Opinion
Civil Action No. 03-1083 (JDB).
November 2, 2004
Athan Theodore Tsimpedes, LAW OFFICES OF ATHAN T. TSIMPEDES, Washington, DC, Counsel for Plaintiff.
Marc Edmund Miller, HOLLAND KNIGHT, L.L.P., Washington, DC, Ethan Ray Arenson, HOLLAND KNIGHT, L.L.P., Washington, DC, Leo G. Rydzewski, HOLLAND KNIGHT, L.L.P., Washington, DC, Counsels for Defendant.
MEMORANDUM OPINION
Plaintiff Elisabeth Kirkham ("Kirkham" or "plaintiff") brings this negligence action against Societe Air France ("defendant" or "Air France"). On July 7, 2004, the Court granted defendant's motion to stay discovery until resolution of this Court's subject matter jurisdiction. Currently pending is defendant's motion for summary judgment, which is based on two grounds: (1) this Court lacks subject matter jurisdiction over plaintiff's claim pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. ("FSIA") and (2) plaintiff cannot establish causation. For the reasons set forth below, the Court denies defendant's motion for summary judgment.
BACKGROUND
The facts set forth in this background section are drawn from the parties statements of facts not in dispute and in dispute, along with the corresponding references to exhibits in the record.
On or about June 8, 2000, plaintiff flew from Washington to Paris on United Airlines. Id. at 48. Then on June 12, plaintiff went to Orly Airport to take a 4:30 p.m. Air France flight to Bastia. Id. at 50-51. Outside the airport, plaintiff placed her two suitcases and carry-on bag onto a luggage cart. Id. at 57-58. Before entering the airport, plaintiff asked two police officers where she needed to go for her Air France flight to Bastia. Id. at 51. After they told her Terminal 1, plaintiff entered the airport, and asked a woman wearing a burgundy uniform for directions to Terminal 1. Id. at 51, 61. This woman informed plaintiff she needed Terminal 4 instead. Id. at 61.
At this point, plaintiff became confused as to where she needed to go and tried to get assistance from employees at the airport.Id. at 73. Plaintiff approached a woman behind a counter, whom she believed was an Air France employee, and asked where to go for her Air France flight. Id. This woman, who was tending to a line of about 20-25 people, told plaintiff to "go behind you."Id. at 74. Because behind plaintiff was the street, plaintiff presumed the woman meant behind her, which was a roundabout.Id. Plaintiff then went around the roundabout and saw a man in a blue uniform sitting behind a counter. Id. at 77.
Believing this man was an Air France employee, plaintiff asked him where to go for Terminal 4. Id. at 77, 173-176. The man asked plaintiff where she was going, and then asked to see her ticket. Id. at 77. After examining plaintiff's Air France ticket, this man told her she needed to go to Terminal 1. Id. He also told her not to worry and that he would take her where she needed to go. Id. at 78. This man then spoke to someone on a walkie talkie, left the counter, and began leading plaintiff towards Terminal 1, and her Air France flight. Id.
At this point, plaintiff was still pushing her own luggage cart. Id. at 80. Plaintiff testified in her deposition that although she initially started walking next to this man as he led her towards Terminal 1, he began walking very fast, and eventually, plaintiff could not keep up with the Air France employee, and twice had to stop to catch her breach. Id. at 80, 178. This individual led plaintiff through an area of the terminal where people entered from a variety of directions and that was very congested. Id. at 81-82.
While trying to keep up with this man, plaintiff was struck in the foot by another person or luggage cart. Id. at 84-86. The injury occurred in the highly congested area, and caused plaintiff to fall to the ground. Id. The man escorting plaintiff to her flight then used his walkie-talkie to call security, who shortly arrived and rendered aid to plaintiff.Id. at 88-89, 173-175, 178, 181. After security arrived, the individual who was escorting plaintiff remained at the scene. Eventually, plaintiff was put into a wheelchair and taken to the airport's medical center. Id. at 91. At that time, the man escorting plaintiff left, and did not accompany plaintiff to the medical center. Id. at 182. Plaintiff does not remember the name of this man. Id. at 173, 176.
Plaintiff was then taken to the American Hospital, where she had surgery performed to stabilize her foot, requiring the fixation of plates and screws.Id. at 103-104. She was hospitalized for a total of nine days before returning to Washington from Paris in a wheelchair. Id. at 104, 106, 111-112. Since that time, plaintiff has twice had surgery on her foot and she continues to suffer complications related to her injury. Id. at 123-124, 129, 133, 145-146.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position.Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
ANALYSIS
Defendant argues that summary judgement should be granted because defendant is an agent of a foreign state and, under the FSIA, is immune from the jurisdiction of this Court. Defendant specifically maintains that no FSIA exception, including the commercial activity exception, applies here. Defendant also argues that summary judgment should be granted because plaintiff cannot establish proximate causation. The Court will address each of defendant's arguments in turn.
A. Foreign Sovereign Immunities Act
The FSIA provides the exclusive source of subject matter jurisdiction over claims in United States courts against foreign states and their agencies or instrumentalities. See 28 U.S.C. § 1330; Republic of Argentina v. Weltover, 504 U.S. 607, 610-11(1992). A foreign state or its instrumentalities is presumptively immune from suit in the federal courts unless a plaintiff can show the claim falls within one of the statutory exceptions to immunity. See 28 U.S.C. § 1604; Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89 (1983). If no exception applies, then the district court lacks subject matter jurisdiction. See Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 442 (D.C. Cir. 1990).
In the instant case it is undisputed that the Republic of France owns a majority of the shares of Air France, making Air France an instrumentality of a foreign state under 28 U.S.C. § 1603(b)(2). See Declaration of Gregory J Kozlowski ("Kozlowski Decl.") ¶ 6. Therefore, Air France is entitled to sovereign immunity as though it were France itself, unless one of the exceptions in sections 1605-1607 applies. See Nazarian v. Compagnie Nationale Air France, 989 F.Supp. 504, 508 (S.D.N.Y. 1998) (finding that Air France was an instrumentality of the Republic of France, and therefore immune from suit unless an exception under the FSIA applied). The parties agree that the only potentially applicable exception is the commercial activity exception under section 1605(a)(2), which provides:
(a) A foreign state shall not be immune from the jurisdiction of the courts of the United States or of the states in any case —
. . .
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. . . .
The parties disagree as to whether the commercial activity exception applies in this case. While defendant argues that none of the three clauses of the commercial activity exception applies, plaintiff focuses her argument on application of the first clause — a claim based on Air France's commercial activity in the United States. See Def. Mot. at 5-8; Pl. Opp'n at 6-9. The Court will focus its analysis on the first clause of the FSIA commercial activity exception as well.
Under the first clause of the commercial activity exception a foreign state is not immune from jurisdiction in the United States courts where "the action is based upon a commercial activity carried on in the United States by the foreign state." 28 U.S.C. § 1605(a)(2). This clause has two requirements: (1) commercial activity in the United States, and (2) that plaintiff's action is based on that commercial activity.
Commercial activity may be "either a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. § 1603(d). In this case, Air France was certainly conducting commercial activity by selling airline tickets. Furthermore, it is undisputed that plaintiff purchased her Air France tickets in Washington, D.C. See Kirkham Depo. at 32-33; Def. Statement of Uncontested Facts ("Def. Statement") ¶ 5. Because Air France clearly engaged in commercial activity in the United States, this Court has jurisdiction over plaintiff's claim if it is "based upon" that commercial activity.
The Supreme Court has held that "based upon" is "read most naturally to mean those elements of a claim that, if proven, would entitle plaintiff to relief under his theory of the case."Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993). Furthermore, the commercial activity can not simply have led to the claims of plaintiff, but must form the basis of plaintiff's claim. Id. at 358. Therefore, this Court has subject-matter jurisdiction over plaintiff's claim if any of the elements of plaintiff's claim requires proof of Air France's commercial activity in the United States. See Nazarian, 989 F.Supp. at 508. To make that determination, a review of the elements of plaintiff's claim is necessary.
Plaintiff raises only one count in her complaint — negligence. In order to prove a claim of negligence, plaintiff must show: (1) defendant owed her a duty of care; (2) defendant breached that duty; and (3) that breach was a proximate cause of plaintiff's injuries. See Zoerb v. Barton Protective Servs., 851 A.2d 465, 470 (D.C.App. 2004). In her complaint, plaintiff alleges Air France owed her a duty of care that was breached when its employee negligently escorted her to the Air France flight through the Orly airport, causing her injury. Compl. ¶ 9, 23-24. Plaintiff further argues that Air France's duty of care was created when plaintiff purchased an Air France ticket in the United States. See Pl. Opp'n at 8. Therefore, according to plaintiff, the duty element of her negligence claim is based on the commercial activity of Air France in the United States, and this Court, therefore, has subject matter jurisdiction.
Air France argues that facts in the record do not support plaintiff's contention that Air France owed plaintiff a duty. Specifically, at the time of the accident, plaintiff had not checked in for her flight, plaintiff was in a public area of the airport, using a luggage cart that Air France does not own, and Air France does not have a policy or procedure to carry the luggage of "prospective passengers" through an airport. See Def. Mot. at 6; Def. Reply at 5. Therefore, argues Air France, it did not owe plaintiff a duty at the time of her accident, and thus she cannot show a "significant nexus" between her claim and Air France's United States commercial activity. See Def. Mot. at 6-8.
In evaluating defendant's claim of immunity under the FSIA, and plaintiff's assertion of a commercial activity exception, neither party questions that Air France, as a common carrier, owes a duty of care towards its passengers. See Def. Reply at 5; Pl. Opp'n at 8; see also Washington Metro. Area Transit Auth. v. Jeanty, 718 A.2d 172 (D.C. 1998) (a common carrier owes the highest duty of care to its passengers); Behrenhausen v. All About Travel, Inc., 967 S.W.2d 213, 217 (Mo.Ct.App. 1998) (under Missouri law, an airline, as a common carrier, had a duty of care to provide safe passage to its passengers). Two issues in dispute here are whether plaintiff's allegation of a duty of care, coupled with the purchase of a ticket in the United States, is sufficient to satisfy the first clause of the commercial activity exception of the FSIA, and if so, did Air France actually owe plaintiff a duty of care at the time of her accident.
As to the first question, the Southern District of New York, inNazarian, 989 F.Supp. at 509, found subject matter jurisdiction under the first clause of the commercial activity exception on a similar negligence claim. Plaintiffs there alleged that an Air France employee took plaintiffs' passports and boarding passes and led them to an immigration area where plaintiffs were unlawfully detained by French authorities.Id. at 506. The court found the purchase of an airline ticket in the United States was the requisite basis for the airline's duty of care towards plaintiffs, so as to satisfy the commercial activity exception under the FSIA. Id. at 509; see also Chukwu v. Air France, 218 F.Supp.2d 979, 985 n. 3 (N.D. Il. 2002) (dictum) ("In a negligence action, the selling of an airplane ticket in the United States creates a duty, and is therefore an element of the cause of action that confers jurisdiction under the FSIA's `commercial activity' exception to sovereign immunity.").
Air France cites Ryba v. Lot Polish Airlines, 2001 WL 286731 (S.D.N.Y. March 22, 2001), in which immunity under the FSIA was upheld when the court found plaintiff's claim of negligence by the airline in maintaining its baggage area facility was not "based on" the Polish airline's commercial activity in the United States. Specifically, the court found that the airline's transportation of luggage from the United States was irrelevant for plaintiff's negligence claim. Ryba, 2001 WL 286731 at *2. However, there are two facts in Ryba that distinguish it fromNazarian and from this case. First, the plaintiffs in Ryba did not allege negligence in safe passage, but rather that she was injured as a result of the defendant's negligence in maintaining its facility in Poland. See Ryba, 2001 WL 286731 at *1; Nazarian, 989 F.Supp. at 509. Second, the plaintiff inRyba alleged the transport of baggage was the commercial activity in the United States, not the sale of tickets. See Ryba 2001 WL 286731 at *5; Nazarian, 989 F.Supp. at 509. In a claim for breach of a duty of care for safe passage, proof of purchase of an airline ticket is sufficient to satisfy the nexus requirement of the FSIA commercial activity exception. See Santos v. Compagnie Nationale Air France, 934 F.2d 890, 893-94 (7th Cir. 1991) (dictum) ("[C]ourts have held that the national airline of a foreign government is subject to the jurisdiction of United States courts if it or its agents sell a plane ticket or otherwise make travel arrangements in the United States (creating a duty of care in providing safe passage), and the flight crashes during travel outside the United States.").
The remaining question is whether Air France owed a duty of safe passage to plaintiff at the time of her injury on June 12, 2000. If Air France did not owe plaintiff a duty of care of safe passage at the time of the accident, then plaintiff cannot show that her claim was based on Air France's United States commercial activity. On this question, Air France strongly argues that the record shows no duty existed, and that plaintiff was merely a prospective passenger to whom Air France did not yet owe a duty. Air France notes that plaintiff had not checked in with Air France and was injured in an area where Air France did not have exclusive custody and control. Def. Statement ¶¶ 25, 31. Plaintiff responds that the individual who escorted plaintiff to her Air France flight was in fact an Air France employee, and that while being escorted to her flight, plaintiff was an Air France passenger and Air France owed her a duty of care of safe passage. Pl. Opp'n at 8-9.
Two remaining questions, then, are whether the individual escorting plaintiff actually was an Air France employee and, if so, did his actions initiate a duty of care of safe passage to plaintiff. Plaintiff testified that she believed this individual was an Air France employee. Defendant does not directly address this issue, but does refer to the individual as "unidentified."See Def. Statement ¶¶ 19-21. Defendant does not assert the individual was not an Air France employee. See generally Def. Statement. Taken together with plaintiff's testimony in her deposition, Air France's inconclusive position confirms that the employment status of the individual escorting plaintiff is, at the very least, a disputed material fact. See Kirkham Dep. at 76-77, 173-174, 174-175.
However, this Court must still determine, even if this individual was an Air France employee, whether his action initiated defendant's duty of care, so as to satisfy the FSIA commercial activity exception. If plaintiff cannot establish a duty, even assuming the individual was an Air France employee, then this Court lacks subject matter jurisdiction. To answer this question of duty, the Court must resolve whether at the time of her accident plaintiff was a "passenger" on Air France, which would trigger Air France's duty of care towards her.
In Suarex v. Trans World Airlines, 498 F.2d 613 (7th Cir. 1974), the Seventh Circuit addressed when an individual acquires the status of passenger so as to raise an airline's duty of care of safe passage. The court examined five factors to determine whether one is a passenger:
(1) place (a place under the control of the carrier . . .); (2) time (a reasonable time before the time to enter the conveyance); (3) intention (a genuine intention to take passage upon carrier's conveyance); (4) control (a submission to the directions, express or implied, of the carrier); and (5) knowledge (a notice to carrier either that the person is actually prepared to take passage or that persons awaiting passage may reasonably be expected at the time and place).Id. at 616 (citing Katamay v. Chicago Transit, 53 Ill. 2d 27, 32 (1972)).
Applying these factors to this case, the Court concludes that plaintiff was a passenger of Air France at the time of her accident. Although plaintiff was not in a "place" under the control of Air France, because she was injured in a public area of the airport, the four other factors indicate that plaintiff was a passenger. She was injured at a time shortly before her flight, and she had a genuine intention to take the Air France flight. See Def. Statement ¶¶ 8, 26. More importantly, at the time of the accident, Air France had knowledge that plaintiff was going to take the Air France flight, and took control over plaintiff by the actions of its (apparent) employee. Kirkham Dep. at 78. The Air France employee inspected plaintiff's ticket, and then directed plaintiff to follow him to the proper terminal. Id. When the Air France employee escorted plaintiff to her flight, Air France had control over the direction and manner of plaintiff's travel to her plane, which is crucial to establishing the passenger-carrier relationship. Cf. Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1262 (9th Cir. 1977) (plaintiff not a passenger of Air France after disembarking from her flight and entering a public area of Orly Airport because "acting at her own direction" and "no longer under the `control' of Air France").
Air France is correct to observe that had this individual merely pointed plaintiff in the correct direction, passenger status would likely not have been created. However, in this circumstance, by personally escorting plaintiff to her Air France flight, and instructing her to follow him, this employee exercised the necessary control over plaintiff to create the passengercarrier relationship. Hence, on the facts put forth by plaintiff, Air France owed her a duty of safe passage, which plaintiff alleges was breached. Because the commercial activity of Air France in the United States is the basis of Air France's duty towards plaintiff, her claim fits within the commercial activity exception to the general FSIA immunity. Therefore, on the facts in the record, defendant's motion for summary judgment on subject matter jurisdiction is denied.
It is important to note that 28 U.S.C. § 1330(a) gives this Court jurisdiction over nonjury trials only. In her Complaint, plaintiff requested a jury trial, but one is not available to her through the FSIA.
B. Proximate Causation
Defendant's second asserted ground for summary judgment is that plaintiff cannot establish proximate causation necessary to sustain her claim. Defendant argues that because plaintiff acknowledges that a third party bumped into her, causing her injury, plaintiff cannot prove Air France's breach of duty was the proximate cause of her injury.
At defendant's request, this Court on July 30, 2004, stayed discovery pending resolution of a motion for summary judgment on subject matter jurisdiction grounds. However, defendant has raised a second ground for summary judgment, notwithstanding this Court's order, which read: "Discovery in this case shall be stayed until determination of this Court's subject matter jurisdiction. Defendant shall file its motion for summary judgment on the question of subject matter jurisdiction. . . ." Because both parties have briefed this issue, the Court will decide it.
Under the law of the District of Columbia, proximate cause requires a showing that plaintiff's injuries were "either a direct result or a reasonably probable consequence" of defendant's actions. See District of Columbia v. Freeman, 477 A.2d 713, 716 (D.C. 1984); White v. United States, 780 F.2d 97, 106 (D.C. Cir. 1996). A defendant can be held liable for damages resulting from the negligent acts of a third party if those acts should have been reasonably anticipated and protected against.See Wilson v. Good Humor Corp., 757 F.2d 1293, 1297 n. 3 (D.C. Cir. 1985); Reiser v. District of Columbia, 563 F.2d 462, 479-80 (D.C. 1977) (if negligent or intentional acts of third party were reasonably foreseeable to original actor, liability will not be superceded by the intervening acts).
Both parties assert the application of District of Columbia law for plaintiff's claim.
Applying this analysis to the alleged facts of this case, plaintiff's injury was a foreseeable consequence of the alleged negligent actions of the (apparent) Air France employee, and therefore plaintiff can establish proximate causation. Plaintiff was pushing a heavy luggage cart around the airport as she hurriedly followed the (apparent) Air France employee, who had instructed her to follow him. See Kirkham Dep. at 78-83. The Air France employee was walking so quickly that plaintiff was required to take breaks to catch her breath. Id. In addition, the Air France employee led plaintiff into a high traffic area, where people entered the walkway from various directions. Id. at 81-83. It was within this highly congested area that plaintiff was injured. Id. at 83.
Given that set of facts, the injury suffered by plaintiff was a foreseeable consequence of being led quickly through a crowded airport while pushing a heavy object. Because plaintiff's injury was a foreseeable consequence of defendant's negligent actions, the intervening acts of a third party do not sever defendant's liability, and plaintiff thus can still establish that defendant's action was the proximate cause of her injury. Defendant's motion for summary judgment on proximate causation is accordingly denied.
CONCLUSION
Air France's motion for summary judgment on subject matter jurisdiction and proximate causation will be denied. Air France has failed to point to undisputed facts upon which it is entitled to judgment as a matter of law. A separate order has been issued on this date.