Opinion
00 Civ. 2936 (FM).
November 2, 2001
AMENDED MEMORANDUM DECISION AND ORDER
This Memorandum Decision and Order was prepared with the able assistance of Alan Feigenbaum, a student at Cardozo Law School who served as a summer clerk in my Chambers.
In this personal injury action, defendant, British Airways PLC ("British Airways") has moved for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56, contending that plaintiff Barbara Ligeti ("Ligeti") cannot recover damages for psychological injuries that she allegedly sustained while she was a passenger on board a British Airways flight. Following the filing of the motion, the parties consented to my exercise of jurisdiction over this matter for all purposes pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, I now grant the British Airways motion to the extent that Ligeti's psychological injuries were not proximately caused by the bodily injuries that she claims to have sustained.
I. Background A. Facts
The following facts, unless otherwise indicated, are either undisputed or viewed in the light most favorable to Ligeti.
On April 20, 1998, Ligeti was a passenger in the economy section of British Airways Flight 185 from London to Newark. (Rule 56.1 Stmnt. ¶¶ 1, 7). During the flight, after the seatbelt sign was extinguished, Ligeti entered a lavatory in the rear of the aircraft and closed the door behind her. (Id. ¶ 8; Ligeti Dep. at 13, 15). When the bathroom light failed to turn on, Ligeti tried to unlock the door but was unable to free herself or summon help using the call button. (Id. at 15-17). She then banged on the door and called out to indicate that she was "stuck in the bathroom," but received no response. (Id. at 17).
Rule 56.1 Stmnt. refers to factual contentions in British Airways' statement pursuant to Local Civil Rule 56.1 which have not been controverted in Ligeti's counterstatement.
At some point, British Airways Senior Engineering Officer Peter Bennington was summoned from the cockpit. (Bennington Dep. at 5-6). Although Ligeti does not recall precisely how long she was trapped before someone responded, she stated that it was more than ten minutes, during which time the airplane experienced turbulence and she became "very freaked out." (Ligeti Dep. at 17-18).
Bennington made several attempts to open the lavatory door, finally using a screw driver and pry bar to disengage the lock by removing the door from its frame. (Rule 56.1 Stmnt, ¶ 16; Bennington Dep. at 6-8). As the door was being forced open, Ligeti's body was struck. As she explained at her deposition, the "blow was to [her] side, most specifically the elbow[, b]ut the connective apparatus also." (Ligeti Dep. at 32). After leaving the lavatory, Ligeti was placed in the business class section of the plane for the remainder of the flight. (Rule 56.1 Stmnt. ¶ 15; Ligeti Dep. at 26). She declined medical treatment when the plane landed. (Ligeti Dep. at 31).
On April 24, 1998, Ligeti consulted Dr. Andrew Turtel, an orthopedic specialist, in New York, to whom she complained about pain in her right elbow. (Id. at 33-34). After taking x-rays, Dr. Turtel concluded that Ligeti had an inflammation of the bursa, i.e., a soft-tissue swelling in her elbow. (Turtel Dep. at 11). Based upon the contusion or "blunt trauma" to her elbow, Dr. Turtel prescribed icing and an anti-inflammatory medication. (Id. at 12).
On November 10, 1998, Ligeti again saw Dr. Turtel. (Id. at 15). During this visit, Ligeti complained about both elbow and neck pain. (Id. at 16). In response, Dr. Turtel ordered an MRI examination, which disclosed a soft disk herniation, as well as osteophytes, bone spurs, and a soft-disk ridge, in Ligeti's spine. (Id. at 17).
In total, Ligeti visited Dr. Turtel approximately four times. During the course of these visits, she complained about pain in her elbow, neck, shoulder, and upper body. (Ligeti Dep. at 32, 35-36).
Prior to the British Airways incident, between July 30, 1996 and March 27, 1998, Ligeti had twenty-nine counseling sessions with Dr. Christine Benson, a psychiatrist in Los Angeles, whom she consulted for issues that were unrelated to air travel. (See Benson Dep. at 49-50, 62-63). Within a matter of weeks after the April 1998 British Airways incident, Ligeti met with Benson an additional three times. (Id. at 69).
In July 1998, Ligeti was arrested in an intoxicated state after she allegedly struck a police officer. (See Ligeti Dep. at 42-43). The arrest evidently occurred after Ligeti consumed some tequila. (Rule 56.1 Stmnt. Ex. K (Dec. 13, 1998 letter from Dr. Benson to David Kestenbaum, Esq.) at 2). Following the arrest, Dr. Benson prepared a report detailing Ligeti's mental condition for Ligeti's criminal defense attorney. In that report, Dr. Benson concluded that Ligeti suffers from a cyclothmic disorder which caused her to have a toxic reaction to the tequila, leading to post traumatic stress disorder ("PTSD"), mood destability, and hyper reactivity. (Id.). Dr. Benson's report makes no mention of the earlier British Airways incident. (Id.).
For purposes of trial, Ligeti has retained as an expert Dr. Robert Cancro, a psychiatrist at New York University Medical Center who specializes in psychoses. After reviewing Dr. Benson's report and interviewing Ligeti on four occasions in late 2000, Dr. Cancro concluded that Ligeti is suffering from PTSD complicated by chronic pain syndrome, and that these conditions are causally related to Ligeti's injury to her right side, including her right elbow, and to her confinement in the airplane lavatory during a period of turbulence. (Cancro Aff. ¶ 4).
Dr. Cancro's initial report lists four interviews by date. By comparison, his affidavit refers to only three such interviews. (Compare Cancro Aff. Ex. A (Mar. 26, 2001 letter from Dr. Cancro to Stephen Skinner, Esq.) with id. ¶ 3).
B. Complaint
On May 2, 2000, Ligeti thus commenced this action against British Airways seeking five million dollars in damages for the bodily and mental injuries that she allegedly sustained as a consequence of being trapped inside the British Airways lavatory. (See First Am. Compl. ¶¶ 24, 30). In her complaint, Ligeti contends that after the flight crew used physical force to open the lavatory, "the door came crashing down upon [her], hitting her on her head, shoulder and elbow." (Id. ¶ 23). Ligeti further contends that, as a direct and proximate result of the incident, she received — and continues to suffer the consequences of — several bodily injuries, including injuries to her head, shoulder and elbow, as well as great psychological and emotional distress. (Id. ¶ 24).
II. Discussion A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only when 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.
In deciding such a motion, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
The Court must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55; see also Anderson, 477 U.S. at 247-49, 106 S. Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id., 477 U.S. at 248, 106 S.Ct. at 2510. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id., 477 U.S. at 249-50, 106 S.Ct. at 2511.
B. Warsaw Convention
The parties agree that Ligeti's right to recover damages for the emotional injuries that she allegedly suffered is governed by the Warsaw Convention. (See British Airways Mem. at 2; Ligeti Mem. at 1 ("For purposes of opposing the motion for summary judgment, the plaintiff agrees that the Warsaw Convention and the interpretation of the Convention govern this action.")). Although the only official version of the Convention is in French, the United States Senate relied upon an English translation when it ratified the Convention in 1934. See Husserl v. Swiss Air Transp. Co., 388 F. Supp. 1238, 1249 (S.D.N.Y. 1975). The official French and unofficial English language versions of Article 17 read as follows:
Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre lision corporelle subie par un voyageur lorsque l'accident qui a causi le dommage s'est produit ` bord de l'aironef ou au cours de toutes opirations d'embarquement et de dibarquement.
The 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 in the course of any of the operations of embarking or disembarking.49 Stat. 3000, 3005, reprinted in note following 49 U.S.C. § 40105 (emphasis added).
As the text of the Convention shows, a plaintiff seeking to recover damages from an air carrier for injuries occurring on an international flight, insofar as relevant here, must establish three elements: (1) an accident (2) on board an aircraft (3) during which the passenger suffered "bodily injury." Unless Ligeti is able to make this required showing, the Warsaw Convention precludes her from recovering any damages against British Airways. El Al Isr. Airlines, Ltd. v. Tseng, 525 U.S. 155, 176, 119 S.Ct. 663, 675, 142 L.Ed.2d 576 (1999).
Under Article 17 of the Convention, an "accident" occurs when a passenger's injury is "caused by an unexpected or unusual event or happening that is external to the passenger." Air France v. Saks, 470 U.S. 392, 405, 105 S.Ct. 1338, 1345, 84 L.Ed.2d 289 (1985). Here, it is undisputed that Ligeti suffered such an accident on British Airways Flight 185. Additionally, although Ligeti has made several inconsistent statements concerning precisely what occurred on the aircraft, a reasonable jury could find that the accident resulted in bodily injury, even if that injury was slight. The critical question on this motion is whether Ligeti is entitled to recover any additional damages for her alleged psychological injuries if the jury finds that she sustained some bodily injury.
In Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed. 2d 569 (1991), the Supreme Court considered whether a passenger could recover under Article 17 for injuries which were solely mental or emotional. The Court concluded that the reference in Article 17 to "lision corporelle" or "bodily injury" precludes any recovery for "purely psychic injuries" by a plaintiff who fails to allege any "physical injury, or physical manifestation of injury." Id., 499 U.S. at 552, 111 S.Ct. at 1502. In arriving at this determination, the Court expressly declined to consider whether a passenger could recover damages for mental injuries that merely are accompanied by physical injuries. Id.
Both before and after Floyd, some district judges have concluded that a passenger may recover damages for psychological injuries sustained on an international flight as long as the accident also caused physical injuries. See, e.g., In re Aircrash Disaster Near Roselawn, Ind., 954 F. Supp. 175, 179 (N.D.Ill. 1997) ("passengers who sustained physical injury in [an] accident [may] recover for any pre-impact terror they may have experienced"); Karfunkel v. Compagnie Nationale Air France, 427 F. Supp. 971, 977 (S.D.N.Y. 1977) (Wyatt, J.) (rejecting argument that mental or psychosomatic injuries are not included within the language of Article 17); Husserl, 388 F. Supp. at 1250(Tyler, J.)("Mental and psychosomatic injuries are . . . comprehended by Article 17."). In recent years, however, most courts have required that the physical injuries also be the proximate cause of the mental injuries. See, e.g., Alvarez v. Am. Airlines, Inc., No. 98 Civ. 1027, 1999 WL 691922, at *3 (S.D.N.Y. Sept. 7, 1999) (Mukasey, J.) (collecting cases); Longo v. Air France, No. 95 Civ. 0292, 1996 WL 866124, at *2 (S.D.N.Y. July 25, 1996) (Parker, J.);Wencelius v. Air France, No. SACV 95-389 AHS, 1996 WL 866122, at *1 (C.D.Cal. Feb. 29, 1996); Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 668 (N.D.Cal. 1994); Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 400, 358 N.Y.S.2d 97, 110, 314 N.E.2d 848, 857 (1974). As Judge Parker reasoned in Longo, were courts to hold otherwise, one passenger in a plane full of passengers who were traumatized by an emergency evacuation might be able to receive a windfall recovery for his emotional distress simply because he pinched his finger in his tray table on the way out of the plane. Longo, 1996 WL 866124, at *2. The majority view, which I adopt, avoids such inequities.
In this case, Ligeti's expert has opined that Ligeti's PTSD is causally related to both the physical injuries to her right side and her confinement in the lavatory during a period of turbulence. (Cancro Aff. ¶ 3). At his deposition, however, the expert conceded that merely banging one's elbow would not be a sufficient stressor to cause PTSD. (Cancro Dep. at 77). As he explained, it was the entire incident, including that fact that Ligeti was locked in the lavatory, that caused Ligeti's psychological ailment. (Id.).
Although the parties dispute the extent to which Ligeti was physically injured while she was being extricated from the airplane lavatory, for purposes of this motion, I must credit her testimony that she suffered a "blow" to her right side, including her elbow and the connective tissue. Since this physical injury arguably goes beyond merely banging an elbow, British Airways has not shown through undisputed facts that Ligeti's alleged PTSD could not have been caused by the bodily injury that she sustained. Accordingly, British Airways is not entitled to the outright dismissal of Ligeti's complaint to the extent that she seeks to recover damages for PTSD.
On the other hand, Ligeti may not recover damages for PTSD, or any other mental disorder, unless those damages were caused by her bodily injury. Ligeti's complaint therefore must be dismissed to the extent that she is seeking to recover for anything other than a bodily injury or an emotional injury that was proximately caused by a physical injury sustained while she was on Flight 185.
In certain instances, an accident victim's PTSD can itself constitute a physical injury because it results in discernible physical changes to the structure of the brain. See Turturro v. Continental Airlines, 128 F. Supp.2d 170, 178 (S.D.N.Y. 1996) (Knapp, J.)("New technology has allowed doctors to perceive that extreme stress, such as a near-death experience or being taken hostage, can actually change brain cell structure and cause a specific area of the brain to atrophy."). An international airline passenger who is able to adduce objective evidence of such changes consequently may be able to recover damages by proving that her PTSD is itself a bodily injury caused by the accident. See,e.g., In re Air Crash at Little Rock, Ark., 118 F. Supp.2d 916, 924 (E.D. Ark. 2000) ("PTSD, itself, [in this case] constitutes a physical manifestation of injury"); Weaver v. Delta Airlines, Inc., 56 F. Supp.2d 1190, 1192 (D.Mont. 1999) (considering "recent scientific research explaining that post-traumatic stress disorder evidences actual trauma to brain cell structures."). Here, however, Ligeti has failed to adduce any evidence that her brain underwent such physical changes as a consequence of the incident on Flight 185. Ligeti therefore may not recover any damages on the theory that her PTSD is a bodily injury arising out of her accident.
III. Conclusion
For the foregoing reasons, the British Airways motion for partial summary judgment is granted to the extent that Ligeti seeks to recover damages for PTSD or any other psychological injuries that are not causally related to her alleged bodily injuries. Additionally, the parties are directed to submit a completed pretrial order, together with requests to charge and proposed voir dire, by November 30, 2001.
SO ORDERED.