MUMTAZ v. ETTHAD AIRWAYS AND AIRLINES
Filing
45
OPINION. Signed by Judge Jose L. Linares on 12/30/14. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AHMAD MUMTAZ,
Civil Action No. 12-cv-2051
Plaintiff,
v.
OPINION
ETIHAD AIRWAYS AND AIRLINES,
Defendant.
JOSE L. LTNARES, U.S.D.J.
This matter comes before the Court upon moti
on by defendant, Etihad Airways and
1
Airlines (hereinafter “Etihad” or “Defendant”)
for summary judgment (the “Motion” or “Motion
for Summary Judgment”). (ECF No. 35). Purs
uant to Rule 78 of the Federal Rules of Civil
Procedure, no oral argument was heard. Upo
n consideration of the Parties’ submissions, and
for
the reasons stated below, Defendant’s Mot
ion for Summary Judgment, (ECF No. 35),
is
GRANTED.
I. BACKGROUND
A. Undisputed Facts
This action arises from an alleged injury
to the Plaintiff, Ahmad Mumtaz (hereinafter
“Plaintiff’). Plaintiff was a passenger aboard
Defendant, Etihad Airways’ flight EY1O1 from
Abu
Dhabi to New York on November 17, 2009.
(Statement of Undisputed Facts (“SOUF”), ECF
No.
l
Incorrectly sued as “Etihad Airways and Airli
nes,” the Defendant is Etihad Airways P.J.S.C.
1
35-15,
¶
1). This flight was apparently part of Plaintiffs round-tri
p transportation of New York
to Delhi, India, through Abu Dhabi. (Id.
¶ 2).
Upon arrival, Plaintiff exited the aircraft under his
own power without any assistance from Etihad staff
. (Id.
¶
19). From there, Plaintiff made a
report to a police officer from Port Authority ofNew
York and
New Jersey which did not reference
that Plaintiff sustained any injuries on board an Etih
ad aircraft but rather that he was “dizzy.” (Id.
¶J 20-21). Nor did this report indicate that Plaintiff had an open wound on his head or was
wearing
a blood-stained shirt. (Id. ¶ 22). While the facts of
how the injury occurred are disputed by the
Plaintiff, what is undisputed, is that on November
17, 2009 Plaintiff was treated at Jersey City
Medical Center. (Id. ¶ 3). The Jersey City Med
ical Center medical records indicate that the
Plaintiff “Denies [loss of consciousness] but has a 3cm
2
lipoma just off of vertex that looks like it
has been there for years, there is no hair over this
area. PT states this just happened although it
does not look acute and is non-tender.” (Id. 25). Seve
ral days after the alleged incident, Plaintiff
¶
had this cyst removed from his head. (Id. 26).
By way of letter dated November 17, 2009,
¶
Plaintiff submitted a claim to Defendant Etihad for
the alleged loss of his baggage in the amount
of $500,000.00 without any mention of any injury susta
ined on the flight. (Id. ¶ 27).
B. Disputed Facts
The events and occurrences leading to Plaintiffs
alleged injury are disputed by the Parties
and even contradicted by various recounts by the
Plaintiff hims
elf. The Court details all evidence
by way of a timeline for the purposes of this Mot
ion. November 17, 2009 was the date of the
alleged injury to the Plaintiff. As a preliminary
matter, there is no evidence of Plaintiff being
2
This is generally a benign tumor composed of
adipose tissue (body fat). It is the most common
benign form of soft
tissue tumor Bancroft LW, Kransdorf MJ, Peterso
n JJ, O’Connor MI (October 2006). “Benign
fatty tumors:
classification, clinical course, imaging appearance,
and treatment”. Skeletal Radio!. 35 (10): 719—33.
2
injured on the flight outside of Plaintiff’s own testimony. The time
at which he was allegedly
injured on the flight, and where the injury occurred, remains contrad
icted by the Plaintiff himself.
Upon arrival, Plaintiff apparently became dizzy and sought assista
nce from airport security who
then contacted the Police of the Port Authority of New York and New
Jersey. (See Transcript ECF
No. 35-3 at 78-83). According to the “Aided” Report prepared by
the attending officer, the listed
place of occurrence was “Terminal 4” and the description of the inciden
t was that the “subject was
feeling dizzy and cold,” but Plaintiff disputes this and states he was
bleeding and told the officer
he was injured on the plane. (ECF No. 3 5-6). The Aided Report also
indicated that an ambulance
had been called (which Plaintiff did not utilize). (Id.). Approximate
ly eight hours later, Plaintiff
undisputedly went to Jersey City Medical Center (hereinafter “JCMC
”) for treatment. (See ED
Physician Doc., ECF No. 35-4). The “Triage Notes” of JCMC
’s report explain Plaintiff has “hit
his head inside airplane bath room comi[njg back from India,” which
Plaintiff also disputes. (Id.
at 1 )3 The report also indicates the site of injury was not bleeding
but rather “lipoma. .does not
.
look acute and is non-tender,” while Plaintiff states he went to the
hospital because his head was
cracked open. (Id.).
Plaintiff has alleged different accounts of when the incident took
place. Plaintiff filed the
Complaint in this action on or about November 14, 201 1 allegin
g that Defendant negligently and
carelessly stored baggage which became loose and struck
Plaintiff on his head when he was
attempting to exit the plane. (Compl., ECF No. 1, ¶J5-6). Howev
er, on September 12, 2012 and
in response to Defendant’s Interrogatory No. 1, Plaintiff
states that “during the approach for
landing the overhead bin opened and a bag fell on him.”
(ECF No. 35-5 at 1). By Plaintiff’s
Capitalization omitted.
3
deposition on January 24, 2014, Plaintiff testified that about halfwa
y through the flight, the
overhead bin opened and a bag fell upon him. (ECF No. 35-3 at
64). Therefore, it is unclear when
the alleged injury actually occurred.
C. Defendant’s Current Motion
Defendant seeks summary judgment primarily because “Plaintiff
has provided four
conflicting versions of how or when the alleged incident occurr
ed.” (Def. Br., ECF No. 35 at 2).
Defendant points the Court to evidence which refutes Plaintiffs
own self-serving testimony and
asks the Court to conclude that, as a matter of law, no genuine dispute
of material fact exists in
this case. Plaintiff opposed Defendant’s Motion by way of a two
(2) page letter. (ECF No. 43)•4
Plaintiffs only opposition points the court generally to exhibits attache
d to Defendant’s moving
brief (transcripts from a deposition of Plaintiff and arbitration
hearing) and claims these alone
establish “all elements required for potential liability against the
defendant.” (ECF No. 43 at 12). Plaintiff also states that “under long standing law govern
ing summary judgment, when there
are genuine issues ofmaterial fact relative to the happening ofthe
accident
...
[s]ummary judgment
would not be warranted....” (Id. at 2). Notably, Plaintiff does
not point the Court to any specific
genuine issues of fact, nor any relevant precedent.
6
Plaintiffs Opposition is unreadable on the docket and has
been printed and re-formatted for review by the Court.
Court notes that Plaintiff, as the non-moving party, may not
defeat summary judgment by simply resting on the
argument that the record contains fact sufficient to suppor
t his claims. See Big Apple BMW Inc. v. BMW of North
4merica, Inc., 974 F.2d 1358, 1362 (3dCir.1992), cert. denied
, 507 U.S.912, 113 S.Ct. 1262,122 L.Ed.2d 659 (1993);
O’Donnell i’. US., 891 F.2d 1079, 1082 (3d Cir.1989). Rather
, the non-moving party must go beyond the pleadings
and, by affidavits or other evidence, designate specific facts
showing that there is a genuine issue for trial. C’elotex,
477 U.S. at 324, 106 S.Ct. 2548; Fed.R.Civ.P. 56(e).
6
The Court is mindful that when a party asks the Court to
consider evidence which it fails to provide in response to
the summary judgment motion in question, the District Court
has no obligation to sift through the record in deciding
the motion. Boomer v. Lewis, 541 F. App’x 186, 191 (3d Cir.
2013).
4
II. LEGAL STANDARD
Summary judgment is appropriate when, drawing all reaso
nable inferences in the non
movant’s favor, there exists no “genuine dispute as to any
material fact” and the movant is entitled
to judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); King Pharm., Inc. v. Eon Labs, Inc.,
616 F.3d 1267, 1273 (Fed. Cir. 2010).
The moving party is entitled to judgment as a matter of
law when the non-moving party fails to
make “a sufficient showing on an essential element of
her case with respect to which she has the
burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). However, if a reasonable
juror could return a verdict for the non-moving party rega
rding material disputed factual issues,
summary judgment is not appropriate. See Anderson
, 477 U.S. at 242-243 (“At the summary
judgment stage, the trial judge’s function is not hims
elf to weigh the evidence and determine the
truth of the matter but to determine whether there is
a genuine issue for trial.”). With this
framework in mind, the Court turns now to Defendan
t’s Motion.
LII. DISCUSSION
The parties do not contest that this case is governed
by the
Warsaw
Convention,
as
modified by the Montreal interim Agreement, wher
e Article 17 establishes the liability of
international air carriers for harm to passengers. Air
France v. Saks, 470 U.S. 392, 397 (1985). It
states the following:
The carrier shall be liable for damage sustained in
the event of the
death or wounding of a passenger or any other bodily injur
y suffered
by a passenger, if the accident which caused the damage
so sustained
took place on board the aircraft or in the cour
se of any of the
operations of embarking or disembarking.
5
Id. The significant features of this provision for our purposes
are the terms “bodily injury” and
“accident.” In considering these terms, the Supreme Court has explain
ed that
in order to determine
whether an accident occurred, the court must consider “all of the
circumstances that surrounded
the passenger!s injuries.” Id. at 405. Additionally, the Suprem
e Court noted that because any
injury is the product of a chain of causes, it required only that the
passenger be able to prove that
some link in the chain was an unusual or unexpected event externa
l to the passenger. Id. As the
Court will discuss below, in the present case this standard is not
met as it is unclear if Plaintiff
suffered any “bodily injury” at all.
Finally, the Court admits on the outset of this discussion that whethe
r Plaintiff has sustained
injuries due to an “accident” is normally a factual dispute. The
Court’s analysis will not contradict
this notion. However, at some point in analyzing the totality
of evidence in a case, the Court must
determine if this factual dispute is actually “genuine” as
required by the summary judgment
standard.
Perhaps a parallel consideration the Court should note, is the
distinction between
concluding that a fact-tinder may, by chance, interpret someth
ing from the evidence, as compared
to a reasonable fact-finder’s conclusions. As articulated below,
because Plaintiff has failed to set
forth specific facts showing there is a genuine dispute for
trial as to whether there was an
“accident causing an injury, it finds also that a reasonable
fact-finder could not return a verdict
for the Plaintiff in this case as to the issue of whether or not
an injury was caused.
A. The Factual Dispute is not Genuine
The factual dispute regarding the Plaintiff’s alleged injury
in this case arises from an
overwhelming myriad of evidence favoring the Defendant,
which is only disputed by Plaintiffs
6
own account of the incident without any other credible evid
entiary corroboration. That is, the
7
on/v evidence offered by Plaintiff is his own uncorroborated
testimony that there was an incident
on the plane which caused an injury. Not only can Plaintiff not
support his testimony with specific
facts or documentary evidence, his testimony is contradicted
by strong evidence showing Plaintiff
sustained no injury on board the flight in question.
While the Court will not make credibility determinations
on a motion for summary
judgment, the Court must, to some degree, find some cons
istencies in Plaintiff’s allegations from
which a reasonable jury could find the injuries he claims
as his basis for this lawsuit. If Plaintiff
cannot reasonably prove he sustained an injury, summary
judgment must be awarded to the
Defendant. While the location and time of the alleged injury is
not deter
minable, perhaps the most
consistent part of Plaintiff’s testimony is that he was bleed
ing profusely from his head as a result
of his injury. This appears in fact to be the only unswervin
8
g injury claimed by Plaintiff due to a
bag falling from an overhead bin. Indeed, Plaintiff state
s in his interrogatory answers that he
“sustained trauma to the head along with laceration and cuts
and bleeding of the scalp.” (ECF No.
35-5, ¶5). Further, Plaintiff’s sworn testimony on two occa
sions explains there was “too much
blood” and there was “a lot of blood” which stained his shirt
. (Arbitration Transcript (hereinafter
The Court notes just a few discrepancies for the sake of
brevity: 1) Plaintiff claims he told the doctor at Jersey City
Medical Center that his head was hurt from a bag falling
, (Tr. 92:16-23), however the medical report indicates he
hit
his head in the lavatory; 2) Plaintiff claims that after
they examined him at Jersey City Medical Center they gave
him
stitches, which again, there is no report of (Tr. 97:1925); 3) Plaintiff explains there was turbulence which caused
the bag to fall although no turbulence was reported by the
flight; (Tr. 54:1-21); 4) Plaintiff says that two men and three
women made a report of the incident, (Tr. 6 1:12-2
2), in fact no actual report was made; 5) Plaintiff explain
s that
because of the accident his hair is gone and doesn’t
grow which sharply contradicts the hospital report that
the area
close to the injury did not have any hair upon arrival
; (Tr. 98:12-15); and 6) Plaintiff states he received bandag
es for
his bleeding injury while onboard, which there is no
medical report of. (Arb. Tr. 11:18-20).
8
The Court has reviewed Plaintiff’s deposition and while
many of the allegations asserted regarding the incident by
Plaintiff are contradictory and all out confusing, Plainti
ff indisputably alleges that there was a lot of blood as result
a
of this alleged incident on the plane.
7
“Arb. Tr.”), ECF No. 35-7, 10:7). (Tr. 67:5-68:12). The Cou
rt however, cannot in good faith give
this issue of fact to a jury when the following evidence prov
ides the contrary conclusion.
First, and perhaps most importantly, Plaintiff not only
waited about eight (8) hours to go
to the hospital, but the medical report identifies no spec
ific injury that could be determined to have
occurred that day, and states that the injury occurred when
Plaintiff “hit his head inside airplane
bathroom” which would not qualify as an “accident”
to ensue liability. (ECF No. 35-4 at 1).
9
Indeed, the report states Plaintiff “denies [loss of consciou
sness] but has a 3cm lipoma just off the
vertex that looks like it has been there for years, there
is no hair over this area. [Plaintiff] states
this just happened although it does not look acute and is
non-tender.” (Id.). Not only does this
report state a different cause of the “injury” it seems to indic
ate there was no identifiable injury at
all outside of a pre-existing cyst. The Court notes that there
is no mention of any blood or cut to
verify Plaintiff’s account of this incident.
The next set of facts that point towards a lack of proo
f of Plaintiff being injured while
aboard the plane in question, stems from the lack of repo
rts made by the airplane staff as well as
their sworn testimony, juxtaposed to Plaintiff’s contentio
ns. Michael Callen Pass (hereinafter “Mr.
Pass”) has been employed with Defendant as part of the
cabin crew since 2009 and was a member
of the crew on Plaintiff’s flight. (Deci., ECF No. 35-1
0 at ¶J2, 5). Mr. Pass states that while he
understands Plaintiff’s claims, “Etihad has very strin
gent reporting requirements for any onboard medical incident or event where an In-F
light Medical Report must be completed
“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,” with the
caveat that there is no accident “when the injury indisputably
results
from the passenger’s own internal reaction to the usual,
normal, and expected operation of the aircraft.” Air France
,
470 U.S. at 405. See also Manion v. Am. Airlines,
Inc., 17 F.Supp.2d 1, 5 (D.D.C.1997) (“Summary judgm
ent can
only be granted if as a matter of law, the Court conclu
des that plaintiffs injuries were not caused by an accide
nt
pursuant to the Warsaw Convention.”).
8
each and every time a passenger is injured or becomes ill during
a flight,” and no such InFlight Medical Report documenting his injuries and any medica
l care was prepared. (Id. ¶J67, 9).
Similarly, Mr. Pass explains that there was no “Cabin Manager
Report” prepared which
would “definitely” mention any bleeding injury suffered by
a passenger, nor was the Captain
informed of any such incident to complete an “Air Safety Report
.” (Id. ¶Jl2, 13). Notably, there
was however a reported Air Safety Report for a different passen
ger on that flight who was
suffering from stomach cramps. (Id. ¶13). Mr. Pass, in sum,
explains that based upon the fact
that there is no report of any kind relating to any incident involv
ing the Plaintiff (i.e. no InFlight Medical Report, no entry in the Cabin Manager Report
and no Air Safety Report) and
the fact that he “would have recalled if such incident happened
in a flight operated by [him]”
he does not believe Plaintiff was injured as he alleges in the lawsui
t. (Id. ¶15).
Lastly, the Aided Report taken by a Port Authority officer explain
s the Place of Occurrence
of the incident was Terminal 4 and it only reported that Plainti
ff was “dizzy” and “felt cold.” (ECF
No. 3 5-6). Plaintiff alleges the injury he suffered was a lacerat
ion to his head and on the flight
there was “a lot ofblood” which stained his shirt. (Tr. 67:5-6
8:12). This Report makes no mention
of Plaintiff bleeding or having any sort of injury on the aircraf
t which is of particular note given
the Aided Report was completed right after Plaintiff’s arrival
and presumably very close to the
time of the incident. Thus, the only evidence of record pertain
ing to Plaintiffs alleged injuries is
Plaintiffs self-serving testimony stating that he suffered a severe
bleeding head injury, which was
not corroborated or even mentioned in any report or eviden
ce of record. This is not enough to
9
overcome summary judgment on the facts before the Cou
rt since no reasonable trier of fact could
find, based on the evidence of record, in favor of the Plain
tiff.
B. A Reasonable Fact-Finder Could Not Find Ther
e was an Accident that Caused the
0
Injury’
To defeat summary judgment nonmoving parties “mu
st do more than simply show that
there is some metaphysical doubt as to the material facts
.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed
.2d 538 (1986). That is, the summary
judgment standard does not denote what a fact-finder may
find upon delusion, but rather what a
reasonable fact-finder could conclude from the evidence
presented. Upon review of the evidence,
it is apparent that a reasonable juror could not conclude
that Plaintiffis injury (if any) arose from
an accident on the airplane in question. This Court shall
not be permit this Plaintiff or any, to rely
exclusively on unsubstantiated speculation, but rathe
r he must offer some evidence showing that
his version of the events is reasonable. Such would in
essence, eliminate the summary judgment
standard and allow any Plaintiff to create a genuine
dispute of material fact by reasoning the
evidentiary equivalent of “Because I said so.”
To grant summary judgment, the Court would need to
conclude that Plaintiff has failed to
establish his injury was caused by an “accident” on the
aircraft, but it would be equally sufficient
if Plaintiff has failed to establish an injury. The Cou
rt gives the nonmoving party the benefit of
°
Plaintiffs opposition to summary judgment referre
d to testimony that “clearly established that he was
injured due
to an accident while on the airline” with no citation
to the record. As the Third Circuit has observed, “[jjudg
es are not
like pigs, hunting for truffles buried in briefs.” United
States v. Starnes, 583 F.3d 196, 216 (3d Cir.2009)
(quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991) (internal quotation marks omitted)). If factual
support for
Plaintiffs claim existed in the record, it was incumb
ent upon him to direct the Court’s attention to those
facts.
DeShields v. Int’l Resort Properties Ltd., 463 F. App’x
117, 119-20 (3d Cir. 2012). Plaintiff did no such thing.
10
all reasonable inferences on this Motion. Bray v. Marriott
Hotels, 110 F.3d 986,989 (3d Cir.1997).
Unfortunately, many, if not all of the inferences Plain
tiff asks this Court to draw from his everchanging testimony, are unreasonable. To conclude
that Plaintiff was injured from an accident
onboard the aircraft would certainly require one to unde
rtake a suspension of disbelief. To allow
unreasonable inferences to be drawn from Plaintiff,
this Court would be drastically limiting the
possibility that summary judgment could ever be gran
ted because virtually any contrary testimony
by a plaintiff would preclude a grant of summary judg
ment to the defendants. Pamintuan v.
Nanticoke Mem’lHosp., 192 F.3d 378, 387 (3d Cir.1
999).
This Court is guided by the Second Circuit case of Jeffr
eys v. City of 7”/ew York. 426 R3d 549
(2 Cir, 2005), In Jejfreys, the Court granted summary
judgment in favor of the Defendants on
the basis that the Plaintiffs testimony, largely unsu
bstantiated by any other direct evidence, was
“so replete with inconsistencies and improbabilities”
that no reasonable juror would “undertake
the suspension of disbelief’ necessary to credit the Plain
tiffs allegations. Id. at 551. Indeed, the
Plaintiff in Je/freys alleged that while police officers
arrested him, they beat him and hit him over
the head with a flashlight. Id. at 552. However, cont
rary to Plaintiffs claims, upon examination,
a doctor ibund no evidence of any head trauma nor
evidence of external injury consistent with
Plaintiffs recount of his injuries. Id. at 553. The
Court explained that:
While it is undoubtedly the duty of district cour
ts not to weigh the
credibility of the parties at the summary judgment
stage, in the rare
circumstance where the plaintiff relies almost exclu
sively on his own
testimony, much of which is contradictory and inco
mplete, it will be
impossible for a district court to determine whether
the jury could
reasonably find for the plaintiff
Id. at 554 (internal citation omitted). Such a hold
ing is applicable to the facts before this Court.
11
Plaintiff’s own account of the alleged incident is uncl
ear and inconsistent. Even placing
aside Plaintiff’s various recounts of the events leading
to his injury, there is no evidence that
supports Plaintiffs allegations that he was cut on the
head from a falling bag. What is supported,
is that Plaintiff boarded a flight, disembarked the
same flight, began feeling dizzy, and was
diagnosed with a cyst that he had on his head well befo
re the flight)’ While the Court of course
will not make these findings of fact at the summary
judgment stage, suffice it to say that the
allegations of the Plaintiff are patently contradicted
by the plethora of evidence before the Court.
The Court is particularly cognizant that “[tjhe mere
existence of a scintilla of evidence in support
of the plaintiffs position will be insufficient; there
must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson, 477 U.S.
at 252, 106 S.Ct. 2505 (emphasis added).
Apart from Plaintiff’s testimony, the Court has yet to be
pointed to a scintilla of evidence favoring
the Plaintiff.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion
for Summary Judgment, (ECF No.
35), is GRANTED. An appropriate Order accompa
nies this Opinion.
i
Date: December’j, 2014
States District Judge
l
The Court notes that not once in Plaintiff’s deposi
tion does he express that any alleged injury
occurred as a result
of exacerbating a pre-existing cyst or loss of consci
ousness. In fact, Plaintiff specifically refutes
these possibilities.
Rather Plaintiff explains that what occurred was
severe and profuse bleeding. This is the only basis
for his claim.
12
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