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Kruger v. United Air Lines, Inc.

United States District Court, N.D. California
Oct 31, 2007
No. C 06-04907 MHP (N.D. Cal. Oct. 31, 2007)


In Kruger and Auster the courts performed fact intensive analyses before arriving at conclusions about the parties' intent.

Summary of this case from Lin Zhang v. Air China Ltd.


No. C 06-04907 MHP.

October 31, 2007

MEMORANDUM ORDER Re: Defendants' Motion for Summary Judgment

On August 14, 2006 plaintiffs Ruth Ellen Kruger and Daniel Ronald Kruger, as individuals and on behalf of their marital community, filed a complaint against United Airlines, Inc., UAL Corporation (collectively "United"), Xiaoyan Wei, Yaping Huang, and Yuying Huang, alleging various tort causes of action for injuries sustained when Kruger was a passenger on a United flight. On January 5, 2007, default was entered as to the three individual defendants Wei, Huang, and Huang. Now before the court is United's motion for summary judgment or partial summary judgment.


Unless otherwise noted, the facts provided are taken from the Complaint.

Plaintiffs Ruth Ellen Kruger and Ronald Kruger are residents of Issaquah, Washington. Defendants United Airlines, Inc. and UAL Corporation are Illinois corporations. Defendants Wei, Yaping Huang, and Yuying Huang are California residents and domicilaries. The dispute in this case concerns an incident that occurred when plaintiff Ruth Kruger boarded United Flight 794 from San Francisco to Seattle on August 20, 2004. Defendants Wei, Huang, and Huang were passengers on the same flight.

On August 20, 2004 defendants Wei, Huang and Huang attempted to board Flight 794, despite having been instructed not to do so. According to the plaintiffs, the three defendants were disorderly and aggressive. They were stopped at the end of the jetway and prevented from boarding. Shortly thereafter, Ruth Kruger began boarding the flight and was told by an United flight attendant to wait on the jetway a few feet behind Wei, Huang and Huang. While the passengers waited, one of the three individual defendants was swinging a backpack. As Kruger attempted to move backwards to avoid it, she was struck in the back of the head by the backpack, which contained a hard and heavy object. Kruger felt pain in her head as a result of the impact and held her head. She boarded the plane at the instruction of the United flight attendant. Once seated, she felt dazed and nauseated. She pressed the call button and asked the responding flight attendant for tylenol after reporting that she had been struck in the incident. During the course of the flight, Kruger became increasingly ill; she vomited, lost consciousness, and fell on the floor outside the lavatory. At one point, flight attendants attempted to help her stand, but she fell again and hit her head. For the rest of the flight, Kruger remained on the floor of the lavatory with pillows placed around her. She states that she was unconscious for portions of the flight but does remember experiencing "excruciating pain, terror, emotional trauma, anxiety, and fear." Compl. ¶ 24. Upon landing in Seattle, an ambulance took her to a local hospital.

Plaintiffs seek damages for injuries sustained by Ruth Kruger while boarding the flight. The present dispute concerns whether plaintiffs can proceed against United under the Montreal Convention. The Convention for Unification of Certain Rules for International Carriage by Air, Done at Montreal on 28 May 1999, reprinted in S. Treaty Doc. No 106-45, 1999 WL 33292734 (2000) (entered into force Nov. 4, 2003) ("Montreal Convention"). Ruth Kruger alleges that she purchased a round-trip ticket for international travel on United Airlines and Quantas Airlines from Seattle, Washington to Brisbane, Australia. The trip involved five segments on the two carriers. The outbound portion of the trip included a United flight from Seattle to Los Angeles and a Quantas flight from Los Angeles to Brisbane. The return portion of the trip included a Quantas flight from Bisbane to Los Angeles; a United flight from Los Angeles to San Francisco; and, finally, United flight 794 from San Francisco to Seattle. In the complaint, Ruth Kruger alleges that Flight 794 was part of an "undivided international carriage" and thus the the Montreal Convention applies to this dispute. Compl. ¶¶ 12-13.


Summary judgment is proper when the pleadings, discovery and affidavits show 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). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.

Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.;Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). The court may not make credibility determinations, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991); Anderson, 477 U.S. at 249.

The moving party may "move with or without supporting affidavits for a summary judgment in the party's favor upon all [claims] or any part thereof." Fed.R.Civ.P. 56(a). "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e).


I. Motion for Summary Judgment

Plaintiffs' complaint, as amended, alleges causes of action under the Montreal Convention. Defendants move for summary judgment on the grounds that the incident in dispute occurred on a domestic flight, which is not covered by the Montreal Convention. Plaintiffs, in turn, contend that the incident occurred on a flight that was part of a single international flight operation, and therefore their claims are properly brought pursuant to the Montreal Convention. The court's task is a basic one: to determine whether plaintiffs' injuries were sustained aboard a flight covered by the Convention.

By its terms, the Montreal Convention governs "all international carriage of persons . . . performed by aircraft for reward." Montreal Conv., Art. 1(1). The Convention defines international carriage to mean:

any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two State Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.

Montreal Conv., art. 1(2). The provision most relevant to the instant dispute is Article 1(3), which addresses carriage performed by more than one distinct carrier. That provision provides:

Carriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.

Montreal Conv., art. 1(3). Thus, the dispositive issue is whether the parties regarded the domestic and international legs of the trip as one undivided carriage.

At the outset, the parties disagree on what case law is applicable in interpreting the relevant provisions of the Montreal Convention. Plaintiffs contend that case law interpreting the Warsaw Convention, the predecessor to the Montreal Convention, is inapposite. The Montreal Convention replaced the Warsaw Convention in its entirety, and, as plaintiffs note, it is "a treaty that favors passengers rather than airlines." Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 n. 4 (2d Cir. 2004). Nonetheless, courts interpreting the Montreal Convention routinely rely on existing case law under the Warsaw Convention interpreting similar provisions. See, e.g., Onwuteaka v. Northwest Airlines, Inc., No. H-07-0363, 2007 WL 1406419 *1, n. 2 (S.D.Tex. May 10, 2007). "Despite its newly aligned purpose, many of the provisions of the Montreal Convention closely resemble those of the Warsaw Convention." Weiss v. El Al Isr. Airlines, Ltd., 433 F.Supp.2d 361, 365 (S.D.N.Y. 2006). Moreover, the ratification history of the Montreal Convention indicates that the treaty negotiators as well as Congress intended to preserve the case law developed under the Warsaw Convention by adopting similar language in the text of the Montreal Convention. Baah v. Virgin Atlantic Airways Ltd., 473 F.Supp. 2d 591, 595 (S.D.N.Y. 2007) (citing legislative and executive statements on the preservation of Warsaw Convention precedent). Therefore, where the drafters adopted the same or substantially similar language in the Montreal Convention as that of the Warsaw Convention, the court will rely upon precedent developed under the latter to interpret the former.

The Warsaw Convention was originally adopted in Warsaw in 1929 and amended at The Hague in 1955 and again at Montreal in 1975.See Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000 (1934), 137 L.N.T.S. 11, reprinted in note following 49 U.S.C. § 40105; The Convention for The Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at The Hague on 28 September 1955, 478 U.N.T.S. 371; Montreal Protocol No. 4 To Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at The Hague on 28 September 1955, 2145 U.N.T.S. 36 ("Warsaw Convention").

Here, the textual differences in the two treaties are not relevant to the dispute. On the one hand, the Montreal Convention governs "international carriage," while on the other hand the Warsaw Convention addresses "international transportation."Compare Montreal Conv. Art. 1 with Warsaw Conv. Art 1. Certainly, the use of a different term in the Montreal Convention may convey a different meaning than that of the Warsaw Convention. The substitution of the word "carriage" in one agreement for the world "transportation" in another, if it conveys any difference in meaning at all, is not relevant here. Plaintiffs do not argue that "carriage" would encompass certain domestic routes that "transportation" would exclude. The argument that the new regime embraces a more passenger friendly approach does not aid plaintiffs in attempting to import an entirely new meaning into "international carriage" from the previous interpretations of "international transportation." Therefore, the interpretive principles employed for determining what flights were a part of "international transportation" are applicable here.

The parties agree that the governing inquiry for determining whether the flight was part of international carriage is the intent of the parties. As the Ninth Circuit has noted, the text of the Convention, which focuses on the intent of the parties, "unambiguously indicates that, at least in certain circumstances, purely domestic air travel can be covered by the Warsaw Convention's definition of international transportation." Coyle v. P.T. Garuda Indonesia, 363 F.3d 979, 986 (9th Cir. 2004). And, "[t]ransportation to be performed by several successive air carriers shall be deemed, for the purposes of this convention, to be one undivided transportation, if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or a series of contracts. . . ." Id. (quoting Article 1(3) of the Warsaw Convention and adding emphasis). The wording of the Montreal Convention is identical.

Ninth Circuit case law interpreting the Warsaw Convention directs courts to look to the objective indicia of the parties' intent, namely the issuance of a ticket. See Coyle, 363 F.3d at 979. Plaintiffs are correct to point out that the Montreal Convention no longer requires the issuance of a ticket for the Convention to apply. Changes in the mechanics of international travel, however, do not alter the fundamental interpretive principle that objective indications of the parties' intent take pride of place. Indeed, Article 3 of the Montreal Convention refers to a document of carriage or any other means of preserving information such as the places of departure and destination. Montreal Conv. Art. 3. Accordingly, the inquiry begins with the document of carriage or its equivalents. Here, the objective evidence of the parties intent favors defendants' interpretation that the flight was not covered by the Montreal Convention. Plainitffs have produced only Kruger's boarding passes as documentary evidence of the flight. Ms. Kruger's boarding passes for the United and Quantas flights do not support plaintiffs' theory. Pls.' Exh. 2 at 33-36. These passes were issued by separate carriers, the flight numbers listed refer to the individual airlines respectively. Id. Moreover, the E-ticket Receipt and Travel Itinerary produced by United and issued by it to Ruth Kruger contains no indication that the domestic leg was part of an international itinerary. Grotch Dec. Exh. C. In fact, United's E-ticket makes no mention of any international travel. Ms. Kruger admits that she purchased Los Angeles to Brisbane flights from Quantas via its website and then separately purchased the Los Angeles to Seattle flights from United via United's website. On the journey from Seattle to Brisbane, Ms. Kroger's United and Quantas flights were separated by a day and a half layover in Los Angeles for a trip to Universal Studios and a bus tour of Hollywood. See Pl.'s Exh. 2; Ruth Kruger Dec. ¶ 15. Thus, the objective indications of the parties' intent are that the Quantas and United flights were separate flights. Where the objective indicia are unambiguous, the court need not consider evidence of the parties' subjective intent. Coyle v. P.T. Garuda Indonesia, 363 F.3d at 991 (citing Sopcak v. Northern Mountain Helicopter Service, 52 F.3d 817 (9th Cir. 1995)).

Plaintiffs present two additional arguments to rebut the objective evidence. First, they provide evidence to establish that Ms. Kruger intended for the United and Quantas flights to be part of one undivided journey. Kruger states that she purchased the tickets from the two carriers in order to synch her travels with those of a friend. Ruth Kruger Dec. ¶¶ 6-8. She repeatedly states in her declaration that the travel was a round-trip flight. Id. Defendants do not attack this assertion of Kruger's intent, although they do object to Kruger's testifying to the ultimate legal conclusion that the flights were in fact an integrated round-trip journey. However, "one party's unilateral expectation that a domestic flight is part of a single international trip is not enough to convert that expectation into a reality." Lemly v. Trans World Airlines, Inc., No. 85 Civ. 7043 (MJL), 1986 WL 5107, *1 (S.D.N.Y. Apr. 29, 1986), aff'd 807 F.2d 26 (2d Cir. 1986) (concluding that domestic flight was not part of international transportation when the domestic and international flights were issued separately, although they were purchased through the same travel agent).

Second, plaintiffs contend Ms. Kruger made her intent known to United at several points. In her declaration, Ms. Kruger alleges that, at the time she purchased her United ticket, she expressed her anxiety to the United ticket agent about missing her connection between the Quantas flight arriving from Brisbane and the United flight from Los Angles to San Francisco. Ruth Kruger Dec. ¶ 12. According to Ms. Kruger, the United agent assured her that if she missed her United flight then she would be put on another United flight. Id. Ms. Kruger points to this conversation to demonstrate that she communicated her intent that the journey be one undivided international journey and that United shared that expectation. United objects to these statements in Kruger's declaration on the basis that they conflict with Ms. Kruger's earlier deposition testimony. In that deposition, taken on March 5, 2007, Ms. Kruger stated that she booked both the United and Quantas flights on the respective websites. Dep. 81:23-82:6. Thereafter, on May 18, 2007, the declaration of Teresa Hartwig, a United Senior Staff Representative, was filed in which Ms. Hartwig, having reviewed United's records, stated that the records show that Ms. Krueger contacted United on May 11, 2004, and made a reservation for a discounted fare to fly round-trip between Seattle and Los Angeles and that she purchased her E-ticket for the flights on May 12, 2004. Ms. Hartwig also notes that there is "absolutely no information in any of Ms. Krueger's records pertaining to United flights in July and August of 2004 regarding any flights she was taking on Qantas Airways. Nor is there any information at all regarding her intention to travel to or from Australia.". Hartwig Dec. ¶¶ 2, 3, 5 and 8. It was thereafter, in a declaration filed on June 18, 2007, that plaintiff claims to have recalled, refreshed by the Hartwig declaration, a discussion with her husband and reviewing an e-mail he had written, that she had talked with a United agent. She then goes on to recite a number of details of the now-recalled conversation. Courts should look with skepticism on post-deposition affidavits of a witness that contradicts the witness' testimony given at an earlier deposition, particularly on such a crucial issue. See Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262 (9th Cir. 1991).

However, even if the court considers the declaration it does not persuade the court that the intent of the parties was that the United portion of the journey was part of a "single operation." Certainly there is nothing in United's records to indicate they so intended. And, certainly, in the words of the Montreal Convention, it was not "agreed upon" even as a part of a series of contracts. The mere discussion with the reservation agent of the need to make connections or even gaining the assistance of the airline in that effort does not indicate the airline understood or intended that the trip be a single operation. The language of Coyle is instructive here: "Absent an objective showing of actual knowledge by the air carrier of the passengers' overall itinerary — that is, an admission that the airline (or its agent) actually understood the disputed flight to hve been part of the [passenger's] international journey . . . the tickets (and the objective facts of the ticketing)" show that this was not a single operation. 363 F.3d at 989. The tickets were not issued by the same travel agent or made as part of a package. They were reserved and paid for separately. The two airlines did not have code sharing agreements and were not partners in the same worldwide alliance. There were no communications between the airlines to coordinate the flights. The facts of one airline's itinerary or ticketing was not reflected on the other airline's itinerary or ticket. Even if Ms. Kruger's statements about the conversation with the United agent are believed, they are not of the type that would "alert an airline of its duties and liabilities. Id. at 993

The same evidentiary difficulties apply to evaluating Kruger's statements that Quantas checked her luggage from Brisbane to Seattle, thereby putting United on notice that she was on one undivided journey. Ruth Kruger Dec. ¶ 16 (stating that Quantas checked her luggage from Brisbane to Seattle). This statement is further afield from the type of evidence the Ninth Circuit indicated would be sufficient for establishing an airline's shared expectation. Coyle, 363 F.3d at 993. It is not an admission by United indicating actual knowledge. Moreover, Kruger's communications occurred with Quantas, not with United. Finally, United contests the truth of this assertion, submitting evidence to demonstrate that Kruger's account of checking her bags is inconsistent with the operations of the two airlines.Compare Kruger Dep. 97:15-23 (describing collecting her bags upon arrival at LAX and giving them to a United attendant) with Muller Dec. ¶ 3 (noting that if Kruger had checked her bags from Brisbane to Seattle, she would not have been required to retrieve them at LAX). In any event, even Ms. Kruger's account of the transfer and handling of the luggage is not the type of conduct contemplated by the Montreal Convention and by Coyle. It does not suggest that United regarded the flights as a single operation; it was merely an accommodation as occurs whenever a passenger is transferring from one international flight to another flight. And, it certainly does not represent an undivided transportation that has been agreed to by the parties. It was an after-the-fact handling of luggage. There is no evidence that baggage handlers have authority to agree to the terms and conditions of international travel.

For the foregoing reasons, the court finds that plaintiff cannot establish that Ruth Kruger's travels discussed above constitute an undivided international carriage" and, therefore, the Montreal Convention does not apply to this dispute.

II. Motion to Strike

United raises several objections to statements made in three declarations submitted by plaintiffs in opposition to the motion for summary judgment. They also ask the court to strike the objectionable statements. Because the court has not considered the objectionable statements in the declarations of Daniel Krueger and Stuart Frankel, it will not address theres objections.

United raises three main objections to Ruth Kruger's declaration. First, United argues that her characterization of the flight as an "international round-trip flight" is an improper attempt to attest to the ultimate legal conclusion in this case. Ruth Kruger Dec. ¶ 4. The court agreees that Ms. Kruger is not qualified to testify to the legal conclusion suggested by this statement and the court does not consider it as such. The objection is SUSTAINED for that purpose.

Next, United points to the contradiction in Ruth Kruger's declaration and deposition about the purpose of her flight. In her deposition, Ms. Kruger stated that she had "no particular reason" for traveling to Australia at that particular point of time. Kruger Dep. at 81:1-5. In her subsequent filed declaration, Kruger states that the purpose of her trip was to coordinate flights with her friend. Ruth Kruger Dec. ¶ 7. This discrepancy does not rise to the level of a contradiction, nor does it create a dispute in material fact that would defeat summary judgment. This objection is OVERRULED.

Finally, United objects to the contradiction in Ruth Kruger's declaration and her deposition about whether she called United to make reservations. The court has dealt with this issue above and discussed its problems at length.


For the foregoing reasons, the court GRANTS United's motion for summary judgment.


Summaries of

Kruger v. United Air Lines, Inc.

United States District Court, N.D. California
Oct 31, 2007
No. C 06-04907 MHP (N.D. Cal. Oct. 31, 2007)

In Kruger and Auster the courts performed fact intensive analyses before arriving at conclusions about the parties' intent.

Summary of this case from Lin Zhang v. Air China Ltd.
Case details for

Kruger v. United Air Lines, Inc.

Case Details


Court:United States District Court, N.D. California

Date published: Oct 31, 2007


No. C 06-04907 MHP (N.D. Cal. Oct. 31, 2007)

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