| N.Y. App. Term. | Nov 26, 1976
Dissenting Opinion
(dissenting). I dissent and vote to affirm for the reasons set forth in the opinion of Danzig, J., at Trial Term, except as indicated at the end of this memorandum.
In my view, there was sufficient evidence in the record for the trial court to find in the unique and unusual factual pattern under review that the act of defendant, by its employee, in refusing to remove plaintiffs’ luggage from its plane
Plaintiffs’ recovery was not limited by defendant’s filed tariff to the loss of their personal property. Individuals and corporations engaged in quasi-public business may not contract to absolve themselves from liability for their own willful misconduct or gross negligence (Johnson v Home Lines, 48 Misc. 2d 1090" court="N.Y. City Civ. Ct." date_filed="1965-11-10" href="https://app.midpage.ai/document/johnson-v-homes-lines-inc-6187558?utm_source=webapp" opinion_id="6187558">48 Misc 2d 1090; Krivitsky & Cohen v Western Union Tel. Co., 129 Misc. 431" court="None" date_filed="1927-04-27" href="https://app.midpage.ai/document/krivitsky--cohen-incv-western-union-telegraph-co-6152875?utm_source=webapp" opinion_id="6152875">129 Misc 431, mod on other grounds 227 NYS 836, citing Weld v Postal Tel.-Cable Co., 199 NY 88).
Tishman & Lipp v Delta Air Lines, 275 F Supp 471, affd 413 F2d 1401), relied on by appellant is not applicable. Plaintiffs’ luggage contained the usual apparel and accoutrements of vacationers, not thousands of dollars worth of jewelry.
The award to plaintiff Hermaine K. Cohen, however, was excessive. Contrary to the finding below, her medicines were not in the lost luggage; she had them with her. I would therefore reduce her award for distress and inconvenience by $250.
Concur — Dudley, P. J., and Tierney, J.; Riccobono, J., dissents in a memorandum.
Lead Opinion
Judgment entered December 15, 1975 modified by decreasing the total recovery to the sum of $700, with interest and costs; as modified, affirmed, without costs.
There was insufficient evidence in the record to support the trial court’s finding that the act of defendant in refusing to unload all luggage from its plane in Rio de Janeiro constituted "wilful misconduct” within the purview of subdivision (1) of article 25 of the Warsaw Convention (49 US Stat 3020; Grey v American Airlines, 227 F2d 282).