Quevedo et al v. Iberia Lineas Aereas de Espana Sociedad Anonima Operadora Co.

Filing 112

ORDER on Motions for Summary Judgment 50 52 . Signed by Judge Robert N. Scola, Jr. See attached document for full details. (zlz)

United States District Court
for the
Southern District of Florida
Fanny Quevedo and Carlos
Quevedo, Plaintiffs,
v.
Iberia Lineas Aereas de España,
Sociedad Anónima Operadora Co.,
Defendant.

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Civil Action No. 17-21168-Civ-Scola
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Order on Motions for Summary Judgment
This action arises from a severe turbulence event experienced onboard
Flight 3252, operated by the Defendant Iberia Lineas Aereas de España,
Sociedad Anónima Operadora (“Iberia”) from Madrid, Spain to Milan, Italy on
May 15, 2015. Plaintiff Fanny Quevedo (“Quevedo”), a passenger on that flight,
asserts one count under the Convention for the Unification of Certain Rules
Relating to International Carriage by Air (the “Montreal Convention,” S. Treaty
Doc. No. 106-45) seeking recovery for personal injuries sustained during the
flight.
Now before the Court are the parties’ motions for summary judgment.
(ECF Nos. 50, 52.). After reviewing the parties written submissions and
exhibits, and the applicable law, the Court grants in part the Plaintiffs’ motion
(ECF No. 52), and denies Iberia’s motion (ECF No. 50), as further described
below.
1. Factual Background
The relevant undisputed facts, as established from the parties’
submissions, (ECF Nos. 48, 55, 61, 66, 68, 71), and accompanying exhibits are
summarized as follows:
A. Iberia Flight 3252
Quevedo was a passenger onboard Iberia Flight 3252 from Madrid, Spain
to Milan, Italy on May 15, 2015. (ECF Nos. 55, 61 at ¶¶ 2, 3.) After boarding
the flight, Quevedo fell asleep almost immediately. (ECF Nos. 48, 66 at ¶ 14
n.1.) Prior to takeoff, Iberia’s flight crew issued the standard pre-departure
safety announcement, directing the passengers to fasten their seatbelts. (Id. at
¶ 12.)

Mid-flight, air traffic control notified the captain of Flight 3252, Angel
Cereceda Daza (“Captain Cereceda”), of adverse weather over the MilanMalpensa Airport and instructed him to enter a holding pattern near Genoa,
Italy. (Id. at ¶ 16.) Captain Cereceda then turned on the seatbelt sign, and later
alerted his crew to the poor weather conditions with directions to secure the
cabin. (Id. at ¶ 17.) After holding for a period of time, Captain Cereceda
requested and received weather reports from Iberia for Genoa and Linate, the
two alternate airports listed in the flight plan. (Id. at ¶¶ 8, 20.) Genoa was not
accepting air traffic at that time, and the weather report indicated the presence
of windshear at Linate. (Id. at ¶¶ 20, 21; ECF Nos. 66, 71 at ¶ 46.) Iberia’s
operations manual instructs that if “windshear conditions are suspected to
exist in a given area, that area is to be avoided,” and provides procedures when
such conditions are forecasted on approach, including “delay[ing] landing or
go[ing] to the alternate airport” and “[e]nsur[ing] conditions for a safe landing.”
(ECF No. 66-2 at 2.)
Ultimately, Flight 3252 was diverted to Linate, where air traffic control
cleared it to begin descent. (ECF Nos. 48, 66 at ¶ 22.) At that point, Captain
Cereceda notified the crew that “strong turbulence [was] expected during the
approach,” and instructed them to secure the cabin for landing. (ECF Nos. 66,
71 at ¶ 41; ECF No. 55-1 at 3.) In his deposition, Captain Cereceda testified
that on a scale of “light, moderate and severe,” he would place “strong”
turbulence with “severe” turbulence. (ECF No. 64-4 at 134:18-21.) Iberia’s
policy is that pilots should avoid areas of known, severe turbulence. (ECF Nos.
66, 71 at ¶ 40.)
Per Captain Cereceda’s instruction, the crew visually inspected the
passengers’ seatbelts in preparation for landing. (ECF Nos. 48, 66 at ¶ 25.)
Diego Rubio Sanz (“Sanz”), a flight attendant on Flight 3252, inspected
Quevedo’s row. (ECF Nos. 55, 61 at ¶¶ 11.) Quevedo’s jacket covered her lap,
obstructing view of her seatbelt. (ECF Nos. 48, 66 at ¶ 30.) Nonetheless, Sanz
looked under Quevedo’s jacket from behind her seat and observed both ends of
the seatbelt on her lap, indicating to him that it was fastened. (Id. at ¶ 31.)
Sanz could not, however, observe the seatbelt buckle or confirm that it in fact
was fastened. (ECF No. 55, 61 at ¶ 11.) The crewmembers then secured
themselves for landing. (ECF Nos. 48, 66 at ¶ 32.)
Quevedo’s seatbelt was not fastened. (Id. at ¶¶ 34, 35.) Sanz realized this
during descent and unharnessed himself from his seat to attempt to secure
Quevedo. (Id.) At that moment, severe turbulence struck Flight 3252. (ECF Nos.
55, 61 at ¶ 24.) Quevedo and Sanz were tossed around the cabin, from ceiling
to floor, multiple times due to the turbulence, resulting in serious injuries to
Quevedo. (ECF No. 48, 66 at ¶ 37.)

Iberia’s operating procedures require flight attendants to “[v]erify that
passengers remain seated with their seatbelts fastened” during descent. (ECF
No. 62-7 at 14.) Iberia’s corporate representative, Alicia Sanchez Ruiz
(“Sanchez Ruiz”), the lead flight attendant on Flight 3252, testified that under
normal circumstances this policy requires flight attendants to make certain
that each passenger has his or her seatbelt fastened when securing the cabin.
(ECF No. 62-4 at 21:2-7.) She also testified that under normal circumstances,
when view of a sleeping passenger’s seatbelt is obstructed, Iberia’s policy is to
make the seatbelt “visible,” which might involve lifting a jacket, coat or blanket,
or waking the passenger. (Id. at 20:19-21:1.) However, when time is of the
essence, such as during turbulence events, Sanchez Ruiz testified that flight
attendants may do a “fast check” and look to “see that the two ends of seatbelts
are together.” (Id. at 20:9-18.) During her seatbelt check of the business class
cabin on Flight 3252, Sanchez Ruiz stated that she was not rushed or hurried
and was able to insure that each passenger’s seatbelt was fastened. (Id. at
53:3-10.)
Iberia conducted an internal investigation into the incident on Flight
3252. The resulting report found that Flight 3252 received thirty-minutes of
reserve fuel and that the flight plan complied with Iberia procedures, which
under the circumstances did not require a more distant alternate airport be
listed. (ECF No. 55-4 at 27.) Self-critically, the incident report did note that
“[b]oth the destination and the alternates had a negative forecast and were in
an area where the significant map showed great instability; perhaps a more
distant alternate, in addition to the extra fuel, would have given more options
to the flight crew. There is no record of any coordination between the crew and
flight dispatch in that regard.” (Id.)
The Plaintiffs filed their complaint on March 29, 2017, asserting one
count under the Convention for Unification of Certain Rules for International
Carriage by Air (the “Montreal Convention”) seeking recovery for injuries
sustained on board Flight 3252. (ECF Nos. 1, 20.) Iberia answered and
asserted four affirmative defenses, claiming that: (i) Quevedo did not sustain a
“bodily injury” that was caused by an “accident,” as is required to sustain a
claim under Article 17 of the Montreal Convention (ECF No. 22 at ¶ 11); (ii) the
Plaintiffs’ injuries were not caused by the negligence or wrongful conduct of
Iberia, such that Iberia should be wholly or partly exonerated from liability
under Articles 20 and 21 of the Montreal Convention, (id. at ¶ 12); (iii) the
Plaintiffs’ injuries were caused or contributed to by Quevedo’s own negligence
or wrongful conduct, and Iberia should be wholly or partially exonerated from
liability in proportion to Quevedo’s fault under Article 20 of the Montreal
Convention, (id. at ¶ 13); and (iv) the Plaintiffs’ damages were caused by the

acts of a third-party and Iberia’s liability should be wholly or partly reduced in
proportion, (id. at ¶ 14.).
B. The Motions
The parties cross-move for summary judgment. Iberia seeks judgment in
its favor on the grounds: (i) that the Plaintiffs’ injuries were not “caused” by an
accident, as is required to establish a claim under Article 17 of the Montreal
Convention; (ii) that Quevedo’s negligence was the sole cause of the Plaintiffs’
injuries, such that Iberia should be wholly exonerated under Article 20 of the
Montreal Convention; and (iii) in the alternative, that the Plaintiffs’ injuries
were not caused by Iberia’s negligence or wrongful conduct, thereby limiting
Iberia’s liability to 100,000 Special Drawing Rights (“SDR”) 1 under Article 21 of
the Montreal Convention. (Iberia’s Mot. for Summary Judgment, ECF No. 50.)
For their part, the Plaintiffs request partial summary judgment in their
favor, arguing: (i) that their injuries were caused by an accident incurred
onboard an international flight, thereby establishing a claim under Article 17 of
the Montreal Convention; (ii) that Iberia cannot show that its own negligence or
wrongful conduct did not cause Plaintiffs’ injuries, as it must to sustain its
second affirmative defense under Article 21 of the Montreal Convention; and
(iii) that Iberia cannot establish that a third-party is responsible for the
Plaintiffs’ injuries, as asserted in Iberia’s fourth affirmative defense. (Plaintiffs’
Partial Mot. for Summary J., ECF No. 52.)
2. Summary Judgment Standard
Summary judgment is proper if following discovery, the pleadings,
depositions, answers to interrogatories, affidavits and admissions on file show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the
applicable substantive law, it might affect the outcome of the case.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir.2004). “An issue of
fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact
to find for the nonmoving party.” Id. at 1260. All the evidence and factual
inferences reasonably drawn from the evidence must be viewed in the light
most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S.
“An SDR is an artificial currency, published daily by the International
Monetary Fund, which fluctuates based on the global currency market.” Eli
Lilly & Co. v. Air Exp. Int’l USA, Inc., 615 F.3d 1305, 1308 (11th Cir. 2010).
1

144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th
Cir. 2004).
Once a party properly makes a summary judgment motion by
demonstrating the absence of a genuine issue of material fact, whether or not
accompanied by affidavits, the nonmoving party must go beyond the pleadings
through the use of affidavits, depositions, answers to interrogatories and
admissions on file, and designate specific facts showing that there is a genuine
issue for trial. Celotex, 477 U.S. at 323–24. The nonmovant’s evidence must be
significantly probative to support the claims. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make
findings of fact. Id. at 249; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th
Cir. 2003). Rather, the Court’s role is limited to deciding whether there is
sufficient evidence upon which a reasonable juror could find for the nonmoving
party. Id. “If more than one inference could be construed from the facts by a
reasonable fact finder, and that inference introduces a genuine issue of
material fact, then the district court should not grant summary judgment.”
Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).
3. Discussion
A. The Plaintiffs’ Injuries Were Caused by an Accident Under the
Montreal Convention
The parties cross-move for summary judgment on the Plaintiffs’ claim
under Article 17, section 1 of the Montreal Convention. The Plaintiffs argue
there is no dispute of material fact that Quevedo’s injuries were caused by an
accident on board an international flight, and that their claim is established as
a matter of law. (ECF No. 52 at 7-10.) At the same time, Iberia seeks summary
judgment in its favor on the Plaintiffs’ claim, arguing that Quevedo’s injuries
were not “caused” by an “accident,” but rather by Quevedo’s failure to fasten
her seat belt. (ECF No. 50, 9-11.) Similarly, Iberia’s first affirmative defense
asserts that Iberia is not liable because Quevedo “did not sustain a ‘bodily
injury’ that was caused by an ‘accident.’” (ECF No. 22 at ¶ 11.)
Article 17, Section 1 of the Montreal Convention makes airlines “liable for
damage sustained in case of death or bodily injury of a passenger upon
condition only that the accident which caused the death or injury took place on
board the aircraft or in the course of any of the operations of embarking or
disembarking.” Montreal Convention art. 17. Thus, plaintiffs asserting claims
under that provision must establish “three elements: (1) an accident; (2) that
caused death or bodily injury; (3) that took place on the plane or in the course

of any of the operations of embarking or disembarking.” Campbell v. Air
Jamaica Ltd., 760 F.3d 1165, 1172 (11th Cir. 2014).
An “accident” for the purposes of Article 17 is “an unexpected or unusual
event or happening that is external to the passenger.” Id. (quoting El Al Isr.
Airlines, Ltd. V. Tsui Yuan Tseng, 525 U.S. 155, 165 n.9 (1999); Air France v.
Saks, 470 U.S. 392, 405 (1985)). 2 That definition “should be flexibly applied
after assessment of all the circumstances surrounding a passenger’s injuries.”
Id. (quoting Saks, 470 U.S. at 405). In determining if an “unexpected or
unusual” event occurred, courts “look at a purely factual description of the
events that allegedly caused the aggravation injury suffered by the plaintiff.” Id.
(quoting Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1521 (11th Cir.
1997)). Regarding causation, Article 17 “require[s] only that the passenger be
able to prove that some link in the chain was an unusual or unexpected event
external to the passenger,” as “[a]ny injury is the product of a chain of causes.”
Saks, 470 U.S. at 406.
As to the first element, it is undisputed that the severe turbulence
experienced by Flight 3252 was “unusual and unexpected.” (Compare ECF Nos.
55, 61 at ¶ 23.) The Plaintiffs therefore have established that an “accident”
occurred within the meaning of Article 17. See Campbell, 760 F.3d at 1172.
Next, there is no dispute that Quevedo was thrown from her seat during
the turbulence event, hitting the floor and ceiling multiple times, resulting in
injuries to her. (ECF Nos. 48, 66 at ¶¶ 36, 37.) Iberia, however, argues in its
motion that Quevedo’s failure to secure her seatbelt severed the chain of
causation, meaning her injuries were not caused by the turbulence as a matter
of law. (ECF No. 50, 9-11.) The Court rejects this argument. Causation under
Article 17 “require[s] only that the passenger be able to prove that some link in
the chain was an unusual or unexpected event external to the passenger.”
Saks, 470 U.S. at 406 (emphasis added). This is a low bar, and no reasonable
juror could find that the severe, unusual and unexpected turbulence
experienced by Flight 3252 was not a “link” in the causal chain leading to
Quevedo’s injuries. Id. Quevedo’s failure to secure her seatbelt is certainly
another link, but that is an issue of comparative negligence appropriately
addressed through Iberia’s affirmative defenses under Articles 20 of the
Montreal Convention. (ECF No. 22 at ¶¶ 12, 13); Moran v. Am. Airlines, Inc., No.
10-80878, 2011 WL 13116533, at *4 (S.D. Fla. Feb. 17, 2011) (Rosenbaum,
“Courts interpreting the Montreal Convention may rely on authority
concerning its predecessor, the Warsaw Convention, where provisions of both
conventions are similar.’” Jacob v. Korean Air Lines Co. Ltd., 606 F. App’x 478,
480 n.2 (11th Cir. 2015).
2

Mag. J.) (noting that Article 20 of the Montreal “Convention creates an
‘exoneration’ defense (a form of comparative negligence) applicable to all
damages claims”). Thus, the Court finds as a matter of law that the Plaintiffs
have established the second element of their Article 17 claim.
Finally, the parties agree that the turbulence event took place in-flight on
Flight 3252 from Madrid, Spain to Milan, Italy, satisfying the last element of
the Plaintiffs’ Article 17 claim. (ECF Nos.48, 66 at ¶¶ 36, 37.)
Finding there is no dispute of material fact that an accident on board an
international flight caused injury to Quevedo, the Court grants the Plaintiffs
summary judgment on their Article 17 claim. For the same reason, the Court
also grants summary judgment for the Plaintiffs on Iberia’s first affirmative
defense and denies Iberia’s request for summary judgment on the Plaintiffs’
claim.
B. Reasonable Jurors Could Differ on Whether Quevedo’s Injuries Were
Caused, or Not, by Negligent or Wrongful Acts of Iberia
The parties also cross-move for summary judgment on Iberia’s second
affirmative defense under Article 21 of the Montreal Convention. That defense
asserts that Iberia “is not liable to plaintiffs or, in the alternative, defendant’s
liability is limited because plaintiffs’ damages are not due to the negligence of
the carrier.” (ECF No. 22 at ¶ 12.)
In relevant part, Article 21 provides that:
2. The carrier shall not be liable for damages arising under
paragraph 1 of Article 17 to the extent that they exceed for each
passenger 100,000 Special Drawing Rights if the carrier proves
that:
a) such damage was not due to the negligence or other
wrongful act or omission of the carrier or its servants or
agents; or
b) such damage was solely due to the negligence or other
wrongful act or omission of a third party.
Montreal Convention, art. 21.
The parties’ arguments center on three issues:
(1) whether Sanz
complied with Iberia’s policies and procedures in conducting the final seatbelt
inspection prior to descent; (2) whether Captain Cereceda complied with Iberia
policy in proceeding to descend and land Flight 3252 through known
turbulence at Linate; and (3) whether Iberia negligently or wrongfully failed to
provide appropriate alternate airports in the flight plan for Flight 3252.
While Iberia carries the ultimate burden of proof at trial, Zwak v. United
States, 848 F.2d 1179, 1185 (11th Cir. 1988), each party requests summary

judgment in its favor on this affirmative defense. Thus, to prevail at this stage,
the Plaintiffs must establish that there is no dispute of material fact that
Quevedo’s injury was caused in some respect by the negligence or other
wrongful act or omission of Iberia. On the other hand, for Iberia to prevail at
summary judgment, it must establish that no reasonable juror could find that
Quevedo’s injuries were caused by a negligent or wrongful act or omission of
Iberia. Viewing the evidence and all reasonable inference drawn therefrom in
the light most favorable to the non-moving party, the Court finds that neither
party has carried its respective burden.
First, a reasonable juror could find that the impending turbulence
onboard Flight 3252 necessitated a “fast check,” such that Sanz’s observation
of the seatbelt ends on Quevedo’s lap complied with Iberia’s policy. Yet, there is
a view of the facts that questions whether Sanz’s failure to observe the seatbelt
buckle renders his visual inspection noncompliant with even the “fast check”
standard. Further, in light of Sanchez Ruiz’s check of the business cabin, a
reasonable juror could also find that sufficient time existed to conduct a
normal seatbelt check, thus requiring Sanz, under Iberia policy, to wake
Quevedo or move her jacket, neither of which he did. Put differently, there are
disputes of fact as to the applicable Iberia policy governing Sanz’s seatbelt
check and whether his conduct complied with such policy.
Next, a reasonable juror could find that Captain Cereceda knew of severe
turbulence and windshear in and around at Linate, yet proceeded to land
Flight 3252 at that airport anyway, in violation of Iberia policy and industry
standard. But a reasonable juror could also find that Captain Cereceda
appropriately exercised the discretion granted to him by Iberia policy in landing
Flight 3252 through known, strong turbulence and windshear at Linate, where
the destination and alternate airports were not accepting air traffic, the plane
had only thirty-minutes of reserve fuel, and the air traffic control at Linate
cleared the plane for descent and landing. Thus, there is a dispute of fact as to
whether Captain Cereceda’s decision to divert and land Flight 3252 at Linate
was negligent or wrongful under the circumstances. See Bannum, 901 F.2d at
996 (“If more than one inference could be construed from the facts by a
reasonable fact finder, and that inference introduces a genuine issue of
material fact, then the district court should not grant summary judgment.”).
Finally, a reasonable juror could find that Iberia’s flight plan complied
with its internal policies and procedures, absolving Iberia of negligence or
wrongfulness in its selection of alternate airports. At the same time, a
reasonable juror might also find that Iberia knew of adverse weather at Milan,
Genoa and Linate when creating the flight plan and was negligent or wrongful

under the circumstances in failing to list a more distant alternate airport with a
cleaner forecast.
In sum, disputes of material fact preclude the Court from finding, as a
matter of law, that negligence or wrongful conduct of Iberia either was, or was
not, a cause of the Plaintiffs’ injuries. As a result, the Court denies the parties’
requests for summary judgment on Iberia’s second affirmative defense.
Further, because a reasonable juror could find that negligent or wrongful
conduct of Iberia caused the Plaintiffs’ injuries, the Court cannot find as a
matter of law that Quevedo was solely responsible for her injuries. Thus, the
Court denies Iberia’s separate request for summary judgment exonerating it
from liability on its comparative negligence defense under Article 20. 3 (ECF No.
22 at ¶ 13.)
C. The Plaintiffs are Not Entitled to Summary Judgment on the Fourth
Affirmative Defense
The Plaintiffs also seek summary judgment on Iberia’s fourth affirmative
defense, which asserts that Iberia is not liable, in whole or in part, because
“[t]he damages alleged in the Complaint were caused solely by the negligence
and carelessness of some third person over whom defendant had neither
control nor responsibility.” (ECF No. 22 at ¶ 14.) The Plaintiffs argue that there
is no admissible evidence that a third-party caused the Plaintiffs’ injuries.
The Court rejects this argument. Quevedo confirmed at her deposition
that on an earlier Iberia flight from Miami to Madrid on May 14, 2015, a tripod
fell on her when another passenger opened an overhead compartment. (ECF
No. 62-1 at 79:1-24 (“Q: So at the moment this person opened the overhead
compartment, did the tripod fall out? A: That’s the way. Q: That person
witnessed your – the tripod hitting you? A: Yes.”).) Further, the Amended
Complaint alleges that “on the initial flight from Miami to Madrid, another
passenger opened an overhead bin causing a nearby tripod to drop on Fanny,
striking her hip. She was in pain from this throughout the overnight flight, and
unable to sleep as a result.” (ECF No. 20 at ¶ 7.) This is admissible evidence.
3

Article 20 provides in relevant part that:
If the carrier proves that the damage was caused or contributed to
by the negligence or other wrongful act or omission of the person
claiming compensation, or the person from whom he or she derives
his or her rights, the carrier shall be wholly or partly exonerated
from its liability to the claimant to the extent that such negligence
or wrongful act or omission caused or contributed to the damage.

Montreal Convention, art. 20.

See Cooper v. Meridian Yachts, Ltd., 575 F.3d at 1151, 1177-78 (“The general
rule is that a party is bound by the admissions in his pleadings.” (quotations
and alterations omitted)).
To the extent the Plaintiffs are pursuing damages resulting from the
dropped tripod, there is admissible evidence from which a reasonable juror
could find that such damages were caused by a third-party not under the
control or responsibility of Iberia. Thus, the Plaintiffs’ request for summary
judgment on Iberia’s fourth affirmative defense is denied.
4. Conclusion
In sum, the Court grants in part the Plaintiffs’ motion for partial
summary judgment. (ECF No. 52.) Summary judgment is granted for the
Plaintiffs on their claim under Article 17 of the Montreal Convention and
Iberia’s first affirmative defense. The Court, however, denies the Plaintiffs’
requests for summary judgment on Iberia’s second and fourth affirmative
defenses.
Iberia’s motion for summary judgment (ECF No. 50) is denied in its
entirety.
Done and ordered in chambers in Miami, Florida, on October 3, 2018.

Robert N. Scola, Jr.
United States District Judge