Bower v. El-Nady Bower et al
Filing
175
Judge Richard G. Stearns: ORDER entered granting 149 EgyptAir's Motion for Summary Judgment (RGS, law3)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-10405-RGS
COLIN BOWER, on his own behalf
and on behalf of his minor children, N and R
v.
MIRVAT EL-NADY,
and EGYPTAIR AIRLINES
MEMORANDUM AND ORDER ON DEFENDANT
EGYPTAIR AIRLINES’ MOTION
FOR SUMMARY JUDGMENT
March 21, 2012
STEARNS, D.J.
Plaintiff Colin Bower brought this action on his own behalf and in his capacity
as the guardian of his two minor children after his former wife, defendant Mirvat ElNady, fled to Cairo, Egypt, in August of 2009, taking the children with her without his
consent and in violation of a Massachusetts court order granting custody to Bower.
This decision does not affect the validity of the custody order, or the criminal
prosecution of Mirvat El-Nady. Rather, it involves a related but separate claim against
defendant EgyptAir, the airline on which El-Nady flew with her children from New
York to Cairo. Bower alleges that EgyptAir should have refused passage to El-Nady
and the children, and by failing to do so is liable for interference with his custodial
relations, negligence, negligent infliction of emotional distress, and loss of filial
consortium.
PROCEDURAL BACKGROUND
On February 5, 2010, Bower brought this action in the Massachusetts Superior
Court. On March 8, 2010, EgyptAir removed the case to the federal district court on
both diversity and preemption grounds. After the removal, Bower filed an Amended
Complaint on March 12, 2010. The case was assigned to Judge Gertner. On June 18,
2010, EgyptAir filed a motion to dismiss for lack of personal jurisdiction, or, in the
alternative, to dismiss or transfer venue to New York pursuant to 28 U.S.C. § 1406(a)
or § 1404(a). A number of jurisdictional discovery motions ensued, including motions
to compel the deposition testimony of Bruce Bower (Colin Bower’s father), a motion
to compel Michael Traft, El-Nady’s attorney, to respond to a subpoena for an in camera
inspection by the court of a privilege log and retention agreement with El-Nady, as well
as motions to quash various subpoenas to third-parties. The resolution of these motions
was referred by Judge Gertner to Magistrate Judge Dein. On March 29, 2011, Judge
Gertner adopted a Report and Recommendation that she deny EgyptAir’s motion to
dismiss.1
1
On June 16, 2011, Magistrate Judge Dein, in a separate decision, denied
Bower’s motion for relief based on EgyptAir’s alleged discovery violations.
2
On September 23, 2011, following Judge Gertner’s retirement, the case was
assigned to this session. On February 21, 2012, the court resolved a subject matter
jurisdiction dispute among the parties, finding the existence of diversity jurisdiction
pursuant to 28 U.S.C. § 1332. See Bower v. El-Nady, --- F. Supp. 2d ----, 2012 WL
542589 (D. Mass. Feb. 21, 2012). Presently before the court is EgyptAir’s motion for
summary judgment. The court heard oral argument on March 1, 2012. Neither ElNady nor her representative appeared at the hearing.
FACTUAL BACKGROUND
The facts, in the light most favorable to Bower as the nonmoving party, are as
follows.2 El-Nady, an Egyptian citizen, and Bower, a United States citizen, met in
Cairo, Egypt, and were married there in 1998. They later moved to London, where
their two sons, N and R, were born. The children are citizens of both the United
Kingdom and the United States.3 In 2005, the family moved to Massachusetts, but by
December of 2008, the marriage had deteriorated into a divorce. Bower was given sole
legal custody of the children, but shared physical custody with his ex-wife. Judgment
of Divorce ¶ 1. Under the terms of the divorce decree, El-Nady was not permitted to
2
See LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993).
3
Under a 2004 change in Egyptian law, the children are also eligible to become
citizens of Egypt.
3
take the children out of Massachusetts. Id. ¶ 8. Between December of 2008 and
August of 2009, El-Nady lived in an apartment in Newton and the children attended
private school in Boston.
On August 11, 2009, during a scheduled multi-day visit, El-Nady drove the
children to John F. Kennedy International Airport (JFK) in New York and purchased
three one-way business-class tickets to Cairo on a departing EgyptAir flight. Am.
Compl. ¶ 11. El-Nady paid for the tickets, which cost nearly $10,000, with cash.
Statement of Facts (SOF) ¶¶ 34-35, 38, 84.4 El-Nady produced her own Egyptian
passport, as well as Egyptian passports for N and R. SOF ¶ 36. The last name on her
passport – El-Nady – differed from the name on her sons’ passports.5 Id. Bower
contends that he had no knowledge that his sons had been issued Egyptian passports
and that he had never consented to the issuance.6 Id. ¶ 37.
EgyptAir did not examine the children’s passports for prior entry visas to the
4
Bower responded to EgyptAir’s statement of facts using the same paragraph
numbers. See Dkt # 150 & # 162.
5
The boys’ passports listed their last name as “Power” instead of “Bower.”
6
EgyptAir maintains that the passports appeared facially valid. Id. ¶ 37, citing
Helmi Decl. ¶ 10.
4
United States, nor were there any.7 Id. ¶¶ 34, 87. Bower asserts that EgyptAir also
failed to request I-94 forms from El-Nady for herself and the children.8 Id. ¶ 88.
On August 16, 2009, Bower discovered that the children were missing and filed
a police report. As a result, El-Nady was charged with both state and federal criminal
kidnapping offenses. Am. Compl. ¶¶ 7, 24. Since August of 2009, Bower has seen his
children four times. SOF ¶ 80. Each of the visits took place in Cairo and were
arranged through the United States Embassy; the visits were supervised by El-Nady
and members of her family. Id. During the visits, Bower observed a “shift in the
behavior of his children reflecting serious psychological injury and trauma” and that
“both boys appeared physically unhealthy.” Id. ¶ 103. Bower alleges that he has
7
EgyptAir states that when a passenger flies from New York to Cairo with an
Egyptian passport, his or her passport is not checked for the presence of an entry visa
issued by either the United States or Egypt. “An Egyptian citizen is not required to
have a visa to enter Egypt, and a United States entry visa is not required in order for
a passenger to travel out of the United States.” Id. ¶ 54.
8
A Form I-94 is an arrival/departure record submitted by non-U.S. citizens
traveling to and from the United States. As a general rule, a non-citizen who is not a
permanent resident of the United States is required to surrender the Form upon
departing from the United States. In addition, an airline “departing from the United
States to any place outside the United States must present a properly completed
departure portion of an Arrival/Departure Record, Form I-94, to the Customs and
Border Protection (CBP) officer at the port of departure for each person on board.
Whenever possible, the departure Form I-94 presented must be the same form given to
the alien at the time of arrival in the United States. The carrier must endorse the I-94
with the departure information on the reverse of the form . . . .” 8 C.F.R. § 231.2(b).
5
personally suffered “intense emotional distress which has been accompanied by
physical manifestations including headaches, stomachaches, loss of sleep, scabs on his
scalp, loss of hair, and heart palpitations.” Id.
DISCUSSION
Summary judgment is appropriate when “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.” Fed. R. Civ. P. 56(a). “To succeed, the moving party must show that
there is an absence of evidence to support the nonmoving party’s position.” Rogers v.
Fair, 902 F.2d 140, 143 (1st Cir. 1990). If this is accomplished, the burden then “shifts
to the nonmoving party to establish the existence of an issue of fact that could affect
the outcome of the litigation and from which a reasonable jury could find for the
[nonmoving party].”
Id. “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (emphases in original).
A material fact is one which has the “potential to affect the outcome of the suit under
applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.
1993). Rule 56 “mandates the entry of summary judgment . . . upon motion against
a party who fails to make a showing sufficient to establish the existence of an element
6
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 (1986).
The nub of Bower’s case against EgyptAir is the allegation that the airline “failed
to use any reasonable pre-embarkation safeguards to protect against the use of its
services by a customer to abduct children.” Am. Compl. ¶ 15. Bower alleges that
“[t]he circumstances surrounding the pre-embarkation arrangements for the unlawful
flight provided reasons for EgyptAir to know that N and R were being transported out
of the United States and to Egypt without the consent of their custodial father. Yet
EgyptAir failed to act on these circumstances and instead facilitated the travel
arrangements necessary for El-Nady to abduct the children.” Id. ¶ 22. Moreover,
“EgyptAir knew or should have known of the particular risk of child abductions to
Egypt because of the difficulty in apprehending abductors in and recovering children
kidnapped to Egypt.” Id. ¶ 19.
For its part, EgyptAir asserts that it owed Bower no duty to investigate whether
a citizen of Egypt, traveling to Cairo with her children (both of whom appeared to have
valid Egyptian passports and who showed no signs of distress), was in fact doing so in
violation of a court order. EgyptAir contends that the “red flags” to which Bower
refers – principally El-Nady’s use of cash to buy expensive same-day one-way tickets
to Cairo – would not have alerted it to a parental child abduction. Because it owed
7
Bower no legal duty, EgyptAir maintains that Bower cannot succeed on any of his
claims.9
Preemption by the Airline Deregulation Act and/or The Warsaw Convention,
as amended by the Montreal Agreement
As a preliminary matter, EgyptAir asserts that Bower’s common-law tort claims
are preempted by the Airline Deregulation Act (ADA), which prohibits any state from
“enact[ing] or enforc[ing] a law, regulation, or other provision having the force and
effect of law related to a price, route, or service of an air carrier . . . .” 49 U.S.C. §
41713(b)(1). On this issue, the court disagrees. Even accepting the proposition that
the ticketing and checking-in of passengers are “services,” that determination does not
conclude the matter. “The ADA does not preempt all claims arising from an airline
service, but only those arising under state laws that are ‘related to’ that service.” Gill
v. JetBlue Airways Corp., --- F. Supp. 2d ----, 2011 WL 6258518, at *6 (D. Mass. Dec.
14, 2011). “[I]n cases involving personal injury, courts have generally held that
negligence claims were not preempted by the ADA on the grounds that the enforcement
9
EgyptAir argues, although not strenuously, that New York law should govern
the resolution of the common-law claims. For purposes of this motion, the court will
assume that Massachusetts law applies, as it would appear that Massachusetts has a
greater interest in punishing the violation of an order of its courts than does New York
in policing the conduct of international air carriers providing service to JFK. In any
event, the ultimate decision does not turn on the choice of law.
8
of tort remedies is not sufficiently ‘related to’ airline services.” Id., at *7 (omitting
cited cases).
These holdings are consistent with the Congressional intent – “the ultimate
touchstone of pre-emption analysis” – underlying the ADA.
Id., at *3, quoting
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). See also Margolis v.
United Airlines, Inc., 811 F. Supp. 318, 321 (E. D. Mich. 1993). “Congress enacted
this [preemption] provision ‘to ensure that the States would not undo federal
deregulation with regulation of their own.’” Gill, 2011 WL 6258518, at *3, quoting
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992). “There is little
reason to believe that the clause was intended to extend to personal injury actions,
which were not the subject of federal regulation in the first place.” Gill, 2011 WL
6258518, at *7.
EgyptAir points the court to a recent opinion of Judge Wu in the Central District
of California, Ko v. Eva Airways Corp., No. 11-cv-05995-GW (Feb. 13, 2012), which
presented a nearly identical set of facts.10 Judge Wu held that the father’s claims of
negligence were preempted by the ADA because “[i]t is not so clear to this Court that
effectively imposing on airlines operating in California the obligation to perform certain
10
In Ko, a mother took her children from California to Singapore without the
consent of the father, who shared custody with his ex-wife.
9
measures to determine the proper custodial status of children traveling with only one
adult would not ‘adversely affect the economic deregulation of the airlines and the
forces of competition within the airline industry.’” Id. at 10, quoting Charas v. Trans
World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir. 1998).
Although Judge Wu’s opinion is well reasoned, to my mind the negligence
claims asserted by Bower more closely resemble tort claims related to passenger safety
(claims that all courts agree are not preempted by the ADA) than they do state
regulatory actions that might have a significant impact on airline competition in a
deregulated market. Cf. Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364,
370-371 (2008), citing Morales, 504 U.S. at 378 (noting that the preemption provision
of the ADA, as in the 1994 Act governing the deregulation of trucking, had as its focus
state enforcement actions impacting the federal regulatory regime). See also Sedigh
v. Delta Airlines, Inc., 850 F. Supp. 197, 200, 201 (E.D.N.Y. 1994) (“Most district
courts have found broad preemption inappropriate in ‘services’ cases.”); Hodges v.
Delta Airlines, Inc., 4 F.3d 350, 355 (5th Cir. 1993) (“If liability for personal injuries
were preempted, such insurance would hardly be necessary, because there is no federal
compensation scheme for injuries to airline passengers.”).
The thrust of Bower’s claims is that EgyptAir “employees breached a standard
of care imposed on society as a whole (or, at least, one imposed on all common
10
carriers).” Gill, 2011 WL 6258518, at *7. It is true that if Bower were to succeed on
his claims, the result might have an incidental impact on the handling of the sale of
over-the-counter tickets to single parents traveling with minor children. But because
the impact would be a generalized one affecting all carriers, it is difficult to imagine
why any one airline would be put at a competitive disadvantage with others subject to
the same rules. See id. (“This generalized duty of care [to accommodate disabled
passengers in the boarding of an aircraft] is therefore unlike the consumer-protection
statutes held preempted in Morales and [American Airlines, Inc. v.] Wolens, [513 U.S.
219 (1995)], which require courts to play a quasi-regulatory role by adapting statutory
standards for trade practices to the particular practices of the airline industry.”).
I am similarly unpersuaded by EgyptAir’s argument that Bower’s claims are
preempted by the Warsaw Convention, as amended by the Montreal Agreement. See
Acevedo-Reinoso v. Iberia Lineas Aereas de Espana S.A., 449 F.3d 7, 11 n.4 (1st Cir.
2006). The Warsaw Convention “governs the liability of international air carriers for
passenger injuries occurring ‘on board the aircraft or in the course of any of the
operations of embarking or disembarking.’” Id. at 11, quoting El Al Israel Airlines,
Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 172 (1999). “The Convention is preemptive:
a carrier is not subject to liability under local law for passenger injuries ‘covered by’
the Convention.” Acevedo-Reinoso, 449 F.3d at 11 (citing Warsaw Convention Article
11
17).
“[T]he language of Article 17 – which speaks to accidents that occur ‘in the
course of any of the operations of embarking’– strongly suggests that there must be a
tight tie between an accident and the physical act of entering an aircraft.” McCarthy
v. Northwest Airlines, Inc., 56 F.3d 313, 317 (1st Cir. 1995) (citations omitted). A
ticket transaction is by definition both “spatially and temporally” distinct from the act
of embarking (or disembarking) an airplane. While the purchase of a ticket is a
condition precedent to accessing a commercial flight, there is no rule that the ticket be
bought in person or at a physical location (most tickets are today purchased over the
Internet), or that it be purchased in temporal proximity to the flight (most airlines will
sell tickets as much as a year in advance). While the transaction here occurred at a
ticket counter at JFK, the counter salesperson had no more relationship to El-Nady’s
and the children’s physical act of boarding the aircraft than did the taxi driver who
presumably ferried them to the terminal or the porter who presumably checked their
luggage.11 And the omission of which Bower complains, the failure to verify whether
11
As McCarthy explains, courts use a three-pronged approach to interpret the
term “embarking.” “The inquiry focuses on (1) the passenger’s activity at the time of
injury, (2) his or her whereabouts when injured, and (3) the extent to which the carrier
was exercising control at the moment of injury.” Id. The ticketing salesperson has no
control over whether a would-be passenger will ultimately be permitted to board the
plane; that authority lies in the crew’s discretion, with sole final authority resting with
12
El-Nady was violating a court order by taking the children out of the country with her,
was complete at the time the tickets were sold, which was well before the flight began
to board. Because the purchase of an airplane ticket is clearly not within the scope of
Article 17 preemption, EgyptAir “is indisputably subject to liability [if at all] under
local law for injuries arising outside of that scope: e.g., for passenger injuries occurring
before any of the operations of embarking or disembarking.” Acevedo-Reinoso, 449
F.3d at 11.
Interference with Bower’s Custodial Relations
“‘The common law has traditionally recognized a parent’s interest in freedom
from tortious conduct harming his relationship with his child,’ and the parent ‘may be
compensated therefor when there is interference with the normal parent-child
relationship.’” Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842, 859-860
(1991) (internal citations omitted).
The Supreme Judicial Court (SJC) of
Massachusetts “acknowledge[s] the tort of intentional interference with the
parent-child relationship as a contemporary expression encompassing actions for
abduction, enticement, harboring, and secreting of a minor child from the parent having
legal custody.” Id. at 861 (emphasis added).
The SJC has made clear that the tort has as its first premise the requirement of
the plane’s captain.
13
knowledge on the part of a defendant that the custodial parent has not consented to the
alleged interference. See id. Under no reasonable view of the facts could EgyptAir be
said to have had actual knowledge of El-Nady’s abduction scheme when it sold her the
tickets and permitted her to board the aircraft with her children. Nor could it have
known that Bower – the custodial parent – had not consented to the children’s travel.
SOF ¶¶ 25-31. Bower has alleged no facts even hinting otherwise.12
Negligence
Bower alleges more plausibly in the second count of the Complaint that “[a]s a
result of agreeing to transport and facilitating the transportation of N and R, EgyptAir
owed legal duties to Bower, N and R to exercise reasonable care to protect N and R
from, among other things, being wrongfully removed from the United States without
the consent of their custodial father. As an international carrier transporting minors,
EgyptAir owed duties to them and to Bower, their non-passenger parent.” Am. Compl.
¶ 34.
Non-passenger parents are foreseeable victims of international child
12
Bower asserts that EgyptAir did in fact know that “it had received no consent
from the father” and was aware of the “many flags of suspicious behavior.” Bower
Opp’n at 28. The assertion, however, makes no sense. EgyptAir knew no more about
whether Bower consented to the children’s travel than whether N and R even had a
living father. Even assuming for the moment that the “flags of suspicious behavior”
were auspicious, Bower cannot plausibly refute EgpytAir’s argument that “flags of
suspicion” do not equate to actual knowledge that an abduction was underway.
14
abductions to air carriers that fly internationally, particularly to Egypt.
The foreseeability of the abductions at issue here was heightened by the
specific circumstances surrounding El-Nady’s purchase of tickets from
and presentation of documents to EgyptAir. By facilitating international
travel for N and R without consent from their father, who did not
accompany them, EgyptAir breached the duties of care it owed to Bower.
Its breaches in this regard constituted negligence.
Id. ¶ 35.
Common-law negligence in Massachusetts consists of the breach of a duty of
care that directly and proximately causes harm to a plaintiff. Whether a person owes
a duty to another (a prerequisite for a finding of negligence) is a question of law.
Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 40 (2009). See also Brown v. United
States, 514 F. Supp. 2d 146, 152 (D. Mass. 2007). “The concept of ‘duty’ . . . ‘is not
sacrosanct in itself, but is only an expression of the sum total of . . . considerations of
policy which lead the law to say that the plaintiff is entitled to protection. . . . No better
general statement can be made than that the courts will find a duty where, in general,
reasonable persons would recognize it and agree that it exists.’” Luoni v. Berube, 431
Mass. 729, 735 (2000), quoting Prosser & Keeton on Torts § 53 at 358-359 (5th ed.
1984).
Duty Owed to Bower
The essential question is whether EgyptAir owed a legal duty to Bower to
investigate the possibility that two minor children traveling with their mother on an
15
international flight to her country of origin were the subject of a United States court
order granting custody to an absent and unknown father. If EgyptAir had such a duty,
and failed to act on it, then liability on the part of EgyptAir for negligence might well
follow. “Generally speaking, [however,] a defendant’s duty is more limited when
negligence consists of an omission rather than an act of commission.13 . . . So too, as
a general matter, ‘[t]here is no duty . . . to control the conduct of a third person as to
prevent him from causing physical harm to another.’” McCloskey v. Mueller, 446 F.3d
262, 267 (1st Cir. 2006), quoting Restatement (Second) of Torts § 315 (1965).14
There are two exceptions to this general rule. First, a duty may arise when “a special
relation exists between the actor and the [plaintiff] which gives [the plaintiff] a right to
protection.” Id. at 268 (citations omitted). “The second exception arises when ‘a
13
Bower attempts to re-label EgyptAir’s negligence as malfeasance rather than
nonfeasance by arguing that EgyptAir facilitated the abduction by providing the mode
of transportation. This is a damp squib. EgyptAir can only be negligent if it breached
a duty, and the breach caused a proximate harm. Here, the alleged breach is the failure
to deploy safeguards – such as dual consent forms – that might have given EgyptAir
reason to believe that a mother was traveling without her ex-husband’s permission and
that her children were the subject of a court order giving legal custody to the father.
The alleged failure fits the classical definition of nonfeasance – inaction that results in
harm to another. Malfeasance, on the other hand, is the doing of an act which is
positively unlawful and wrongful. There is nothing unlawful about failing to require
a dual consent form before allowing a single parent to board an airplane with his or her
children.
14
“Massachusetts courts have recognized the generic applicability of relevant
Restatement of Torts principles” to a duty analysis. McCloskey, 446 F.3d at 267.
16
special relation exists between the actor and the third person which imposes a duty
upon the actor to control the third person’s conduct.’” Id.
The first exception is plainly inapplicable, as Bower and EgyptAir had no special
relationship (or, for that matter, any relationship whatsoever). Nor is the second
exception relevant as it applies only to three specific relationships: “parent and
dependent children, master and servant, and possessor of land or chattels and licensee
– none of which is applicable here.” See Leavitt, 454 Mass. at 44 n.9. “In the absence
of a special relationship sufficient to trigger one of these exceptions, a private party is
not liable for failing, either intentionally or inadvertently, to exercise control over the
actions of a third party so as to protect others from harm. . . . This is so even if the
prospective harm is substantial and ‘the actor realizes that he has the ability to control
the conduct of [the] third person, and could do so with only the most trivial of efforts.’”
McCloskey, 446 F.3d at 268 (citations omitted).15
15
Bower maintains that Stanford v. Kuwait Airways Corp., 1992 WL 295978
(S.D.N.Y. Oct. 6, 1992), establishes an exception to this otherwise settled statement
of law. In Stanford, the issue was whether Middle East Airliban, S.A. (MEA) “owed
the [plaintiff-passengers] a duty of care to screen passengers boarding and deplaning
from MEA interline flights” after armed highjackers traveling on an MEA flight
transferred to a Kuwait Airways Corp. (KAC) plane. Id., at *2. The court held that
MEA owed a duty of care to the KAC passengers who were killed or injured during the
subsequent highjacking because “MEA should have recognized that security measures
were necessary for the protection of passengers boarding connecting flights.” Id., at *3.
The facts in Stanford bear no resemblance to those here. In Stanford, the court found
17
Duty Owed to N and R
That EgyptAir and the children were in a special relationship is not a matter of
dispute. Under Massachusetts law “[a] common carrier ‘is required to exercise the
utmost care consistent with the nature and extent of its business to carry its passengers
to their destination in security and enable them to alight there with safety.’” Commerce
Ins. Co. v. Ultimate Livery Serv., Inc., 452 Mass. 639, 641 n.4 (2008), quoting
Glennen v. Boston Elevated Ry., 207 Mass. 497, 498 (1911).16
Once a special
relationship is imposed by law, the scope of the duty owed is a function of the
foreseeability of the given harm. Cf. McCloskey, 446 F.3d at 469 n.8. See also Brown,
514 F. Supp. 2d at 152-153, citing Restatement (Second) of Torts § 302 cmt. a (1965).
“[T]he carrier is not an insurer of the safety of its passengers, nor is it obliged by law
that MEA had failed “to maintain operational x-ray devices, metal detectors, etc.,” id.,
despite widespread terrorist activity, much of which was centered in Beirut (where the
MEA flight originated) and which had the pirating of airplanes as one of its principal
objects. The foreseeable risk and the need to screen passengers prior to boarding as
a precaution against terrorist violence was in the circumstances of Stanford a far cry
from any need to guard against a violation of a court order.
16
The Restatement of Torts, which Massachusetts has adopted, states: “(1) A
common carrier is under a duty to its passengers to take reasonable action (a) to protect
them against unreasonable risk of physical harm, and (b) to give them first aid after it
knows or has reason to know that they are ill or injured, and to care for them until they
can be cared for by others.” Restatement (Second) of Torts § 314A (1965).
18
to foresee and to guard against unlikely dangers and improbable harms. Isenberg v.
New York, N. H. & H. R. Co., 221 Mass. 182, 183 [1915]; Sack v. Dir. Gen. of R.R.,
245 Mass. 114, 139 [1923]; Pearson v. Dir. Gen. of R.R., 245 Mass. 158, [1923].”
Quigley v. Wilson Line of Mass., Inc., 338 Mass. 125, 128 (1958).
“In deciding the [duty] question, [the court will] take into account social
conditions and contemporary public policy concerns.” Commerce Ins. Co., 452 Mass.
at 646, citing Jupin v. Kask, 447 Mass. 141, 146-147 (2006).
A precondition to this duty is, of course, that the risk of harm to another
be recognizable or foreseeable to the actor. See Foley v. Boston Hous.
Auth., 407 Mass. 640, 646 (1990), quoting Husband v. Dubose, 26 Mass.
App. Ct. 667, 669 (1988) (“There is no duty owed when the risk which
results in the plaintiff’s injury is not one which could be reasonably
anticipated by the defendant”). See also Husband, [26 Mass. App. Ct. at
669] (determination whether person has duty to protect another from harm
caused by third party “involve[s], to some extent, the foreseeability of the
harm.”).
Jupin, 447 Mass. at 147.
Bower contends that El-Nady’s abduction of the children was foreseeable by
EgyptAir because: (1) aspects of her behavior prior to the flight should have been
recognized as “red flags” of suspicion; (2) the U.S. State Department, the U.S. CBP,
and airline associations had issued bulletins warning of international parental
kidnappings; and (3) dual-parental consent forms were provided by some airlines and
required upon arrival in some countries (although not Egypt or the United States).
19
Among the “red flags” cited by Bower are: (1) El-Nady’s purchase of the tickets with
cash; (2) the ticket purchase was made for same-day travel; (3) the children’s passports
listed a different family name; and (4) El-Nady was traveling without a male
companion.17
Taken singly or as a whole, these supposed “red flags” fell well short of giving
EgyptAir a warning of the possibility that a parental child abduction was afoot. As
EgyptAir points out, the purchase of same-day travel tickets with cash is not an
uncommon event given the Egyptian custom of conducting business in cash.18 SOF ¶¶
17
Bower suggests that the failure of El-Nady to produce a Form I-94 should have
been regarded by EgyptAir as an additional “red flag.” In the first place, the Form I-94
is meant to assist immigration officials in tracking the comings and goings of nonresident foreign visitors to the United States, and not to prevent international parental
child abductions. See Roberts v. Southwick, 415 Mass. 465, 475-476 (1993)
(O’Connor, J. concurring) (“A statute, ordinance, or regulation ‘is evidence of
negligence on the part of a violator as to all consequences that the statute, ordinance
or regulation was intended to prevent.’”) (citation omitted). Nor is it mandatory, as
Bower implies, that the same form issued on arrival be produced at departure. See 8
C.F.R. § 231.2(b) (“Whenever possible, the departure Form I-94 presented must be the
same form given to the alien at the time of arrival in the United States.”) (emphasis
added). Even if EgyptAir had requested a Form I-94 from El-Nady, her failure to
produce one would merely have led to her being asked to fill out a substitute Form I-94
before boarding.
18
EgyptAir contends that “[p]laintiff cannot challenge the fact that at least one
‘emergency’ ticket for same day travel to Cairo is sold by EgyptAir at JFK Airport
every day . . . that none of these tickets are purchased with advance reservations, that
they frequently are for one-way travel, and that almost half of them are paid for in
cash.” EgyptAir’s Reply at 17, citing SOF ¶¶ 41-47.
20
40-50. Similarly, the fact that El-Nady’s last name differed from the last name of her
children was not all that unusual given what EgyptAir asserts is a custom among
Egyptian women of keeping their family name while giving the children the family
name of the father. See SOF ¶¶ 39, 40, 51-53. Although Bower disputes the
prevalence of this custom, I need go no further than to note that numerous professional
women in the United States (who earn enough money to purchase international business
class tickets without raising eyebrows) now keep their “maiden” names for business
or personal reasons.
American society is also well past the point of looking askance at a woman
traveling with her children unaccompanied by a husband or male relative.19 This point
is important as legal duties are by and large based on “the great significance given to
widely shared social expectations,” as Justice Souter explained in assessing third-party
consent under the Fourth Amendment in Georgia v. Randolph, 547 U.S. 103, 111
(2006). See also Cremins v. Clancy, 415 Mass. 289, 292 (1993) (legal duties should
reflect “existing social values and customs and appropriate social policy”); Juliano v.
Simpson, 461 Mass. 527, 537 (2012), quoting Remy v. MacDonald, 440 Mass. 675,
19
As EgyptAir points out, Bower admits that on occasion he traveled
internationally with the two boys unaccompanied by El-Nady, and without carrying a
parental consent form signed by her. SOF ¶ 62.
21
678 (2004) (“[W]e are reluctant to impose a duty of care in the absence of ‘clear
existing social values and customs’ supporting such a step.”). It is doubtful that
Americans would be prepared to accept a court-imposed duty that – however laudable
its goal – had the effect of diminishing the social freedoms of women, and particularly
those who are single parents.20
As a fallback, Bower asserts that the risk of an international parental kidnapping
by El-Nady was foreseeable because “Egypt is not a signatory to the Hague Convention
on the International Aspects of Child Abductions, enhancing the risk of child
abductions to Egypt due to the difficulty in apprehending abductors in and recovering
children kidnapped to Egypt.” Bower Opp’n at 4. Bower further contends that
because the State Department’s website posts information explaining “how the ease of
international travel has contributed substantially to the growing problem of abductions,”
EgyptAir should have known of the special risk of harm to its child passengers (and the
left-behind parent).21 Id. EgyptAir counters that not only Egypt but fifty-seven other
20
In 2009, out of 11.6 million single parents living with their children in the
United States, 9.9 million were single mothers. See America’s Families and Living
Arrangements: 2009.
http://www.census.gov/population/www/socdemo/hh-fam/cps2009.htmsingle parents
21
Bower also argues that “a high-profile international abduction to Egypt out of
Connecticut highlighted the risk of child abductions to Egypt and underscored the
seriousness of such matters for international carriers.” Id. at 5. The “high-profile” case
to which Bower refers is Streeter v. Executive Jet Management, 2005 WL 4357633
22
countries are also not party to the Hague Convention and that the State Department’s
website contains substantially identical comments about all fifty-eight.22
However, even assuming that these warnings were sufficient to put international
air carriers in general on notice of the risk of parental child abductions, Bower has still
failed to point to any specific reason why EgyptAir should have anticipated that ElNady posed a risk of harm to her children. In Leavitt, the SJC distinguished the duty
of care owed by a licensed commercial establishment to an intoxicated patron from the
facts presented. In that case, a medicated patient was permitted to leave a hospital
(Conn. Super. Nov. 10, 2005). In that case, a father hired a privately chartered airliner
operated by Executive Jet Management (EJM) to take his Massachusetts-domiciled
children from Connecticut to Egypt without the mother’s consent. EJM’s employees
or agents made special arrangements with the father for the flight on less than thirty
hours notice. The request for one-way international service was almost unheard of by
EJM, and the bill for the flight to Egypt amounted to $160,000. Of the total charge,
$15,000 was billed to the limit of the father’s credit card, while the rest was sent by a
wire transfer. The company failed to abide by its standard procedure when receiving
payment by wire, which required gathering information about the source of the funding
prior to the flight. The company also failed to abide by the charter industry’s “Know
Your Customer” rule, which included taking precautionary measures when booking a
flight for a new (or “pop-up”) customer such as determining “whether the potential
client was ‘established’ by inquiring whether he owned a home, had a bank account,
etc.” Id., at *5. Finally, EJM made a point of marketing the “privacy” and “discretion”
of its service, which provided reason enough to expect it to undertake a modicum of
precautionary monitoring of its customers. Id., at *6. Under the circumstances, it was
not unreasonable for the court to charge EJM with constructive knowledge of the
father’s illegal conduct.
22
EgyptAir also notes that the State Department advisory makes no special
mention of air travel.
23
unaccompanied and was subsequently struck by a car. In responding to the accident
scene, the plaintiff police officer was injured when his cruiser collided with another
vehicle. The Court observed that
[i]n a negligence case against a tavern owner or bartender, liability is
premised on a defendant’s failure to refrain from serving liquor to an
intoxicated patron in circumstances (a) in which the defendant should
have known that the patron was intoxicated and (b) where the patron’s
subsequent operation of a motor vehicle was reasonably foreseeable. See,
e.g., Cimino v. Milford Keg, Inc., 385 Mass. 323, 331-332 & n. 9 []
(1982). Liability is not premised on a tavern owner or bartender’s
“discharg[ing]” an intoxicated person “onto the roadway.” See O’Gorman
v. Antonio Rubinaccio & Sons, 408 Mass. 758, 761-762 [] (1990).
454 Mass. at 44 n.13. The analogy is instructive. EgyptAir had no more reason to
anticipate that by permitting El-Nady to board the plane harm might come to the
children than the hospital in Leavitt had reason to anticipate the officer’s injury.
Bower also contends that EgyptAir should have been aware of the risk of child
abductions because CBP23 and the National Air Transportation Association (NATA)
23
“Due to the increasing incidents of child abduction in disputed custody cases
and as possible victims of child pornography, [CBP] strongly recommends that unless
the child is accompanied by both parents, the adult have a note from the child’s other
parent (or, in the case of a child traveling with grandparents, uncles or aunts, sisters or
brothers, or friends, a note signed by both parents) stating ‘I acknowledge that my
wife/husband/etc. is traveling out of the country with my son/daughter. He/she/They
has/have my permission to do so.’ . . . Adults traveling with children should also be
aware that, while the U.S. does not require this documentation, many other countries
do . . . .” CBP Information, Bower Opp’n, Ex. K.
24
recommend that travelers take certain precautions when traveling with children.
EgyptAir points out that the CBP recommendations cited by Bower come from “The
Frequently Asked Questions Page” on the CBP website, and are directed to
passengers, not commercial airlines. The purpose is to ensure that single American
parents are not embarrassed or frustrated when attempting to enter a foreign country
with their children. NATA recommendations similarly carry little weight as NATA is
a non-airline trade group.24 Even if employees of Swissport (a member of NATA), who
worked at EgyptAir’s ticketing counter, were aware of the NATA recommendation,
Bower’s contention is that EgyptAir, not Swissport, was legally responsible for the
passengers on the New York-to-Cairo flight.
24
He has not alleged that any
“This guide will assist NATA members in developing their own policy for
transporting minors internationally. . . . If a minor child is traveling with only one parent
(or legal guardian), the association recommends requiring a notarized consent from the
absent parent/guardian before transporting the minor over international borders. The
consent form should include the traveling parent’s name, country of origin and
destination, dates of travel, and contact information for the non-traveling parent. If only
one parent has legal custody, that parent should be prepared to provide a court order
of child custody. . . . Although some countries do not require these documents for entry,
and they are not necessarily required for departures from the United States, the
association recommends following these guidelines for all international travel with
minors to guard against legal action resulting from the transportation of minors.”
NATA’s Guide for International Transportation of Minors, Bower Opp’n, Ex. L.
EgyptAir is not a member of NATA, as NATA does not represent airlines. Swissport,
the service provider EgyptAir employed to staff the ticket counter and check-in desk
for El-Nady’s flight, is a member of NATA. SOF ¶¶ 4, 82, 96.
25
recommendation directed to Swissport is applicable, or was even made known to
EgyptAir.25
Finally, Bower urges the court to find that because dual consent forms are a
reasonable precaution, are used by some airlines26 and required by some countries, and
because they may sometime in the future be required by the United States, EgyptAir
had a duty to require them of parents traveling alone with children.27 It is not the role
of a federal district court to create duties that do not exist under common law or by
statute.
In sum, I conclude that EgyptAir did not owe a duty to N and R to investigate
25
Bower (correctly) does not argue that these recommendations should be
treated as statutes, rules, or regulations supporting a finding of negligence. “A duty of
care must already exist before a plaintiff can use a defendant’s statutory violation to
support a claim of tort liability.” Juliano, 461 Mass. at 532.
26
Bower has given the court only one such example, Alaska Airlines (which
does not operate from JFK). That airline recommends (but does not require) that
passengers document child custody because some countries require proof of custody
as a condition for entry. EgyptAir’s Reply at 18-19.
27
Bower contends that because EgyptAir required the parents of children
traveling alone to sign indemnification forms, it in effect has “admitted” that a duty was
owed Bower to require a dual consent form from El-Nady. The court disagrees. A
child traveling unaccompanied by any adult cannot be equated to a child traveling with
his or her parent.
26
whether their mother was traveling with them in violation of a court order.28 “While
dispositive motions are disfavored in negligence actions, where a defendant is
determined to owe no duty of care, summary judgment must be granted.” Brown, 514
F. Supp. 2d at 152, citing Westerback v. Harold F. LeClair Co., Inc., 50 Mass. App.
Ct. 144, 146 (2000). That is the case here.29
28
The Second Circuit reached the same conclusion in Pittman v. Grayson, 149
F.3d 111 (2d Cir. 1998), a case involving similar facts. In Pittman, a mother flew with
her daughter to Iceland in violation of a court order. The daughter’s step-father
telephoned two of the airline’s corporate offices and gave oral warnings to various
employees about the mother’s impending flight and that the girl was being taken from
Florida in violation of a court order. The Second Circuit affirmed the district court’s
setting aside of a jury verdict in favor of the plaintiff father (individually, and on behalf
of his daughter). With respect to the father’s request to remand the case on a claim of
negligence, the Court declined, holding that the commercial airline owed no duty to the
father or to the daughter as a passenger, “either generally or based on oral
representations – to ensure that a minor traveling with a custodial parent is not being
transported in violation of a court order.” Id. at 125.
The California Appeals Court, Second Division, endorsed the Second Circuit’s
conclusion in a case again involving very similar facts (a mother took her child to Japan
in violation of a court order not to do so). “Plaintiff lacks a viable negligence claim
because ANA [the air carrier] owed him no duty of care; plaintiff was a member of the
general public and had not entered into a special relationship with ANA; and although
ANA certainly owed some duties of care to Melissa as a passenger, we have seen no
authority for the proposition that a common carrier has a duty to ensure that a minor
traveling with a custodial parent is not being transported in violation of a court order.”
Braden v. All Nippon Airways Co., Ltd., 2010 WL 3993215, at *4 (Cal. App. 2 Dist.
Oct. 13, 2010).
29
The claims for negligent infliction of emotional distress fail as they are
premised on a finding of negligence. See Rodriguez v. Cambridge Hous. Auth., 443
27
ORDER
For the foregoing reasons, defendant EgyptAir’s motion for summary judgment
is ALLOWED. The Clerk will enter judgment for EgyptAir and dismiss it from the
case.
SO ORDERED.
/s/ Richard G. Stearns
_______________________________
UNITED STATES DISTRICT JUDGE
Mass. 697, 700-701 (2005). Absent legal responsibility, Bower’s claim against
EgyptAir for loss of filial consortium also fails. See Mass. Gen. Laws ch. 231, § 85X
(“The parents of a minor child or an adult child who is dependent on his parents for
support shall have a cause of action for loss of consortium of the child who has been
seriously injured against any person who is legally responsible for causing such
injury.”) (emphasis added).
28
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