Boyd v. Deutsche Lufthansa Aktiengesellschaft et al

Filing 29

ORDER & REASONS granting 19 Motion for Summary Judgment. The plaintiff's claims are hereby dismissed. Signed by Judge Martin L.C. Feldman on 6/3/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

FAY BOYD

CIVIL ACTION

v.

NO. 14-1260

DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT
a/k/a, d/b/a LUFTHANSA GERMAN AIRLINES
a/k/a DEUTSCHE LUFTHANSA AG

SECTION "F"

ORDER AND REASONS
Before the Court is Deutsche Lufthansa Aktiengesellschaft
a/k/a Deutsche Lufthansa AG's Motion for Summary Judgment. For the
reasons that follow, the motion is GRANTED.
Background
This litigation concerns an international airline's liability
to a passenger who fell and broke her hip while walking to the U.S.
Customs area of a Houston airport.
After traveling to Cairo, Egypt, Fay Boyd and her husband,
Marion

Boyd,

their

daughter,

Jennifer

Pecot,

and

the

Boyd's

granddaughter, Ashley Scheibal, returned to the United States on
June 2, 2013 on Lufthansa Flight Number LH 440 from Frankfurt,
Germany to Houston, Texas. Having been upgraded to business class,
Mr. and Mrs. Boyd were seated near the front of the airplane.

When

Flight 440 landed at George Bush Intercontinental Airport, Mr. and
1

Mrs. Boyd deplaned first, before the full flight of passengers who
followed them.

Having stepped off of the plane without requesting

assistance for herself,1 Mrs. Boyd was walking a short distance
(about 10 feet) behind Mr. Boyd, who was being pushed in a
wheelchair by an attendant.2

Mr. and Mrs. Boyd, along with other

passengers, were in a wide corridor of the airport, heading toward
Customs.

During part of her walk toward Customs, Mrs. Boyd

traveled along a moving walkway (or horizontal escalator). At some
point,3 Mrs. Boyd alleges that she was knocked to the ground by
another hurried passenger, causing her to fall and break her left
hip.4

None of Mrs. Boyd's family members witnessed the incident.

1

Although Mrs. Boyd's legs become numb when she is
seated for a long period of time, she did not advise any flight
attendants servicing Flight 440 that she needed help exiting the
plane or navigating the airport, and no one at Lufthansa refused to
help her.
2

Presumably, the attendant was an airport employee, who
was waiting to transport Mr. Boyd when the flight arrived.
3

The parties dispute whether the incident happened
relatively close in time to deplaning, or whether it happened
during the 10 to 15 minute walk from deplaning, near the Customs
area. There is also conflicting evidence regarding whether Mrs.
Boyd fell while she was on the moving walkway, or whether she fell
on the floor.
4

There is a conflict in the record regarding whether
another passenger knocked down Mrs. Boyd, or whether she simply
fell. The incident reports are consistent with what Mrs. Boyd's
family members say that she told them when they came upon her on
the ground shortly after she fell: that another passenger knocked
her down and hurried off without checking on her to see if she was
okay.
Yet Mrs. Boyd testified in her deposition that "Nobody
pushed me or hurt me or shoved me or anything like that."
2

Some unidentified woman wearing an unidentified uniform arrived on
scene and called the paramedics.
On

June

2,

2014

Mrs.

Boyd

sued

Deutsche

Lufthansa

Aktiengesellschaft a/k/a or d/b/a Lufthansa German Airlines a/k/a
Deutsche Lufthansa AG,5 seeking to recover for her injuries under
the Montreal Convention.

In her complaint, the plaintiff alleges

that Lufthansa failed to allow her enough time to disembark before
allowing the other passengers on the plane to disembark.6

In

particular, she alleges that as she was disembarking, another
passenger in a rush collided with her, knocking her to the ground
and causing her to fracture her femur. Lufthansa submits that this
lawsuit was the first notification it had that the plaintiff had
been injured.

Lufthansa now seeks summary relief dismissing Mrs.

Boyd's claims.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to

5

In her complaint, Ms. Boyd incorrectly identified
Deutsche Lufthansa AG as a separate entity and defendant.
6

Had Lufthansa assisted her in exiting the aircraft,
while delaying other passengers, or delayed her exit until the
other passengers disembarked, she would not have been injured, she
alleges.
Ms. Boyd also suggests that Lufthansa failed to allow her
husband (who required the assistance of a wheelchair) enough time
to disembark.
3

judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine dispute of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).

4

"[T]he nonmoving party cannot

defeat

summary

judgment

with

conclusory

allegations,

unsubstantiated assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal
quotation marks and citation omitted).

In deciding whether a fact

issue exists, courts must view the facts and draw reasonable
inferences in the light most favorable to the non-moving party.
Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must
"resolve factual controversies in favor of the nonmoving party," it
must do so "only where there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts."
Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir.
2013)(internal quotation marks and citation omitted).

II.
A.
Lufthansa

submits

that

summary

relief

in

its

favor

is

warranted because the plaintiff did not suffer an "accident" while
"disembarking"

from

Flight

440,

as

defined

by

the

Montreal

Convention and governing case literature.
The

Montreal

Convention7

is

7

a

multilateral

treaty

that

More formally known as the Convention for the
Unification of Certain Rules for International Carriage by Air, May
28, 1999, it became effective on November 4, 2003. 2242 U.N.T.S.
309, reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734
(2000). See Bridgeman v. United Continental Holdings, Inc., 552
Fed. Appx. 294, 296 (5th Cir. 2013).
5

"governs the rights and liabilities of passengers and carriers in
international

air

transportation."

Galbert

v.

Airways, 715 F.3d 1290, 1292 (11th Cir. 2013).

W.

Carribean

As such, the

Montreal Convention preempts state law causes of action concerning
international carriage of persons, baggage, and cargo.

See El Al

Israel Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999); see
also Montreal Convention, Art. 29 ("[A]ny action for damages,
however founded, whether under this Convention or in contract or in
tort or otherwise, can only be brought subject to the conditions
and

such

limits

of

liability

as

are

set

out

in

this

Convention...."). The Montreal Convention unifies and replaces its
predecessor, the Warsaw Convention, by harmonizing "the hodgepodge
of supplementary amendments and intercarrier agreements."

See

Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 522 F.3d 776,
789 (7th Cir. 2008). Thus, case literature interpreting the Warsaw
Convention applies to cases interpreting substantially similar
provisions of the Montreal Convention.

See Bridgeman v. United

Continental Holdings, Inc., 552 Fed. Appx. 294, 297 n.1 (5th Cir.
2013)(citing cases).
Setting forth the specific conditions that a passenger must
establish to recover from an international air carrier, the parties
do not dispute that Article 17 of the Montreal Convention governs

6

the plaintiff's claims here.8

It provides:

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.
Montreal Convention, Art. 17(1)(emphasis added). Thus, the text of
the treaty limits recovery to an "accident" that occurs either "on
board the aircraft" or "in the course of any of the operations of
embarking or disembarking." Because these terms are not explicitly
defined in the text of the Convention, courts resort to case
literature for guidance.

Although neither the Montreal Convention

nor its predecessor defined "accident," the Supreme Court has
instructed

that

"liability

under

Article

17

of

the

Warsaw

Convention arises only if a passenger's injury is caused by an
unexpected or unusual event or happening that is external to the
passenger."

Air

France

v.

Saks,

470

U.S.

392,

394

(1985).

Explaining further:
This definition should be flexibly applied after
assessment of all the circumstances surrounding a
passenger's injuries. . . . For example, lower courts in
this country have interpreted Article 17 broadly enough
to encompass torts committed by terrorists or fellow
passengers.
In cases where there is contradictory
evidence, it is for the trier of fact to decide whether
an "accident" as here defined caused the passenger's
injury. But when the injury indisputably results from
the passenger's own internal reaction to the usual,

8

That is,
Lufthansa
Flight
transportation within
and the United States

the parties do not dispute the fact that
Number
440
constituted
international
the meaning of the Convention; both Germany
are parties to the Convention.
7

normal, and expected operation of the aircraft, it has
not been caused by an accident, and Article 17 of the
Warsaw Convention cannot apply.
Id. at 405-06 (internal citations omitted).

Notably, the Supreme

Court considered the French legal meaning of the term "accident",
found that it paralleled British and American jurisprudence, and
determined that the definition of "accident" under the Convention
cannot be conceptually divorced from causation.

Id. at 399-400

(considering

a

that

"accident"

is

"defined

as

fortuitous,

unexpected, unusual, or unintended event" and, consequently, "[t]he
text of the Convention suggests that the passenger's injury must be
caused by an unusual or unexpected event.").

Thus, courts must

distinguish "between an accident which is the cause of the injury
and an injury which is itself an accident."

See id. at 398

(explaining that the "text of Article 17 refers to an accident
which caused the passenger's injury, and not to an accident which
is the passenger's injury.")(emphasis in original).
The Supreme Court acknowledged that proving causation is a
difficult task and instructed that the passenger must prove only
"that some link in the chain was an unusual or unexpected event
external to the passenger."

Id. at 406.9

9

The Supreme Court later

Applying this principle, the Supreme Court determined
in Saks that the passenger had not been subjected to such an
"accident." Valerie Saks was rendered permanently deaf in her left
ear after feeling severe pressure and pain during a descent while
aboard an Air France jetliner traveling from Parish to Los Angeles.
Id. at 394. The Ninth Circuit reversed a district court's grant of
summary judgment in favor of the airline, rejecting the district
8

explained that "it is the cause of the injury--rather than the
occurrence of the injury--that must satisfy the definition of
'accident.'"

Olympic Airways v. Husain, 540 U.S. 644, 650 (2004).

There, a passenger died from an asthma attack while on board a
flight, after having been seated a mere three rows from smoking
passengers, despite his wife's persistent requests that he be
moved. Id. The Court determined that a flight attendant's failure
to assist in moving the passenger away from smoking passengers,
despite his wife's insistence that he was allergic to smoke, was an
"unexpected

or

unusual

event

or

happening"

constituted an accident under the Convention.
Courts

have

recognized

that

the

and,

therefore,

Id.

"accident"

predicate

expansive enough to encompass passenger-on-passenger torts.

is
See

Saks, 470 U.S. at 405 (noting that "lower courts . . . have
interpreted Article 17 broadly enough to encompass torts committed
by terrorists or fellow passengers"). Of course not all torts
committed by fellow passengers are "accidents."

Some courts apply

a two-part test to determine whether an "accident" occurred: the
evidence must demonstrate that "(1) an unusual or unexpected event
that was external to [the plaintiff] occurred, and (2) this event

court's finding that normal cabin pressure changes are not
"accidents."
Id.
In so doing, the Ninth Circuit embraced a
definition of accident that included normal cabin pressure changes.
The Supreme Court reversed, holding that Saks could not meet her
burden of showing that an "accident" caused her injury simply by
showing that her injury was caused by the normal operation of the
aircraft's pressurization system. Id.
9

was a malfunction or abnormality in the aircraft's operations."
See, e.g., Goodwin v. British Airways PLC, No. 09-10463, 2011 WL
3475420, at *4 (D. Mass. Aug. 8, 2011)(citing Gotz v. Delta Air
Lines, Inc., 12 F. Supp. 2d 199, 201-02 (D. Mass. 1998)). Although
some courts are critical and reject application of this second
element,

it

appears

to

reasonably

probe

a

link

between

the

passenger's injury and the defendant airline consistent with Saks
and Husain.

Determining whether there is an abnormality in the

aircraft includes consideration of "direct flight crew involvement"
such as the obligation (but failure) of the flight crew to secure
an overhead bin, which contained liquor bottles, that opened during
take-off causing injury, or the flight crew's refusal to assist,
when asked, or negligent assistance. See Goodwin, 2011 WL 3475420,
at *5 (citations omitted).
In

addition

to

proving

that

an

"accident"

caused

the

passenger's injury, a plaintiff must also prove the "embarking or
disembarking" prerequisite for recovery; another concept left
undefined by the Convention.

In determining whether alleged

misconduct took place "on board the aircraft or in the course of
any of the operations of embarking or disembarking", the Fifth
Circuit has remarked that this requirement "strongly suggests that
there must be a tight tie between an accident and the physical act
of entering [or leaving] the aircraft."

See Bridgeman, 552 Fed.

Appx. at 297 (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313,

10

317 (1st Cir. 1995)). Factors to consider when determining whether
a passenger was in the process of disembarking include: (1) the
passenger's activity at the time of the injury, (2) where the
passenger was located, and (3) the extent to which the carrier was
exercising control over the passenger at the moment of injury. See
Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975),
cert. denied, 429 U.S. 890 (1976)(adopting tripartite test to
determine when passengers are deemed to be in the course of
"embarking" within the meaning of Article 17); see also Bridgeman,
552 Fed. Appx. at 297 (citing Fedelich v. Am. Airlines, 724 F.
Supp. 2d 274, 284 (D.P.R. 2010) and McCarthy v. Nw. Airlines, Inc.,
56 F.3d 313, 317 (1st Cir. 1995)); see also Marotte v. Am.
Airlines, Inc., 296 F.3d 1255, 1260 (11th Cir. 2002).

Courts have

"consistently refused to extend coverage of the Warsaw Convention
to injuries incurred within the terminal, except in those cases in
which plaintiffs were clearly under the direction of the airlines."
See Rabinowitz v. Scandanavian Airlines, 741 F. Supp. 441, 446
(S.D.N.Y. 1990).

A passenger that has not yet cleared customs may

nevertheless remain "free to mix with international travelers who
had not yet cleared customs and roam at will through any part of
the terminal reserved for such travelers[,]" and, therefore, is not
automatically "disembarking" from an international flight.

Id.

Notably, that an airline "[m]erely assist[s] passengers off the
plane and toward customs" does not constitute an airline's control

11

over a passenger's movements.

Id. at 447.

B.
Challenging the plaintiff's evidentiary support for both
prongs

of

the

accident

test,

as

well

as

the

disembarkment

determination, Lufthansa submits that summary relief in its favor
is appropriate for three separate reasons.

First, Lufthansa

contends that Mrs. Boyd's fall was not caused by an external event
and, therefore, was not an "accident" within the meaning of the
Montreal Convention.

Second, Lufthansa contends that Mrs. Boyd's

fall does not relate to a malfunction or abnormality of the
operations of its aircraft and therefore fails the second prong of
the "accident" analysis.

Third and finally, Lufthansa contends

that Mrs. Boyd has submitted no evidence to suggest that she was
under Lufthansa's direction when she fell such that she was not
"disembarking" and, therefore, that her claim is outside the scope
of the Montreal Convention.
Examining

the

circumstances

surrounding

the

plaintiff's

injury, the Court considers each of the defendant's grounds for
summary relief.
1.

External Event?

Lufthansa contends that there is no evidence that an event
outside some internal condition of Mrs. Boyd caused her fall such
that she cannot demonstrate that her fall was caused by an external

12

event.

On this record, the Court disagrees.

A genuine dispute

concerning a material fact exists regarding whether Mrs. Boyd's
fall and resulting injury was "external to" Mrs. Boyd.

Lufthansa

contends that Mrs. Boyd's fall was not caused by an external event,
suggesting instead that her fall resulted from her own fragility,
not unlike the fall Mrs. Boyd took at home when she tripped over a
pillow walking to the bathroom (resulting in a right hip fracture)
sometime after the incident in the airport.

Lufthansa points to

this evidence in the record to support its position on the external
event prong: Mrs. Boyd's feet become numb after sitting for long
periods of times such as when sitting on a more than 10 hour
flight; Mrs. Boyd testified, unequivocally, in her deposition that
"Nobody pushed me or hurt me or shoved me or anything like that."
But Lufthansa disregards conflicting evidence; Mrs. Boyd points to
evidence that would support a finding that her injury resulted from
an external event: the accident reports (which report "83 yr old
white female complaining of left inner leg pain and swelling due to
falling at the airport. [patient] foot caught on someone else['s]
leg causing the fall")10 as well as the testimony of Mrs. Boyd's
family members, who have testified that when they came upon her
lying on the ground, Mrs. Boyd told them that a man had knocked her

10

Another EMS patient care report notes "[arrived on
scene] to find female laying on right side [complained of] being
accidentally knocked down by a hurry[ing] passenger . . . ."
13

down and hurried along.11

And Mrs. Boyd's seemingly unequivocal

statement that nobody pushed her is called into question by her
other testimony that she did not recall her fall and other evidence
suggesting possible memory problems.
competing evidence.
evidence

suggesting

The Court will not weigh the

If at trial the jury is persuaded by the
that

Mrs.

Boyd's

injury

resulted

from

a

physical collision with another passenger, "[s]uch an event is
quintessentially external."

See Garcia Ramos v. Transmeridian

Airlines, Inc., 385 F. Supp. 2d 137 (D.P.R. 2005).

Viewing the

evidence in the light most favorable to Mrs. Boyd, a classic
factual controversy persists on this issue.

But the Court's

analysis does not stop there.
2.

Abnormality of the Aircraft: Flight Crew Involvement?

Lufthansa submits that the plaintiff has failed to submit
evidence, or even argue that Lufthansa played a causal role in her
fall.

Indeed, the plaintiff has failed to controvert Lufthansa's

showing on this second element of the accident test, which is
applied

by

some

courts.

The

11

record

shows

that

the

flight

Mrs. Boyd's daughter, Ms. Pecot, testified that once
she arrived at the scene, her mother told her "that she got knocked
into by a man, with his little carry-on luggage. They fell. She
even had to roll over . . . or he would have fallen on top of her.
He hopped up, took off, and she couldn't get up. She was real
upset that he didn't inquire about her, if she was okay." Mrs.
Boyd's granddaughter offers similar testimony. After deplaning and
walking for 10 to 15 minutes, Ms. Scheibal testified that she came
upon her grandmother laying on the floor. "When I asked her what
happened, she said that a man had knocked her over."
14

attendants were present on the aircraft when Mrs. Boyd deplaned,
she did not ask for help exiting the plane or navigating the
airport.

There is nothing in the record to demonstrate that the

person that allegedly collided with Mrs. Boyd was a passenger from
Flight 440.

Accordingly, the Court agrees that, if indeed this

second element of the accident test is controlling, the plaintiff
has failed to prove this element of her claim.

See Garcia Ramos,

385 F. Supp. 2d at 142 (holding that there was no "accident"
because there was no direct flight crew involvement in causing the
injury, where a fellow passenger lost his balance and fell onto the
plaintiff, fracturing her arm). However, although the Court agrees
an "accident" under the Montreal Convention must bear some relation
to the defendant's operation of the aircraft, the Court need not
resolve the conflict in the case literature as to whether this
second element of the accident test unduly limits recovery under
the Convention in contravention of the text of the treaty and Saks.
See, e.g., Arellano v. American Airlines, Inc., --- F. Supp. 3d --, No. 14-23502, 2014 WL 6682591, at *4 (S.D. Fla. Nov. 25,
2015)(declining to apply second element of "accident" inquiry, but
noting that where airline personnel play no causal role in the
commission of the tort, courts have found no "accident" occurred).
This is so because the plaintiff has failed to establish another
essential element of her case, that she was disembarking when she
broke her hip.

15

3.

In the Course of Disembarking: Nexus between Accident and
Leaving Aircraft?

Lufthansa submits that there are no genuine issues of material
fact that the plaintiff was not "disembarking" from Flight 440 when
she fell.

The plaintiff counters that there is some conflict

concerning where and when she fell that defeats summary judgment.
The Court disagrees.
Any connection between the alleged collision with another
passenger and "the operations of . . . disembarking" are tenuous
and insufficient to survive summary judgment when the plaintiff
must show that there is "a tight tie between an accident and the
physical act of [leaving] an aircraft."
Appx. at 297-98 (citation omitted).

See Bridgeman, 552 Fed.

The record establishes no

connection between the plaintiff's physical act of exiting the
aircraft and the alleged collision with the passenger, whether on
the moving pathway or on the stationary floor of the wide corridor
leading to customs.
Consideration

of

the

Day

factors

demonstrates

that

the

plaintiff has failed to establish this essential element of her
claim. First, the plaintiff's activity at the time of her fall was
that she was simply walking toward customs along with many other
passengers in a wide corridor.12

12

Second, although Mrs. Boyd's

As already noted, the plaintiff had exited the plane
before other passengers and had not asked the flight attendants for
any assistance.
16

specific location at the time of her fall is somewhat disputed,13
there is no dispute regarding her general location:

that she had

deplaned and was walking in a wide corridor that contained moving
pathways and other passengers.

Third, and most significantly,

there is absolutely no evidence that Lufthansa had control over the
wide corridor in the airport, or that it was exercising any control
over the passengers where Mrs. Boyd fell.

This control factor is

critical. Those cases which hold that a passenger was embarking or
disembarking found that the passenger was being directed by the
airline, or that the airline leased or owned the area where the
plaintiff was injured, or that the airline otherwise exercised
direction or control over the passenger at the time of the injury.
See, e.g., Ugaz v. American Airlines, Inc., 576 F. Supp. 2d 1354
(S.D. Fla. 2008)(airline maintained the gate area and sterile area
in which passenger fell); Alleyn v. Port of Authority of New York,
58 F. Supp. 2d 15 (E.D.N.Y. 1999)(airline leased, operated, and
exclusively

controlled

area

where

the

passenger

was

injured;

airline exclusively used the particular escalator for its arriving
passengers from Flight 149).

13

There is debate about whether or not there were
restaurants in the area, whether there were passengers in the
corridor from other flights, whether or not she fell "pretty far"
from the airplane and "right before entering customs," but there is
no evidence on these points other than conflicting memories of the
plaintiff and her family.
The EMS report and Houston Airport
Dispatch Call Log suggest that the fall occurred about 18 minutes
after the arrival of Flight 440.
17

Here, the plaintiff has submitted no evidence that she was
being directed by Lufthansa at the time of her fall, or even that
any Lufthansa employees were in the vicinity where she fell, let
alone controlling her movements.14

There is no evidence that the

gentleman pushing Mr. Boyd's wheelchair was a Lufthansa employee
(rather

than

an

airport

employee),

or

that

the

woman

in

an

unidentified uniform that tended to Mrs. Boyd after her fall was a
Lufthansa employee.

In fact, Lufthansa submits, and the plaintiff

does not contest, that it first knew about Mrs. Boyd's fall when
she filed this lawsuit.

Summary judgment is proper if the party

opposing the motion fails to establish an essential element of her
case.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

With respect to the disembarkation element, and in particular the
control factor, the plaintiff has done no more than simply deny the
allegations raised by the moving party; she has failed to come
forward, as required by the summary judgment procedure, with

14

There is no dispute that Mrs. Boyd was acting under her
own direction and was no longer under the direction or control of
Lufthansa. Maugnie v. Compagnie Nationale Air France, 549 F.2d
1256 (9th Cir.), cert. denied, 431 U.S. 974 (1977)(plaintiff not
injured in the course of disembarking because she was acting under
her own direction and was no longer under the direction or control
of Air France; plaintiff had deplaned from the aircraft and was
proceeding to the gate of another carrier to make a connecting
flight when she slipped and fell in a passenger corridor leading to
the main area of the terminal building). Moreover, Mrs. Boyd was
headed toward immigration "a condition to entry apparently imposed
by the host country, not a condition to disembarking imposed by the
airline." Rabinowitz v. Scandinavian Airlines, 741 F. Supp. 441,
446 (S.D.N.Y. 1990).
18

competent evidence, such as affidavits or depositions, to buttress
her

claim.

Accordingly,

judgment is GRANTED.

the

defendant’s

motion

for

summary

The plaintiff's claims are hereby dismissed.

New Orleans, Louisiana, June 3, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

19