Ramos v. American Airlines, Inc. et al
MEMORANDUM DECISION AND ORDER granting 9 Motion for Summary Judgment and dismissing this action with prejudice as to all defendants. Signed by District Judge Max O. Cogburn, Jr on 10/25/11. (gpb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
AMERICAN AIRLINES, INC.,
AMERICAN EAGLE AIRLINES, INC.,
CHARLOTTE SKYCAP SERVICE, INC.,
and JOHN DOE,
THIS MATTER is before the court on a motion for summary judgment by
defendants American Airlines, Inc. and American Eagle Airlines, Inc. (doc. 9.) The court
held a hearing on the motion for summary judgment on October 19, 2011. The court granted
defendants’ motion for summary judgment in open court, and this Order is intended to
memorialize the court’s ruling.
In this action, plaintiff alleges that she sustained injuries on December 15, 2007,
while in the process of boarding an international flight from Charlotte Douglas International
Airport to Santo Domingo, Dominican Republic. (See Am. Compl. ¶¶ 7, 7A, 7B; see also
Aff. of R. Marrissa Goss ¶ 10.) Plaintiff alleges that she requested wheelchair assistance to
board her flight. Plaintiff alleges that defendant Charlotte Skycap Service, Inc. and employee
John Doe provided the wheelchair and that “while trying to sit down in the wheelchair
provided, the wheelchair rolled out from underneath [her], causing her to fall on the floor.”
(Am. Compl. ¶ 7.) Plaintiff specifically alleges that Charlotte Skycap Service, Inc. and
employee John Doe caused and/or allowed plaintiff to lose her balance and fall, causing her
to sustain injuries. (Id. ¶ 7B.)
On December 13, 2010, plaintiff filed this action in Mecklenburg County Superior
Court, alleging negligence as her sole claim. Plaintiff seeks both compensatory and punitive
damages. On April 4, 2011, plaintiff filed an amended complaint. On April 28, 2011,
defendants American Airlines, Inc. and American Eagle Airlines, Inc. removed the case to
this court based on federal question jurisdiction under 28 U.S.C. § 1331. Defendants stated
in the removal notice that federal question jurisdiction exists because the case arises under
a treaty of the United States–specifically, the Convention for the Unification of Certain Rules
for International Carriage by Air, Done at Montreal, opened for signature May 28, 1999, S.
Treaty Doc. No. 106-45, at 27 (2000), 2242 U.N.T.S. 350, commonly referred to as “the
Montreal Convention.” On June 21, 2011, defendants filed a motion for summary judgment.
On August 22, 2011, plaintiff filed her brief in opposition to the motion. Plaintiff filed no
additional supporting evidentiary documents. Defendants filed a reply brief on September
8, 2011. Furthermore, as noted, the court held a hearing on the summary judgment motion
on October 19, 2011.
Standard Applicable to Motions for Summary Judgment
Summary judgment is appropriate when there exists no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. F ED. R. C IV. P. 56(c);
Zahodnick v. Int’l Bus. Machs. Corp., 135 F.3d 911, 913 (4 th Cir. 1997). The party seeking
summary judgment bears the burden of initially coming forward and demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue
for trial unless there is sufficient evidence favoring the non-moving party for a fact finder to
return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4 th Cir. 1995). Thus, the
moving party can bear his burden either by presenting affirmative evidence or by demonstrating that the non-moving party’s evidence is insufficient to establish his claim. Celotex Corp.,
477 U.S. at 331 (Brennan, J., dissenting). When making the summary judgment determination, the court must view the evidence, and all justifiable inferences from the evidence,
in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913; Halperin
v. Abacus Tech. Corp., 128 F.3d 191, 196 (4 th Cir. 1997).
In support of the motion for summary judgment, defendants contend that this action
is governed by the Montreal Convention and is, thus, time-barred under the Convention’s
two-year statute of limitations.1 Plaintiff contends, in response, that the Montreal Convention
does not apply. For the following reasons, the court finds that the Montreal Convention
See Convention for the Unification of Certain Rules for International Carriage by Air,
Done at Montreal, opened for signature May 28, 1999, S. Treaty Doc. No. 104-65, at 27 (2000),
2242 U.N.T.S. 350 (commonly referred to as “the Montreal Convention”).
applies to plaintiff’s claims for damages and plaintiff’s action is, therefore, time-barred
because plaintiff did not file this action within the applicable two-year statute of limitations.
The treaty at issue in this case is commonly known as the Montreal Convention. The
Montreal Convention applies generally to claims for damages arising out of injuries to airline
passengers who are injured in international travel. Under the Montreal Convention, carriers
are strictly liable for proven damages up to a specified amount where passengers are injured
while “on board the aircraft or in the course of any of the operations of embarking or
disembarking.” More specifically, Article 17 of the Montreal Convention states:
The carrier is liable for damage sustained in case of death or bodily injury of
a passenger upon condition only that the accident which caused the death or
injury took place on board the aircraft or in the course of any of the operations
of embarking or disembarking.
Montreal Convention, Art. 17, § 1. Furthermore, Article 29 of the Montreal Convention
In the carriage of passengers, . . . any action for damages, however founded,
whether under this Convention or in contract or in tort or otherwise, can only
be brought subject to the conditions and such limits of liability as are set out
in this Convention . . . .
Id. at Art. 29 (emphasis added). Thus, where it applies, the Montreal Convention is the
exclusive means for recovery of damages suffered in the course of international air travel and
preempts all state law claims. See El Al Airlines, Ltd. v. Tseng, 525 U.S. 155, 161 (1999).
Furthermore, any claim for personal injuries to which the Convention applies is subject to
the Convention’s two-year statute of limitations. Montreal Convention, Art. 35, § 1.
Specifically, the Convention states:
The right to damages shall be extinguished if an action is not brought within
a period of two years, reckoned from the date of arrival at the destination, or
from the date on which the aircraft ought to have arrived, or from the date on
which the carriage stopped.
At the time of the alleged incident, plaintiff was traveling from Charlotte, North
Carolina, to Santo Domingo, Dominican Republic. (See Aff. of M. Marrissa Goss ¶¶ 8, 10.)
Therefore, plaintiff was engaged in international travel when she was allegedly injured.
Furthermore, both the United States and the Dominican Republic are signatory countries of
the Montreal Convention. See Montreal Convention, Art. 1. Finally, it is undisputed that
plaintiff’s alleged injuries were caused by an “accident” within the meaning of the Montreal
Convention. See id. Art. 17, § 1. The only disputed issue on defendants’ motion for
summary judgment is whether plaintiff was in the process of “embarking” the plane when
she was injured. If she was “embarking” the plane when she was injured, then plaintiff’s
claims are subject to the Montreal Convention’s two-year statute of limitations, and her
claims are time-barred. Courts have held that “[w]hether 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 to be decided by the court based on the facts of each case.’” Dosso v. British
Airways, PLC, Civ. No. AW-07-2710, 2010 WL 64922, at *4 (D. Md. Jan. 5, 2010) (quoting
Acevedo-Reinoso v. Iberia Lineas Aereas De Espana S.A., 449 F.3d 7, 12 (1 st Cir. 2006)).
Courts consider the following factors in determining whether a passenger was “in the process
of embarking” a plane within the meaning of the Montreal Convention: (1) the activity of the
passenger at the time of the accident; (2) the restrictions, if any, on the passengers’
movement; (3) the imminence of actual boarding; and (4) the physical proximity of the
passengers to the gate. See Day v. Trans World Airlines, Inc., 528 F.2d 31, 33-34 (2d Cir.
In support of the motion for summary judgment, defendants have submitted the
affidavit of M. Marrissa Goss, a team leader in the Department of Risk Management for
American Airlines, Inc. (See Aff. of M. Marrissa Goss, Ex. 2 to doc. 9.) Both Goss’s
affidavit and plaintiff’s amended complaint establish that the alleged accident occurred while
plaintiff was in the process of “embarking,” i.e., boarding her plane to the Dominican
Republic.2 That is, Goss’s affidavit specifically states that
[w]hile checking into her flight at Charlotte Douglas International Airport the
Plaintiff was checked in under all the guidelines and protocols of an
international passenger and was issued a boarding pass for her final
destination to Santo Domingo, Dominican Republic. After completing the
process of checking in and checking her international baggage, the Plaintiff
allegedly sustained personal injuries while embarking onto her flight at the
Charlotte Douglas International Airport.
(Goss Aff. ¶¶ 10, 11.) Furthermore, plaintiff alleges that she was injured while “boarding”
her flight no less than eleven times in her amended complaint. (See Am. Compl. ¶¶ 5B, 7A,
7B, Claims Section ¶¶ 1, 1(c), 1(d), 1(e), 1(f), 1(h), 1(i).)
In her brief in response to defendants’ summary judgment motion, plaintiff now
argues that she was not in the process of embarking when she was injured. (See Pl.’s
Goss further states in her affidavit that neither American Eagle, Inc. nor American
Airlines, Inc. delivered the wheelchair to plaintiff, nor does either entity have any control over
the provision of wheelchairs. (Goss Aff. ¶¶ 12, 13.) Goss states that, instead, defendant
Charlotte Skycap Service, Inc. provides wheelchairs. (Id.)
Response Br. p. 4 (“Plaintiff contends she did not ‘embark’ the plane when a wheelchair was
provided at the baggage check-in area. Plaintiff was not boarding the plane and did [sic?]
go beyond the ticket counter.”)) As defendants note, however, this contention clearly
contradicts plaintiff’s allegations in her amended complaint that she was injured while in the
process of boarding her flight. Plaintiff cannot contradict the allegations of her own
complaint in order to create a genuine issue of material fact and therefore avoid summary
judgment. Lucas v. Burnley, 879 F.2d 1240, 1242-43 (4 th Cir. 1989).
More significantly, however, plaintiff has produced no admissible evidence in
response to defendants’ summary judgment motion. That is, plaintiff has not even submitted
an affidavit to support the contention in her response brief that she was not in the process of
embarking when she was injured. As noted, courts consider several factors in determining
whether a plaintiff was embarking, including the imminence of actual boarding and the
physical proximity of the passengers to the departure gate. Furthermore, courts have
generally found the existence of “embarkation” only where a passenger has already passed
through the departure gate. See Barratt v. Trinidad & Tobago (BWIA Int’l) Airways Corp.,
No. CV 88-3945, 1990 WL 127590, at *3-4 (E.D.N.Y. Aug. 28, 1990) (where the passenger
had checked her luggage, had received her boarding pass, had cleared security, and was in
an area reserved exclusively for ticketed passengers, she was “actively engaged in
preparations to board the plane” and where the court dismissed the claim as barred by the
two-year statute of limitations under the Warsaw Convention, predecessor to the Montreal
Convention); Day, 528 F.3d at 33 (finding that the passengers were embarking where they
were in an area immediately adjacent to the departure gate); cf. Dick v. Am. Airlines, Inc.,
476 F. Supp. 2d 61, 64 (D. Mass. 2007) (where the passenger was traveling from an arrival
gate to a departure gate and was injured on an airport terminal escalator when the passenger’s
mother, who required a wheelchair, fell backwards onto the passenger, the passenger was not
“embarking” within the meaning of the Warsaw Convention; thus, the Convention did not
preempt the passenger’s state law negligence claim against the airline and the company that
provided courtesy wheelchair service).
Plaintiff could have submitted an affidavit that attested to the above-cited factors in
support of her argument that she was not embarking the plane. For instance, she could have
stated in an affidavit that, although she had received her boarding pass, she still had an hour
before departure and she was free to roam the airport, or that, although she had received her
boarding pass, she was still physically far away from her departure gate. Factors such as
these would have tended towards a finding that plaintiff was not embarking and that she was
not subject to the Montreal Convention.3 Plaintiff has, however, wholly failed to submit any
such evidence. Instead, the only admissible summary judgment evidence before the court
is the affidavit of Goss, in which Goss states that when plaintiff was injured she had already
received her boarding pass and that she was “embarking onto her flight” to Santo Domingo.
The court notes that at least one other federal district court has held that the mere fact
that a passenger has requested wheelchair assistance does not mean that the passenger is under
the airline’s control for the purposes of finding that the passenger was in the process of
“embarking.” See Pacitti v. Delta Air Lines, Inc., No. 04-CV-3197, 2008 WL 919634, at *6
(E.D.N.Y. Apr. 3, 2008). Of course, here, defendants contend, and plaintiff does not deny, that
defendant Charlotte Skycap, Inc. was the entity that provided wheelchair service to plaintiff.
For this reason alone, defendants are entitled to summary judgment.4
For the reasons stated herein, the court finds that the Montreal Convention applies to
plaintiff’s injuries here and expressly preempts any state law claims brought by plaintiff.
Furthermore, the two-year statute of limitations of the Montreal Convention applies.
Because this action was not filed within the Montreal Convention’s two-year statute of
limitations, plaintiff’s lawsuit is time-barred. In sum, defendants’ motion for summary
judgment (doc. 9) is GRANTED and this action is dismissed with prejudice as to all
IT IS SO ORDERED.
Signed: October 25, 2011
Defendants contend that, in any event, defendant American Airlines, Inc. must be
dismissed because American Eagle Airlines, Inc. operated the flight, and American Eagle, Inc.
and American Airlines, Inc. are separate corporate entities. Furthermore, defendant American
Eagle Airlines, Inc. contends that, even if North Carolina’s three-year statute of limitations were
to apply, the action would be time-barred as to American Eagle because plaintiff did not name
American Eagle in her original complaint. The court does not need to address these arguments
because the two-year statute of limitations under the Montreal Convention clearly applies and
dismissal is appropriate as to all defendants.
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