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August 16, 2000


The opinion of the court was delivered by: Bassler, District Judge.


Defendant Worldwide Flight Services, Inc. ("Defendant"), moves for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs Danielle and Robert Croucher (jointly "Plaintiffs") cross move to remand. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Defendant's motion is granted. Plaintiffs' cross motion is denied as moot.


A. Facts

On January 31, 1999, Plaintiffs were passengers on board a Korean Air Lines ("KAL") flight from Newark, New Jersey to Seoul, Korea. After the plane departed from Newark, Plaintiffs' child became ill during the flight. Plaintiff Danielle Croucher ("Mrs. Croucher") removed the airsickness bag from the seat back pocket and, as she opened the bag, she came in contact with fluid that was in the bag, which Plaintiffs claim was left from a previous KAL flight.

The fluid in the airsickness bag was tested by an independent laboratory in Korea. Although the fluid in the airsickness bag was minimal, the sample tested negative for HIV and Hepatitis B Virus ("HBV"); however, the laboratory report stated: "[e]ven though the result of the HCV [Hepatitis C Virus] was positive[,] [w]e could not be sure of the existence of Hepatitis C Virus because the specimen was uncertain."

For the purposes of this motion, there is no dispute regarding these facts. Moreover, the parties also do not dispute that all of the repeated medical/blood tests (at least four) performed upon Mrs. Croucher for HCV or any other infection have been, and continue to be, negative.

B. Procedural History

On October 15, 1999, Plaintiffs filed suit against Defendant. Pursuant to a Standard Ground Handling Agreement with KAL, Defendant provided ground handling services to KAL at Newark International Airport. These ground handling services included cleaning the KAL aircraft cabin and clearing waste from seat back pockets.

Plaintiffs allege that as a result of Defendant's negligence, Mrs. Croucher came in contact with "bio-medical waste" causing Plaintiffs severe emotional distress and mental anxiety. Plaintiffs seek compensatory and punitive damages for: Count 1 (negligence) — claim by Danielle Croucher for "severe and permanent emotional distress" as a result of her concern and fear over being exposed to the potential for developing HCV; Count 2 (negligence) — claim by Robert Croucher for psychological distress and anxiety as a result of observing his wife coming in contact with bio-medical waste; Count 3 (loss of consortium) — claim by Robert Croucher for past and future loss of services and consortium; and Count 4 (gross negligence) — claim that Defendant's failure to ensure that KAL aircraft was free of hazardous conditions constituted wanton, reckless and gross negligence.

Defendant removed the suit to this Court on December 3, 1999, alleging subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Defendant contends that this action is governed by the Warsaw Convention ("Convention"), 49 U.S.C. § 40105 note.

Although the parties do not dispute that the Warsaw Convention applies to the transportation of Plaintiffs by KAL, the parties disagree on whether the Convention applies to Defendant as an agent or contractor of the carrier, KAL. Defendant argues that the liability limitations of the Warsaw Convention extend to the carrier's employees, agents, or independent contractors performing the services of the air carrier or in furtherance of the carriage enterprise. Therefore, Defendant seeks summary judgment contending that under the Convention, Plaintiffs cannot recover 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. ...

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