NICHOLAS G. GARAUFIS, District Judge.
Lynne Kruger ("Mrs. Kruger"), Sheldon Kruger ("Mr. Kruger"), and their adult sons Maxwell and Lawson Kruger filed this action alleging breach of contract, false arrest, malicious prosecution, intentional infliction of emotional distress, negligence, and loss of consortium against Virgin Atlantic Airways, Limited ("VAA"). The court received a motion for summary judgment from both Defendant and Plaintiffs. The court referred both motions to Magistrate Judge Reyes for a Report and Recommendation ("R & R"). On August 13, 2013, Judge Reyes returned his Report and Recommendation to this court. (R & R (Dkt. 48).) Plaintiffs objected to portions of the R & R, and their objections
Except where otherwise noted, the following facts are undisputed. On August 22, 2010, Plaintiffs bought four non-refundable round-trip tickets for a family vacation. They planned to travel on Virgin Atlantic Airlines from Newark, New Jersey, to Delhi, India via London. (R & R at 305-06.) All tickets were e-tickets purchased online and subject to VAA's Conditions of Carriage. (Id.) Plaintiffs' departure flight from Newark was originally scheduled for December 23, 2010. (Id.) On December 21, 2010, Defendant informed Plaintiffs via e-mail that their flight from Newark to London's Heathrow Airport had been cancelled due to "on-going runway restrictions" at Heathrow. These restrictions were the result of a snowstorm in London. (Id.) Plaintiffs attempted to book another VAA flight to London, but were unsuccessful. Ultimately, they booked flights to Bermuda and then to London's Gatwick Airport, from which they were able to travel to Heathrow. (Pl. Obj. to R & R (Dkt. 49) at 6.) They then used their existing tickets to fly with VAA from London to Delhi. (R & R at 305-06.)
Plaintiffs took their planned January 9, 2011, return flight from Delhi to London on VAA No. 301. (Id. at 306.) The flight from Delhi was divided into different sections, "upper class," premium economy, and economy. (Id.) Plaintiffs were seated in economy class. Plaintiffs' section of economy was set to deplane through a door in the middle of the aircraft, the L2 door. But economy and premium economy passengers were not allowed to disembark until after the upper class passengers had left the plane. (Id.) Due to delays in Delhi, the flight arrived late. (Skinner Decl. in Supp., Ex. 5 to Def. Mot. for Summ. J. (Dkt. 42) ¶ 8 ("Skinner Decl.").) Plaintiffs were anxious to make their connecting flight, VAA No. 17, to Newark. (L. Kruger Dep., Ex. 1 to Pl. Mot. for Summ. J. (Dkt. 43) at 40-44 ("L. Kruger Dep.").)
Mrs. Kruger was seated in row thirty-eight of the economy section. When the plane landed, she was the first passenger from the economy and premium economy sections to reach the L2 door. (R & R at 306.) Leanne Skinner was working as a flight attendant on flight 301, and was charged with watching the L2 door and insuring that upper class passengers had priority in leaving the plane. (Id.) Mrs. Kruger asked Ms. Skinner if she could disembark before the upper class passengers in order to make her connecting flight. Ms. Skinner said no. (Id. at 306-07.) Mrs. Kruger asked repeatedly if she could pass, receiving the same response. (Id.) Finally, the upper class passengers had all departed, and Ms. Skinner stood aside to let the economy and premium economy passengers through. (Id.) Parties disagree about whether VAA announced that it was holding the plane to Newark. (Compare L. Kruger Dep. at 42:5-14, with Skinner Decl. ¶ 8.)
As Mrs. Kruger exited the aircraft, her shoulder came into contact with Ms. Skinner's chest. (R & R at 306-07.) Ms. Skinner claims to have been in pain and that she sat down while the rest of the passengers left the plane. (Id.) At her request, the captain of the aircraft called the police. (Id.)
Ms. Skinner and VAA accuse Mrs. Kruger of intentionally "barg[ing]" into Skinner and calling her a "bitch." (Id.) Mrs. Kruger maintains that she tripped, and she believes that she may have been
Plaintiffs stopped at a transfer counter. They handed over their passports and boarding passes to a VAA staff person. Another staff member picked up their documents and walked them to the gate. (Id. at 307; see also S. Kruger Dep., Ex. 8 to Pl. Mot. for Summ. J. at 33:13-17, 37:20-24, 38:22-25 ("S. Kruger Dep.").) Gate 22 consists of a glass-enclosed seating area, from which passengers can directly board the plane, and a check in desk at the entrance to the area. (Def. Reply in Opp'n (Dkt. 50) at 6.) Passengers cannot enter the interior area without checking in at the desk. (Brunning Decl. in Supp., Ex. 6 to Def. Mot. for Summ. J. ¶ 5.)
Mr. and Mrs. Kruger might have been in line to check in to the Gate for a short while. (R & R at 307; S. Kruger Dep. at 39:11-12.) Defendant's staff stopped them. (Id.) They informed Mrs. Kruger that the police wanted to question her in connection with the incident with Ms. Skinner. Ms. Skinner had also walked to Gate 22 and was there, with police, when the Krugers arrived. (Id.) After questioning both Ms. Skinner and Mrs. Kruger, police told Mrs. Kruger that they wanted to speak with her further at the station. (Id.) The rest of the Kruger family was free to leave. The Krugers' sons, Maxwell and Lawson, boarded flight 17 as scheduled. Mr. Kruger decided that he could not leave the U.K. without his wife. (Id.) All four of the family's bags were checked under Mr. Kruger's name; they were off-loaded because he was not travelling on the flight. (Id.) Plaintiffs assert that Defendant's staff handled this transaction in a harsh and abusive manner, calculated to shame and scare them. (Second Am. Compl. (Dkt. 23) ¶ 48.)
Police arrested Mrs. Kruger. (R & R at 307.) She was not placed in handcuffs or physically restrained. (Id.) The police then drove her and Mr. Kruger to the police station in a police van. Mr. Kruger waited at a nearby hotel while police questioned Mrs. Kruger. After approximately five hours, police released Mrs. Kruger in the early hours of the morning. (Data Protection Act Request (Kruger arrest record), Ex. 7 pt. 3 to Pl. Mot. for Summ. J.) She was not charged with any crime. (Id.)
Mr. and Mrs. Kruger returned to the United States on a British Airways flight later that day. (Id.) As a "customer relations gesture," Defendant refunded the $400.06 cost of Mr. Kruger's ticket from London to Newark. (Id. at 5.) Defendant sent Mrs. Kruger a letter banning her from any future travel with the airline. (Id. at 6.) On April 12, 2012, Defendant refunded the cost of the Krugers' outbound, Newark to Heathrow flight, in the amount of $1,414.20. (Id.)
Mrs. Kruger states that she has been seriously psychologically affected by the arrest. (Second Am. Compl. ¶¶ 48-49). She was taken to the hospital for a panic attack on July 3, 2011. (L. Kruger Dep. at 112:20-116:8.) She describes her relationship with her husband as severely strained. (Id. at 159:19-24.) A psychologist who treated her for a period in 2011 describes a number of anxiety-related ailments and states that "[a]ll of her symptoms are consistent with the condition of Post-Traumatic Stress Disorder." (Olson Ltr., Ex. 10 to Pl. Mot. for Summ. J.)
The Krugers filed this lawsuit against VAA and Jane Doe 1 (later identified as
Plaintiffs filed motions for a pre-motion conference to request partial summary judgment and to amend their complaint on February 28, 2012. (Mot. for Pre-Mot. Conf. (Dkt. 17); Mot. to Amend (Dkt. 18).) Defendant opposed the motion because discovery was not yet complete. (Resp. in Opp'n (Dkt. 21).) The court referred the issue to Magistrate Judge Reyes for an R & R. (Feb. 29, 2012, Referral.) On June 14, 2012, Plaintiffs filed a second amended complaint to add a claim for malicious prosecution. (Second Am. Compl.)
Following further discovery, the parties moved for summary judgment on January 4, 2013, (Defendant) and January 11, 2013, (Plaintiffs). (Dkts. 42-43.) Judge Reyes issued his R & R recommending that Defendant's motion for summary judgment be granted and that Plaintiffs' motion be denied on August, 13, 2013. Objections to the R & R were listed as due on August 30, 2013, and Plaintiffs filed their objections on that date. On September 5, 2013, Defendant filed its reply. (Dkt. 50.) Defendant later filed a motion to withdraw the timeliness of objections argument contained in its original reply. (Dkt. 51.)
The court reviews portions of the R & R to which a party makes no objection for clear error. U.S. Flour Corp. v. Certified Bakery, Inc., No. 10-CV-2522 (JS), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012). If one of the parties objects to a portion of a magistrate judge's R & R, the court reviews that portion de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. Pro. 72(b)(3). However, if the objections are "merely conclusory or general" or "simply reiterate his original arguments" those objections need only be reviewed for clear error. Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y.2008) (citation omitted). A district court will ordinarily refuse to consider new arguments, evidence, or law that could have been, but was not, presented to the magistrate judge. Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 995 (1st Cir.1988); Gutman v. Klein, 03-CV-1570 (BMC), 2008 WL 5084182, at *1 (E.D.N.Y. Dec. 2, 2008); Kennedy v. Adamo, 02-CV-1776 (ENV), 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006) (citing Haynes v. Quality Markets, 02-CV-250, 2003 WL 23610575, at *3 (E.D.N.Y. Sept. 22, 2003)). "A proper objection is one that identifies the specific portions of the R & R that the objector asserts are erroneous and provides a basis for this assertion." DuBois v. Macy's Retail Holdings, Inc., 11-CV-4904 (NGG), 2012 WL 4060586, at *1 (E.D.N.Y. Sept. 13, 2012).
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The burden to make this showing rests upon the party moving for summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "[T]he court must draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
A fact is material if its existence or non-existence "might affect the outcome of the suit under the governing law," and an issue of fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[S]pecific facts" grounded in testimony or other admissible evidence create a genuine issue. Id. "[M]ere allegations or denials" of the adverse party's pleadings, id., "assertions that are conclusory," Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir.2004), or "conjecture[] or speculation" from the non-movant, Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996), do not.
Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a situation, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548 (citation omitted).
Plaintiffs first object that Magistrate Judge Reyes did not hold hearings before issuing his report. (Pl. Obj. to R & R at 5). Plaintiffs also object to three portions of Judge Reyes's R & R: (1) the determination that Virgin had no obligation to cover, (2) the rejection of the EU law claim, and (3) the application of the Montreal Convention. (Id. at 6-25). Finally, they make a number of other observations that could be loosely construed as objections. (Id. at 25-26).
Plaintiffs' procedural objection regarding evidentiary hearings lacks foundation. (See id. at 5.) Although a judge may give a party that fails to properly support a material fact, or fails to address another party's assertion of fact, the opportunity to correct this failing, the judge is under no obligation to do so. Fed. R. Civ. Pro. 56(e). Plaintiffs and Defendant had sufficient time for discovery and had the opportunity to submit exhibits to accompany their summary judgment motions. The record reflects that they made ample use of this opportunity. Magistrate Judge Reyes held multiple conferences with the parties throughout this process. The Magistrate Judge also held a pre-trial conference on September 28, 2012. (Minute Entry for Sept. 28, 2012). The detailed R & R in this case demonstrates that Magistrate Judge Reyes had the necessary resources with which to determine that no genuine issues of material fact remained for trial. The court accordingly finds that Plaintiffs' objection with regard to additional hearings or evidence is without merit.
Plaintiffs make two assertions of error with regard to the breach of contract claim for the outbound flight: (1) that Defendant had an obligation to cover, and not merely to compensate Plaintiffs, for the cancellation of the Newark to London flight, and that it should have booked an alternative flight to London for Plaintiffs, and (2) that the issue of whether snow caused the flight cancellation remains an issue of fact.
Plaintiffs contest Judge Reyes's determination that VAA's contract of carriage did not require it to find Plaintiffs an alternate flight. They argue that, because they found another way to get to London, Defendant must pay the difference between the contract price and the cover price, as if they were engaging in a sale of goods covered by the Uniform Commercial Code. (See Pl. Obj. to R & R at 6.) However, parties had a contract for carriage, rather than for the sale of goods, and the Defendant's obligation was that of a common carrier, not a seller.
The fact that Plaintiffs were able to obtain alternate carriage to another airport in London is irrelevant to the legal question of whether Defendant was obligated to obtain it for them. The terms of the contract between Plaintiffs and Defendant are contained in the Conditions of Carriage, which is the only part of Defendant's customer service website referenced on the e-ticket. (E-ticket, Ex. A to Second Am. Compl. at 3 ("Notice of Incorporated Terms of Contract").) The court notes that the conditions of carriage provided to it appear to be from 2012, but that Plaintiffs purchased their tickets in 2010. Given that neither party has objected to the use of the 2012 contract, the court assumes that the relevant language is the same as the language in the 2010 contract in all material respects. The relevant language states that if a flight is cancelled, VAA offers customers a choice: either it will refund the cost of the flight, re-route the customer at a later date, or, if possible re-route a customer, "on our earliest flight with suitable space available in the ticket class of service for which you have paid the fare, or at our option in comparable transport conditions." (Conditions of Carriage, art. 9.3.1.1(b), Ex. B to Carlsen Decl., Ex. 8 to Def. Mot. for Summ. J. ("Conditions of Carriage").) Defendant had no available flights that would have allowed Plaintiffs to make their connection. (R & R at 311; Wallace Decl. in Supp., Ex 9 to Def. Mot. for Summ. J. (Dkt. 42) ¶ 6.)
Although Plaintiffs claim that the issue of whether snow caused the flight cancellation is in dispute, they offer no evidence to support this claim. If the non-moving party objects to summary judgment on the grounds that an issue of fact exists, the objection must be based on more than mere "conjecture." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). Plaintiffs have adduced no evidence demonstrating that flights were not cancelled due to snow in London. The fact that some flights could go to London area airports does not mean that all flights could go to Heathrow as scheduled. Simple denials that snow was the cause of the flight cancellation, (Pl. Obj. to R & R at 7), do not amount to a genuine issue of material fact.
Therefore, the court adopts Magistrate Judge Reyes's recommendations regarding these contract issues in full.
Plaintiffs also contest the Magistrate Judge's determination that European Community Regulation 261/2004 is inapplicable to the cancellation of their outbound
Plaintiffs cannot bring a direct state-law claim because the Airline Deregulation Act ("ADA") preempts state laws regulating airline rates. Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). But they can bring a claim related to anything that Defendant explicitly incorporates into its contract. Id. at 228-29, 115 S.Ct. 817. State law thus provides no cause of action, but can be a guide to interpreting the contract. This leads to the difficulty of determining what law applies to the document.
Curiously, it has not been clearly established that New York law governs this contract. The contract that parties have provided to this court contains no choice of law clause. (See Conditions of Carriage.) Federal courts sitting in diversity cases typically follow the law of the forum on issues of substantive law. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). However, the Second Circuit has held that federal common law choice-of-law analysis applies to international air shipments. Eli Lilly Do Brasil, Ltda. v. Fed. Express Corp., 502 F.3d 78, 80-81 (2d Cir.2007). Although the present case involves the transit of passengers and not goods, a similar rationale applies because this area of law is also governed by international convention and involves similar modalities of contracting and transport. In any event, the choice of law presents little difficulty as New York and federal law on choice of law do not conflict. Under both federal common law and New York state choice of law rules, the court applies an interest analysis. Id. at 81 (citing In re Koreag, Controle et Revision S.A., 961 F.2d 341, 350 (2d Cir.1992)); Vumbaca v. Terminal One Group Ass'n L.P., 859 F.Supp.2d 343, 360-61 (E.D.N.Y.2012).
An interest analysis suggests two options for the law governing the contract, neither of which is New York law. The parties' contract was made over the internet. (R & R at 305-06.) Performance was to begin in the United States, specifically, Newark, New Jersey. Arguably, New Jersey law applies because the flight would have originated from that state. In that case, the Conditions of Carriage would be governed by New Jersey law, except as preempted by U.S. federal law, including the ADA. Another obvious candidate is the law of England and Wales, and through it, that of the European Union. The Community Regulation applies to passengers departing a non-member state when the airline is an EU carrier. Council Regulation 261/2004, art. 3, 2004 O.J. (L46) 1, 3(EC). It is mandatory and cannot be contracted around. Council Regulation 261/2004, art. 15.1, 2004 O.J. (L46) 1, 6(EC). Second Circuit precedent directs the court to the Restatement of Conflicts of Laws. Eli Lilly, 502 F.3d at 81. The
The court need not resolve this question today because it does not affect the outcome of the case, or the correctness of the Magistrate Judge's ultimate determination. Even if New Jersey law would require that the regulation be incorporated by reference, or if the law of England and Wales applied to this contract, Regulation 261/2004 would be inapplicable here.
Plaintiffs cannot recover under Regulation 261/2004 because the text of the regulation states that airlines need not provide compensation in the case of: "extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken." Council Regulation 261/2004, art. 5.3, 2004 O.J. (L46) 1, 4(EC). The European Court of Justice, the highest court of EU law,
A snow-related cancellation is clearly beyond an airline's actual control and thus is an extraordinary circumstance, unlike, for instance, a controllable mechanical failure. See Case C-12/11, McDonagh, ¶ 29. Because the cancellation was an extraordinary circumstance under the terms of Regulation 261/2004, Defendant is not obligated to compensate Plaintiffs under the Regulation. As discussed above, Plaintiffs dispute the fact that snow caused their flight to be cancelled, but offer no evidence to back up this assertion. Because the court adopts the view that extraordinary circumstances prevented Plaintiffs from taking their original flight, it need not treat the question of whether they would need to exhaust administrative remedies. (See R & R at 313); but see Case C-12/11, McDonagh, ¶ 22 (existence of administrative process does not affect standing to sue carrier under the regulation).
Regardless of whether Regulation 261/2004 applies, Plaintiffs would not be entitled to compensation. The court adopts the Magistrate Judge's recommendation that a snowstorm presents an "extraordinary circumstance" excusing Defendant from liability under terms of the Regulation. (R & R at 313.)
Finally, Plaintiffs object to the application of the Montreal Convention. They object both to the characterization of the incident as an accident and to Magistrate
Plaintiffs' claims regarding the meaning of accident and embarkation both fail. The Convention applies to the tort claims arising out of Mrs. Kruger's arrest. Because these claims related to harm that is purely mental in nature, Plaintiffs cannot recover under the terms of the Convention.
The Supreme Court has defined "accident" under the Convention as "an unexpected or unusual event or happening that is external to the passenger." Air Fr. v. Saks, 470 U.S. 392, 405, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). The definition "should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries." Id.
Plaintiffs assert that the details of the incident with Ms. Skinner, the flight attendant, are contested. (Pl. Obj. to R & R at 21.) That the facts of the incident may be contested is neither here nor there. The proper question is whether the incident may be characterized as an "accident" under the Montreal Convention. Plaintiffs also point out that nothing on the London to Delhi flight constituted an accident. (Id.) This point is both correct and irrelevant, as all parties agree that the incident leading to Mrs. Kruger's arrest happened later. Mrs. Kruger's arrest as she was about to board her next flight was certainly an "unexpected and unusual event" and something courts have fairly characterized as an accident. E.g., Shen v. Japan Airlines, 918 F.Supp. 686, 688 (S.D.N.Y.1994) (plaintiff's false imprisonment is Warsaw Convention accident), aff'd 43 F.3d 1459.
The other component of personal liability under the Montreal Convention is the location of the accident. The Magistrate Judge recommended that the court hold that Mrs. Kruger was embarking the aircraft at the time of her arrest. Plaintiffs contest this determination, claiming that Mrs. Kruger was not in the process of embarking the aircraft within the meaning of the Montreal Convention. (Pl. Obj. to R & R at 15.)
The Second Circuit uses a four-prong test to determine whether a passenger was embarking on the aircraft within the meaning of the Montreal Convention: (1) the activity of the passengers, (2) restrictions on the passengers' movement, (3) imminence of actual boarding, (4) proximity of passengers to the gate. Buonocore v. Trans World Airlines, Inc., 900 F.2d 8, 10 (2d Cir.1990); Day v. Trans World Airlines, Inc., 528 F.2d 31, 33-34
The fact the Plaintiffs were embarking on another flight with the same airline distinguishes this case from those in which the plaintiff was flying with another airline or disembarking at his final destination. See Rabinowitz v. Scandinavian Airlines, 741 F.Supp. 441, 445 (S.D.N.Y.1990) (citing Curran v. Aer Lingus, 41 Avi. Cas. (CCH) ¶ 17,560 (S.D.N.Y.1982), for the proposition that merely directing passengers to Customs is not disembarkation). Plaintiffs went to Defendant's transfer desk and relied on Defendant's employee, who had their passports and boarding passes, to take them to their gate. See Buonocore, 900 F.2d at 10 (passenger at snack shop is not embarking).
A layover can sometimes allow passengers relatively unrestricted movement, but that is not the case here. Unlike the plaintiff in Hunter, the example given by Plaintiffs, the Krugers did not have a layover of several hours. Hunter v. Deutsche Lufthansa AG, 863 F.Supp.2d 190, 207 (E.D.N.Y.2012) (arrest that resulted from a miscommunication during a two-hour layover is not in the course of embarking or disembarking); see also Rabinowitz, 741 F.Supp. at 446. They rushed to the line to board their plane, which was about to take off. These Plaintiffs were in a position similar to the plaintiff in Jefferies who was injured on her way to Gate 22 at Heathrow Airport. Jefferies was "located twelve feet from the gate room of Gate 22" at Heathrow, which was "remotely located at the end of terminal." Jefferies v. Trans World Airlines, Inc., 85-C-9899, 1987 WL 8168, at *4 (N.D.Ill. Mar. 17, 1987). The Northern District of Illinois found Jefferies's position close enough to warrant airline liability for her injury because her movement was restricted by her need to make her flight. Plaintiffs' movements were as, if not more, restricted. Plaintiffs state that: "On several occasions inside the terminal ... they were stopped, and Virgin staff took their passports and tickets, immobilizing them ...." (Second Am. Compl. ¶ 48.) Also like Jefferies, Plaintiffs were "not in a public area. [They were] in the area that was restricted to departing passengers." Id. Finally, like Jefferies, Plaintiffs were not free to go where they wanted in the terminal without missing their flight. Id. Although they state that this action took place in "the public, general terminal," (id.) they were under the airline's control for significant portions of their journey to the gate, as well as while in waiting to cross the glass partition separating them from the gate.
Again, the imminence of boarding distinguishes the case from Hunter. The flight was boarding when Plaintiffs arrived at the gate. That Mrs. Kruger was denied boarding does not affect the imminence of boarding. See Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1261 (11th Cir.2002) (flight attendant allegedly slammed door to gate as plaintiffs attempted to pass through); Matveychuk v. Deutsche Lufthansa, AG, 2010 WL 3540921, at *3 (E.D.N.Y. Sept. 7, 2010) (plaintiff denied permission to board connecting flight); Rajcooar v. Air India Ltd., 89 F.Supp.2d 324 (E.D.N.Y.2000) (passenger suffered a heart attack while in line to board).
Their proximity to the gate also favors a finding that Plaintiffs were embarking. Although the alleged torts continued farther from the gate, the key issue in this
Mrs. Kruger was not at Gate 22 when the initial allegedly false report was made to police. (Def. 56.1 Stmt. ¶ 61.) But, as the R & R notes, Mrs. Kruger was at or near the gate when Ms. Skinner spoke with the police and when Mrs. Kruger was arrested. (R & R at 321.) Although she might have been tripped by a flight attendant while disembarking her previous flight, Mrs. Kruger complains only of torts arising from her arrest and detention. Since the check in desk for Gate 22 is the place in which alleged misconduct by the airline led to her arrest, proximity to the gate also weighs in favor of a finding that Mrs. Kruger was in the process of embarking for Montreal Convention purposes.
Having reviewed the issues de novo, the court adopts the Magistrate Judge's recommendation that it apply the Montreal Convention. Mrs. Kruger encountered an unexpected and unusual event that falls within the definition of Montreal Convention accident. The circumstances of this case also favor a finding that the Krugers were in the process of embarking under the Second Circuit's test. Plaintiffs made their way directly to Gate 22. To reach Gate 22, they went to the end of a dead-end corridor. There, they got in line to enter a special glass-enclosed area at the entrance to the Gate. Mrs. Kruger was waiting to board when she was arrested. There were severe restrictions on her movement, both because airline personnel had possession of her passport and boarding pass for part of the time and because she was trying to catch a flight that was about to leave. And she was arrested at the check in desk to the area around the Gate.
Because the Montreal Convention governs the instant case, and the Convention preempts state law claims, it is the only source of liability for Defendant. See El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999). To recover under the Montreal Convention, a claimant has to have sustained death or bodily injury. Montreal Convention, art. 17. Courts in the United States, and abroad, have consistently read the Convention to preclude recovery for purely psychic injuries. See E. Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991) (drafting history of the Warsaw Convention and subsequent interpretation by the courts of various parties favors a narrow reading of "bodily injury."). Bodily injury can include "a change in the structure of an organ" Id. at 541, 111 S.Ct. 1489. Recovery for mental injuries is limited to situations in which the mental injuries resulted from a physical injury to the plaintiff. Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir.2004).
Two of the Plaintiffs, Mr. and Mrs. Kruger, claim damages stemming from Mrs. Kruger's arrest. Mrs. Kruger alleges she felt "shock, express[ed] fear, and [became] traumatized." (2d Am. Compl. ¶ 43.) "She was humiliated and forever
Mrs. Kruger also asserts that she suffers from Post-Traumatic Stress Disorder (PTSD) and that PTSD can cause physical changes to the brain's structure, meeting the bodily injury standard. (Pl. Obj. to R & R at 24.) Although willing to entertain the possibility that this might be so in some cases, the Magistrate Judge correctly noted the paucity of evidence of physical injury in this case. (R & R at 323-24); see Turturro v. Cont'l Airlines, 128 F.Supp.2d 170, 179 (S.D.N.Y.2001) ("the case at bar parallels others in which plaintiffs have not advanced with the requisite specificity either a brain-lesion theory of PTSD or individualized proof of such lesions.").
Plaintiffs assert in their Rule 56.1 Statement that "the frontal lobes of [Mrs. Kruger's] brain are believed to be swollen and enlarged as is the case with PTSD." (Pl. Rule 56.1 Res. ¶ 111). However they do not adduce any evidence of this swelling, nor do they explain the basis for this belief. Plaintiffs now claim that, at trial, they would have introduced "brain scans" of Mrs. Kruger that they seemingly do not currently have. (Pl. Obj. to R & R at 24.) That response is not adequate given the posture of this litigation. The court is deciding motions for summary judgment, not motions to dismiss arising before Plaintiffs have had much chance to investigate. Plaintiffs first filed this action in June 2011. (Compl.) Discovery in this case closed a year ago. (See Minute Entry, Sept. 28, 2012.) Plaintiffs cannot now return to the court with vague statements that they might, at some unspecified future time, offer some future evidence that they vaguely refer to as "brain scans." See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The issues they raise are not material because, they are not supported by any admissible evidence. Id. Given the evidence properly before it, the court agrees with the Magistrate Judge that Mrs. Kruger's injuries were purely mental and therefor, not recoverable under the Montreal Convention.
Mr. Kruger's claim for loss of consortium must also fail. Under Article 17 of the Montreal Convention, loss of consortium claims may be brought according to the domestic law of the contracting states. Zicherman v. Kor. Air Lines, Co. Ltd., 516 U.S. 217, 225, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996). Because the underlying torts occurred in England, under an interest analysis, English law should be applied if it would differ from New York law. (R & R at 325 n. 18.) However, both English and New York law treat loss of consortium as a derivative claim. (Id.); Argento v. Airborne Freight Corp., 933 F.Supp. 373, 377 (1996). As a result, Mr. Kruger's loss of consortium claim cannot survive summary judgment rejecting his wife's claims.
The court admits to some confusion over the final pages of Plaintiffs' Objections. (Pl. Obj. to R & R at 25-26.) Plaintiffs seem to be trying to make a general point that if this court, or a court of appeal, decides that the Montreal Convention does not apply to this case, Plaintiffs would have claims in tort and their motion for partial summary would again be relevant. (Id.) That observation is not a specific objection to any part of the R & R.
Finally, Plaintiffs seem to be under the impression that they are going to able to add a defamation claim, which they did not specifically plead and which was not
The court has reviewed de novo portions of the R & R subject to Plaintiff's objections. It has reviewed all other aspects of the R & R for clear error. With appropriate modification to the reasoning, the court ADOPTS the Magistrate Judge's recommendation that Defendant's motion for summary judgment be granted in its entirety. It further ADOPTS the Magistrate Judge's recommendation that Plaintiffs' motion for partial summary judgment should be denied because the grant of Defendant's motion has rendered it moot. Defendant's motion to amend its reply to objections is GRANTED. Defendant's motion for summary judgment is GRANTED. Plaintiffs' motion for partial summary judgment is DISMISSED AS MOOT.
SO ORDERED.
RAMON E. REYES, JR., United States Magistrate Judge.
Lynne Kruger ("Mrs. Kruger"), Sheldon Kruger ("Mr. Kruger"), Maxwell Kruger, and Lawson Kruger (collectively, "Plaintiffs") filed this action alleging breach of contract, false arrest, malicious prosecution, intentional infliction of emotional distress, negligence, and loss of consortium against Virgin Atlantic Airways, Limited ("VAA"). Before the Court are VAA's motion for summary judgment and Plaintiffs' motion for summary judgment as to certain of VAA's affirmative defenses. Your Honor has referred both motions to me for a report and recommendation. For the reasons set forth below, I respectfully recommend that VAA's motion be granted, and that Plaintiffs' motion be denied.
On August 22, 2010, Plaintiffs purchased four round-trip tickets to travel on VAA flights from Newark, New Jersey to Delhi, India with a lay-over at Heathrow Airport in London, England ("Heathrow"). (Defendant Virgin Atlantic Airways, Ltd.'s Rule 56.1 Statement in Support of Motion for Summary Judgment ("Def.'s 56.1 Stmt."), Dkt. No. 42, Exh. 2, ¶ 1; Second Amended Compl. ("Compl." or "Complaint"),
On January 9, 2010, Plaintiffs traveled on their original return flight from Delhi to Heathrow on VAA Flight No. 301. (Def.'s 56.1 Stmt. ¶ 10; Plaintiffs' Rule 56.1 Statement in Support of Partial Motion for Summary Judgment ("Pls.' 56.1 Stmt."), Dkt. No. 47, ¶ 1.) Flight 301 arrived late into Heathrow because it was delayed during take-off in Delhi. (Def.'s 56.1 Stmt. ¶ 18; Pls.' 56.1 Stmt. ¶ 1.) Plaintiffs were scheduled to board a connecting flight, VAA Flight No. 17, to Newark at Gate 22 in Terminal in Heathrow. (Def.'s 56.1 Stmt. ¶¶ 11-12.) A number of passengers on Flight 301 were scheduled to make the same connecting flight. (Id. at ¶ 18.) Upon landing in Heathrow, a door in the middle of the aircraft, referred to as the L2 door, was used by the crew and passengers for disembarkation. (Id. at ¶ 16.) The "upper class" seating was located between the L2 door and the front of the plane, and the "economy" and "premium economy" seating sections were located between the L2 door and the rear of the plane. (Id.) Mrs. Kruger was seated in row 38 of the economy section, located between the L2 door and the rear of the plane but also behind the "premium economy" section. (Id. at ¶ 21.) Leanne Skinner ("Skinner") was working as a flight attendant on Flight 301 that day, and was assigned in part to instruct passengers seated in the premium economy and economy sections of the aircraft using L2 door for disembarkation not to exit until the upper class passengers also using the L2 door had all left the plane. (Id. at ¶¶ 13, 16-17.)
When disembarkation began, Mrs. Kruger was the first passenger from the economy and premium economy sections to the rear of the L2 door waiting in line to exit from that door. (Id. at ¶ 25-26.) Mrs. Kruger asked Skinner if she could deplane before the upper class passengers because she wanted to make her connecting flight. (Id. at ¶ 26.) Mrs. Kruger also asked Skinner for her name. (Pls.' 56.1 Stmt. ¶ 2.) Skinner told Mrs. Kruger that she could not disembark before the upper class passengers had finished deplaning and that she would have to wait. (Def.'s 56.1 Stmt. ¶ 29.) Mrs. Kruger appeared "irritated and annoyed" that she had to wait to exit the plane and asked at least three times if she could pass. (Id. at ¶ 30; Pls.' 56.1 Stmt. ¶ 2.) After the upper class passengers deplaned, Skinner moved into a position adjacent to the L2 door in order to allow the waiting passengers to disembark, beginning with Mrs. Kruger. (Def.'s 56.1 Stmt. ¶ 31; Pls.' 56.1 Stmt. ¶ 1.) As
Skinner and VAA maintain that Mrs. Kruger intentionally "barged" into Skinner and called her a "bitch." (Def.'s 56.1 Stmt. ¶ 33.) Plaintiffs disagree and contend that Mrs. Kruger fell because she was intentionally tripped by Skinner. (Pls.' 56.1 Stmt. ¶ 3; Compl. ¶ 11.) In response, Defendants note that Mrs. Kruger's deposition testimony does not wholly support this contention because at her deposition she testified, "I don't know that it was the flight attendant that tripped me. But what I know is that when I stumbled, I saw a blue flight attendant shoe." (Def.'s 56.1 Resp. ¶ 3 citing Carlsen Decl., Exh. C, Deposition of Lynne Kruger ("L. Kruger Dep."), 49:11-17.)
After the incident, the Krugers headed towards Gate 22 to board their connecting flight to Newark. (Def.'s 56.1 Stmt. ¶ 61.) Along the way, Mr. and Mrs. Kruger were stopped by VAA staff at a counter and handed over their passports and boarding passes as they walked through the terminal. (S. Kruger Dep., 33:1-17; L. Kruger Dep., 66:16-18.) When the Krugers approached Gate 22, they were stopped by VAA staff and informed that Mrs. Kruger could not board the aircraft because the police wanted to question her about the incident with Skinner. (Def.'s 56.1 Stmt. ¶ 67; Pls.' 56.1 Resp. ¶ 64.) Skinner had also walked to Gate 22 and was there when the Krugers arrived. (Def.'s 56.1 Stmt. at ¶¶ 42-43.) VAA employee Paul Brunning ("Brunning") informed the Krugers that Mr. Kruger and his two sons, Maxwell and Lawson, could board Flight 17. (Id. at ¶ 82.) The police questioned both Mrs. Kruger and Skinner about the incident. (Def.'s 56.1 Stmt. ¶ 71; Pls.' 56.1 Resp. ¶ 43.) Mrs. Kruger was then informed by the police that she was to be questioned further at the police station, and was arrested and driven to the police station. (Def.'s 56.1 Stmt. ¶¶ 72, 75-76.) She was not placed in handcuffs or physically restrained by the police. (Id. at ¶ 76.)
Mr. Kruger chose not to board Flight 17 because he felt that he could not leave England without his wife. (Id. at ¶¶ 82-84; Pls.' 56.1 Resp. ¶ 83.) The Krugers' sons boarded Flight 17 and returned to Newark. (Id. at ¶ 87.) All four of the Kruger family's bags were checked under Mr. Kruger's name on the flight from Delhi and were off-loaded from Flight 17 because Mr. Kruger was not returning to Newark at that time. (Id. at ¶¶ 88-89.) VAA then refunded the cost of Sheldon Kruger's ticket in the amount of $400.06. (Def.'s 56.1 Stmt. 1185; S. Kruger Dep., 76:16-22.) The police drove both Mr. and Mrs. Kruger to the police station in a police van. (Id. at ¶ 93.) Mr. Kruger went to a nearby hotel while Mrs. Kruger was questioned by the police. (Id. at 1195.) Mrs. Kruger was questioned by the police and then released. (Id. at ¶ 94.) Mrs. Kruger was not charged with any crime. (Id. at 1196; Carlsen Decl., Exh. E, London Police Report at pp. 8-9, 13-14.)
Mr. and Mrs. Kruger flew back to United States on a British Airways flight later that day. (Id. at ¶ 104.) After the incident, Mrs. Kruger received a letter from VAA banning her from any future travel
Plaintiffs filed this action on June 20, 2011 against VAA, Jane Doe. No. 1, later identified as Skinner, Brunning, and VAA employee Andrew Blackwell. (Dkt. No. 1.) Plaintiffs subsequently amended their complaint and dropped all claims against the individual defendants, thereby leaving VAA as the sole defendant. (Dkt. No. 3.) On June 14, 2012, Plaintiffs filed a second amended complaint against VAA. (Dkt. No. 23.) Following discovery, the parties' motions were filed on January 4, 2013(VAA) and January 11, 2013 (Plaintiffs), respectively. (Dkt. Nos. 42, 43.)
The standard for summary judgment is well established. The party moving for summary judgment has the burden to demonstrate that (1) "there is no genuine dispute as to any material fact" and (2) "the movant is entitled to judgment as a matter of law." FED. R. Civ. P. 56(a). A genuine dispute as to a material fact is one that "might affect the outcome of the suit under the governing law" and that "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In determining whether summary judgment is warranted, "[t]he Court `is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.'" Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996)). The moving party bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Conclusory allegations or "some metaphysical doubt as to the material facts" fail to create such issue. Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (citations and internal quotation marks omitted). The nonmovant cannot create a genuine dispute of material fact by "rely[ing] on the allegations in his or her pleadings, conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." Cushing v. Morning Pride, Mfg., L.L.C., 05-CV-3612 (DRH), 2008 WL 283772, at *10 (E.D.N.Y. Jan. 30, 2008) (citation and internal quotation marks omitted).
Under Local Civil Rule 56.1, the moving party must submit "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civil Rule 56.1(b). The nonmoving party's opposition must "include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party." Id.
Typically, one party's "failure to respond or contest the facts set forth by the [movant] in [its] Rule 56.1 statement as being undisputed constitutes an admission of those facts, and those facts are accepted as being undisputed." Pooler v. Hempstead Police Dept., 897 F.Supp.2d 12, 17 n. 7
Plaintiffs argue that the "sham affidavits" submitted by VAA in support of their motion for summary judgment, and the 56.1 statements based thereon, should be disregarded pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure because the declarants were "never identified as [witnesses] pursuant to legitimate request in Plaintiffs' interrogatories." (Pls.' Opp. at 6.) Plaintiffs also argue that Skinner's declaration should be disregarded because it was inconsistent with her deposition testimony. (Id.) VAA argues that the declarations are proper because it advised Plaintiffs of all individuals with relevant knowledge under Rule 26, and that Plaintiffs deposed all of those individuals with the exception of Debra Messinger. (Defendant's Reply in Support of Motion for Summary Judgment ("Def.'s Reply"), Dkt. No. 42, at 1.)
Although Plaintiffs cite no case law regarding the "sham affidavit" principle, "[i]t is well settled in [the Second Circuit] that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." Mack v. United States, 814 F.2d 120, 124-25 (2d Cir.1987) (citing Perma R & D Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). The rule is meant to prevent a party from creating post hoc a triable issue of fact, thus defeating a motion for summary judgment. Id. The "sham affidavit" principle is not absolute and will not bar an affidavit when "an issue was not fully explored in the deposition, or the deponents responses were ambiguous." Giliani v. GNOC Corp., 04-C2935 (ILG), 2006 WL 1120602, at *3 (E.D.N.Y. Apr. 26, 2006) (citing Palazzo v. Corio, 232 F.3d 38, 43 (2d Cir.2000)). Further, "where a party's conflicting affidavit statements are corroborated by other evidence, the affidavit may be admissible, since the concern that the affidavit is a `sham' is alleviated." Id.
With these principles in mind, I conclude that VAA's declarations will not be excluded from consideration. Plaintiffs make little or no effort to show how the declarations are inconsistent with deposition testimony or other evidence. Instead, Plaintiffs rely mostly on conclusory, unsubstantiated claims that the declarations are "sham affidavits." (See, e.g., Pls.' 56.1 Resp. ¶ 6. ("Never produced in response to discovery request but produced here ... obvious sham affidavit which the Courts regularly reject"); Pls.' 56.1 Resp. ¶ 25
Plaintiffs allege that VAA's failure to provide alternative carriage to London on the day of their outbound flight breached VAA's obligations under the Conditions of Carriage and under European Union Regulation 261 ("EU 261"). (Compl. ¶ 31.)
In the event that VAA cancels a flight, Article 9.3.1.1 of the Conditions of Carriage allows the customer to choose one of three available remedies, only one of which is relevant to the instant motion:
(Conditions of Carriage, art. 9.3.1.1(b) (emphasis added).)
Plaintiffs argue that they attempted to invoke the second remedy under 9.3.1.1 and that VAA failed to honor their selection, thus breaching the contract. (Pls.' Opp. at 27.) Sheldon Kruger testified at his deposition that when the Krugers' flight to London was cancelled he called VAA. (S. Kruger Dep., 10:1-14.) Mr. Kruger claims that the VAA representative told him to "[f]eel free to make [his] own arrangements to get to London" and that he was "on his own" if he wanted to make other plans. (Id.) Mrs. Kruger similarly testified that she heard the VAA representative tell her husband that there was nothing that VAA could do to help them. (L. Kruger Dep., 13:13-20.)
VAA responds with admissible evidence that because of the runway restrictions at Heathrow caused by a snow storm there were no available VAA flights to London on which the Plaintiffs could have traveled that would have allowed them to make their connection. (Def.'s 56.1 Stmt. ¶¶ 5-7.) Alan Wallace, a VAA asset protection manager who investigated Plaintiffs' claims, testified at a deposition and submitted a declaration in support of VAA's summary judgment motion. According to Wallace:
(Declaration of Allan Wallace in Support of Motion for Summary Judgment, Dkt. No. 42, Exh. 4, ¶ 6); (see also Pls.' 56.1 Resp. citing Deposition of Allan Wallace, 194:3-7) ("[t]here were capacity restrictions at Heathrow on that day because of the snow event. So as an airline, we would have been asked to reduce capacity on that day because the airfield could not handle the full operations."). As there were no available VAA flights that would have enabled the Krugers to make their connecting flight in Heathrow, VAA was under no obligation to provide the Plaintiffs alternative carriage to London either on VAA or another airline under Article 9.3.1.1 of the Conditions of Carriage. See Giuffre v. Delta Air Lines, Inc., 10-CV-1462 (DLI)(MDG), 2012 WL 3988981, at *4 (E.D.N.Y. Sept. 11, 2012) ("In determining a party's obligations under a contract, the initial interpretation of a contract is a matter of law for the court to decide.").
Plaintiffs counter that Heathrow was "wide open," that any evidence of snow is not relevant and should be excluded,
Because VAA has put forth competent, admissible, and unrebutted evidence that it did not breach the Conditions of Carriage, it is entitled to judgment as a matter of law on Plaintiffs' breach of contract claim (count one).
As part of their breach of contract claims, Plaintiffs seek compensation under Article 7 of EU 261 which provides a 600 penalty for passengers whose transatlantic flights are cancelled. (See Carlsen Decl., Exh. G, at 5.) Plaintiffs can not, however, recover penalties under EU 261 because such claims are preempted by the Airline Deregulation Act ("ADA"), 49 U.S.C. §§ 41713 et seq.
The ADA provides that, "a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart." 49 U.S.C. § 41713(b)(1). Causes of action under state law are preempted by the ADA when (1) a state enacts or enforces a law that (2) relates to airline rates, routes, or services. Travel All Over the World v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1432 (7th Cir.1996) (internal quotation marks omitted). Breach of contract claims "seeking recovery solely for [an] airline's alleged breach of its own, self-imposed undertakings" are not preempted by the ADA. American Airlines, Inc. v. Wolens, 513 U.S. 219, 228, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995).
Applying the rule in Wolens, courts in the Seventh Circuit have held that a plaintiff may bring a claim under EU 261, a law or regulation that would otherwise be preempted by the ADA, only if it is expressly incorporated into the contract. See Volodarskiy v. Delta Air Lines, Inc., No. 11-CV-782, 2012 WL 5342709, at *7 (N.D.Ill. Oct. 29, 2012); Polinovsky v. Deutsche Lufthansa, AG, No. 11-CV-780, 2012 WL 1080415, at *3 (N.D.Ill. Mar. 30, 2012); Giannopoulos v. Iberia Lineas Aereas de Espana, S.A., No. 11-CV775, 2011 WL 3166159, at *3 (N.D.Ill. July 27, 2011). Applying the Seventh Circuit's analysis, the Plaintiffs' EU 261 claims are preempted by the ADA because EU 261 is not expressly incorporated or referenced in VAA's Conditions of Carriage.
Even if EU 261 were incorporated into the Conditions of Carriage, Plaintiffs still cannot recover because the cancellation of their flight was caused by extraordinary circumstances beyond VAA's control. Article 5(3) of EU 261 provides that the cancellation of a flight is not compensable when the airline can "prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken." Case C-12/11, McDonagh v. Ryanair Ltd., 2013 O.J. (C 86) 2. The provision is construed narrowly and has been applied by European courts to encompass natural weather events beyond an airlines control, such as the 2010 eruption of the Icelandic volcano Eyjafjallajokull. Id.; see also Case C-549/07, Friederike Wallentin-Hermann v. Alitalia — Linee Aeree Italiane SpA, 2008 O.J. (C 64) 7 (finding that mechanical failures causing cancellation are not extraordinary circumstances when they are not beyond the airline's actual control). Although the snow storm causing restrictions at Heathrow was not as extreme an event as the 2010 volcanic eruption, it still forced the cancellation of seven flights and is certainly beyond the airline's control. (See supra., Discussion II.A.i.)
Finally, even if EU 261 were a part of the contract and the flight's cancellation was not exempted as an extraordinary circumstance, Plaintiffs' claims under the statute still fail because they did not exhaust the administrative remedies available under EU 26 prior to filing suit. See Dennis v. Central Intelligence Agency, Nos. 12-CV-4207 (JG), 12-CV-4208 (JG), 12-CV-5334 (JG), 2012 WL 5493377, at *3 (E.D.N.Y. Nov. 13, 2012); Schwarz v. Dep't of Justice, 10-CV-0562, 2010 WL 2836322, at *2 (E.D.N.Y. July 14, 2010) (plaintiff's failure to exhaust administrative remedies provides a `jurisprudential reason' for dismissal).
Article 16 of EU 261 provides, in relevant part, that "... each passenger may complain to any body ... designated by a Member State, about an alleged infringement of this Regulation ..." (Carlsen Decl., Exh. G, at 6-7.) The European Council has promulgated a complaint form with instructions that a claimant should first submit that form to the offending airline and then to an EU enforcement body should the airline not respond. See
Plaintiffs second breach of contract claim seeks additional EU 261 penalties and other damages related to their inbound flight-Heathrow to Newark. (Compl. ¶¶ 34-37.) For the reasons set forth above, VAA is entitled to summary judgment on Plaintiffs' EU 261 claims for the inbound flight because they are preempted by the ADA. See supra. Plaintiffs' remaining claims under their second cause of action argue that VAA breached its contract with Plaintiffs because VAA failed to: (1) transport Kruger's sons' luggage to Newark on VAA Flight 17; and (2) provide carriage for Mr. and Mrs. Kruger to Newark or to refund their tickets when the couple did not board VAA Flight 17. (Compl. ¶ 36.) For the following reasons, VAA is entitled to summary judgment on these claims as well.
Plaintiffs claim that VAA breached its contract with Plaintiffs when it did not transport the Krugers' sons' luggage to Newark on VAA Flight 17. (Compl. ¶ 36 ("Defendant breached its contractual obligations ... under its Contract for [VAA Flight 17] by refusing ... to carry the luggage of the Kruger boys...").) Under New York law, a breach of contract claim requires that a plaintiff show the existence of an agreement, adequate performance, breach of contract by the defendant, and damages. Jones v. East Brooklyn Sec. Servs. Corp., 2012 WL 3235784, at *6 (E.D.N.Y. Aug. 7, 2012). A breach of contract claim "fails as a matter of law in the absence of any showing that a specific provision of the contract was breached." Westchester Cnty. Correction Officers Benevolent Ass'n, Inc. v. Cnty. of Westchester, 99 A.D.3d 998, 953 N.Y.S.2d 623, 625 (2012). Notably, Plaintiffs cite to no specific provision of the Conditions of Carriage which VAA allegedly breached in this regard.
In response, VAA argues that Article 8.4.2 of the Conditions of Carriage allows the airline to refuse to carry baggage that is reasonably considered unsuitable for carriage for safety reasons. (Def.'s Mem. at 4; Conditions of Carriage art. 8.4.2.) It is undisputed that all four of the Krugers' bags were checked in under Sheldon Kruger's name.
Plaintiffs generally allege that "Defendant breached its contractual obligations... by failing to refund the Tickets for Sheldon and Lynne Kruger between London and Newark or provide carriage under the Tickets." (Compl. ¶ 36.) Again, Plaintiffs do not point to a specific article of the Conditions of Carriage as a basis for the alleged breach, but rather aver generally to VAA's contractual obligations. In response, VAA argues that it was not contractually bound under various articles of its Conditions of Carriage to refund or provide carriage to either Lynn or Sheldon Kruger. (Def.'s Mem. at 3-4.) Once more, Plaintiffs do not address this defense in their opposition to VAA's motion for summary judgment.
"In determining a party's obligations under a contract, the initial interpretation of a contract is a matter of law for the court to decide." Giuffre, 2012 WL 3988981, at *4. Under Article 10.2.1 of the Conditions of Carriage, passengers are entitled to a refund if they "[1] hold a Confirmed Reservation, [2] have met all applicable checkin deadlines [pursuant to Article 6], and [3] are not precluded from boarding by reason of application of Articles 7.1 or 11.3 or otherwise." (Conditions of Carriage art. 10.2.1.) Article 6.3 requires that a passenger be present at the boarding gate not later than the time specified at check in. (Id. at art. 6.3.) Article 7.1 reserves VAA's right to deny a passenger carriage provided that any of a list of events or concerns have occurred, or may reasonably occur, including the commission of a criminal offense or threatening, abusive, or disruptive behavior. (Id. at art. 7.1.) Article 11.3 allows the VAA to refuse carriage when a passenger acts in violation of the previous subsections of Article 11. (Id. at 11.3.) Article 11.1 maintains that a passenger must not "threaten, abuse or insult other passengers or members of the crew" or "cause distress, discomfort or unnecessary inconvenience to any passenger or crew member." (Id. at art. 11.1.3.) In sum, these provisions hold that VAA has no obligation to refund a passenger if that passenger has either (1) failed to properly check in or present itself at the boarding gate or (2) has been refused carriage because he or she has acted, or can be reasonably believed to act in the future, in a manner prohibited by Conditions of Carriage.
Defendants correctly argue that Mrs. Kruger is not entitled to a refund because she was "unable to present herself for timely boarding of [Flight 17] because of the on-going police investigation." (Def.'s Mem. at 4.) Mrs. Kruger was stopped at the gate by VAA employee Paul Brunning and denied boarding because the police wanted to talk to her about the incident that occurred as she disembarked Flight 301. (Def.'s 56.1 Stmt. ¶ 67.) Plaintiffs contend that Mrs. Kruger was excluded from the flight even before the police were involved. (Pls.' 56.1 Resp. ¶ 64.) However, the deposition testimony of Paul Brunning which Plaintiffs cite in support of that contention shows that Mrs. Kruger was indeed prevented from boarding Flight 17 because of police involvement. (Id. citing the deposition of Paul Brunning 22:13-20.) ("[Brunning] told [the Krugers] that the police were having to speak with — were coming up to speak to them for [the] incident ... the police were going to have to speak to them, so this was going to mean that certainly Mrs. Kruger wouldn't be able to travel"). Accordingly, Mrs. Kruger is not entitled to a refund because she did not timely present herself
Even if the Court were to find that Mrs. Kruger was refused carriage despite timely presenting herself for boarding, she is not entitled to a refund. Articles 7 and 11 of the Conditions of Carriage both allow VAA to deny boarding to a passenger that has engaged in threatening or abusive behavior directed at a member of the crew. (Conditions of Carriage arts. 7.1, 11.1.3.) VAA staff were operating under the assumption based on Skinner's report — either legitimate or erroneous — that Mrs. Kruger had physically assaulted a VAA crew member. Therefore, VAA had the right to deny Mrs. Kruger boarding without refund under either Article 7 or 11 of its Conditions of Carriage because she was believed to have engaged in contractually prohibited behavior. Article 10 does not mandate a refund or alternative carriage when a passenger is found in violation of either Article 7 or 11. Accordingly, VAA had no obligation to refund Mrs. Kruger's ticket and is entitled to judgment as a matter of law.
It is undisputed that Sheldon Kruger chose not to board Flight 17 so that he could remain in England while his wife was under police custody. (Def.'s 56.1 Stmt. at ¶¶ 82-84; Pls.' 56.1 Resp. ¶ 83.) He was not denied boarding and was given a full refund for his unused ticket. (Def.'s 56.1 Stmt. at ¶ 85.) Plaintiffs do not contest that Mr. Kruger's decision to remain in England was his own or that VAA refunded his ticket. As such, Mr. Kruger has no valid claim and VAA is entitled to judgment as a matter of law because he was not denied boarding and was provided with a refund.
Mrs. Kruger brings state law tort claims for false arrest,
VAA argues that Plaintiffs' tort claims should be dismissed because they are
The Montreal Convention, successor to the Warsaw Convention,
Article 17 of the Convention provides that:
Montreal Convention Art. 17 (emphasis added). "The substantive scope of this article extends to all passenger injuries occurring on board the aircraft or in the course of any of the operations of embarking and disembarking — even if the claim is not actionable under the treaty." Vumbaca 859 F.Supp.2d at 364 (citing King v. Am. Airlines, Inc., 284 F.3d 352, 359 (2d Cir.2002)) (internal quotation marks omitted). Although Article 17 provides recovery only for passengers who have suffered bodily injury, the absence of such injury "affects neither the analysis of the substantive scope of the provision nor its preemptive effect." King, 284 F.3d at 359 citing El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999). Therefore, relief under Article 17 is the exclusive remedy where claims regard an "accident" that occurred onboard the aircraft, or during the embarkation/disembarkation process, regardless of whether the claimant suffered bodily injury.
The Supreme Court has held that an incident is an "accident" within the scope of Article 17 if the "[alleged] 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, 84 L.Ed.2d 289 (1985). However, "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." Fishman by Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir.1998). "This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries." Saks, 470 U.S. at 405, 105 S.Ct. 1338.
VAA argues that Skinner's allegedly false report of assault and subsequent arrest constitute an "accident" because it was an "unexpected or unusual event or happening" external to Mrs. Kruger. (Def. Mem. at 11 (citing Saks, 470 U.S. at 405, 105 S.Ct. 1338).) Plaintiffs do not argue that the events do not constitute an "accident" under the Convention, only that the
To determine whether VAA is correct, the Court must establish what "event or happening" forms the basis of the "accident." Here, Plaintiffs' claims are based on Mrs. Kruger's arrest following Skinner's purportedly false report that Mrs. Kruger assaulted her. A passenger on an international flight does not expect to be arrested after a flight attendant fabricates a claim of assault against them. This alleged fabrication was external to Mrs. Kruger as it was not a product of her own will or volition. Finally, even if the report and arrest were to be considered "routine procedure in the operation of aircraft," the false report of an assault is certainly an unreasonable application of those procedures. See Fishman by Fishman, 132 F.3d at 143. Therefore, given the Court's mandate to flexibly apply the definition of accident, Saks, 470 U.S. at 405, 105 S.Ct. 1338, the events that provide the basis of Plaintiffs' claims are an "accident" within the scope of Article 17.
VAA argues that the "accident" was within the scope of Article 17 because it involves "an uninterrupted chain of events that started with the physical contact between [Kruger] and [Skinner] onboard VAA Flight 301, and continued through to Mrs. Kruger's arrest while she was at Gate 22 engaged in `the operations of embarking' by trying to board the connecting flight to Newark." (Def. Mem. at 11.) Plaintiffs argue that, "the deposition testimony of the Krugers places them not on an airplane and not in between embarking and disembarking." (Pls.' Opp. at 17.) Plaintiffs stress that the claims are outside the scope of the Convention because "[j]ail is a critical element of [Mrs. Kruger's] claim of an intentional tort," and that, "jails do not have wings, and Mrs. Kruger was thoroughly disembarked when she was sent to jail, when falsely imprisoned by [VAA] staff in the terminal, and when released without prosecution." (Id.)
A claim is within the substantive scope of Article 17 only when the "accident" occurred while the passenger was either onboard the aircraft or in the course of any of the operations of embarking or disembarking the aircraft. Montreal Conv. Art. 17. The Second Circuit applies a "flexible multi-factor test" to determine whether a passenger was embarking or disembarking.
Mrs. Kruger clearly was not on the aircraft when the "accident" occurred. As such, the Court must analyze the facts considering the factors described above to determine whether she was "in the course of any of the operations of embarking or disembarking." Montreal Convention Art. 17.
The first factor considers the activity of the passenger at the time of "accident." Buonocore, 900 F.2d at 10. Mrs. Kruger exited Flight 301 with the sole intention of proceeding directly to Gate 22 so that she could board her connecting flight. All of the operative events that constitute the "accident" occurred while Mrs. Kruger was either exiting the Flight 301, walking through the jetway and terminal, or waiting outside Gate 22. Although she was not actively boarding the aircraft when she was arrested, her activity during this time period still strongly favors the conclusion that she was embarking because she intended to reach and board her connecting flight. See Jefferies v. Trans World Airlines, Inc., 1987 WL 8168, at *4 (N.D.Ill. Mar. 17, 1987) (finding that a passenger not acting under explicit instructions of the airline does not remove plaintiffs activity from the operations of embarkment).
The second factor to consider is the degree restriction on the passenger's movement. Buonocore, 900 F.2d at 10. Mrs. Kruger was in an open terminal and presumably free to roam until the police detained her. Nevertheless, if she had wandered off or strayed too far she would have missed her connecting flight which can serve as an implicit restriction on her movement. See Id. (the risk of missing a flight supports a finding that the accident occurred while embarking).
The third factor — the imminence of actual boarding — weighs strongly in favor of finding that Mrs. Kruger was embarking because the boarding process was underway when Skinner was speaking to the police at the gate, and when Mrs. Kruger was arrested.
The final factor — the passenger's physical proximity to the gate — also militates
Whether or not a passenger was engaged in any of the operations of embarking or disembarking also depends on how similar or dissimilar the facts of the case are from those previously decided. Alleyn, 58 F.Supp.2d at 20. Here, the factual circumstances of Plaintiffs' claims are similar to cases in which courts have found that the "accident" occurred while the passenger was in the process of embarking or disembarking. See, e.g., Matveychuk, 2010 WL 3540921, at *3 (plaintiff was in process of embarking when assaulted by airline agent in a bathroom on her way to a ticketing desk to rebook a connecting flight that she had missed); Rajcooar v. Air India Ltd., 89 F.Supp.2d 324, 327 (E.D.N.Y.2000) (plaintiff was in process of embarking when he had checked in for his flight and suffered a heart attack while walking to his departure gate at Heathrow Airport); King v. Am. Airlines, Inc., 284 F.3d 352, 359-360 (2d Cir.2002) (plaintiffs were in the process of embarking when they were denied boarding and "bumped" from their connecting flight to a later flight allegedly because of their race).
This case is also distinguishable from those in which courts have found that passenger was not engaged in any of the operations of embarking or disembarking. In Buonocore, for example, the court found that a terrorist attack killing a passenger standing at a snack counter two hours prior to his flight did not occur during the operations of embarking. Buonocore, 900 F.2d at 10. The court in Buonocore focused on the fact that the victim passenger was not near his gate or in engaged in any boarding activity when the "accident" occurred distinguishing it from a prior case where victim passengers were at the gate within minutes of boarding and "risked missing [their] flight if they strayed." Id. (distinguishing Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975)). The instant case is also dissimilar from Hunter, 863 F.Supp.2d 190, despite Plaintiffs' contention that the two are "identical." (Pls.' Opp. at 15.) In Hunter, the plaintiff had ample time to roam freely around the airport, was likely nowhere near the departure gate when he engaged in underlying conversations that formed the basis of his claim, and did not have to board his flight for a couple hours when the "accident" occurred. Hunter, 863 F.Supp.2d at 206. Here, Mrs. Kruger was not able to roam freely around the airport since she had to catch her connecting flight and was at the departure gate as boarding was ongoing when many of the underlying events took place.
Considering the above, the relevant case law and controlling factors — location, activity, control, and imminence — dictate a finding that Mrs. Kruger was in the process of embarking or disembarking when the "accident" occurred. Therefore, Plaintiffs' state law tort claims are preempted because
A carrier is only liable for an "accident" under Article 17 if the claimant sustained death or "bodily injury." Montreal Convention Art. 17. However, Article 17 encompasses all "accidents" that occur during embarking and disembarking even if the claim otherwise fails under the treaty. King, 284 F.3d at 359. Therefore, Mrs. Kruger has no claim under the Convention if she did not suffer "bodily injury" because the action is within the substantive scope of Article 17.
VAA argues that Mrs. Kruger's claim is for purely mental injuries, including Post Traumatic Stress Disorder ("PTSD"), and fails under the Convention.
Mrs. Kruger cannot recover for her purely emotional, mental, or psychic trauma. In Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991), the Supreme Court found that the text of Article 17 — "lesion corporelle" in the original French of the treaty — "does not permit recovery for purely psychic injuries." Floyd, 499 U.S. at 536, 111 S.Ct. 1489. Importantly, the Court held that a narrow reading of the term "bodily injury" was appropriate given the French legal meaning of the term, the negotiating history of the treaty, and that the purpose of the Convention was to limit the liability of air carriers in order to foster growth of the industry. Id. at 542-46, 111 S.Ct. 1489 citing Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 256, 104 S.Ct. 1776, 80 L.Ed.2d 273 (1984). Floyd concluded that, "an air carrier cannot be held liable under Article 17 when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury." Id. at 552, 111 S.Ct. 1489. However, the Court specifically declined to express a view "as to whether passengers can recover for mental injuries that are accompanied by physical injuries." Id. (emphasis added). In an exhaustive examination of the treaty negotiation, its original French text and meaning, as well as decisions of signatory nations, the Second Circuit more recently ruled that "a carrier may be held liable under Article 17 for mental injuries only if they are caused by bodily injuries." Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 400 (2d Cir.2004). As such, Mrs. Kruger is completely barred from recovering any damages for the emotional stress that she alleges because they are not caused by any bodily injuries.
In Turturro v. Cont'l Airlines, 128 F.Supp.2d 170 (S.D.N.Y.2001), the court held that the plaintiffs shortness of breath, sleeplessness, or inability to concentrate arising from her emotional distress caused by a delay in deplaning were purely noncompensable psychosomatic injuries. 128 F.Supp.2d at 178. The Turturro court stressed that, "[a]t every stage of its analysis, the [Supreme Court in Floyd] focused on bodily injury, not subsequent manifestations, concluding that the bodily injury requirement has a distinctly physical scope." Id. at 177 (citing Terrafranca v. Virgin Atl. Airways Ltd., 151 F.3d 108, 109 (3d Cir.1998)) (internal quotation marks and citation omitted). Turturro found that it was "authoritative and workable" to interpret Floyd as barring recovery for physical manifestations of emotional trauma because a number of lower courts have done so. Id. at 178; see also Carey v. United Airlines, Inc., 77 F.Supp.2d 1165, 1168-1171 (D.Or.1999) ("[n]ausea, cramps, perspiration, nervousness, tension, and insomnia" caused by public humiliation were purely psychic and not recoverable under Floyd); Hermano v. United Airlines, C 99-0105 SI, 1999 WL 1269187, at *4 (N.D.Cal. Dec. 21, 1999) (alleged headaches, panic attacks, and palpitations caused by wrongfully removing plaintiff from airplane are not sufficient to constitute physical injury under the Convention); Terrafranca, 151 F.3d at 111-112 (posttraumatic stress disorder complicated by anorexia, loss of desire to socialize, and weight loss after plaintiff was informed by flight crew that the aircraft was under a bomb threat was not "bodily injury"); Tseng v. El Al Israel Airlines, Ltd., 919 F.Supp. 155, 158 (S.D.N.Y.1996) (personal injuries attributable to shock or outrage experienced as a result of an unwarranted bodily search by airline agent is purely psychic injury barred by Floyd).
Finally, I find that Mrs. Kruger's PTSD is not a recoverable "bodily injury" under Article 17. "[E]xtreme 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. Although not every PTSD patient will display the same biological abnormalities, objective evidence exists in some cases that brain damage has ensued." Turturro, 128 F.Supp.2d at 178-79. Under the controlling language of Floyd, "bodily injury" encompasses "a change in the structure of an organ." Floyd, 499 U.S. at 541, 111 S.Ct. 1489. Therefore, some courts have found that where there exists sufficient evidence, "an accident victim's PTSD can itself constitute a physical injury because it results in discernible physical changes to the structure of the brain." Ligeti v. British Airways PLC, 00-CV-2936 (FM), 2001 WL 1356238, at *5 (S.D.N.Y. Nov. 5, 2001) (citing Turturro, 128 F.Supp.2d at 178); see, e.g., In re Air Crash at Little Rock, Ark., 118 F.Supp.2d 916, 924 (E.D.Ark. 2000) (severe PTSD with physical effects found to be a recoverable physical manifestation of injury); Weaver v. Delta Airlines, Inc., 56 F.Supp.2d 1190, 1192 (D.Mont. 1999) (considering scientific research explaining that post-traumatic stress disorder can result in actual trauma to brain cell structures).
Even if the Court were to accept the proposition that extreme PTSD causing a change in the structure of the brain were a "bodily injury" under Article 17, Plaintiffs have put forth no evidence that Mrs. Kruger suffered such an injury. Although not alleged in the Complaint, Plaintiffs claim that Mrs. Kruger suffers from PTSD as a result of the accident and that the condition has been "confirmed by a treating therapist and a nationally based PTSD evaluation examination." (Pls.' Opp. at 9.) In support of that claim, Plaintiffs cite an evaluation report prepared by Mrs. Kruger's treating psychologist, Harry A. Olson, Ph.D. (Pls.' Opp., Exh. 10.) In the report, Dr. Olson writes that "[a]ll of [Mrs. Kruger's] symptoms are consistent with the condition of [PTSD]." (Id.) In their 56.1 response to VAA's motion, Plaintiffs claim that, "... the frontal lobes of [Mrs. Kruger's] brain are believed to be swollen and enlarged as is the case with PTSD." (Pls.' 56.1 Resp. ¶ 111.) However, Plaintiffs do not specify whether this "belief" is one held by Dr. Olson or merely Plaintiffs' counsel and nowhere in his report does Dr. Olson reference or document any belief that discernible physical changes have occurred to the structure of Mrs. Kruger's brain as a result of her PTSD. (See Pls.' Opp., Exh. 10.) Dr. Olson merely writes that Mrs. Kruger's symptoms are consistent with PTSD and describes the impact the affliction has had on her day to day life. (Id.) Plaintiffs have also not provided any objective medical evidence of such swelling or other changes in Mrs. Kruger's brain. As such, Mrs. Kruger's PTSD is not a "bodily injury" because she has not put forth any evidence that the mental affliction has caused a physical change in her brain.
Careful consideration of Floyd and its progeny show that Plaintiffs' claims under the Convention fail because Mrs. Kruger has not suffered any "bodily injury" as a result of the "accident." Therefore, I respectfully recommend that Plaintiffs' claims under the Convention be dismissed to the extent that any such claims have been made.
My recommendation that Your Honor grant VAA's motion for summary judgment in its entirety moots Plaintiffs' motion for summary judgment on VAA's affirmative defenses. Accordingly, I recommend that Plaintiffs' motion be denied.
For the foregoing reasons, I respectfully recommend that Your Honor grant VAA's motion for summary judgment in its entirety, and deny Plaintiffs' motion for summary judgment as moot.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court and the Honorable Nicholas
Dated: August 13, 2013
