Opinion
No. 3-99-CV-2022-BD
October 17, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Joseph Verdesca and Defendant American Airlines, Inc. have filed separate motions for partial summary judgment in this suit brought under Article 17 of the Warsaw Convention. For the reasons stated herein, defendant's motion is granted and plaintiff's motion is denied.
I.
On May 10, 1998, Joseph Verdesca and his wife, Sandra, flew from Dallas/Fort Worth International Airport to Orly Airport in Paris, France on American Airlines Flight 48. (Plf. Fourth Am. Complt. ¶ 5). When the plane arrived in Paris, it parked away from the terminal. This required passengers to deplane using a portable stairway or "ramp stand." ( Id. ¶ 10). According to plaintiff, Sandra struggled with her carry-on bags while descending the stairway. ( Id. ¶ 19). However, "[t]here was no American agent or representative stationed at the base of the stairway to see Ms. Verdesca's difficulties or respond to any request for assistance." ( Id. ¶ 22). As a result, Sandra fell down the stairs and landed on the tarmac. ( Id. ¶ 23). She later died of massive head injuries. ( Id. ¶ 27; Plf. App. at 102).
Plaintiff originally filed a wrongful death action in Texas state court alleging negligence and strict liability. Defendant timely removed the case to federal court on the ground that the Warsaw Convention, a federal treaty, preempts all state law claims. This same argument forms the basis of defendant's motion for partial summary judgment. Plaintiff also seeks summary judgment as to defendant's affirmative defense that it took "all necessary measures" to prevent the accident in question. Both motions have been briefed by the parties and are ripe for determination.
The removal statute provides, in relevant part:
Any civil action of which district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.
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28 U.S.C. § 1441 (b).
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991).
A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the nonmovant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The nonmovant may satisfy this burden by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993); Reid v. State Farm Mutual Automobile Insurance Co., 784 F.2d 577, 578 (5th Cir. 1986). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
III.
The treaty popularly known as the Warsaw Convention was enacted to "regulat[e] in a uniform manner the conditions of international transportation by air in respect of the documents used for such transportation and of the liability of the carrier." Convention for the Unification of Certain Rules Relating to International Transportation by Air, concluded at Warsaw, Poland. Oct. 12, 1929 ("Warsaw Convention"), preamble, 49 Stat. 3000, T.S. No. 876 (1934), reprinted at note following 49 U.S.C. § 40105. The Convention applies to "all international transportation of persons, baggage, or goods performed by aircraft for hire." Id., art. 1(1). The United States is a signatory to the Convention. See Swaminathan v. Swiss Air Transportation Co., 962 F.2d 387, 390 (5th Cir. 1992).
Article 17 of the Warsaw Convention governs the liabilities of aircarriers and the rights of passengers for personal injuries sustained on board an aircraft. This article provides, in relevant part:
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 or in the course of any of the operations of embarking or disembarking.
Warsaw Convention, art. 17. Liability is limited to 125,000 French francs per passenger. Id., art. 22(1). However, the carrier and passenger may agree to a higher limit by special contract. Id. Two such contracts, known as the IATA Intercarrier Agreement on Passenger Liability ("IIA") and the Agreement on Measures to Implement the IATA Intercarrier Agreement ("MIA"), increase the limit of liability under the Convention for personal injury damages up to 100,000 "Special Drawing Rights." See IATA, art. 1 (Def. App., Tab 2); MIA, art. I (1) (Def. App., Tab 3). An aircarrier cannot be liable for damages in excess of 100,000 SDRs if the carrier "proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for them to take such measures." Warsaw Convention, art. 20(1).
A Special Drawing Right, or SDR, is an accounting unit developed by the International Monetary Fund. Its value is determined by reference to a basket of currencies that includes the euro, the Japanese yen, the British pound sterling, and the U.S. dollar. As of July 31, 2000, one SDR equaled $1.313346 U.S. See International Monetary Fund, Special Drawing Rights, A Factsheet, at http://www.imf.or/external/np/exr/facts/sdr.HTM.
A thorough discussion of the history of these intercarrier agreements can be found in Price v. KLM-Royal Dutch Airlines, 107 F. Supp.2d 1365, 1368-70 (ND. Ga. 2000).
A.
Defendant moves for partial summary judgment on the ground that "the Warsaw Convention provides the exclusive remedy" in this case. (Def. Motion at 1). At the time this motion was filed, plaintiff had alleged three distinct causes of action: (1) common law strict liability; (2) common law negligence; and (3) strict liability under the Warsaw Convention. (Plf. Second Am. Complt. ¶¶ 14-22). In response to the summary judgment motion, plaintiff amended his complaint to delete his state law claims. However, plaintiff still seeks "wrongful death" damages. (Plf. Fourth Am. Complt. ¶¶ 36-40). Therefore, defendant's motion is not entirely moot.
To the extent that plaintiff attempts to assert a cause of action under the Texas Wrongful Death Act, such a claim is preempted by the Warsaw Convention. The Fifth Circuit has held that Article 17 of the Convention provides the exclusive cause of action for passengers injured on board or while embarking or disembarking an international flight. Potter v. Delta Air Lines, Inc., 98 F.3d 881, 885 (5th Cir. 1996); see also In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273 (2d Cir.), cert. denied, 112 S.Ct. 331 (1991) (passengers' state law wrongful death claims preempted by Warsaw Convention). The Supreme Court recently affirmed this interpretation of the Convention's preemptive effect. El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161, 119 S.Ct. 662, 668, 142 L.Ed.2d 576 (1999).
The Texas Wrongful Death Act provides, in relevant part:
(a) An action for actual damages arising from an injury that causes an individual's death may be brought if liability exists under this section.
(b) A person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default.
(c) A person is liable for damages arising from an injury that causes an individual's death if:
(1) the person is a proprietor, owner, charterer, or hirer of . . . a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers; and
(2) the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default.
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TEX. CIV. PRAC. REM. CODE ANN. § 71.002 (Vernon 1986).
There is no dispute that Sandra Verdesca died as a result of injuries sustained while disembarking an international airline flight. Accordingly, the Warsaw Convention provides the exclusive remedy in this case. Defendant's motion for partial summary judgment is granted.
The Court does not address what elements of damage are recoverable, as this issue has not been briefed by the parties. But see Zicherman v. Korean Air Lines Co., 516 U.S. 217, 224-28, 116 S.Ct. 629, 633-35, 133 L.Ed.2d 596 (1996) (damages available under Article 17 of Warsaw Convention are those provided by domestic law of contracting nations).
B.
Plaintiff moves for partial summary judgment on the ground that defendant did not take "all necessary measures" to prevent the injuries sustained by Sandra Verdesca. More particularly, plaintiff contends that defendant is not entitled to rely on this affirmative defense because it did not have an agent stationed at the bottom of the portable stairway to help passengers deplane.
Plaintiff's argument is based on a literal interpretation of the phrase "all necessary measures." This is not the law. Rather, the carrier need only show that it took "all precautions that in sum are appropriate to the risk, i.e. measures reasonably available to defendant and reasonably calculated, in cumulation, to prevent the subject loss." Manufacturers Hanover Trust Co. v. Alitalia Airlines, 429 F. Supp. 964, 967 (S.D.N.Y.), aff'd, 573 F.2d 1292 (2d Cir. 1977), cert. denied, 98 S.Ct. 1612 (1978). The failure to take any particular precaution that might have prevented the loss does not necessarily prevent the carrier from relying on this defense. Id.; see also Obuzor v. Sabena Belgian World Airways, 1999 WL 223162 *1 (S.D.N.Y. April 16, 1999).
The summary judgment evidence, viewed in the light most favorable to defendant, suggests that other precautions were taken to ensure the safety of passengers while disembarking the aircraft. For example, passengers were notified that they would deplane using a ramp stand instead of a jetway. Assistance was provided for anyone who asked for help. Passengers were instructed to use care while exiting the aircraft. (Def. Resp. App. at 0002, ¶ 8-9; 0008-10). Whether these precautions were "reasonable" is for a jury to decide. Moreover, the evidence shows that two agents met Flight 48 when it arrived in Paris. The agents stood at the bottom of the ramp stand and guided passengers to a waiting bus. ( Id. at 0002, ¶ 9). Contrary to plaintiff's assertion, there are genuine issues of material fact as to whether agents were stationed at the base of the stairway or "too busy" to notice Sandra Verdesca. These issues must be resolved at trial. Accordingly, plaintiffs motion for partial summary judgment is denied.
Plaintiff objects to these statements contained in the Affidavit of Rowan Chalmers, defendant's former general manager at Orly Airport, on the ground that he was not present at the time of the accident and has no personal knowledge of the events made the basis of this suit. (Plf. Reply at 4-5). However, Chalmers testified to essentially the same facts during his deposition. (Def. Resp. App. at 0010-12). Plaintiff does not object to this deposition testimony which is also included in the summary judgment record.
SO ORDERED.