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.
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
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.
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
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
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
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. ...