DE CUARTAS v. AMERICAN AIRLINES,INC. et al
Filing
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ORDER denying 50 Motion for Partial Summary Judgment; denying 53 Motion for Summary Judgment; granting 56 Motion to supplement the designation of evidence in support of motion for partial s/j as to strict liability under the Montreal Convention. Signed by Judge Larry J. McKinney on 3/12/2012. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARIA GLADYS GUTIERREZ DE
CUARTAS,
Plaintiff,
vs.
AMERICAN AIRLINES, INC.,
Defendant.
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1:10-cv-00390-LJM-TAB
ORDER
Pending before the Court are two motions for summary judgment: plaintiff’s, Maria
Gladys Gutierrez de Cuartas (“Plaintiff”), Motion for Partial Summary Judgment as to Strict
Liability under the Montreal Convention [Dkt. No. 50]; and defendant’s, American Airlines,
Inc. (“Defendant”), Motion for Summary Judgment [Dkt. No. 53]. Plaintiff brings this claim
for personal injury occurring at Jose Maria Cordova Airport (“MDE”) in Medellin, Colombia,
under the Convention of Unification of Certain Rules for International Carrier by Air
(“Montreal Convention”), a multinational treaty to which both the United States and
Colombia are signatories. The Court has considered the parties’ submissions1 and, for the
reasons set forth below, DENIES both Motions [Dkt. Nos. 50, 53].
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Plaintiff’s Unopposed Motion to Supplement her Designation of Evidence in Support of Motion
for Partial Summary Judgment as to Strict Liability under the Montreal Convention [Dkt. No. 56] is
GRANTED, and that supplemental evidence will be considered in evaluating the current Motions.
I. BACKGROUND2
This case arises from personal injury suffered by Plaintiff during an airline trip from
Indianapolis, Indiana to Medellin, Colombia.
On December 18, 2009, Plaintiff,
accompanied by her daughter and son-in-law, boarded American Airlines Flight 919 in
Miami, Florida, bound for MDE. Dkt. No. 54 at 2. Plaintiff had flown approximately five
times prior to this date, including about four flights from Indiana to Colombia. Dkt. No. 52-1
at 2–3. Just prior to landing, there was a “big storm” in Medellin. Id. at 2. Plaintiff saw the
rain from the aircraft, and the pilot announced the storm’s presence. Id.
Because the MDE terminal was under construction, portable stairs, rather than a
jetway, were used for disembarking flights. Id. at 3. The stairs were owned, maintained,
and provided by Desacol S.A., an independent contractor. Dkt. No. 55-3 at 3. Plaintiff
expected that a jetway would be used for disembarking and was not aware that stairs would
be used until she was exiting the aircraft. Dkt. No. 52-1 at 3. Defendant’s policy requires
the pilot and flight crew to announce when stairs, as opposed to a jetway, will be used for
disembarkation. Dkt. Nos. 52-11–52-14. Neither Plaintiff nor her daughter or son-in-law
remember hearing any announcement that stairs would be used. Dkt. Nos. 52-1 at 4; 52-3
at 1; 52-4 at 1.
Plaintiff first saw the stairs approximately four feet past the last flight attendant inside
the cabin. Dkt. No. 52-1 at 3. The stairs were metal, wet from the rain, and lacked black
traction strips, although they did have some pattern of raised metal on the steps. Id. at 5.
Plaintiff was carrying her carry-on bag, which weighed approximately fifteen pounds, and
2
As Defendant has declared certain facts undisputed for the purposes of the Cross-Motions only,
see dkt. no. 54 at 3 n.1, the following factual background is for purposes of this Order only.
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wearing rubber-soled shoes. Id. at 3–4. Although she later stated in her deposition that
she felt she needed assistance on the stairs, Plaintiff did not request help in descending
the stairs from her daughter, son-in-law, or any of Defendant’s employees. Id. at 3.
Plaintiff began to descend the stairs, holding her carry-on luggage in one hand with
her other hand on the handrail. Id. at 4. She was “comfortably” and “calmly coming down”
the stairs. Id. Nobody bumped into Plaintiff while she was descending the stairs. Id.
Approximately three steps from the bottom, Plaintiff’s right foot slipped forward and she fell.
Id. A number of airport employees, including at least one of Defendant’s employees,
responded and took Plaintiff to receive medical assistance in a facility at MDE. Id. Plaintiff
was given a pain medication injection and instructed to consult her doctor if pain continued.
Dkt. No. 52-2 at 1. On December 28, 2009, Plaintiff saw a doctor, who informed Plaintiff
that she had a tear in her meniscus and damage to her kneecap. Id. at 2. Plaintiff now
seeks recovery on the basis of that knee injury.
The Court includes additional facts below as necessary.
II. LEGAL STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural
shortcut, but rather is an integral part of the federal rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of every action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also United Ass’n of Black Landscapers v.
City of Milwaukee, 916 F.2d 1261, 1267–68 (7th Cir. 1990).
Motions for summary
judgment are governed by Federal Rule of Civil Procedure 56(a), which provides in relevant
part:
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The court shall grant summary judgment 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.
Once a party has made a properly-supported motion for summary judgment, the opposing
party may not simply rest upon the pleadings but must instead submit evidentiary materials
showing that a material fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1). A genuine
dispute of material fact exists whenever “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating
that such a genuine dispute of material fact exists. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d
992, 997 (7th Cir. 1996). It is not the duty of the Court to scour the record in search of
evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the
responsibility of identifying applicable evidence. See Bombard v. Ft. Wayne Newspapers,
Inc., 92 F.3d 560, 562 (7th Cir. 1996).
In evaluating a motion for summary judgment, the Court should draw all reasonable
inferences from undisputed facts in favor of the nonmoving party and should view the
disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole
v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by
itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the
outcome of the suit in light of the substantive law will preclude summary judgment. See
Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273
(7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even
when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). If the moving
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party does not have the ultimate burden of proof on a claim, it is sufficient for the moving
party to direct the court to the lack of evidence as to an element of that claim. See Green
v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n.3 (7th Cir. 1994). “If the nonmoving party fails
to establish the existence of an element essential to [her] case, one on which [she] would
bear the burden of proof at trial, summary judgment must be granted to the moving party.”
Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
III. DISCUSSION
The parties agree that this dispute is governed by the Montreal Convention, which
provides Plaintiff’s exclusive remedy against Defendant. See El Al Israel Airlines, Ltd. v.
Tseng, 525 U.S. 155, 169 (1999). Specifically, Article 17 of the Montreal Convention
(“Article 17”) controls and reads in relevant part as follows:
The carrier is liable for damage sustained in case of death or bodily injury of
a passenger upon condition only that the accident which caused the death
or injury took place on board the aircraft or in the course of any of the
operations of embarking or disembarking.
Convention for the Unification of Certain Rules for International Carrier by Air art. 17, May
28, 1999, S. Treaty Doc. No. 106-45, 2422 U.N.T.S. 350, 1999 WL 33292734.
In
construing the Montreal Convention, common law constructions of the Warsaw Convention,
the Montreal Convention’s predecessor treaty, may be considered. See, e.g., Watts v.
American Airlines, Inc., No. 1:07-CV-434, 2007 WL 3019344, at *2 (S.D. Ind. Oct. 10, 2007)
(Young, J.).
The issue on summary judgment is a narrow one: whether the circumstances
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leading to Plaintiff’s injury constitute an “accident” as that term of art3 is interpreted under
Article 17. The Supreme Court has defined “accident” under the Warsaw Convention as
an “unexpected or unusual event or happening that is external to the passenger.” Air
France v. Saks, 470 U.S. 392, 405–06 (1985). The cause of the injury, rather than its
sheer occurrence, must qualify as an “accident.” Id. at 399. The definition of “accident”
“should be flexibly applied after assessment of all the circumstances surrounding a
passenger’s injuries.” Id. at 405. The “accident” need be only “some link in the chain” and
need not be the sole cause of Plaintiff’s injuries. Id. at 406; see also Olympic Airways v.
Husain, 540 U.S. 644, 653 (2004).
Plaintiff points to two events she contends constitute an “accident” under Article 17.
First, Plaintiff contends that the use of stairs rather than a jetway—particularly these stairs,
which were steep, wet, and lacked traction strips—constitutes an “accident.” Second,
Plaintiff contends that the failure of the flight attendants to adhere to Defendant’s policy
requiring on-board warnings when stairs will be used to disembark constitutes an
“accident.” Defendant contends that because “the presence of rainwater following a storm”
is not “unexpected or unusual,” and Plaintiff knew it had been raining, Plaintiff’s fall on the
wet stairs did not result from an “accident.” In addition, Defendant asserts that the
purported failure to warn is not material because Plaintiff’s injury was proximately caused
by the condition of the stairs, rather than the warning or lack thereof. In light of the
Supreme Court’s guidance advocating a totality of circumstances approach to the definition
of “accident,” the Court will examine the entire sequence of events to determine whether
3
The Court uses “accident” including quotation marks to denote use as a term of art rather than
common usage of the word.
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an “accident” occurred. See Saks, 470 U.S. at 405.
In support of her contention that an “accident” occurred, Plaintiff points to a number
of pieces of evidence. The evidence suggests that a jetway, not stairs, was the standard
method of disembarkation. See dkt. nos. 52-1 at 2; 52-3 at 1; 55-1 at 7. The stairs were
steep and lacked traction strips. Dkt. Nos. 52-1 at 5; 52-2 at 2; 52-3 at 1, 4–5; 52-4 at 2;
56-1 ¶¶ 5, 7. A number of passengers do not remember the flight crew providing warnings
that stairs, rather than a jetway, would be used for disembarkation and encouraging
passengers to watch their step, even though Defendant’s policy requires that the flight crew
provide such warnings. Dkt. Nos. 52-1 at 4; 52-3 at 1; 52-4 at 1; 54-11 at 3; 56-1 ¶ 8.
Additionally, although the Seventh Circuit has not spoken on the issue, courts in other
jurisdictions have found injuries suffered by falling down stairs to result from “accidents”
under Article 17. See, e.g., Gezzi v. British Airways PLC, 991 F.2d 603, 604 (9th Cir. 1993)
(wet stairs as “accident”); McCarthy v. American Airlines, Inc., No. 07-61016-CIV, 2008 WL
2704515, at *4–*5 (S.D. Fla. June 27, 2008). Taking all circumstances into consideration,
Plaintiff has presented sufficient evidence that a reasonable jury could find that Plaintiff’s
injuries were caused by an “accident” under Article 17.
However, this does not end the Court’s inquiry, as Defendant points to evidence
suggesting that the circumstances leading to Plaintiff’s injuries were not “unexpected or
unusual.” Defendant’s standard practice is to provide warnings when stairs will be used
for disembarkation—dkt. nos. 62-1 ¶¶ 6–8; 62-2 ¶¶ 5–8—and Defendant correctly points
out that Plaintiff’s evidence that passengers do not remember being given those warnings
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does not definitively prove that no warnings were given.4 See Fed. R. Evid. 406 (allowing
evidence of organization’s “routine practice” to prove conformity with practice). Additionally,
Plaintiff saw the rain and, therefore, Defendant argues, wet outdoor surfaces should not
have been “unexpected.” See dkt. no. 55-1 at 3. There is no evidence that the stairs were
defective in design or maintenance. See id. at 5–6 (stairs did not appear “dysfunctional”
or “poorly maintained”). Unlike other cases where flight crew failure to act was found to be
an “accident”—see, e.g., Husain, 540 U.S. 644 (2004); Fulop v. Malev Hungarian Airlines,
175 F. Supp. 2d 651 (S.D.N.Y. 2001)—Plaintiff did not request assistance from Defendant’s
employees. Dkt. No. 55-1 at 4. Lastly, Defendant has brought forth evidence suggesting
that the use of stairs for disembarking is common in the airline industry and the only
method of disembarkation when jetways are unavailable. Dkt. No. 55-4 ¶¶ 5–6. In short,
Defendant has brought forth sufficient evidence such that a reasonable jury could conclude
that no “accident” occurred.
In conclusion, having examined the totality of the circumstances, the Court
concludes that there is a genuine issue of material fact as to whether the circumstances
surrounding Plaintiff’s injury were “unexpected and unusual” such that an “accident”
occurred under Article 17. Sufficient evidence exists in the record such that a reasonable
jury could find in favor of either party and, therefore, the question is not appropriate for this
Court’s determination at the summary judgment stage. See Anderson, 477 U.S. at 249;
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Defendant also challenges whether the alleged lack of warnings could have proximately caused
Plaintiff’s injuries when she held the handrail and descended the stairs carefully, just as the warnings
would prescribe. See dkt. no. 55-1 at 5, 7 (Plaintiff stated that she was “calmly coming down” the stairs
“slowly” and holding the handrail). The Court acknowledges the dispute about proximate cause but, given
that the “accident” element precludes summary judgment in any event, declines to draw any conclusions
about proximate cause at this time.
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see also McCaskey v. Continental Airlines, Inc., 159 F. Supp. 2d 562, 574 (S.D. Tex. 2001)
(existence of an “accident” question of fact for jury determination).
IV. CONCLUSION
For the reasons set forth herein, Plaintiff’s Unopposed Motion to Supplement her
Designation of Evidence in Support of Motion for Partial Summary Judgment as to Strict
Liability under the Montreal Convention [Dkt. No. 56] is GRANTED. The Court DENIES
Plaintiff’s Motion for Partial Summary Judgment as to Strict Liability under the Montreal
Convention [Dkt. No. 50]. The Court further DENIES Defendant’s Motion for Summary
Judgment [Dkt. No. 53].
IT IS SO ORDERED this 12th day of March, 2012.
________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
Distribution to:
Matthew D. Bruno
KIGHTLINGER & GRAY
mbruno@k-glaw.com
Steven Edward Springer
KIGHTLINGER & GRAY
sspringer@k-glaw.com
D. Bruce Kehoe
WILSON KEHOE & WININGHAM
kehoe@wkw.com
Christopher G. Stevenson
WILSON KEHOE & WININGHAM
cstevenson@wkw.com
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