RAFAILOVv.EL AL ISRAEL AIRLINES, LTD.

United States District Court, S.D. New YorkMay 13, 2008
06 CV 13318 (GBD) (S.D.N.Y. May. 13, 2008)

06 CV 13318 (GBD).

May 13, 2008


MEMORANDUM DECISION AND ORDER


Plaintiff Liora Rafailov, ("plaintiff") brought suit against defendant, El Al Israel Airlines, Ltd., seeking damages pursuant to the Convention for the Unification of Certain Rules for International Carriage by Air ("Montreal Convention") for injuries sustained while aboard an El Al flight. In this same action, Roma Rafailov, plaintiff's husband, also brought suit against El Al, alleging loss of his wife's services after the incident. Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant's motion for summary judgment is granted.

Summary judgment is appropriate "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 that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); June v. Town of Westfield, 370 F.3d 255, 257 (2d Cir. 2004). In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, this Court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

"Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial."Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256) (internal quotations omitted). "[U]nsupported allegations do not create a material issue of fact." Id. Even where facts are disputed, in order to defeat summary judgment, the nonmoving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor. Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir. 2001) (citing Anderson, 477 U.S. at 248; Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). To defeat a summary judgment motion, the nonmoving party must establish the existence of each essential element of the claim. Silver v. City Univ. of New York, 947 F.2d 1021, 1022, (2d Cir. 1991) (per curiam) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)).

On July 13, 2005, Liora Rafailov suffered an injury while flying as a passenger aboard an EL AL airplane en route to Tel Aviv, Israel from Newark, New Jersey. During the flight, plaintiff was seated in the economy section of the aircraft, in the middle section of seats, second seat in from the starboard aisle. Plaintiff's sister was seated directly to plaintiff's right, immediately adjacent to the aisle. When plaintiff boarded the aircraft at Newark, she noticed the airline's standard issue blanket on her assigned seat and placed the blanket in the seat pocket in front of her. Plaintiff's sister testified that she noticed a piece of plastic and a blanket on the floor underneath her seat. Approximately three to four hours into the flight, plaintiff asked her sister to move so that plaintiff could exit her seat to walk to the lavatory. Plaintiff's sister obliged and plaintiff proceeded to exit her seat. Plaintiff's progress to the aisle was impeded, however, by a reclining seat directly in front of her. As plaintiff made her way to the aisle, plaintiff slipped on a piece of plastic beneath her sister's seat and fell to the floor. Plaintiff testified that she did not see the plastic at any time prior to falling.

Plaintiff's claim arises under the Convention for the Unification of Certain Rules for International Carriage by Air ("Montreal Convention"). The Montreal Convention exclusively governs the rights and liabilities of the parties in this action, preempting state law, as the incident giving rise to plaintiff's injury occurred on board an aircraft during the course of "international transportation" as defined by Article 1(2) of the Convention. See El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999); see also King v. American Airlines, Inc., 284 F.3d 352, 357 (2d Cir. 2002).

This Court has jurisdiction over plaintiffs' claims, as they arise under a treaty of the United States. 28 U.S.C. § 1331.

Article 17 of the Montreal Convention of 1999 provides:

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Montreal Convention, art. 17(1).

Defendant's motion for summary judgment must be granted as plaintiff has failed to establish an essential element of a claim under the Montreal Convention-that an accident within the meaning of Article 17 of the Montreal Convention occurred. See Tseng, 525 U.S. at 162; Air France v. Saks, 470 U.S. 392 (1985) (finding plaintiff's burden of establishing that an accident occurred was an indispensable element for the imposition of liability under the Montreal Convention). Plaintiff's slip and fall, resulting in injury, while aboard El Al Flight 28 does not constitute an "accident" within the meaning of Article 17 of the Montreal Convention.

Because the Montreal Convention recently came into force, it is appropriate to rely on cases interpreting a provision of the earlier Warsaw convention, where the equivalent provision of the Montreal Convention is substantively the same. See Montreal Convention, art. 17(1) ("It is expected that this provision will be construed consistently with the precedent developed under the Warsaw Convention and its related instruments."); Baah v. Virgin Atlantic Airways Ltd., 473 F. Supp. 2d 591 (S.D.N.Y. 2007) (Stein, D.J.); see also Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106, 110-11 (S.D.N.Y.) (Stein, D.J.), aff'd, 194 Fed. Appx. 5 (2d Cir. 2006).

"Not every identifiable incident or occurrence during a flight is an accident within the meaning of Article 17 even if the incident gives rise to injury." Saks, 470 U.S. at 403. Rather, an "accident" under the Montreal Convention is a legal construction that means "something more than an event which fortuitously occurs onboard the aircraft." Id. The United States Supreme Court has pronounced the controlling interpretation of the term "accident":

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.
Id. at 405, 105 S.Ct. 1338 (emphasis added).

Courts in this Circuit have granted summary judgment in favor of a defendant airline, where a plaintiff suffered an injury under circumstances similar to those experienced by plaintiff in this case. See e.g., Sethy v. Malev-Hungarian Airlines, 2000 WL 1234660, at *4 (S.D.N.Y. 2001) (Schwartz, D.J.), aff'd, 13 Fed. Appx. 18 (2d Cir. 2001) (tripping over luggage left in aisle during boarding was not an accident under Article 17 of the Montreal Convention because "there is nothing `unexpected or unusual' about the presence of a bag in or near the aisle during the boarding process."); cf. Waxman v. C.I.S. Mexicana De Aviacion, S.A. De C.V., 13 F. Supp.2d 508, 512, (S.D.N.Y. 1998) (finding an accident occurred where plaintiff was pricked by a hypodermic needle protruding from an airplane seat and that the airline's failure to remove the needle constituted "an unusual, unexpected departure from ordinary procedures.").

Similarly, courts outside this Circuit have held that "when traveling on an international flight, one would expect to find books, shoes, briefcases, and other items on the floor in front of, underneath and around the seats." Craig v. Compagnie Nationale Air France, 45 F.2d 435, 1994 WL 711916, at *1 (9th Cir. 1994) (finding no accident and granting summary judgment to defendant airline where plaintiff injured herself after tripping on a pair of shoes left on the airplane floor).

The presence of a discarded blanket bag on the floor of an aircraft is no more unexpected or unusual than the presence of luggage in the aisle of an aircraft during boarding or passengers' shoes on the floor of a seat row during a flight. After four hours in flight, it is would seem customary to encounter a certain amount of refuse on an airplane floor, including blanket bags discarded by passengers who had removed the bag's contents in order to use the blanket.

The United States Court of Appeals for the Second Circuit has, in certain circumstances, held that an airline may be liable where the airline employee's unreasonable action caused the injury. See e.g., Fishman v. Delta Air Lines, Inc., 132 F.3d 138 (2d Cir. 1998). In Fishman, a passenger was injured when a flight attendant, attempting to soothe the passenger's earache with a hot compress, spilled scalding water on the passenger. See id. at 140-41. While the procedure employed by the flight attendant may have been routine, the court in Fishman made clear that "an injury resulting from routine procedures in the operation of an aircraft or airline can be an `accident' if those procedures or operations are carried out in an unreasonable manner." 132 F.3d at 143 (emphasis in original) (finding flight attendant's use of "excessive, scalding" water unreasonable).

Plaintiff, here, alleges that her injuries resulted from El Al's failure to "properly clear the plane of debris before passengers boarded the plane." Pl. Memorandum of Law in Opposition to Defendant's Summary Judgment Motion 9. Notwithstanding the fact that there is no evidence in the record to support plaintiff's conclusory allegation, the United States Supreme Court has held that "the `accident' requirement of Article 17 . . . involves an inquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury." Saks, 470 U.S. 407 (emphasis in the original). The event that caused the passenger's injury must be an unexpected and unusual event that was external to the passenger. The event that caused the injury here — plaintiff slipping on a plastic blanket bag on the floor under a seat during flight does not constitute an accident under Article 17 of the Montreal Convention.

Defendant's motion for summary judgment is GRANTED.

SO ORDERED.