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August 14, 2001


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

Defendants Alitalia Linee Aeree Italiane S.p.A. ("Alitalia"), Continental Airlines ("Continental"), Josephine Tyburski ("Tyburski"), and the Port Authority of New York and New Jersey ("PATH") (collectively, "defendants") move for summary judgment on all counts of the First Amended Complaint. Pursuant to Fed.R.Civ.P. 78, this motion is decided without oral argument and is granted.*fn1


Plaintiff John J. Waters ("Waters") seeks to recover damages for injuries allegedly sustained in connection with his transportation aboard Alitalia Flight 611 from JFK to Rome, Italy on December 22, 1997, and his return flight home on Alitalia Flight 610 on January 3, 1998. He also seeks injunctive relief to prevent Continental and Alitalia from engaging in discriminatory conduct in the future. Plaintiff, who uses a wheelchair because of his multiple sclerosis, alleges that defendants (1) failed to provide him with proper "meet and assist" services when he boarded Flight 611; (2) failed to assign him a bulkhead seat aboard Flight 611; and (3) failed to transfer him from his seat to a transfer chair upon his arrival in New York on Flight 610.
Plaintiff flew from JFK to Rome, Italy on Alitalia Flight 611 in December 1997. Plaintiff traveled with his sister, Kelly Waters, his brother-in-law, and a family friend. He was issued a Continental ticket for this trip through the redemption of his sister's Continental One-Pass miles. Plaintiff states that when he checked in for the flight, he requested bulk head seats and assistance in boarding the aircraft, because he is in a wheelchair and is unable to walk or stand. According to plaintiff, the agent informed him that he and his family members were assigned three bulk head seats and that plaintiff would receive assistance to board the aircraft. Defendants do not dispute this fact. Plaintiff and his family pre-boarded flight 611.
Plaintiff testified at his deposition that he was met at the gate and wheeled through the jetway by an individual he believed to be an Alitalia gate agent. At the aircraft door, he was met by two unidentified individuals with a transfer chair. Plaintiff claims that the two individuals refused to transfer plaintiff from his wheelchair to the transfer chair. His family members moved him from his wheelchair onto the transfer chair in the jetway immediately outside the door to the aircraft. Once on the transfer chair, the two individuals wheeled plaintiff to what defendants claim was plaintiff's assigned seat. Plaintiff asserts that he informed the two individuals that he was assigned a bulkhead seat and not the seat three-quarters of the way into the cabin where he was wheeled. Plaintiff further asserts that the two individuals then told him that he had to transfer himself to the seat that was assigned to him. Plaintiff states he advised the two individuals that he was unable to transfer by himself and that he was physically unable to sit in the assigned seat. Plaintiff does not present any evidence that the seat to which he was wheeled was not actually the seat listed on his boarding pass, notwithstanding what he had been told by the gate agent.
According to plaintiff, one of the two individuals then stated that he was going to find out about the bulkhead seat. That individual left and did not return. The other man stayed with plaintiff for five minutes and then left. Plaintiff states that he was left unattended in the aisle of the plane for about 20-25 minutes, strapped to the transfer chair. Defendants, however, claim that plaintiff refused to allow the meet and assist services men to transfer him to his assigned seat when he did not hold a boarding pass for a bulkhead seat. They further claim that at plaintiff's own insistence, plaintiff waited in the aircraft aisle for 20-25 minutes while his seat assignment was debated. Plaintiff claims that none of the flight attendants nearby offered him any assistance. Instead, other passengers were permitted to board the flight while plaintiff remained in the aisle. Plaintiff claims that he was unattended and unable to move, and that other passengers who attempted to pass him bumped into him, hitting him with their bags and causing him to fear that he might fall out of the transfer chair. After passengers began to board, plaintiff's family members moved plaintiff from the transfer chair to an aisle seat in one of the bulk head rows. Plaintiff and his sister both testified that plaintiff and his family were afraid that he would be injured if he remained in the aisle. Plaintiff's family members took the two seats next to plaintiff in the bulkhead row.
Miss Tyburski approached me in a very angry frame of mind. And she instructed me, that's not your seat, move. My response was, move me. And she looked at me and turned around in a huff and said, well, now I have to write a letter. And that was the last I spoke with her.

Plaintiff Dep. Tr., at p. 46.

Plaintiff remained in the bulkhead seat for the rest of the flight. Plaintiff contends that during the flight, no flight attendant apologized to him for the incident, although several Alitalia employees approached plaintiff's sister to inquire whether she was alright.

Plaintiff also contends that when he returned home on Alitalia flight 610 on January 3, 1998, plaintiff was one of the last people on the flight to exit the aircraft. He claims that two unidentified individuals boarded the plane with a transfer chair but did not know how to transfer him from the aircraft seat onto the transfer chair. He testified that his sister and brother-in-law then transferred him from the aircraft seat onto the transfer chair. Again, when he arrived in the jetway, the two individuals did not know how to transfer him back to the wheelchair, so his sister and brother-in-law transferred him from the transfer chair onto the wheelchair. According to defendants, Flight 610 transpired without incident, because plaintiff testified that he was provided meet and assist services in New York, was provided with a transfer chair, and agreed that the flight transpired without incident.
Plaintiff claims that as a result of these incidents, he sustained "mental and emotional anguish and distress, indignity, embarrassment and humiliation" and was "smacked in the head with carry-on bags" and coats while waiting in the aisle. See Compl., at ¶ 44. In his answers to interrogatories, plaintiff claims the following:
. . . physical, mental and emotional anguish, emotional distress, stress, anxiety in flying, loss of sleep for a period of 23 days, constipation for a period of 12 days, loss of weight, exacerbation of his multiple sclerosis.
Plaintiff's Answers to Alitalia's First Set of Interrogatories, No. 6. According to defendants, Plaintiff testified at his deposition that he was not injured as a result of any incident on Flight 611 and sought no medical attention for his head. He did testify that he visited a nurse at the suggestion of a relative to make sure everything was normal, which it was. However, plaintiff also testified he suffered constipation for 12 days and experienced anxiety in flying, sleep loss for 12 days and loss of weight for twelve days while on vacation. Furthermore, he stated he experienced an exacerbation of his multiple sclerosis symptoms, in that his upper body strength became weaker. See Plaintiff Dep., at 62:7-63:9. However, plaintiff also testified that he never discussed with his physician whether his experience aboard flight 611 was in any way connected to his loss of upper body strength. Id. at 65:1-5.
He further claims that Continental is responsible for this incident because it operated a "code-share" arrangement with Alitalia. Plaintiff testified that he personally never dealt with anyone at Continental with regard to his trip. His sister, Kelly Waters, made plaintiff's travel arrangements. Ms. Waters testified that she spoke with Continental to transfer her One Pass miles to use on the trip to Rome. She also testified that she spoke with a Continental representative named "Chico" in August 1997 to make a reservation for the plaintiff. Alitalia's representative, Josephine Tyburski, testified that Continental has no operations at JFK, did not operate Alitalia Flight 611 or 610 and did not have a code share agreement with Alitalia for any flights originating at JFK. A code share agreement produced in discovery indicates that such an arrangement existed between Continental and Alitalia but that JFK was not designated among the routes in the agreement. Continental claims that had plaintiff been on a code share flight, his ticket would reflect a Continental flight number, not an Alitalia flight number, as it did here. Accordingly, Continental maintains that its only involvement in the flights was to allow plaintiff's sister to redeem her frequent flyer miles to issue a round-trip ticket for her brother from New York to Italy. Plaintiff responds that it is irrelevant that he erroneously referred to the contract between Alitalia and Continental as a "code-share" agreement, and states that Continental's liability stems from Continental's contractual relationship with Alitalia, which allowed plaintiff to travel on Alitalia flights using a Continental ticket and Continental One-Pass miles.
Plaintiff named PATH as a defendant, and claims that it had an obligation to provide him the "meet and assist" services at JFK International Airport. According to defendants, PATH leases space at the airport from New York City and leases it to airlines. Defendants assert that PATH was only a landlord for the airport and at no time was it required to provide or did provide meet and assist services to Alitalia passengers. Defendants argue that Kelly Waters testified that there were two "unidentified individuals" that were supposed to assist John with the transfer. She did not know whether they were employed by PATH and did not have any conversations with anyone else who she believed to be employed by PATH. Other than this testimony, defendants argue that there is no evidence that has been adduced to demonstrate that PATH employed the two "unidentified individuals." Plaintiff argues that it is without a basis to dispute this fact because PATH has failed to produce discovery. According to plaintiff's counsel, she discovered that on May 13, 1997, PATH turned over the operation of the international arrivals building to a consortium called Schipol/ IAT. Counsel claims that contrary to this, PATH's counsel had represented that a lease existed between Alitalia and PATH, which plaintiff's counsel avers is not true. In addition, plaintiff's counsel claims that discovery in January of this year revealed that PATH is not merely the owner of property with no involvement in the daily operations of carriers who lease the property, contrary to previous assertions by PATH's counsel. Plaintiff's counsel further contends that plaintiff has not been provided information as to the agreement between PATH and Schipol/IAT or between Schipol/IAT and Alitalia. Counsel does not describe, however, any specific information she has that PATH had some involvement in the "meet and assist services."
Plaintiff argues that it is disputed who actually provided the meet and assist services. Plaintiff states that Tyburski testified that in December of 1997, a third party, Dynair, provided all of Alitalia's "ground handling services," including meet and assist services. However, she later testified that it could have been a company called "Summit Security" or "Triangle Services."*fn2


Standard for Summary Judgment

"[S]ummary judgment is proper `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 the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 31, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists only if the evidence presented would enable a reasonable jury to return a verdict for the nonmovant. See Anderson, 477 U.S. at 248. Summary judgment must be granted if no reasonable trier of fact could find for the non-moving party. See id. at 249.
To defeat summary judgment, an issue of fact in dispute must be one which a reasonable factfinder could base a verdict for the non-moving party and one which is essential to establishing the claims. See Anderson, 477 U.S. at 248. The non-moving party may not defeat summary judgment by simply resting on the argument that the record contains fact sufficient to support his claims. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1995); O'Donnell v. U.S., 891 F.2d 1079, 1082 (3d Cir. 1989). Rather, the non-moving party must go beyond the pleadings and, by affidavits or other evidence, designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e). "[C]onclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Olympic Junior, Inc. v. David Crustal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972); see also First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Gostin v. Nelson, 363 F.2d 371 (3d Cir. 1966).

I. Preemption of State Law Claims by the Warsaw Convention of 1929

As stated, plaintiff asserts state law claims of negligence against all defendants, assault and battery against defendants Alitalia and Port Authority, and seeks punitive damages against all defendants. Defendants maintain that all of plaintiff's claims are preempted by the Warsaw Convention of 1929 ("Warsaw Convention" or the "Convention")*fn3, based upon the Supreme Court's decision in El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999), and its progeny. In Tseng, the Supreme Court declared that "recovery for a personal injury suffered `on board [an] aircraft or in the course of any of the operations of embarking or disembarking,' . . . if not allowed under the Convention, is not available at all." 525 U.S. at 161, 119 S.Ct. at 668 (emphasis added). Plaintiff distinguishes Tseng and argues that the Convention should not be interpreted to preempt plaintiff's federal causes of action for discrimination, but plaintiff does not dispute defendant's arguments that plaintiff's state law claims are also barred. As defendants observe in reply, plaintiff appears to concede the preemption of his state law claims. Even if plaintiff did not concede preemption of state law claims, this Court determines independently that the state law claims against Alitalia, and claim for punitive damages, to the extent it arises from plaintiffs' state law claims, are barred by the Warsaw Convention, because the Convention provides the exclusive cause of action for injuries suffered during international flights. Tseng, 525 U.S. at 161, 119 S.Ct. at 668; Grimes v. Northwest Airlines, Inc., No. CIV. A. 98-CV-4794, 1999 WL 562244 (E.D.Pa. July 30, 1999), aff'd, 216 F.3d 1076 (3d Cir.), cert. denied, 121 S.Ct. 190, 148 L.Ed.2d 132 (2000). Moreover, the preemption of plaintiff's state law claims extends to the other defendants, because those claims are asserted against the other defendants only insofar as they may be characterized as acting as agents of Alitalia.*fn4 See Croucher v. Worldwide Flight Services, Inc., 111 F. Supp.2d 501, 503, 505 (D.N.J. 2000) (the term "carrier" as used in the Warsaw Convention includes any employees of the carrier, as well as agents and contractors who performed services "in furtherance of the contract of carriage").

Accordingly, plaintiff's claims of negligence and assault and battery are preempted by the Warsaw Convention, and summary judgment is granted to defendants on Counts I and IX.

II. Preemption of Federal Discrimination Claims By the Warsaw Convention of 1929

What is less clear is whether the Convention also preempts federal causes of action such as plaintiff's federal discrimination claims under the Federal Aviation Act ("FAA") and the Air Carrier Access Act ("ACAA"), and accompanying regulations. A discussion of the Convention's language, history and purposes, and the Supreme Court's reasoning in Tseng is helpful to understand whether those claims are also preempted.

By its terms, the Warsaw Convention applies to "all international transportation of persons, baggage or goods performed by aircraft for hire." 49 Stat. 3014, Art. 1(1). The Convention defines "international transportation" to include, among other things, transportation between two contracting signatory nations. Id. at Art. 1(2). Both the U.S. and Italy have adopted the Convention.

Article 17 of the Convention provides:

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.
49 Stat. 3018. When an event in international flight is covered by Article 17, a passenger may recover under the convention when he or she establishes "(1) an accident has occurred, in which (2) a passenger suffered death, wounding, or any other bodily injury, and (3) the accident occurred either on board the aircraft or in the course of embarking or disembarking from the plane." Tseng v. El Al Airlines, Ltd.,122 F.3d 99, 102, rev'd on other grounds, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576; see also Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535-536, 111 S.Ct. 1489, 1493-94, 113 L.Ed.2d 569 (1991).

The original language of Article 24 of the Convention instructed:

(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.

49 Stat. 3020 (emphasis added).*fn5 Although not a "model of the clear drafter's art," Tseng, 525 U.S. at 167, this article of the Convention has been interpreted to meant that any situation "covered" by Article 17 of the Convention must be brought within the limits enunciated by the Convention. What was uncertain before the Supreme Court's decision in Tseng is what it means to be "covered" by Article 17:

One plausible reading of Article 17 is that the Convention "covers" only cases of injury caused by accidents that take place after the passenger has begun the process of embarking and before ...

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