Opinion
No. 97 C 0320.
November 24, 1997.
MEMORANDUM OPINION AND ORDER
Plaintiffs Stephania Tsevas ("Stephania") and Dimitri Tsevas "Dimitri") filed this six-count action against Defendant Delta Air Lines, Inc. ("Delta") seeking recovery for injuries sustained by Stephania when she was a passenger on Delta's flight from Frankfurt, Germany to Atlanta, Georgia under the Warsaw Convention (Counts I, II, IV and V) and under theories of common law negligence (Counts III and VI). Delta now moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6), alleging that (1) no relief can be granted under the Warsaw Convention because Stephania's injuries were not the result of an "accident," as defined by Article 17 of Warsaw Convention, and (2) the common law negligence claims are preempted by the Warsaw Convention and/or the Airlines Deregulation Act. For the reasons set forth below, Delta's motion is granted in part and denied in part.
BACKGROUND
On January 29, 1995, Stephania, who was traveling alone, boarded a Delta international flight from Frankfurt, Germany Atlanta, Georgia. She was seated next to a male passenger whom she knows only as "Bala." During the course of the flight, Delta flight attendants served wine and/or other alcoholic beverages to Bala to the point where he became intoxicated.
Stephania's original ticket from Delta provided for transportation beginning on January 12, 1995 at O'Hare International Airport in Chicago, Illinois with an arrival in Athens, Greece. On her return flight, she flew from Athens, Greece to Frankfurt, Germany and from Germany to Atlanta, Georgia. The final leg of her flight was from Atlanta to Chicago.
Stephania informed the flight attendants that Bala was intoxicated. The flight attendants nonetheless continued to serve Bala alcoholic beverages. Following Stephania's initial warning to the flight attendants of Bala's intoxication, he made numerous unwanted and unsolicited physical and verbal advances of a romantic and sexual nature toward her. Stephania again advised the flight attendants of Bala's intoxication and unwanted advances and requested that she be moved to another seat on the aircraft, away from Bala. The flight attendants refused to move her.
After the flight attendants refused to move Stephania, Bala continued his unwanted advances, which included grabbing her, fondling her, attempting to kiss her and biting her lip. Stephania again requested that she be moved and again the flight attendants refused. After more unwanted advances from Bala, the flight attendants eventually moved Stephania to another location on the aircraft. Upon arrival at the Atlanta Airport, Bala was taken into custody and later deported.
Stephania and her husband Dimitri filed this action on January 15, 1997. The Complaint alleges that as a result of Delta's flight attendants serving Bala to the point of intoxication and failing to take timely action to restrain Bala and/or relocate Stephania, she sustained physical and emotional injuries for which she seeks recovery under the Warsaw Convention and theories of common law negligence. Dimitri seeks recovery for the loss of his wife's consortium.
Delta now moves to dismiss the Complaint, alleging that: (1) Counts I, II, IV and V — "the Warsaw claims —", fail to state compensable claims under the Warsaw Convention, and (2) Counts III and VI — "the common law negligence claims" —, are preempted by the Warsaw Convention and/or the Airlines Deregulation Act.
DISCUSSION
When considering a motion to dismiss, the court tests the sufficiency of the complaint, not the merits of the suit. Triad Assoc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). This Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the nonmoving party. Dimmig v. Wahl, 983 F.2d 86, 87 (7th Cir. 1993). A motion to dismiss will be granted only if it is clear that Plaintiffs can prove no set of facts that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
I. Warsaw Convention Claims
The Warsaw Convention is a multilateral treaty which governs the rights and responsibilities of passengers, shippers and carriers in certain aspects of international air transportation. The United States has been an adherent to the treaty since 1934. Wolgel v. Mexicana Airlines, 821 F.2d 442, 444 (7th Cir. 1987)
The Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 U.S.C. § 40105 (adherence of United States proclaimed Oct. 29, 1934).
The parties do not dispute that Stephania's flight constituted an international flight governed by the terms of the Warsaw Convention. The parties do disagree, however, on the question of whether the injuries Stephania complains of were caused by an "accident" within the meaning of Article 17 of the Warsaw Convention. This Court finds that the incident alleged in the Complaint does constitutes an "accident" as that term has been interpreted under the Convention and denies Delta's motion to dismiss the claims brought under the Warsaw Convention.
A. Article 17 "Accidents"
Article 17 of the Warsaw Convention establishes the circumstances under which an international air carrier may be liable for injuries sustained by its passengers:
The carrier shall be liable for damage sustained in the event of death or wounding of a passenger or any bodily harm 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 diseinbarking.
An air carrier is liable to a passenger under the Warsaw Convention only if the passenger proves that an "accident" was the proximate cause of her injury. Air France v. Saks, 470 U.S. 392, 396 (1985). "The text of the Convention implies that, however we define `accident,' it is the cause of the injury that must satisfy the definition rather than the occurrence of the injury alone." Id. at 399. In Air France v. Saks, the Supreme Court defined "accident" under Article 17 as follows:
We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries. [citation omitted]. . . . In cases where there is contradictory evidence, it is for the trier of fact to decide whether an "accident" as here defined caused the passenger's injury. [citation omitted].
Id. at 405.
In Saks, the plaintiff sued an airline because she became permanently deaf in her left ear as a result of changes in air pressure during a flight. All evidence indicated that the aircraft pressurization had operated in the usual manner. Thus, the issue was whether a loss of hearing proximately caused by normal operation of the aircraft's pressurization system was an accident within the meaning of Article 17. The Supreme Court held it was not. Id. at 406. An "accident" would have been an unusual or unexpected event, that was external to the passenger, causing the ear injury. The injury in Saks, however, had been caused by "the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft." Id.
Courts have applied the definition from Saks in a variety of contexts and have interpreted it "broadly enough to encompass torts committed by terrorists or fellow passengers." Id. at 405. For example, courts have not hesitated to find that there was an Article 17 accident where terrorist attacks, bomb threats or hijacking were involved. See, e.g., Day v. Trans World Airlines, 528 F.2d 31 (2d Cir. 1975) (terrorist attack); Salerno v. Pam American World Airways, 606 F. Supp. 656 (S.D.N.Y. 1985) (bomb threat); Pflug v. Accepter Corp., 961 F.2d 26 (2d Cir. 1992) (hijacking); Husserl v. Swill Air Transport Co., Ltd., 351 F. Supp. 702 (S.D.N.Y.) (hijacking), aff'd, 485 F.3d 1240 (2d Cir. 1973); People ex. rel. Compagnie Nationale Air France v. Giliberto, 74 Ill.2d 90, 383 N.E.2d 977 (1978) (hijacking)
A claims falls under the Warsaw Convention only if the passenger's injury resulted from an unexpected or unusual event that is external to that passenger. See Fishman v. Delta Air Lines, Inc., 938 F. Supp. 228, 230 (S.D. N.Y. 1996) (scalding of passenger by flight attendant was unexpected and external event); Gonzalez v. Taca Int'l Airlines, Inc., 1992 WL 142399, at *2 (E.D. La. June 18, 1992) (spilled food and service of a beverage containing plastic constitute unusual and unexpected events); Diaz Lugo v. American Airlines, 686 F. Supp. 373 (D. P.R. 1988) (coffee spill by flight attendant was unusual or unexpected event external to passenger). Thus, where the injury resulted from a passenger's own internal reaction without any showing of abnormal operations of a plane or its equipment, courts have concluded that there was no "accident" for Article 17 purposes. See, e.g., Saks, 470 U.S. at 395 (hearing loss caused during normal operation of aircraft pressurization system); Padilla v. Olympic Airways, 765 F. Supp. 835 (S.D.N.Y. 1991) (injury sustained when drunk passenger collapsed in plane lavatory was "caused by . . . his own internal reaction to his voluntary intoxication").
This has been the result even where the conduct of an airline may have exacerbated a preexisting physical condition. See, e.g., Tandon v. United Air Lines, 926 F. Supp. 366, 369-70 (S.D.N.Y. 1996) (neither heart attack nor airlines' alleged failure to provide oxygen was an accident); Fischer v. Northwest Airlines, 623 F. Supp. 1064, 1065 (N.D. Ill. 1985) (failure to treat passenger suffering from heart attack was not an accident).
In the present case, Stephania's injuries clearly did not result from her internal reaction to normal airplane operations. Rather, they resulted from a combination of unexpected or unusual events external to her. See Saks, 470 U.S. at 405. According to the Complaint, Delta employees served alcohol to Bala to the point where he became intoxicated or otherwise uninhibited by the affects of the alcohol. When Stephania informed the flight crew that Bala was intoxicated they took no action and continued to serve him drinks. Thereafter, when Bala began to make unwanted and unsolicited advances toward her, Stephania advised the flight crew of the situation and asked to be moved. Again, Delta employees failed to act by either subduing Bala or moving Stephania to a different seat on the plane. Delta's failure to move Stephania, despite her requests, allowed Bala the opportunity to physically assault her by grabbing fondling, kissing and biting her. Bala's assaults and the resulting injuries Stephania allegedly sustained were caused, at least in part, by Delta's actions in serving Bala too much alcohol and failing repeatedly to subdue Bala or change Stephania' s seat. These events were unexpected, unusual and external to Stephania and, unlike the ear injury sustained in Saks, Stephania's alleged injuries are not the result of her own unique internal reaction. Neither Bala's attacks nor the flight attendants' actions, or lack thereof, are indicative of "normal and expected operation of the aircraft." Id.
Delta argues that Stephania' allegations of intoxication and assault do not show that she was injured as a result of an accident under Article 17 of the Warsaw Convention. (Def.'s Mem. at 8.) Citing Stone v. Continental Airlines, Inc., 905 F. Supp. 823 (D. Haw. 1995), Delta insists that an assault by a fellow passenger cannot be an accident. The plaintiff in Stone alleged that he was punched in the face by another passenger who was intoxicated. The Stone court found that the plaintiff's claim was outside the scope of the Warsaw Convention, stating that an incident where a passenger is injured in a fight with another passenger "bears no relation to the defendants' operation of the aircraft." 905 F. Supp. at 827; see Price v. British Airways, 1992 WL 170679, at *3 (S.D.N.Y. July 7, 1992) (fistfight between passengers).
The facts of Stone, however, are distinguishable from the present case. There was no indication in Stone that the defendant's flight attendants failed to provide any service to the plaintiff which would have diffused the situation or allowed the airlines employees an opportunity to prevent the assault from occurring. In this case, Delta continued to serve Bala alcohol knowing that he was intoxicated and it was provided with numerous opportunities to prevent the assault of Stephania yet refused. While a "fight" between passengers may not have a "relation to the operation of the aircraft," service from flight attendants, on the other hand, is characteristic of air travel and does have such a "relation with the operation of the aircraft."
Therefore, this Court concludes that the unwanted advances of Bala, coupled with the refusal of the Delta flight attendants to intervene when requested to do so, constitute, if true, an unexpected event external to Stephania which was beyond the usual and normal operation of the aircraft. Finding that Stephania's alleged injuries can be the result of an accident within the meaning of Article 17 of the Warsaw Convention, Delta's motion to dismiss Counts I, II, IV and V is denied.
B. Loss of Consortium
Stephania' s husband Dimitri, who was not a passenger on the relevant flight, seeks recovery in Count IV for the loss of his wife's consortium. Delta claims that the Warsaw Convention only compensates for monetary losses and that Dimitri's claim for loss of consortium is not recoverable under the Convention. This Court disagrees.
In In Re Air Disaster at Lockerbie, Scotland, 37 F.3d 804, 810 (2d Cir. 1994), cert. denied, 115 S.Ct. 934 (1995), survivors of 259 Americans who were killed by the terrorist bombing of an international flight brought claims for, among other things, loss of consortium. Id. at 828. The Lockerbie court looked to the language of Article 17 to determine if such damages should be allowed. Id. at 829. The court concluded:
In light of the broad language in the Warsaw Convention covering "damage sustained" and the lack of authority suggesting that the drafters wanted to limit compensatory damages to pecuniary loss, we . . . hold the Warsaw Convention permits damage awards for loss of society and companionship.
Id. Furthermore, in Gilbert v. Pan American World Airways, Inc., 1989 WL 16603, at *4 (S.D.N.Y., Feb. 23, 1989), the court, referring to loss of consortium claims deriving from "accidents" under Article 17, noted that "[n]o court has held that this sort of claim is precluded by the Convention."
Delta cites Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), and Saavedra v. Korean Air Lines Co., Ltd., 93 F.3d 547 (9th Cir.), cert. denied, 117 S.Ct. 584 (1996), for the proposition that loss of consortium claims are not allowed under the Warsaw Convention. However, these cases were both governed by the Death on the High Seas Act ("DOHSA"), and the courts in both cases held that loss of consortium was not available under DOHSA. This case is not governed by DOHSA and those rulings are not relevant to this decision. Furthermore, in its reply brief, Delta seems to retreat from its original position on the issue, arguing only that Dimitri's claim fails because Stephania failed to prove that her injury arose from an "accident," since the former claim is dependent on the latter. (Def.'s Reply at 4.)
Accordingly, this Court finds that the Warsaw Convention does not preclude Dimitri's claim for loss of consortium. Delta's motion to dismiss Count IV is denied.
II. Preemption of Common Law Claims
Plaintiffs' remaining counts, Counts III and VI, seek recovery under theories of common law negligence. Delta first contends that any state law cause of action is preempted by the Warsaw Convention.
Alternatively, Delta argues that Section 1305(a)(1) of the Airlines Deregulation Act ("ADA") preempts Plaintiffs' negligence claims because they arise out of Delta's "service" to its passengers. However, because the issue of preemption under the Warsaw Convention is dispositive, the Court need not, and does not, address preemption under the ADA.
Although the parties dispute whether the Warsaw Convention preempts state causes of action for injuries sustained on an international flight when there is no "accident," they acknowledge that the Warsaw Convention is the exclusive basis of recovery for injuries to which it applies. Therefore, where all Article 17 conditions are met, as here, any state law claims based on such injuries are preempted. See Potter v. Delta Air Lines, Inc., 98 F.3d 881, 884 (5th Cir. 1996); In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273 (2d Cir. 1991); Fischer v. Northwest Airlines, 1990 WL 139271, at *2 (N.D. Ill. Sept. 14, 1990) ("the Convention preempts state law causes of action when the Convention is applicable."); see also Wolgel, 821 F.2d at 445.
Accordingly, since the Court concludes, based on the allegations in the Complaint, that Stephania's claimed injuries resulted from an "accident" within the meaning of Article 17, and thus, that the Warsaw Convention is the law of the case, Counts III and VI are preempted.
CONCLUSION
For the reasons stated above, Delta's motion to dismiss is denied in part and granted in part. Counts III and VI are hereby dismissed.