J.F. Kennedy Airport in New York on KLM flight 644 to Amsterdam. Kantonides Dep. at 16. The Kantonides' ultimate destination was Cyprus; however, the flight plan required a stop at the Schiphol Airport in Amsterdam to change aircraft before continuing on to Cyprus. KLM 12G, PP 7-9. On 25 July 1989 at approximately 10:30 a.m. local time, KLM flight 644 arrived at Schiphol Airport. KLM 12G, P 7; Dekker Aff. at 2. Before the passengers departed the aircraft, an announcement was made on board directing passengers with connecting flights to the appropriate gates. Kantonides Dep. at 21. The Kantonides were to meet connecting KLM flight 537; the announcement stated flight 537 would depart from Gate C41. Id. at 24; Dekker Aff., PP 3-4. Gate C41 is approximately one hundred and fifty meters from gate D49, the gate at which the Kantonides arrived. KLM 12G, P 10; Opp. Brief at 2. The Kantonides were scheduled to depart for Cyprus at 11:35 a.m. local time on KLM flight 537 which provided them with approximately one hour to meet their connecting flight. KLM 12G, P 9.

 To move between gates it is necessary for passengers to walk through the corridors of the terminal building. KLM 12G, P 10. Passengers are free to walk throughout this area of the terminal building; movement is not restricted. Id.

 KLM flight 644 discharged its passengers upon arrival. KLM 12G, P 7. The Kantonides left the aircraft and began to walk through Schiphol Airport toward Gate C41. Id., P 8; Kantonides Dep. at 25. T. Kantonides stated:

 When KLM flight 644 landed . . ., my husband and I walked from the airplane to the passenger terminal . . . . We took a straight path to the KLM gate which was between 250 to 500 feet away via the moving walkway. My husband and I were near the end of the moving walkway when suddenly and without warning the moving walkway malfunctioned, causing us and the other passengers on the moving walkway to fall.

 Kantonides Answers to KLM Interrogatories, Responses 4, 9. T. Kantonides stated that she fell one-half hour after leaving the airplane from New York. Kantonides Dep. at 28-29.

 Despite the Kantonides' statements that they "have knowledge of the manner in which the subject accident occurred," Kantonides Answers to KLM Interrogatories, Response 3, T. Kantonides does not recall how she fell or what caused her to fall. KLM 12G, P 4; Kantonides Dep. at 30-37. *fn2" Although A. Kantonides witnessed his wife's fall, he has not submitted any testimony regarding his observations of the accident. *fn3"

 With regard to the accident, T. Kantonides explained that after she fell she started screaming and her husband helped her to get up. Kantonides Dep. at 37. Shortly thereafter a KLM employee arrived and helped her into a wheelchair. Id. The KLM employee took her, by wheelchair, to a medical office or emergency room in the airport. Id. at 38-39. T. Kantonides stated that the airport doctor examined her arm and back and indicated that nothing was broken. He gave her a couple of pills for pain and put her arm in a sling. Id. at 39. After an examination by the airport doctor, T. Kantonides was taken by wheelchair to board flight 537 to Cyprus. Kantonides Dep. at 39.

 T. Kantonides stated that, as a result of the accident, she suffered several fractured ribs, a fracture of the radial head of her right elbow and a lumbar sprain. Kantonides Answers to KLM Interrogatories, Response 12(a)-(b). She contends these injuries have caused her pain and restriction of motion of the affected areas. Id. She stated that her condition has improved somewhat over the last two years, but that during "bad weather, she still experiences pain and restriction of motion in her right arm and back. In addition, when doing housework and while helping her husband at the restaurant, she often experiences pain and restriction of motion to the affected areas." Kantonides Answers to KLM Interrogatories, Response 13. *fn4"

 The accident occurred in the common area of the terminal building which is owned, maintained and controlled by the Schiphol Airport Authority (the "Airport Authority"). KLM 12G, P 5; Dekker Aff., P 5. The moving sidewalks are owned, maintained and controlled by the Airport Authority. KLM 12G, P 5; Dekker Aff., P 7. KLM leases portions of Schiphol Airport from the Airport Authority; however, these areas do not include the location of the accident. Id., P 6.

 KLM maintains that it "was not aware of any irregularities with respect to the moving sidewalk where the accident allegedly occurred." KLM 12G, P 6; Dekker Aff., P 7.

 The Kantonides maintain that even though the accident occurred in the common area, it was during the course of disembarking and embarking on KLM flight 644 and 537, respectively. Kantonides Answers to KLM Interrogatories, Response 10. However, A.J.M. Dekker ("Dekker"), the Head of KLM Commercial Affairs, Facilities Services, Real Estate Department, stated:

 I can state based upon my experience and knowledge of KLM's procedures at Schiphol Airport, that . . . [T.] Kantonides was no longer in the control of KLM and that she had not yet begun the embarkation process for KLM flight no. 537 at Gate C41 (she had not yet presented herself at the gate, had not yet surrendered her boarding pass and had not yet lined up in the departure area with other passengers to board the aircraft).

 Dekker Aff., P 8.

 A letter to KLM from R.R. Roos, legal counsel to the Airport Authority, related the substance of an inquiry into the Kantonides accident. Opp. Brief, Ex. C. The Airport Authority inquired into the accident with the airport police and terminal service staff. Id. The Airport Authority confirmed that T. Kantonides was treated by airport medical services for a painful right arm. Id. However, the inquiry yielded neither information about the accident, nor reports about any malfunction of the moving walkways on the day of the accident or the days directly before or after the accident. Id. The letter from the Airport Authority stated that all the moving walkways are systematically checked every six weeks by the airport maintenance. Id. In addition, the moving walkways are inspected annually by the government. Id.

 The letter from the Airport Authority hypothesized that because there is no evidence of any defect to the moving walkway, someone "must" have pressed the emergency stop button. Opp. Brief, Ex. C. The letter stated: "These facilities are on government's instructions equipped with a stop button and provided on two sides with handrails so as to enable users to hold onto, which of course is of particular importance in case of an emergency stop. The use of escalators and [moving walkways] requires in that sense some care on the part of the users." Opp. Brief, Ex. C.

 T. Kantonides seeks damages in compensation for "her pain and suffering and limitation of activities, permanent injuries, medical expenses and consequential damages." Kantonides Answers to KLM Interrogatories, Response 39. She has enumerated claims for medical treatment totaling $ 1,311.86. Id., Response 25. A. Kantonides seeks damages for loss of the services, companionship, and consortium of T. Kantonides, as well as for her medical expenses. Id., Response 39.


 KLM moves for summary judgment pursuant to Fed. R. Civ. P. 56 of the Complaint on the ground that no genuine issues of material fact exist. Moving Brief at 1. The Kantonides oppose the motion on the ground that genuine issues of material fact exist as to the application of the Warsaw Convention in this case and as to whether KLM breached its duty of care. Opp. Brief at 2.

 A. Summary Judgment Standard of Review

 To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The present task is to determine whether disputed issues of fact exist, but a district court may not resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); see also Desvi, Inv. v. Continental Ins. Co., F.2d , No. 91-3813, slip op. at 3-4 (3d Cir. 12 June 1992) ("The threshold inquiry is whether there are 'genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" (citations omitted); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992) ("We apply the test . . . (1) Is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law?") (quotations omitted); Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) ("Summary judgment is inappropriate when a conflict on a material fact is present in the record."); Nathanson v. Medical College of Penn., 926 F.2d 1368, 1380 (3d Cir. 1991) (Summary judgment may not be granted "if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed.").

 All evidence submitted must be viewed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Williams v. New Castle County, F.2d , No. 91-3899, slip op. at 8 (3d Cir. 24 July 1992); Boyle v. Governor's Veterans Outreach & Assistance Center, 925 F.2d 71, 75 (3d Cir. 1991); Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990); Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989). "'Any 'unexplained gaps' in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment.'" Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir. 1990) (quoting O'Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir. 1989)).

 Although the summary judgment hurdle is a difficult one to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the ...

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