ROGERS v. CONTINENTAL AIRLINES et al
Filing
27
OPINION. Signed by Judge Katharine S. Hayden on 9/21/11. (DD, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SUSAN ROGERS,
Plaintiff,
v.
Civil Action No. 10-3064 (KSH)
CONTINENTAL AIRLINES, its employees,
agents, and/or servants, and John Does
(#1-10)(being fictitious)
OPINION
Defendants.
Katharine S. Hayden, U.S.D.J.
Plaintiff Susan Rogers filed this action asserting state law tort and breach of contract
claims based on her removal by defendant Continental Airlines, Inc. (“Continental”) from a
flight bound from Newark to Cancun, Mexico.1 Continental removed this case to federal
court and now moves for summary judgment (D.E. 19), arguing that Rogers’ claims are preempted by international conventions governing airline liability in connection with
international air travel. Continental also argues that Rogers’ complaint fails to state a
viable cause of action under the conventions. For the reasons stated below, Continental’s
motion is granted.
Background:
This suit arises from Rogers’ removal from Continental Flight 1730 from Newark to
Cancun, Mexico, on February 4, 2009. When she purchased tickets for the flight, Rogers
Rogers’ action also lists “employees agents, and/or servants” of Continental and John Does 1-10, but she
never amended her complaint to identify these additional defendants.
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requested adjoining seats for herself and her two-year-old daughter, but she claims she
was told that the seat assignment had to be done at the airport. (Dep. of Susan Rogers, Dec.
21, 2010 (“Rogers Dep.”), D.E. 21, ex. D at 23:10-23.) According to Rogers’ deposition
testimony, when she arrived at the ticket counter at Newark Liberty International Airport,
she was told to speak to a supervisor at the gate about seating, and then an agent at the
gate told her to wait until boarding. (Id. at 20:22-21:1 and 25:8-13.) After Rogers boarded,
a flight attendant helped her find adjacent seats in an exit row. Rogers sat down and began
feeding her daughter when a second flight attendant told her she had to move because her
daughter was too young to sit in an exit row. (Id. at 34:10-5-35:1-4 and 36:13-17.) Rogers
replied that “we can sit here” because the first flight attendant had seated them there, but
the second flight attendant insisted that Rogers and her daughter move.
Rogers eventually to wait in the kitchen galley, where she began talking on her cell
phone. (Id. at 36:17-22.) A flight attendant told her that she “needed to get off my phone,”
but Rogers replied that “the pilot didn’t announce not to be on your phone and I’m talking
to my Mom.” (Id. at 38:4-39:3 and 39:7-12.) The flight attendant then told Rogers to stop
talking on her phone or else exit the plane. (Id.) Rogers said that she “wasn’t getting off
the plane” and continued speaking on the phone for another six or seven minutes. (Id. at
44:18-45:1.) The flight attendant returned with a supervisor, who asked Rogers to leave
the plane. (Id. at 39:14-17; 40:1-10.) Rogers refused to leave, objecting that “I need to
know why I’m getting off the plane.” (Id. at 40:1-10.) Rogers testified that the supervisor
did not give her an explanation, but he did tell her three times to leave. She refused. (Id. at
83:25-84:3.) According to Rogers, the supervisor was polite at first, but he gradually began
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raising his voice and eventually “grabbed my pocketbook, my carry-on and the baby’s bag
and he threw it on [the jetway].” (Id. at 40:6-10 and 84:4-12.)
Rogers claims that she never raised her voice during the encounter. (Id. at 50:15).
However, three flight attendants who filed reports after the incident described Rogers as
“extremely rude,” and as “cursing” and “yelling” when she was asked to move, which she
refused to do. (D.E. 19 at exhibits F and G.) According to Continental, when a flight
attendant requested that Rogers calm down and speak to the agent about the situation,
Rogers responded, “or what. . . what are you going to do if I don’t[?]”. (Id. at exhibit H.)
Rogers testified that, after the supervisor told her to get off the plane, he escorted
her to a customer service counter to rebook her flight. (Rogers Dep. at 54:4-25.) Rogers
booked a flight for three hours later, but realized she had lost her passport. The customer
service agent radioed the plane to find the passport, but the plane had taken off, so the
agent rebooked Rogers for the last flight of the day while Rogers drove to Connecticut to
get a replacement passport. (Id. at 55:24-56:6 and 57:21.) After she had ordered a new
passport, Rogers received a call from the agent saying that her passport had been found on
the jetway. (Id. at 57:10). Rogers left that night on a flight to Cancun, arriving around 2 a.m.
on February 5th, several hours later than originally scheduled. (Id. at 66:8-10 and 77:1.)
Rogers claims that the incident, including replacing her passport, cost her approximately
$170. (Id. at 58:3, 60:10-17, 67:17 and 68:5.)
Rogers did not suffer any physical injury (id. at 71:4-7), but she claims that she was
mistreated, publicly embarrassed and distressed at the prospect at not seeing her husband,
whom she was meeting in Cancun. (Pt.’s Br. in Opp’n, D.E. 21 at 2.) Rogers asserts that she
cried for days after the incident, and, after her vacation, sought treatment from a
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psychiatrist for “ways to deal with what happened to [me] on the flight.” (Id. at 87:5-9 and
72:15-17.) However, Rogers acknowledges that she stayed for her full vacation in Cancun,
where she shopped, visited a zoo and spent time with her husband (Id. at 77:11-18).
Rogers filed a three-count complaint against Continental and various unnamed
defendants in May 2010, alleging: (1) intentional infliction of emotional distress; (2)
negligent infliction of emotional distress; and (3) breach of contract. (D.E. 1.) Defendants
removed to federal court based on diversity jurisdiction pursuant to 28 U.S.C. §1332 and
based on 28 U.S.C. §1331, which provides federal jurisdiction because the case arises under
an international treaty to which the United States is a party.
Legal Standard:
Summary judgment is appropriate when the record shows “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.” Fed. R. Civ. P. 56(c). An issue is genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A fact is “material” only if it could affect the outcome of the suit under the
applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a
grant of summary judgment. Id. In considering a motion for summary judgment, a court
must view the facts in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor. Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir.
2011); see also Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). Summary judgment is appropriate if the opposing party fails to establish an
element essential to that party's case, and on which that party will bear the burden of proof
at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
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Discussion:
Continental contends that summary judgment should be granted here because the
Montreal Convention and its predecessor, the Warsaw Convention, provide the exclusive
remedy for injuries suffered in connection with international air travel and that there is no
genuine issue as to whether the conventions apply to Rogers’ claims. Continental also
argues that Rogers’ has failed to establish the prerequisites necessary to state a viable
claim under the conventions.
The Warsaw Convention2 aims to “‘achieve uniformity of rules governing claims
arising from international air transport,’” El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155,
170 (1999) (quoting Eastern Airlines, Inc. V Floyd, 499 U.S. 530, 552 (1991)), and to “limit
air carriers' potential liability in the event of an accident.” Sompo Japan Ins. Co. v. Nippon
Cargo Airlines Co., Ltd., 522 F.3d 776, 779-781 (7th Cir. 2008). The Warsaw Convention
thus has been held to “preempt all state claims in [its] scope.” See e.g. Paradis v. Ghana
Airways Ltd., 348 F.Supp. 2d 106, 111 (S.D.N.Y. 2004). Article 24(1) of the Warsaw
Convention provides that, “[i]n the carriage of passengers and baggage, any action for
damages, however founded, can only be brought subject to the conditions and limits set out
in this convention.” Article 17 of the Warsaw Convention sets out the necessary conditions
to hold “an air carrier [liable] for passenger injury,” Floyd, 499 U.S. at 535-36 (1991), and
states that a carrier: “shall be liable for damages sustained in the event of the death or
wounding of a passenger or any other bodily injury suffered by a passenger, if the accident
The Warsaw Convention is formally known as the Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S. No. 876 (1934), reprinted in the
note following 49 U.S.C. § 40105.
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which caused the damage so sustained took place on board the aircraft or in the course of
any of the operations of embarking or disembarking.”
The Supreme Court has instructed that the Warsaw Convention concerns “only and
exclusively, the airline's liability for passenger injuries occurring during travel or ‘on board
the aircraft or in the course of any of the operations of embarking or disembarking.’” Tseng,
525 U.S. at 171-72. Where applicable, the Warsaw Convention “precludes a passenger from
maintaining an action for personal injury damages under local law when her claim does not
satisfy the conditions for liability under the Convention.” Id. at 176. In other words, a
“passenger whose injuries fall within the scope of the Warsaw Convention is either entitled
to recovery under the Convention or not at all.” Magan v. Lufthansa German Airlines, 339
F.3d 158, 161 (2d Cir. 2003) (citing Tseng at 161).
The Montreal Convention3 went into effect in 2003 and is the successor to the
Warsaw Convention. See Schaefer-Condulmari v. U.S. Airways Group, Inc., 2009 WL
4729882, at *4 (E.D. Pa. Dec. 8, 2009). Although the Montreal Convention is an “entirely
new treaty,” Atia v. Delta Airlines, Inc., 692 F.Supp. 2d 693, 698 (quoting Ehrlich v. American
Airlines, Inc., 360 F.3d 366, 371 n. 4 (2d Cir.2004)), many of its provisions “closely resemble
those of the Warsaw Convention,” including the provisions at issue here. Weiss v. El Al
Israel Airlines, Ltd., 433 F.Supp.2d 361 (S.D.N.Y. 2006); see also Sompo, 522 F.3d at 781
(explaining that “the Montreal Convention did not alter the [the Warsaw Convention’s] goal
of maintaining limited and predictable damage amounts for airlines”).
Like the Warsaw Convention, the Montreal Convention has been held to “preempt
all state law claims within their scope.” Paradis, 348 F.Supp. 2d at 111; see also Ugaz v.
The Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal on 28
May 1999, reprinted in S. Treaty Doc. No 106-45, 1999 WL 33292734 (2000).
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American Airlines, Inc., 2008 WL 4097619, at *1360 (S.D. Fla. Sept. 4, 2008) (finding that
Article 29 of the Montreal Convention closely tracks Article 24(1) of the Warsaw
Convention and similarly preempts “all state law claims that fall within its scope but do not
satisfy the conditions for liability under the treaty”) (citation and quotation omitted).
Article 17 of the Montreal Convention, which governs airline liability for passengers’
personal injuries and which mirrors the language of Article 17 of the Warsaw Convention,
provides that airline carriers are “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.” See Schaefer-Condulmari, at *4 (noting that the
“[e]xplanatory Note to the Montreal Convention states that ‘it is expected’ that the
provision of Article 17 governing carrier liability for passenger injury and death will be
‘construed consistently with the precedent developed under the Warsaw Convention and
its related instruments’”) (internal citations omitted).
Accordingly, under Article 17 of both conventions, airline liability for passenger
injury in international travel attaches only when “a passenger suffers: (1) bodily injury in
(2) an accident that occurred while (3) on board, embarking, or disembarking.” See Id.; see
also Terrafranca v. Virginia Atlantic Airways Ltd., 151 F.3d 108, 110 (3d Cir. 1998) (citing
Floyd, 499 U.S. at 535-536). Whether a passenger’s injuries “occurred ‘on board the aircraft
or in the course of any operations of embarking or disembarking’” is a question of law
decided by the court “‘based on the facts of each case.’” Dosso v. British Airways, PLC, 2010
WL 64922, *4 (D.Md. Jan. 5, 2010) (quoting Acevedo-Reinoso v. Iberia Lineas Aereas De
Espana S.A., 449 F.3d 7, 12 (1st Cir. 2006)).
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a. Applicability of the Montreal Convention to Rogers’ Claims:
If Rogers’ injuries occurred during embarking or disembarking, then her claims fall
within the Montreal Convention’s scope; if, however, her injuries arose before “operations
of embarking or disembarking,” then they fall outside the conventions and Continental “is
indisputably subject to liability under local law.” Tseng, 525 U.S. at 172 (internal
quotations and citations omitted). Courts examine several factors to determine whether an
incident occurred during embarking or disembarking, including: “(1) the activity of the
passengers at the time of the accident; (2) the restrictions, if any, on their movement; (3)
the imminence of actual boarding; and (4) the physical proximity of the passengers to the
gate.” Buonocore v. Trans World Airlines, Inc., 900 F.2d 8, 10 (2d Cir. 1990) (citing
Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 155 (3d Cir.1977)). For an incident
to be “in the course of” embarking or disembarking, there must be a “tight tie between [the]
accident and the physical act of entering an aircraft.” Dick v. American Airlines, Inc., 476
F.Supp. 2d 61, 64 (D. Mass 2007) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313,
317 (1st Cir. 1995)) (internal quotation omitted). Injuries held to be within process of
“embarking or disembarking” under the conventions include those sustained where a
passenger had satisfied “all the conditions precedent” to boarding, Marotte v. American
Airlines, Inc., 296 F.3d 1255, 1258−60 (11th Cir. 2002) (finding a claim for injuries within
the convention where a passenger was walking to the door to the jetway and was assaulted
by an airline agent), or where a passenger had completed almost all steps of the boarding
process. See Evangelinos, 550 F.2d at 153−4 (holding that passengers who had completed
every pre-boarding procedure except for submitting to physical searches and walking 250
meters from the search area to the plane were “embarking” within the meaning of Article
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17). Claims held to be outside the scope of the conventions include those for injuries
sustained at a substantial distance from the gate, including an accident on an escalator in
the publicly accessible part of an airport terminal. McCarthy, 56 F.3d at 314−17.
Here, Rogers already had boarded the plane when the incident giving rise to her
alleged injuries occurred. Both Rogers’ complaint and her deposition describe the events
that caused those injuries—from her confrontation with Continental employees over
seating to her removal from the plane and the loss of her passport—as happening onboard
the plane and in the jetway. For example, Rogers was standing in the plane’s kitchen area
talking on the phone when a Continental supervisor asked her to exit the plane and
allegedly “pulled at her baby bag and carry-on and threw [the] items from the plane” into
the jetway, where she stood picking up the items as “[boarding] passengers stepped over
and around” her and her daughter. (Compl, ¶¶ 15-16, 20 and 22.) Rogers argues that her
injuries continued “into the terminal” and that “the most emotional harm” occurred at the
customer service counter, on the drive to Connecticut and “even after she concluded her
trip to Cancun.” However, this argument is contradicted by Rogers’ admissions that: her
“injuries began in the jetway” when Continental “precluded [her] from ‘embarking’ the
flight”; she was “restrained [] from boarding flight 1730”; and “the incident” at issue “took
place in the jetway.” (Opp’n Br. at 8-9 and 16−17.) Rogers’ argument that her injuries
happened later also fails because it conflates the alleged “injury-causing” events—including
her ejection from the plane and the loss of her passport in the jetway—with the harm that
allegedly resulted from those events. See Bunis v. Israir GSA, Inc., 511 F.Supp.2d 319, 322
(E.D.N.Y. 2007). To take one example, Rogers’ drive to get a replacement passport was not
caused by acts by Continental. On the contrary, once she arrived at the customer service
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counter, Continental employees tried to help Rogers by rebooking her flight and later
calling her to inform her that her passport had been found.
Accordingly, the Court finds that the relevant timeframe for analyzing Rogers’
claims is the period when she was on the plane and in the jetway. The Court further finds
that Rogers’ claim falls within the Montreal Convention’s scope because she was in the
process of disembarking—actually physically exiting the plane—when her alleged injuries
occurred. As Rogers acknowledges, the “jetway area is close to the gate”; moreover, it is a
secured area of the airport and the last physical space that a passenger passes through
before entering a plane. (Opp’n Br. at 9.) The Court’s finding is based on a careful
examination of the record, interpretations of Article 17 by other courts and common sense.
See e.g. Ugaz, at *18 (holding that a claim for injuries by a passenger who recently had left
an airplane, remained under the airline's direction and was not in an unrestricted public
part of the terminal fell within the scope of the Montreal Convention). In arguing that the
conventions do not govern her claim, Rogers relies on cases that are easily distinguishable
because they involve incidents that occurred in places a substantial distance from the
aircraft and the boarding gate—including a ticket counter, baggage claim and a terminal
escalator—and because the cases did not involve actually physically entering or exiting a
plane. (Opp’n Br. at 7−8.) The Court thus finds that Rogers was disembarking when her
alleged injuries occured and that the Montreal Convention preempts Rogers’ state law
claims.
The Court next considers whether Rogers has sufficiently alleged facts to support a
claim under the Montreal Convention. Continental argues that Rogers is barred from
recovery under the Montreal Convention because, inter alia, she did not sustain any
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physical bodily injury within the meaning of Article 17. Under Article 17, establishing a
“direct, concrete, bodily injury” is a “precondition to recovery.” Terrafranca, 151 F.3d 108,
111 (3d Cir. 1998). The Third Circuit has held that, to establish that a passenger sustained
a bodily injury under Article 17, the passenger must demonstrate actual physical bodily
injury and that “purely psychic injuries” and “mere physical manifestations of emotional
injuries are not sufficient.” Id. at 111−12 (finding that a passenger’s alleged “posttraumatic disorder complicated by anorexia” as well as by weight loss, anxiety, lack of
desire to socialize and other manifestations of emotional distress failed to demonstrate the
“direct, concrete, bodily injury as opposed to mere manifestation of fear or anxiety”
necessary to recover under the Warsaw Convention); see also Floyd at 552 (holding that
Article 17 of the Warsaw Convention does not permit recovery in favor of passengers for
mental injuries unaccompanied by physical injury); Carey v. United Airlines, 255 F.3d 1044,
1051-52 (9th Cir. 2001) (holding that a claim of physical manifestations of emotional
distress, including “nausea, cramps, perspiration, nervousness, tension, and sleeplessness,”
failed to meet the “‘bodily injury’ requirement in Article 17 of the Warsaw Convention.”).
Article 17 of the Montreal Convention should be construed consistently with these
precedents interpreting the Warsaw Convention. Schaefer-Condulmari, at *4.
Here, Rogers’ complains of “physical manifestations of emotional and mental anguish”
(Compl. at ¶¶ 27 and 32), but nowhere in her submissions does she specify what those
physical manifestations are and, in her deposition, she concedes that she did not suffer any
physical injury. Her testimony described only emotional harm, including humiliation,
shock and a sense that she was mistreated. However, the Court, viewing the facts in the
most favorable light to Rogers, still finds that she has not created a genuine issue of
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material fact as to whether she suffered a physical bodily injury as required under the
conventions, and therefore summary judgment must be granted as to her tort claims.
Likewise, Rogers’ claim for breach of contract also must fail as a matter of law because it
too arises from the events leading up to and surrounding her removal from the flight, and
therefore it is pre-empted by the Montreal Convention. See Paradis, 348 F.Supp. 2d at 114
(finding that the conventions preempted a passenger’s state law breach of contract claim
based on a flight cancellation).
Rogers argues that, if the Convention does not apply, then “it leaves liability to be
established according to traditional common law rules.” (Opp’n at 9.) Because the Court
finds the Montreal Convention does apply, it need not consider this argument.
Alternatively, Rogers argues that the Convention, though exclusive when it applies, “does
not preclude alternative theories of recovery.” (Id.) In supporting this proposition, Rogers
relies on Abramson v. Japan Airlines Co., Ltd., 739 F.2d 130 (3d Cir. 1984), but that case was
expressly overruled by Tseng. 525 U.S. at 176. As noted above, Tseng held that the
“Warsaw Convention precludes a passenger from maintaining an action for personal injury
damages under local law when her claim does not satisfy the conditions for liability under
the Convention” and that recovery for injuries suffered aboard a plane or while embarking
or disembarking, “if not allowed under the Convention, is not available at all.” Id. at 161.
The Montreal Convention has been similarly interpreted as precluding “alternative causes
of action” for personal injury arising out of international travel. See Schaefer-Condulmari, at
*5 (holding that “[u]nder the reasoning of El Al, the Montreal Convention also precludes
alternative causes of action . . . [because as] the replacement for the Warsaw Convention,
the Montreal Convention is similarly designed to foster a uniform regulation of
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international air carrier liability. . . [and the] Montreal Convention, like the Warsaw
Convention, will therefore bar any claim outside its terms for personal injury suffered on
board an aircraft or in the course of any of the operations of embarking or disembarking”);
see also Weiss, 433 F.Supp.2d 361, 364 (holding that, where the Convention applies it is
“well settled that . . . the Convention provides the sole cause of action under which a
claimant may seek redress for his injuries”).
Conclusion:
For the reasons stated above, the Court grants Defendant’s motion for summary
judgment (D.E. 19) and dismisses all counts of Plaintiff’s complaint. An appropriate order
will be entered.
/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.
Date: 9/21/11
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