damages for emotional distress or punitive damages.
In contrast, Plaintiffs maintain not only that their claims
against Defendant are not governed by the conditions and limits
of the Convention, but also that even if the Convention did
apply, Defendant is liable because its conduct was reckless.
A. Standard for Motion for Summary Judgment
Summary judgment is appropriate only 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). Whether a fact is material is determined by the applicable
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue involving a
material fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d
Cir. 1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104
L.Ed.2d 1004 (1989).
The moving party has the initial burden of showing that no
genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). If the moving party satisfies this requirement, the
burden shifts to the nonmoving party to present evidence that
there is a genuine issue for trial. Id. at 324. Once the moving
party has carried its burden of establishing the absence of
genuine issues of material fact, the nonmoving party "may not
rest upon mere allegations or denials" of its pleading, Fed.
R.Civ.P. 56(e), but must produce sufficient evidence to
reasonably support a jury verdict in its favor, Anderson, 477
U.S. at 249, 106 S.Ct. 2505, and not just "some metaphysical
doubt as to material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986).
In determining whether any genuine issues of material fact
exist, the Court must resolve "all inferences, doubts, and issues
of credibility . . . against the moving party." Meyer v. Riegel
Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983) (citing
Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d
Cir. 1972)); accord Aman v. Cort Furniture Rental Corp.,
85 F.3d 1074, 1077 n. 1 (3d Cir. 1996).
Since a motion for summary judgment is designed to go beyond
the pleadings, factual specificity is required of a party who
opposes such a motion. Celotex, 477 U.S. 317, 322-23, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). Accordingly, in order to defeat a
properly supported motion for summary judgment, a party may not
merely restate the allegations of its pleadings. Farmer v.
Carlson, 685 F. Supp. 1335, 1339 (M.D.Pa. 1988). Moreover, a
party cannot rely upon self-serving conclusions, unsupported by
specific facts in the record. Celotex, 477 U.S. at 322-23, 106
S.Ct. 2548. A nonmoving party must point to concrete evidence in
the record which supports each essential element of its case.
Id. If the party fails to provide such evidence, then it is not
entitled to a trial and the moving party is entitled to summary
judgment as a matter of law. Fed.R.Civ.P. 56(e).
In deciding a summary judgment motion, however, the Court's
role is not "to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for
trial." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the party
opposing summary judgment has exceeded the "mere scintilla"
threshold and has offered a genuine issue of material fact, then
the Court cannot credit the movant's version of events, even if
the quantity of the movant's evidence far outweighs that of its
opponent. Big Apple BMW v. BMW of N. Am., 974 F.2d 1358, 1363
(3d Cir. 1992).
B. Applicability of Warsaw Convention to Worldwide
Article 1(2) of the Warsaw Convention applies to "all
international transportation of persons, baggage, or goods
performed by aircraft for hire." Article 17 of the Convention
The carrier shall be liable for damage sustained in
the event of the death or wounding of a passenger or
any other bodily injury suffered by a passenger, if
the accident which caused the damage so sustained
took place on board the aircraft or in the course of
any of the operations of embarking or disembarking.
(emphasis added). In any cases covered by Article 17, any action
for damages is subject to the "conditions and limits" set forth
in the Convention. Article 24(2). Moreover, "[a]ll state law
claims that fall within the scope of the Convention are
preempted." Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 141
(2d Cir. 1998); see also El Al Israel Airlines, Ltd. v. Tseng,
525 U.S. 155, 160-61, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999).
The Convention, however, fails to define the term "carrier."
Although the Third Circuit has not specifically addressed this
issue, the Second Circuit has held that an airline carrier's
employees are subject to the Warsaw Convention's terms and
conditions. See Reed v. Wiser, 555 F.2d 1079 (2d Cir.) (holding
that Convention limited liability of air carrier's employees
against suit by plaintiffs for negligent failure to institute or
maintain adequate security system), cert. denied, 434 U.S. 922,
98 S.Ct. 399, 54 L.Ed.2d 279 (1977); but see Pierre v. Eastern
Air Lines, Inc., 152 F. Supp. 486, 489 (D.N.J. 1957) (holding
that Convention did not apply to employee of air carrier).*fn1
In so holding, the court in Reed, after a thorough
examination of the history and purpose of the Convention,
concluded that the Convention's "basic principle" was to protect
air carriers "from having to pay out more than a fixed and
definite sum for passenger injuries sustained in international
air disasters." Reed, 555 F.2d at 1089. Consequently,
[t]o permit a suit for an unlimited amount of damages
against a carrier's employees for personal injuries
to a passenger would unquestionably undermine this
purpose . . ., since it would permit plaintiffs to
recover from the carrier through its employees
damages in excess of the Convention's limits.
Ibid. The Circuit recognized that because most carriers provide
their employees with indemnity protection, it would not only be
"inconceivable that airlines could long operate without
reimbursing their employees for this cost of doing business," but
also, the Convention's purpose of limiting the air carrier's
exposure would be circumvented. Id. at 1090. Moreover, another
"fundamental" purpose of the Convention was to "establish a
uniform body of worldwide liability rules to govern international
aviation, which would supersede with respect to international
flights the scores of differing domestic laws, leaving the latter
applicable only to the internal flights of each of the countries
involved." Ibid. (footnotes omitted). In other words, courts
would not have to "determine what domestic law applies and
whether under that law recovery might be had for an amount
greater than that recoverable against the airline." Id. at