Summary
recognizing the cognizability of the non-passenger spouse's claim for loss of consortium under New York law, but ultimately dismissing the claim because it was derivative to the passenger's claim, which had failed to satisfy the injury requirement under the Warsaw Convention
Summary of this case from Blansett v. Continental Airlines, Inc.Opinion
No. 98 Civ. 1027 (MBM)
August 30, 1999
VICTORIA J. MANIATIS, ESQ., PAUL S. EDELMAN, ESQ., Kreindler Kreindler, New York, NY, (Attorneys for Plaintiffs).
LEWIS R. SILVERMAN, ESQ., DAVID S. RUTHERFORD, ESQ., Renzulli Rutherford, LLP, New York, NY, (Attorneys for Defendant).
OPINION AND ORDER
Plaintiffs Francisco A. Alvarez and Gladys Alvarez sue defendant American Airlines, Inc. ("American Airlines") for injuries allegedly suffered as a result of an emergency evacuation. Plaintiffs seek compensation for breach of contract, under the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, TS No. 876 (1934), reprinted in 49 U.S.C. § 40105 (1994) ("Warsaw Convention" or "Convention"), and for loss of consortium. Defendant moves for summary judgment pursuant to Fed.R.Civ. p. 56. For the reasons stated below, defendant's motion is granted in part, and denied in part.
I.
The following relevant facts are either undisputed or are presented in the light most favorable to the plaintiffs.
On February 20, 1996, Francisco Alvarez was a passenger on American Airlines Flight 587 from New York's John F. Kennedy International Airport to Santo Domingo. (Compl. ¶ 6) Almost immediately after it left the gate, the plane stopped. (Alvarez Dep. at 25-26) Approximately two minutes later, "a strong gas smell" suffused the passenger cabin (id. at 27), and the plane filled rapidly with smoke. (Id. at 30) A member of the flight crew yelled "get out," and the passengers, including Alvarez, scrambled. for the exits. (Id. at 30, 32-33)
When Alvarez reached the exit door, the plane's emergency slide had already inflated. (Id. at 34) Plaintiff jumped onto the slide, and descended in a sitting position. (Id. at 36) Before reaching the ground, Alvarez was banged from behind by a second evacuating passenger. (Id. at 37) As a result of this collision, Alvarez picked up speed, and, nearly at the bottom of the slide, bumped into a third passenger. (Id. at 37-40) Alvarez's heels struck the ground, and he fell forward onto his knees, then backward onto his buttocks. (Id. at 40-42) Plaintiff came to rest on the runway, three feet from the end of the slide. (Id. at 42) Along with the other passengers, Alvarez dashed from the plane to an airport terminal. (Id. at 44-45) That afternoon, Alvarez boarded another flight to Santo Domingo. (Id. at 59-60)
As a result of Alvarez's impact with the runway, he felt a "burning" sensation on his knees and buttocks, and was bruised in both places. (Id. at 58-59) On the flight to Santo Domingo, Alvarez continued to be bothered by pain in his knees and, to a lesser extent, in his buttocks. (Id. at 60)
Upon arrival in Santo Domingo, Alvarez was treated by his sister, Dr. Maria Francisco Alvarez Sosa. (Id. at 64-65) Sosa concluded that the evacuation had left Alvarez "emotionally disturbed" (id. at 69), and prescribed Valium. (Id. at 65)
One month after seeing Son, Alvarez began having nightmares and anxiety attacks. (Id. at 73) These continuing episodes are accompanied by screaming, profuse sweating, an elevated heart rate, and memories of the smoke-filled passenger cabin of the plane. (Pl. Local Rule 56.1 Statement, Ex. E, at 1-2) Although his panic attacks occur at various times, they are most likely to occur when Alvarez is overheated, or is in an enclosed space, as he was just before and during the evacuation. (Id. In addition to his anxiety attacks and nightmares, Alvarez has experienced sexual dysfunction. (Alvarez Dep. at 97)
Dr. Marcela Penaranda, who treated Alvarez 11 times in 1996 and' 1997, diagnosed him as having post-traumatic stress disorder. (Pl. Local Rule 56.1 Statement, Ex. E, at 2) Penaranda referred Alvarez to a psychiatrist, Dr. Ulla Kristina Laasko, who also concluded that Alvarez was suffering from post-traumatic stress disorder. (Id., 1 Ex. F, at 1, 3)
Plaintiffs seek relief on three grounds. First, plaintiffs claim that American Airlines breached its contractual duty to transport Alvarez safely to his destination. (Compl. ¶¶ 5-10) Second, plaintiffs claim that Alvarez is entitled to compensatory damages under the Warsaw Convention for his physical injuries and "emotional and psychological trauma." (Id. ¶¶ 11-14) Third, plaintiffs claim that Gladys Alvarez is entitled to compensation for loss of consortium, as her husband has experienced sexual dysfunction and has become substantially less interested in meeting socially with family and friends. (Id. ¶¶ 15-18)
II.
Summary judgment is mandated when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, "the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Azrielli v. Cohen Law offices, 21 F.3d 512, 517 (2d Cir. 1994). Nonetheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
III.
Plaintiffs' state law breach of contract claim fails because "all state law claims that fall within the scope of the Convention are preempted." Shah v. Pan American World Services, Inc., 148 F.3d 84, 97-98 (2d. Cir. 1998) (internal quotation marks and citations omitted). See also El Al Israel Airlines. Ltd. v. Tseng, 525 U.S. 155, ___, 119 S.Ct. 662, 668 (1999) ("(R]ecovery for a personal injury suffered `on board (an) aircraft or in the course of any of the operations of embarking or disembarking' if not available under the (Warsaw) Convention, is not available at all.") (citation omitted). There is no dispute that the Convention applies to this case. Indeed, the parties stipulate that this case is governed by the Warsaw Convention, and that the evacuation of Flight 587 was an "accident" within the meaning of Article 17 of the Convention. (See Pl. Local Rule 56.1 Statement, Ex. C, ¶ 1) Accordingly, plaintiffs' breach of contract claim "fall(s) within the scope of the Convention" and is therefore preempted. The Warsaw Convention provides plaintiffs with their exclusive remedy.
IV.
Pursuant to Article 17 of the Convention, plaintiffs seek compensation for (1) Francisco Alvarez's physical injuries, (2) his psychological and emotional injuries, and (3) the loss of consortium suffered by Francisco Alvarez's wife, Gladys Alvarez, as a result of these injuries. I will consider each of these claims in turn.
Article 17 provides that
[t]he 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 U.S.C. § 40105 (1994).
A.
Under Article 17 "an air carrier is liable for passenger injury only when three conditions are satisfied: (1) there has been an accident, in which (2) the passenger suffered `mort,' `blessure,' `ou . . . touts autre lesion corporelle,' and (3) the accident took place on board the aircraft or in the course of operations of embarking or disembarking." Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535 (1991). In Floyd, the Court defined "lesion corporelle" as "bodily injury." Id., at 542.
With respect to plaintiffs' claims of physical injury, all three conditions have been met. First, the parties have stipulated that there was an "accident." (Pl. Local Rule 56.1 Statement, Ex. C, ¶ 1) Second, the bruises, scrapes, and other physical injuries allegedly suffered by Alvarez during the evacuation constitute "bodily injury." Third, Alvarez was injured while evacuating — "in the course of . . . disembarking." Therefore, Alvarez may recover under Article 17 for physical injuries proximately caused by the evacuation of Flight 587.
B.
Plaintiffs' claim for damages arising from alleged psychological injuries presents a more difficult question. Although plaintiffs claim that Alvarez has suffered both physical and psychological injuries, they do not allege that there is any substantial causal connection between the two types of injury.
Whether a plaintiff may recover under Article 17 for psychological injuries that are coupled with physical injuries, but not caused by them, is an open question. In Floyd, the Supreme Court held that passengers cannot recover under Article 17 for purely psychological injuries. i§ Floyd, 499 U.S. at 552. However, the Court expressed no view as to whether "passengers can recover for mental injuries that are accompanied by physical injuries." Id. The Second Circuit has similarly declined to reach and resolve this issue. See Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 142, n. 1 (2d. Cir. 1998) ("We . . . have no occasion to consider whether [the plaintiff, who alleged only emotional harms] could recover had she suffered emotional injury coupled with physical injury.").
Courts that have reached the issue have been divided. Some courts have permitted recovery for psychological injuries provided only that there are some, even unrelated, physical injuries as well. See In re Aircrash Disaster Near Roselawn, Indiana, 954 F. Supp. 175, 178-79 (N.D. Ill. 1997) (permitting recovery for pre-impact fear when the impact resulted in physical injury and death); Chendrimada v. Air-India, 802 F. Supp. 1089, 1092 (S.D.N.Y. 1992) (denying motion to dismiss the plaintiff's claim for compensation for mental injuries when the plaintiff also alleged physical injuries, including nausea and cramps). Most courts, however, have permitted plaintiffs to recover for psychological injuries only if there is a causal link between the alleged physical injury and the alleged psychological injury. See Longo v. Air France, No. 95 CV 0292 BDP, 1996 WL 866124, *2 (S.D.N.Y. 1996) ("Allegations of mental distress that, is unrelated to physical injury . . . must be dismissed"); Wenco v. Air France, Inc., No. SACV 95-389 AHS, 1996 WL 866122, *1 (C.D.Cal. 1996) (dismissing claims "for emotional distress and fear (including any arising from the accident itself) other than any caused by (the plaintiffs'] physical injuries"); Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 668 (N.D. Cal. 1994) (similar); "Burnett v. Trans World Airlines, Inc., 368 F. Supp. 1152, 1158 (D.N.M. 1973)" (holding that the "plaintiffs may recover in this action for any such emotional anxiety that they can demonstrate resulted from a bodily injury suffered as a consequence of (the Article 17 accident]"); Rosman v. Trans World Airlines. Inc., 34 N.Y.2d 385, 400, 358 N.Y.S.2d 97, 109 (1974) (holding that "only the damages flowing from the `bodily injury,' whatever the causal link, are compensable").
For the reasons that follow, I find the majority rule more-compelling. First, adoption of the contrary, minority rule would tend to undermine the Supreme Court's recent decision in Floyd. As discussed above, the Supreme Court held in Floyd that Article 17 does not permit recovery for strictly psychological injuries. See Floyd, 499 U.S. at 542. If the minority rule were adopted, plaintiffs would be able to skirt Floyd's bar on recovery, for purely psychological injuries simply by alleging' that they have suffered some physical injury, no matter how slight or remote. As a practical matter, the substantive rule law announced in Floyd would thus be converted into an easily satisfied pleading formality, and a back door would be impermissibly opened to recovery for purely psychological injuries.
Second, the majority rule is consistent with the Second Circuit's Article 17 jurisprudence. In Shah, the Second Circuit contrasted Article 17 of the Convention, which makes air carriers strictly liable "to passengers" whenever there is an "accident," with Article 25 of the Convention, which applies only in the event of "wilful misconduct" by air carriers. See Shah, 148 F.3d at 96-97 (internal quotations and citation omitted). The Shah Court accepted' arguendo plaintiffs' interpretation of Article 25 as requiring "`arising from' causation . . . as between defendants' `wilful misconduct' and `plaintiffs' damage.'" Id. at 97 (citation omitted). The Court then contrasted this conception of the causal nexus required by Article 25 with the causal nexus required by Article 17. Article 17, the Shah Court noted, requires "proximate causation as between the `accident' and plaintiffs' `damage.'" Id. (citation omitted). The Court concluded that the "looser" standard for causation under Article 25 ("`arising from'") could be "reconcile[d]" with the tighter standard under Article 17 ("proximate causation") by reference to the "differing levels of culpability" required by each Article. Id. Specifically, under Article 17, a relatively intimate link is required between the liability-triggering event (the accident) and plaintiffs' damages because the liability-triggering event is not necessarily culpable. By contrast, under Article 25, a "looser" link is permitted between the liability-triggering e; (defendant's wilful misconduct) and plaintiffs' damages because the liability-triggering event is necessarily culpable.
To be sure, Shah is not directly analogous insofar as it "focuses on the connection required between an "accident" and plaintiffs' "damage," not on what causal nexus is required between a plaintiff's physical and psychological injuries. Nevertheless, as Shah explains, the rationale for requiring a close causal connection between Article 17 damages and Article 17 accidents does not follow from anything particular to the relationship between such damages and such accidents, but rather from a more general feature of Article 17, namely, that Article 17 imposes liability without regard to culpability. To the extent that the requirement of proximate causation is understood as a consequence of Article 17's imposition of strict liability, it follows that proximate cause should be required throughout Article 17 — "not just between an accident and a plaintiff's damage," but between a plaintiff's physical and psychological injuries as well. Accordingly, I reject the minority rule, which requires no causal connection at all between physical and psychological injuries.
A final reason for accepting the majority rule is that the contrary rule produces illogical results. In a substantially similar case, Judge Parker of this Court highlighted that danger. See Longo, 1996 WL 866124, at *2. In Longo, plaintiffs Richard and Patricia Longo were evacuated from an airplane during an emergency by means of slides. See id., at *1. During the evacuation, Richard Longo bruised his knee, and Patricia Longo, bruised her thigh and stepped on a sea urchin. See 44,. The Longos alleged "that the accident caused them to sustain `bodily injuries and related emotional injuries.'" Id., at *2 As the Court' noted; "however, the Longos did not allege `that their fear of death flows from their bruises, but rather that it is associated with the accident itself." Id. The Court dismissed the Longos' claims for mental distress to the extent they were associated with the accident but unrelated to their "physical injuries," explaining that "[t]o rule otherwise would be to give a windfall to that passenger who, in the course of evacuating, fortuitously pinched his little finger in his tray table." Id. I find Judge Parker's reasoning persuasive. The Convention's goal of "reasonable and predictable" recoveries, Jack, 854 F. Supp. at 668, would be undermined if similarly situated passengers were treated differently from one another on the basis of an arbitrary and insignificant difference in their experience. "The happenstance of getting scratched on the way down the evacuation slide . . . (should] not enable one passenger to obtain a substantially greater recovery than that of an unscratched co-passenger who was equally terrified by the plane crash." Id.
In sum, in a case governed by Article 17, a plaintiff may recover compensation for psychological and emotional injuries only to the extent that these injuries are proximately caused by his or her physical injuries. Psychological and emotional injuries that are merely accompanied by physical injuries, are Compensable.
In this case, plaintiffs have not claimed that the psychological and emotional injuries Alvarez has allegedly suffered, including his sexual dysfunction, have been proximately caused by his physical injuries. To the contrary, the record shows that the trauma that has allegedly left Alvarez with post-traumatic stress disorder and sexual dysfunction is the evacuation of Flight 587, not the slight bruising of his knees and buttocks that accompanied the evacuation. Accordingly, plaintiffs' claim for compensation for psychological and emotional injuries is dismissed.
C.
Finally, I consider plaintiff Gladys Alvarez's claim for loss of consortium. In a suit brought under Article 17, questions as to whether a person may recover for loss of consortium are "answered by the domestic law selected by the courts of the contracting states." Zicherman v. Korean Air Lines, Co., 516 U.S. 217, 225 (1996). Resolving Gladys Alvarez's loss of consortium claim would thus ordinarily require a choice of law analysis. In this case, however, both parties implicitly agree that New York law applies. Such "implied consent . . . is sufficient to establish choice of law." Tehran-Berkeley Civil Envtl. Engs. v. Tippetts-Abbet-McCarthy-Stratton, 888 F.2d 239, 242 (2d. Cir. 1989).
Defendant cites Argento v. Airborne Freight Corp., 933 F. Supp. 373, 377 (S.D.N.Y. 1996), for the proposition that "'[i]in New York . . . loss consortium is a directive claim to the extent that it is not cognizable unless the defendant is liable to the injured spouse whose injury in turn caused the spouse to suffer.'" (See Def. Mem. in Supp. at 17) Defendant concludes that because "Mr. Alverez's claim is not compensable under Article 17 of the Warsaw Convention, American is also not liable to Mrs. Alverez." Id. Plaintiffs respond as follows: "[d]efendant contends that Mrs. Alverez's claim is without merit as they argue Mr. Alverez is not entitled to compensation under Article 17. As outlined above, Mr. Alverez's claims for compensation clearly fall within those allowable under Article 17, and therefore Mrs. Alverez's claims are substantiated as well." (See Pl. Mem. in Opp'n at 24). Thus although plaintiffs reject defendant's conclusion, they do not contest the twin premiums of defendant's argument — that New York law applies, and that under New York law liability for loss of consortium is derivative.
Plaintiffs agree with defendant that American Airlines is liable for Mrs. Alvarez's loss of consortium only if it is liable for the psychological injuries that have allegedly left her husband both less interested in socializing and sexually dysfunctional. As discussed above, American Airlines is not liable for these injuries. Therefore, Mrs. Alvarez's loss of consortium is dismissed.
* * *
For the reasons stated above, defendant's motion for summary judgment is denied in part, and granted in part. Defendant's motion is denied as to plaintiffs' claim for damages arising from physical injuries proximately caused by the accident. Defendant's motion is granted as to plaintiffs' claims for breach of contract, psychological and emotional injuries not proximately caused by physical injuries suffered during the accident, and loss of consortium.