MEMORANDUM, ORDER, & JUDGMENT
I. Intrоduction and Synopsis.................................................351
II. Facts ..........-.........................................................353
A. Parties..............................................................353
B. Terminal’s Contractual Rights and Responsibilities........................354
C. Terminal’s Snow Plan.................................................354
D. Snowstorm of December 2010 ..........................................355
E. Understaffing........................................................355
F. Failure to Warn......................................................356
G. Trapped Passengers ..................................................357
H. Conditions at Other Facilities ..........................................358
1. International at JFK..............................................358
2. Domestic at JFK..................................................358
3. Nearby Airports..................................................359
I. Effect of Incident on Plaintiff..........................................359
III. Jurisdiction..............................................................359
IV. Summary Judgment Standard..............................................360
V. Choice of Law............................................................360
VI. International Law........................................................361
A. Montreal Convention Preempts Claims Against Carriers and Their Agents............................................................361
B. Terminal is an Agent of Air Carriers....................................363
C. Articles 17 and 19 Do Not Permit Claims for Emotional and Dignitary Harm.............................................................364
1. Article 17........................................................364
2. Article 19........................................................366
D. No Recovery Under Convention........................................368
VII. New York State Law......................................................368
A. Negligence ..........................................................368
1. Standard.........................................................369
2. Terminal Had a Duty to Plaintiff....................................369
3. Liability for Emotional Distress.....................................372
B. Intentional Infliction of Emotional Distress ..............................377
C. False Imprisonment ..................................................378
D. No Recovery Under New York Law.....................................381
VIII. Conclusion...............................................................381
I. Introduction and Synopsis
Plaintiff alleges that she was kept locked in an aircraft on the ground without food, water, or adequate sanitary facilities for seven hours, suffering mental distress. Hers is a most appealing case. Yet the law can only give her sympathy, not mone
From December 26th to 27th, 2010, during the height of the holiday travel season, the New York metropolitan area was- — • somewhat unexpectedly — -blanketed with over a foot of snow. John F. Kennedy International Airport (JFK) was closed to air traffic for the worst of the storm. When it reopened, there were continuing problems. Passengers on arriving flights were forced to endure substantial waits after landing before they were able to disembark. Difficulties appear to have been particularly severe at terminals serving international flights. The events sparked a federal investigation and new regulations that forbid foreign air carriers from permitting international flights to remain on the tarmac at a United States airport for more than four hours without allowing passengers to deplane. See Enhanсing Airline Passenger Protections, 76 Fed.Reg. 23110, 23110 (Apr. 25, 2011) (extending existing regulations, which applied to domestic carriers, to foreign carriers).
Plaintiff Vivian Vumbaca was one of the stranded passengers. Trapped for most of the night aboard an Alitalia flight from Rome that had arrived at Terminal One, she was forced to endure, as she put it, “cramped, uncomfortable, malodorous conditions, without food, water and sanitation” for nearly seven hours. Pl.’s Mem. of Points and Authorities in Opp. to Def.’s Mot. for Summ. J. 1, Doc. Entry 22, Jan. 31, 2012 (“Pl.’s Summ. J. Mem.”). This resulted, according to her, in “severe emotional distress.” Compl. ¶ 19, Doc. Entry 1, Nov. 10, 2011 (“Compl.”).
She sued Terminal One Group Association, L.P. (TOGA), which operates Terminal One, and seeks to represent similarly situated passengers claiming emotional harms resulting from negligence, false imprisonment, and intentional infliction of emotional distress. See generally Compl. She initially pled simple state law causes of action for negligence, false imprisonment, intentional infliction of emotional distress, and prima facie tort (presumably under New York law). She now concedes that the prima facie tort claim should be dismissed. PL’s Summ. J. Mem. 22.
Defendant moves to dismiss all of plaintiffs claims on the ground that plaintiff failed to state a claim under New York law. Def.’s Mot. to Dismiss for Failure to State a Claim, Doc. Entry 12, Dec. 9, 2011.
At the court’s direction, the motion directed at the pleadings was converted to one for summary judgment. Order, Doc. Entry 14, Dec. 20, 2011. Briefing was also ordered on the applicability and effect of the Montreal Convention, an international treaty governing the liability of air carriers and their agents. Order, Doc. Entry 33, Feb. 16, 2011; see The Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, reprinted in S. Treaty Doc. No. 106-45,
Plaintiff initially оnly claimed tort damages under New York State law for “hunger, thirst, foul air, and the absence of sanitary facilities.” Compl. ¶ 19. After the court pointed out legal difficulties in her original claim due to her lack of physical injury, she sought, in effect, to amend her complaint through her brief. She now claims that the Montreal Convention permits her to recover for the harms initially alleged. She also says she is “entitled to recover, under the ... Montreal Convention, damages for: delay and inconvenience including economic losses ... [and] out-of-pocket losses for delay of baggage.”
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, only “a short and plain statement of [the facts of] the claim showing that the pleader is entitled to relief is required, not legal analysis.” Plaintiff’s original statement of the facts in her complaint supports her legal theory and claim for emotional and dignitary harms under the Convention. This new theory of relief will be considered.
There is no reason to permit plaintiff to go forward on her new claims for economic loss due to delay of her baggage. The many factual questions of when her baggage was offloaded, what caused its delay, when it was made available to her, and why and to what extent she suffered economic loss due to baggage delay, will require additional costly discovery. Any economic costs due to delays in baggage delivery do not warrant the extensive cost of extended litigation, since any recovery is likely to be de minimis.
As to the claim for economic loss due to delay of the person, only a taxi fare of $55 is clаimed. See Part II(I), infra. No factual claim under Rule 8 was made in the complaint for economic loss due to delay. The large cost of permitting discovery at this late date on economic loss is unwarranted, particularly since so small a sum is involved.
An amendment of the complaint will not be authorized at this late stage in the proceeding. The court will only consider the claims relating to the harms initially raised by the complaint and motion for summary judgment — those for injury to the person.
Analysis of the applicable legal theories may be helpful to the reader. Two bodies of law need to be considered. Since defendant TOGA is an agent of the air carriers it serves, plaintiffs state tort claims are preempted by the Montreal Convention, and she can only recover to the extent permitted by it. See Part VI(A), infra. Plaintiff argues that the Convention would permit her to recover under either Article 17 or Article 19. PL’s Injury Mem. 1. Article 17 governs-injuries to the person that occur on aircraft or while embarking or disembarking — as occurred in this case. See Part VI(C), infra. While applicable, Article 17 does not permit recovery because plaintiff has not suffered a “bodily injury,” as required by that provision. Id. Similarly, Article 19, which covers damages caused by delay, only permits recovery of economic loss, not the physical harms sought under plaintiffs complaint. See Part VI(B), infra.
Were the terminal to be found not to be an agent of the air carrier, then New York common law, rather than the Convention, would apply. Plaintiffs intentional tort claims under New York law are without merit. See Parts VII(B)-(C), infra. Nor can plaintiff recover under a theory of negligence, since New York law generally denies recovery for emotional distress in the absence of an accompanying or consequential physical injury — which is lacking here. See Part VII(A), infra.
Because plaintiffs claims fail under either body of applicable law, defendant’s motion for summary judgment is granted.
II. Facts
A. Parties
Plaintiff is a legal permanent resident of the United States residing in New York. Compl. ¶ 10. She sues TOGA, a New York
B. Terminal’s Contractual Rights and Responsibilities
Under the terms of its lease agreement with the owner and operator of JFK, the Port Authority of New York and New Jersey (Port Authority), TOGA “agreefd] to provide service at the premises for the benefit of the traveling public.” TOGA Lease at 188. It assumed “the entire responsibility for ... all repair, ... and maintenance whatsoever in the premises, whether such repair ... or maintenance be ordinary or extraordinary, [including] ... removing] all snow and ice and performing] all other activities and functions necessary or proper to make the premises available for use.” Id. at 74 (emphasis added). TOGA further agreed to “furnish all necessary or proper personnel, ... and facilities [and] ... furnish such services promptly, efficiently, and adequately to meet the demands therefor.” Id. at 62.
TOGA had sole responsibility for managing the gates by which passengers moved between the terminal and an airplane. Junge Dep. 118:24-119:2. This included the duty and discretion to select a ground handling provider to move planes to and from the gates. Alitalia Lease at TOGA 000096. A four-person crew is typically required: a “pushback” operator who moves the aircraft away from the gate; two “wing walkers” who ensure adequate clearance; and a supervisor. PL’s Rule 56.1 Statement Ex. 6, at 192:5-19 (Dep. of Neil Samaroo), Doc. Entry 23, Jan. 31, 2012 (“Samaroo Dep.”). TOGA subcontracted with Aircraft Service International Group (ASIG) for ground handling. PL’s Rule 56.1 Statement Ex. 7 (Contract Between TOGA and ASIG), Doc. Entry 23, Jan. 31, 2012 (“ASIG Contract”).
Pursuant to its contract with TOGA, Alitalia agreed to “indemnify and hold harmless” TOGA “from ... all claims of third parties or otherwise, including claims for death, personal injuries or property damages arising out of ... the use or occupancy of the Terminal One Facilities.” Alitalia Lease at TOGA_000060. Alitalia also agreed to:
indemnify, defend and hold harmless [ASIG] from and against all claims, losses, liability, damages, causes of action and judgments, including all costs and expenses incident thereto ... on account of ... injury to or death of any person, arising out of the negligence or willful misconduct of [ASIG], its employees, officers, directors,' or partners in furnishing services pursuant to this agreement.
Id. at TOGA_000096.
C. Terminal’s Snow Plan
TOGA has a written snow plan. PL’s Rule 56.1 Statement Ex. 8 (Terminal One Snow Plan), Doc. Entry 23, Jan. 31, 2012 (“TOGA Snow Plan”). It allocates responsibility and outlines procedures for clear
It may be necessary to coordinate with carrier maintenance representatives to move aircraft back from the gates to facilitate plowing. ASIG should be aware of this possibility and have qualified push-back personnel available. Close coordination is essential for safe operation.
Id. at TOGA_000012.
Pursuant to the snow plan, some of TOGA’s contractors, such as Airway Cleaners, Inc. (ACI), are required to “freeze”- — i.e., extend — their employees’ shifts in the event of а snow operation. Id. at TOGA_000016 (stating that employees of ACI who are on duty during a snow operation “will have their shift ‘frozen’ until further notice to supplement incoming shifts”); see also Samaroo Dep. 146:21-147:15. ASIG, which provided ground handling, was not required to “freeze” its staffing during a snow event. See Samaroo Dep. 147:16-19; see generally ASIG Contract.
D. Snowstorm of December 2010
On December 23, 2010, the Port Authority, recognizing the severity of the oncoming storm and its potential impact on airport operations, declared a snow emergency. Junge Dep. 107:19-20. To prepare, the Port Authority brought in extra employees and placed them in an airport hotel to ensure adequate staffing. Id. 107:19-108:13.
On December 25th, TOGA advised air carriers which used Terminal One that “all service providers are prepared and ready with manpower and equipment.” Pl.’s Rule 56.1 Statement Ex. 9, at TOGA-000196 (Summary of Events Created by Neil Samaroo), Doc. Entry 23, Jan. 31, 2012 (“Samaroo Summ.”).
Snow began falling at 10:18 a.m. on December 26, 2010. Pl.’s Rule 56.1 Statement Ex. 4, at 1 (JFK Airport Operations Log), Doc. Entry 23, Jan. 31, 2012 (“JFK Operations Log”). The airport was closed at 7:17 p.m. that evening. Id. at 3.
According to the defendant’s “Daily Shift Report,” “all of [TOGA’s] carriers were asked to either consolidate flights, delay, or cancel altogether” that day. PL’s Rule 56.1 Statement Ex. 18 (Daily Shift Report), Doc. Entry 23, Jan. 31, 2012. Nine incoming international flights to Terminal One were cancelled by airlines on December 26, 2010. JFK Operations Log at 3. Sixteen flights bound for Terminal One were cancelled by airlines on the 27th. Samaroo Summ. at TOGA_000201.
The storm ended on December 27th at approximately 8:00 a.m. JFK Operations Log at 6. Over fifteen inches of snow had fallen. Id. The airport reopened at 6:07 p.m. that day. Id. At that time, all the gates at Terminal One were still occupied with aircraft that had been prepared for departure when the airport closed the previous night. Samaroo Dep. 75:19-76:22.
E. Understaffing
ASIG had sufficient staff at Terminal One on the morning shift of December 26th. Samaroo Dep. 81:3-20. While some employees stayed рast the end of their shift, most went home. Id. Staff from subsequent shifts did not arrive. As early as 1:00 p.m. on December 27th, 80% of ASIG’s scheduled employees were absent. Pl.’s Rule 56.1 Statement Ex. 12 (Email from Ed Paquette to TOGA’s Officers), Doc. Entry 23, Jan. 31, 2012. By December 28th, ASIG was operating with an 85-90% staffing deficit. PL’s Rule 56.1 Statement Ex. 10 (Email from Ed Paquette to TOGA’s Officers), Doc. Entry 23, Jan. 31, 2012 (“Dec. 28 Email from Ed Paquette”). Normally one hundred ASIG ground handlers were required to operate Terminal
Without sufficient ground staff, both departing and arriving aircraft experienced delays in moving to and from the gates. Samaroo Summ. at TOGA_000210. Aircraft blocked gates from between twenty-four hours and three days. Id. at TOGA_000207-09. And planes could not be moved to fully clear the snow on the tarmac. Id. at TOGA_000210; see also Samaroo Dep. 81:23-83:12 (“[T]he personnel that were on duty were not sufficient enough to even accommodate us moving an aircraft off the gate in order for snow removal to be done.”).
While TOGA had mobile stairs and buses available to help disembark aircraft passengers at a remote location away from the terminal, it was unable to use this equipment because of uncleared snow, ramp conditions, and a lack of staff to operate equipment. Samaroo Dep. 137:16-140:3.
ACI, which had frozen its employee’s shifts, was adequately staffed during this period. Dec. 28 Email from Ed Paquette. So were other subcontractors that serviced Terminal One, including companies responsible for cleaning planes and for operating restaurants in the terminal. Id. Like ASIG staff, many of these employees relied on public transportation to get to Terminal One. Id.
Another ground handling company that serviced different terminals, Swissport, took affirmative steps to ensure adequate staffing during and following the snow emergency. It arranged accessible meeting places аnd sent vehicles to neighborhoods where employees lived to transport them to the airport. Junge Dep. 203:15-205:19. But defendant notes that, at Terminal Four, Swissport operated with only 10% of normal personnel. Id. at 189:5-189:13, 205:13 -205:19. Defendant also points to evidence that the entire airport was staffed at approximately 10% of its regular needs, and that similar staffing problems were experienced at Terminals One, Four, Seven, and Eight. Id. at 94:11-96:6.
F. Failure to Warn
In the event of adverse conditions at the terminal, TOGA’s practice is to contact the local station managers of the airlines it services rather than to contact the headquarters of those airlines. Samaroo Dep. 49:23-25. Local station managers do not have the authority to cancel flights that begin abroad. Junge Dep. 190:7-191:5; Samaroo Dep. 125:21-126:6; 162:13-17; 174:2-14.
As events developed on December 27th-28th, phone calls were made by TOGA to the local station managers “generally pertaining to the events that took place” and “advis[ing] the earners [of] the conditions that the terminal was in, the progress of the snow removal process, the staffing situation with the ground handler that we were having and the fact that there w[ere] no gates available for inbound flights, and to cancel flights.” Samaroo Dep. 206:20-207:21. Plaintiff claims that Samaroo’s testimony that TOGA told Alitalia to cancel its flights is contradicted by other documentary evidence and is not credible. Pl.’s Summ. J. Mem. 12-13 (“[T]he written summary of events does not reflect [that these calls were made], nor does it reflect any calls to Alitalia.... [T]he summary shows that only two carriers operated flights after being advised not to do so.... It makes no sense that his summary would have specifically mentioned those two carriers if all the carriers who sent flights had ignored TOGA’s instructions.”). There are no written records of these claimed cancellation calls. Although daily shift reports are regularly used by TOGA, Samaroo
On December 28th at 2:50 a.m., TOGA Manager on Duty, Miguel Arvelo, emailed Alitalia’s local manager, Gaetano Messina:
I know during our previous conversation you agreed to delay flights if necessary. At this time I do not think adding an additional flight to tomorrow’s operation would be wise. I must insist that you consider delaying and/or canceling at least one of these flights [AZ608; AZ604; AZ610; AZ6608]. Due to can-celled and delayed flights there may not be enough gates to handle even regularly scheduled flights.
PL’s Rule 56.1 Statement Ex. 15 (Email from Miguel Arvelo to Gaetano Messina), Doc. Entry 23, Jan. 31, 2012 (emphasis added). At 9:00 a.m. that same morning— before plaintiffs flight left Rome, Italy— Ed Paquette, Executive Director of Terminal One Management, Inc., emailed TOGA’s officers:
Here we are day three and ASIG is still having staffing issues.... I am philosophically opposed to paying for a service I did not receive, particularly on this grand of a scale I am seriously contemplating withholding payment for the last three days, not partial payment but full payment.
Dec. 28 Email from Ed Paquette.
On December 28th, three Alitalia flights were delayed in setting off for New York for between one and three hours; none were cancelled. PL’s Rule 56.1 Statement Ex. 16 (Historical Schedule for 12/28/2010), Doc. Entry 23, Jan. 31, 2012. The departure of plaintiffs flight from Italy was delayed for one hour. Id.
One or more airlines other than Alitalia were apparently “guaranteed” a gate at Terminal One prior to their departure from abroad, but these- planes were nevertheless forced to wait -for hours on the tarmac before being permitted to access a gate and offload passengers. PL’s Rule 56.1 Statement Ex. 19 (JFK Post-Blizzard Foreign Carrier Tarmac Delays: Synopsis of Incidents for FAA Feb. 8, 2011), Doc. Entry 23, Jan. 31, 2012 (FAA Synopsis).
Both before, during, and after the storm, TOGA never communiсated directly with the headquarters of the foreign airlines it services regarding conditions at the terminal, although it could have done do. Samaroo Dep. 187:11-188:5.
G. Trapped Passengers
Because- of the inadequate ground handling staff,, planes arriving at Terminal One were unable to access gates in a timely manner, whether because those gates were blocked by empty aircraft or because the approach was blocked by snow. Nor was there any . other feasible means of disembarking those passengers. See Part 11(D), supra.
Between the afternoon of December 28th and the morning of December 29th, there were at least sixteen flights arriving at Terminal One with tarmac delays in excess of four hours. Samaroo Summ. at 1L
Without any- means of egress from the aircraft, passengers were effectively trapped. Toileting conditions became unsanitary. Compl. ¶ 7. There was limited food and water. Id.; see also Aff. of Michael J. Holland Ex. B (Dep. of Vivian Vumbaca 19:15-20:5; 21:3-25) (“Vumbaca Dep.”).
Plaintiff was one of the stranded passengers. When her flight landed on December 28th at 7:22 p.m., PL’s Rule 56.1 Statement Ex. 16 (Historical - Schedule for 12/28/2010), Doc. Entry 23, Jan. 31, 2012, the aircraft could not reach the taxiways, nor could emergency equipment reach the aircraft. Compl. ¶¶ 15-16. She was
H. Conditions at Other Facilities
1. International at JFK
It is unclear whether passengers arriving at other international terminals experienced the same lengthy delays experienced by plaintiff and her fellow passengers at Terminal One. At Terminal Eight, for example, American Airlines told Finn Air that the terminal was closed and not to send any flights until further notice. Junge Dep. 195:15-197:16. There were no extended tarmac delays at that terminal. Junge Dep. 172:7-177:4. Similarly, on December 28, 2010 at 10:00 a.m., Terminal Four sent a “blast fax to all of the airlines [it serviced] ... that they are not accepting аny arrivals until [6:00 p.m. local time].” JFK Operations Log at 12. Flights arriving at Terminal Four experienced tarmac delays of four and a half hours or less. See Pl.’s Rule 56.1 Statement Ex. 13 (Tarmac Times), Doc. Entry 23, Jan. 31, 2012; Junge Dep. 172:7-177:14.
Defendant points to several instances in which passengers on Cathay Pacific flights — a Terminal Seven carrier — endured tarmac delays of four and a half to nearly eleven hours. FAA Synopsis at 2. Similarly, at Terminal Four, five flights experienced delays of over three and a half hours. Id.
International flights throughout JFK may have experienced problems similar to those experienced at Terminal One because of difficulties in interfacing with foreign carriers.
Terminals dominated by foreign international carriers (TI, T4, T7) definitely had more of a problem managing gate throughout than the ones managed by U.S. carriers (T2/3, T5, T8) due to the greater complexity of numerous small carriers with oversea decision making on schedule.... [Terminals a]dvised they have limited control over airline decision to launch international arrivals despite knowing JFK’s field and terminal conditions .... [They a]dvised that some international carrier prefer to have arrival come into JFK with a prolonged wait rather than divert. Some international carriers launch arrivals before they know the details of the opening airport.
Aff. of Michael J. Holland Ex. 22 (Feedback from the January 4, 2011 Meeting with the Terminal Operators & Federal Agencies), Doc. Entry 26, Feb. 7, 2012; see also Junge Dep. 191:5-12 (“[T]he biggest problem I can synopsize out of this whole thing is the individual carriers, business models took precedence over what was really available, able to happen, be accommodated at the airport.”).
2. Domestic at JFK
Conditions at terminals serving domestic flights were not as severe as those at Terminal One. There were at most four domestic flights with tarmac delays in excess of three hours between December 26th and 29th. Jungе Dep. 164:11-16; 166:14-24; see also PL’s Rule 56.1 Statement Ex. 20 (Bureau of Transportation Statistics), Doc. Entry 23, Jan. 31, 2012 (showing no domestic flight delays of three hours or more at JFK during the month of December 2010).
Plaintiff alleges that the international terminal was not cleared of snow, and international passengers were subjected to adverse treatment, because airlines were subject to fines if passengers on domestic flights were kept on the tarmac for more than three hours. Compl. ¶ 5; see also Enhancing Airline Passenger Protections, 73 Fed.Reg. 74,586 (proposed Dec. 8, 2008) (to be codified at 14 C.F.R. pts. 234, 259,
Defendant points to testimony that domestic carriers were also less severely affected than international carriers because the former are able to cancel or divert flights to alternative airports more rapidly. Junge Dep. 262:2-262:2.
3. Nearby Airports
Although other airports in the region— including Newark, LaGuardia, Boston, Philadelphia, and Bradley — were similarly affected by the storm, there were no tarmac delays in excess of three hours at any of them. Junge Dep. 167:1-171:21.
I. Effect on Plaintiff
Following an initial hearing held on February 23, 2012, at the court’s suggestion, the parties conducted additional discovery as to the injuries plaintiff suffered due to her entrapment aboard the aircraft. At her deposition, plaintiff testified that she suffered headache, nausea, and exhaustion as a result of the incident:
The injury is dehydration, headache. And the air was unbelievable. And there was no water. The only liquid that you could have was juice. And there was no food apart [from] snacks. And there was a smell of the bathroom that was just in my back, because I was seated in front of the bathroom. It was horrible. And I’m sure each one of the passengers will say the same thing.
I didn’t get any bruises, but I think somеtimes it can be worse than that. You know, like waiting forever, with no drinks, and there was no way you could get out of the airplane, and nobody would tell you how long you would be there. And the bathroom was almost unusable. And there was no fresh air whatsoever. So I don’t know. The problem wasn’t a bruise, you know. The problem was that we didn’t have water. We didn’t have like acceptable food, and we were there waiting forever, sitting in a very confined area. And that’s what it was.
I was nauseous for the following three days. I had stomachache, I was very tired.
Vumbaca Dep. 19:15-20:5; 21:3-25; see also Pl.’s Injury Mem. Ex. A (Deck of Vivian Vumbaca ¶ 1), Doc. Entry 45, Apr. 2, 2012 (“Vumbaca Deck”) (“I suffered physical injury, including dehydration, headache, and nausea. I was also physically disgusted by being forced to breathe stale, foul air. I also experienced hunger and thirst, as well as' physical discomfort as a result of being confined to a small space, with little room to move, and inadequate restroom facilities. As a result of these physical conditions, I was physically exhausted for several days, which interfered with my normal activities.”).
Plaintiff also claims that she suffered out-of-pocket and other monetary damages as a result of the tarmac delay. She states that, had her plane disembarked at 6:30 p.m. as scheduled, she would have either taken the train home or had a friend pick her up at the airport. Vumbaca Deck ¶ 3. Because she was not able to leave the airport until after 2:30 a.m., she instead paid approximately $55 for a cab. Id. Since her baggage was not immediately available when she disembarked, she claims she was forced to purchase replacements of personal items, including a toothbrush and toothpaste, costing $50. Id. ¶ 4. She also purchased Advil to treat her headache at a cost of $15. Id. ¶ 5.
III. Jurisdiction
Since plaintiffs complaint alleged only New York State tort claims, jurisdiction
Now that plaintiff also claims under the Montreal Convention, there is federal question jurisdiction. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”); Montreal Convention art. 33 (“1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination. 2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in рaragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.” (emphasis added)).
IV. Summary Judgment Standard
Summary judgment is appropriate if “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); see Anderson v. Liberty Lobby, Inc.,
V. Choice of Law
A federal court sitting in diversity applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co.,
To the extent there is any conflict issue, New York law applies. The instant case arises out of common law rules regulating conduct — i.e., the torts of negligence, false imprisonment, and intentional infliction of emotional distress. The plaintiff is a New York resident, and the defendant a limited liability partnership with its principle place of business in New York. The incident sued on occurred in New York. Neither party contests that New York cases are controlling; New York law therefore controls. See Stagl v. Delta Airlines, Inc.,
VI. International Law
The Montreal Convention preempts state law claims against international air carriers or their agents. TOGA is an agent of the air carriers it serves, since the actions it took were in service of the carriers’ contract of carriage — i.e., assisting them in completing its passengers’ journey. Because TOGA is the air carrier’s-agent, plaintiff can only recover to the extent permitted by the Convention.
Plaintiff alleges that the Convention permits her to recover for “bodily and emotional injury” and “pain and suffering for emotional injury” under Article 17, as well as for inconvenience and false imprisonment under Article 19. See Pl.’s Mem. of L. Addressing the Warsaw and Montreal Conventions in Response to the Court’s Request, Doc. Entry 39, Feb. 23, 2012; PL’s Injury Mem. 1. As pointed out below, these claims are without merit. Plaintiff cannot recover under Article 17, which only permits recovery for “bodily injuries” that occur on board aircraft, not the emotional harms she claims. Nor does Article 19 permit recovery for the non-economic harms claimed. As noted in Part I, while plaintiff now seeks to add claims for econоmic harm, these claims will not be considered because they are de minimis and were not sought in the complaint.
A. Montreal Convention Preempts Claims Against Carriers and Their Agents
The Montreal Convention, an international treaty to which the United States is a party, establishes a uniform system of liability for international air carriers. See generally Montreal Convention; see also Ehrlich v. American Airlines,
The Convention’s limitations on liability extend to agents of the carrier. The Convention provides that:
If an action is brought against a servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention.
Montreal Convention art. 30; see also id. art. 43 (“In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if they prove that they acted within the scope of their employment, be entitled to avail themselves of the conditions and limits of liability which are applicable under this Convention to the carrier whose servant or agent they are, unless it is proved that they acted in a manner that prevents the limits of liability from being invoked in accordance with this Convention.”). Although the explicit language extending coverage to agents was an addition to the Montreal Convention, courts interpreting its predecessor treaty had extended its conditions and limits of liability to the agents and servants of the air carrier. See Reed v. Wiser,
If a party is not an agent of an air carrier, then the Convention has no effect on its liability under local law. Montreal Convention art. 37 (“Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.”); see also Ugaz v. American Airlines, Inc.,
The remedy the Convention provides against international air carriers and their agents is exclusive. When operative, it preempts all state law claims for damages against air carriers and their agents. Montreal Convention art. 29 (“In the carriage of passengers, baggage and cargo, 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
B. Terminal is an Agent of Air Carriers
The Convention does not define “agent.” The Supreme Court has provided no guidance.
The Court of Appeals for the Second Circuit has held that the airline employees are agents covered by the Convention. Reed,
[t]o permit a suit for an unlimited amount of damages against a carrier’s employees for personal injuries to a passenger would unquestionably undermine this purpose ..., since it would permit plaintiffs to recover from the carrier through its employees damages in excess of the Convention’s limits.
Id. The court did not rule on whether other entities might also be considered agents, or establish a test by which it could be determined when an entity is an agent covered by the Convention.
Lower courts have held that an entity is an agent of an air carrier if it “perform[sj services in furtherance of the contract of carriage, and ... services within the scope of the Convention that the airline is otherwise rеquired by law to perform.” In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1988,
Convention limits have also been found to apply to air carriers’ ground handling agents. Am. Home Assur. Co. v. Kuehne & Nagel (AG & Co.) KG,
Under the undisputed facts, TOGA is an agent of the air carriers it serves and thus covered by the Convention. Although TOGA is a terminal operator, not an international air carrier, its operations are vital parts of Alitalia’s carriage — particularly those services that are necessary to get planes to and from the gates. While TOGA provided assistance to several air carriers, all the flights it served were international. Compare Dazo v. Globe Airport Sec. Servs.,
No reasonable juror could find that TOGA was not an agent of Alitalia for plaintiffs flight from Rome to New York.
C. Articles 17 and 19 Do Not Permit Claims for Emotional and Dignitary Harm
Since TOGA is an agent of the air carriers, plaintiff can only recover to the extent permitted by the Convention. Plaintiff claims that she is entitled to recover under two provisions: Article 17 and Article 19. She is mistaken.
1. Article 17
a. Claim Falls Within the Substantive Scope of Article 17
Article 17 provides, in relevant part:
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 (emphasis added). The “ ‘substantive scope’ of this article extends to all ‘passenger injuries occurring on board the аircraft or in the course of any of the operations of embarking and disembarking’ — even if the claim is not actionable under the treaty.” King,
Unexpected tarmac delays are treated as “accidents” falling under Article 17. See Chendrimada v. Air-India,
Since plaintiffs injuries occurred on board the aircraft as a result of an accident — i.e., the tarmac delay due to heavy snow — her claim falls within the substantive scope of Article 17.
b. Recovery Limited to Damages Connected to Bodily Injury
Claims for emotional or dignitary injuries are not recoverable under Article 17 unless they are accompanied by bodily injuries. Tseng,
Symptoms experienced must be more severe than mere hunger or thirst to constitute a physical manifestation of injury. In Chendrimada, for example, a plaintiff, after being subjected to an eleven hour tarmac delay, “became weak, experienced nausea, suffered severe cramps, pain and anguish and sufferеd malnutrition as well as mental injury.”
a. Plaintiffs Claim Barred
Since TOGA is agent of international air carriers, plaintiffs claims for
2. Article 19
a. Claim Falls Within the Substantive Scope of Article 19
Article 19 provides:
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
Montreal Convention art. 19 (emphasis added). The cause of delay covered by the provision is not defined.
The cases consider “delay” under Article 19 to mean that the air carrier properly delivered baggage or persons to the appropriate destination but it did so in a untimely manner. Unfortunately, the cases do not line up like ducks in a row. District courts have found that Article 19 applies when a passenger does not arrive on time at her promised destination, such as where a passenger’s flight is cancelled and she books an alternative flight without affording the airline an opportunity to perform its obligations, see, e.g., Paradis,
Most courts agree that Article 19 does not cover actions seeking to recover for contractual non-performance, such as when a passenger who has purchased a ticket is “bumped.” Kg. Wolgel v. Mexicana Airlines,
At least one court has found that tarmac delays, such as those experienced by the plaintiff in the instant case, are covered by Article 19. Daniel v. Virgin Atlantic Airways Ltd.,
Plaintiff was harmed because she was held on the tarmac beyond the designated time for disembarkation. The contract of carriage was performed, but she was denied timely arrival at her destination. She seeks to recover for the harms caused by this delayed arrival. Plaintiffs economic harms thus fall within the substantive scope of Article 19. See Daniel,
b. Recovery for Emotional Harm Not Permitted
Plaintiffs emotional and dignitary harms are not “damage” recoverable under Article 19.
The Convention does not define what kind of “damage” is covered under this Article. The Supreme Court has indicated that Article 19 covers harms that are distinct from the “personal injuries” recoverable under Article 17. See Tseng,
Courts in the Second Circuit have found that Article 19 only applies to “economic loss occasioned by delay in transportation.” Sobol v. Continental Airlines, No. 05-CV-8992,
Emotional harms are not compensable under Article 19. Daniel,
Plaintiff argues, citing Daniel, that damages for inconvenience are not emotional harms and are separately compensable under the Convention. See Daniel,
Mere inconvenience does not support a claim under Article 19. Since plaintiffs only timely claims are for non-economic harms, she cannot recover under Article 19.
D. No Recovery Under Convention
Because TOGA is deemed an agent of air carriers, the Montreal Convention provides the exclusive avenue of recovery, completely preempting her state law claims. Since neither Article 17 (as there is no bodily injury) nor Article 19 (as there is no economic injury) permit compensation for the emotional and dignitary harms alleged in her complaint, plaintiffs Convention-based claims are dismissed.
VII. New York State Law
Should TOGA not be deemed an agent of Alitalia, then the Convention would not preempt plaintiffs state law claims. Montreal Convention art. 37. But her claims would then fail under applicable New York State law. Recovery for purely emotional harms caused by negligence is not permitted under the circumstances of this case. Her claims for intentional infliction of emotional distress and false imprisonment under New York law are equally without merit.
A. Negligence
Plaintiff alleges that TOGA breached its duty of care by failing to ensure that it had adequate ground handling staff in order to permit arriving aircraft to access the gates and permit passengers to disembark. See PL’s Summ. J. Mem. 2. She also claims that “TOGA had a duty to warm airline headquarters to stop launching aircraft to arrive at Terminal One, but failed to do so,” foreseeably leading to her imprisonment on the tarmac. Id. at 1. While plaintiff claims “severe emotional distress,” no physical damages to herself or any third party are alleged. Compl. ¶ 19.
Defendant argues that it did not have a duty to prevent the plaintiffs imprisonment on the tarmac. Def.’s Reply Mem., of L. in Supp. of Mot. to Dismiss Compl. 12, Doc. Entry 25, Feb. 7, 2012. It maintains that its duty to the traveling public is limited to safely maintaining the terminal, implying that the failure to ensure that plaintiff could safely disembark until hours after her arrival was not an unsafe condition which it had an obligation to remedy. Id. Because “there is no allegation that TOGA breached a duty to maintain the premises in a safe condition, nor has plaintiff alleged that any breached resulted in an unsafe condition,” it submits that it cannot be held liable. Id. The defendant also contends that plaintiff has not stated a claim under New York law for the purely emotional harm she suffered because its breach, if any, did not cause her to fear for her safety, nor did it unreasonably endanger her safety. Id. at 13.
Contrary to TOGA’s contentions, terminals have a duty to ensure that passengers
1. Standard
“To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.” Solomon v. City of New York,
Summary judgment in a negligence claim is available “[w]here proof of any essential element falls short.” Basso v. Miller,
2. Terminal Had a Duty to Plaintiff
In operating its terminal, TOGA has duties similar to those of other terminal operators — namely, common carriers. Among these is the duty to ensure timely ingress and egress of passengers using its facilities.
a. Duties of Terminals Generally
As a general rule, “[w]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” Havas v. Victory Paper Stock Co.,
New York law supports the view that the owners and operators of airport terminals have a duty to safely maintain areas under their control. E.g. Mauriello v. Port Authority of N.Y. & N.J.,
Cases dealing with injuries sustained as the result of a defective condition inside the terminal or on its grounds have found liability. See, e.g., Di Benedetto v. Pan Am World Serv.,
b. Duties of Common Carriers
To determine the scope of TOGA’s duty, the court looks to the duty required of others who operate similar terminals and stations — notably, common carriers. See Stagl, 52 F.3d at 467-68 (analyzing duty owed by air carrier, which operated its own terminal, for harm caused to a passenger in that terminal under common carrier rules). “A common carrier ... is one who agrees for a specified compensation to transport such property [or persons] from one place to another for all ... that may see fit to employ him.” Gerhard & Hey v. Cattaraugus Tanning Co.,
A common carrier has an obligation “to conserve the safety, convenience and comfort of its passengers.” Garricott v. N.Y. State Rys.,
Under [c]ommon law principles, the duty of care owed by a common carrier was not limited to the time in which the passenger was actually on board the carrier, and extended to the time spent by the passenger in the carrier’s terminal. Furthermore, ‘the duty of a carrier to keep in a safe condition all portions of its platforms and the approaches leadingthereto to which the public is reasonably likely to go is extended to impose a similar duty upon a carrier using the station facilities or approaches of another for its own passengers. So imperative is the duty of a carrier to provide a safe means of access to and exit from its terminal grounds that such duty, it is generally held, cannot be delegated to another....’ 7 New York Jurisprudence, Carriers § 333 at 291-92.
Day v. Trans World Airlines, Inc.,
c. Terminal Had a Common Law Duty
TOGA had a common law duty to ensure that passengers on arriving flights had safe and prompt access to Terminal One. It provided a necessary link in the chain of transportation, facilitating the common carrier airline’s service of its passengers. See Part VI, supra. Terminal One was designed for the express purpose of permitting passengers to wait for their arriving aircraft and to safely and comfortably board and disembark their flights. TOGA is responsible for all of the facilities and equipment necessary to perform this function, as well as for providing adequate staffing in order to do so.
The defendant’s duty to passengers extends beyond merely ensuring that stairs are not slippery, or that gates are properly maintained. It must ensure that those stairs and gates are made available in a timely manner when needed for use by the passengers, and that adequate ground handling staff is present to facilitate access. TOGA should have foreseen that a breach of this duty would cause passengers to remain trapped on their aircraft in cramped and increasingly unpleasant or dangerous conditions. Imposing on defendant this duty is neither novel nor undesirable as a matter of public policy.
TOGA knew that it was short-staffed following the snow storm, and that, as a result, it was having difficulty timely clearing empty planes from terminal areas in order to remove snow and to permit arriving planes to disembark. The potential for harm foreseeably increased as more and more international flights continued to arrive at Terminal One. TOGA had a duty to take appropriate firm steps to prevent or delay the arrival of those flights.
In general:
[Courts are] cautious ... in extending liability to defendants for their failure to control the conduct of others.... A duty may arise, however, where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others. Examples of these relationships include master and servant, parent and child, and common carriers and their passengers. The key ... is that the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm.
Hamilton v. Beretta U.S.A. Corp.,
If plaintiffs injuries were recoverable under New York law, there would be a triable issue as to whether the defendant terminal: 1) unreasonably failed to provide an adequate method of moving aircraft to and from the gates; or 2) should have taken appropriate, available additional steps to prevent the arrival of additional aircraft at Terminal One once it became aware that those planes would not be able to access a gate in a timely manner.
3. Liability for Emotional Distress
Plaintiff claims that she suffered dehydration, headache, nausea, disgust, hunger, thirst, and discomfort. See, e.g., Vumbaca Deck ¶ 1. Although she has not specifically pled a claim of negligent infliction of emotional distress, no physical injury, either to the plaintiff or any third party, has been shown.
Plaintiffs claim is treated as one for purely emotional distress under New York law. Headache, nausea, hunger, thirst, and discomfort are physical sensations. But unlike the pain accompanying a physical injury, they are not the result of an objectively verifiable disease or impact on the body. Like emotional harms, they are difficult to quantify and easy to fabricate. They are thus generally treated as emotional harms. See, e.g., Rеstatement (Second) of Torts § 436A cmt. c (1965) (“[Ejmotional disturbance ... includes] temporary fright, nervous shock, nausea, grief, rage, and humiliation. The fact that these are accompanied by transitory, nonrecurring physical phenomena, harmless in themselves, such as dizziness, vomiting, and the like, does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm.”).
“Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.” Tobin v. Grossman,
The law has been changing in favor of recovery, but not yet to the extent required to recognize plaintiffs claims. See, e.g., id. § 46 (permitting recovery for emotional harm “when the actor’s negligent conduct places the person seeking recovery in danger of bodily harm, but causes only, albeit serious, emotional harm” or “when the negligent conduct occurs within certain classes of activities, undertakings, and relationships in which the conduct does not create a risk of bodily harm but nevertheless poses a significant risk of serious emotional harm”); Fowler v. Harper, Fleming James, Jr., & Oscar S. Gray, The Law of Torts § 9.1 (3d ed.2006) (“[I]n
In view of the dangers posed by emotional distress claims, New York courts have continued to limit the situations where plaintiffs may recover.
One to whom a duty of care is owed ... may recover for harm sustained solely as a result of an initial, negligently-caused psychological trauma but with ensuing psychic harm with residual physical manifestations. In the absence of contemporaneous or consequential physical injury, courts have been reluctant to permit recovery for negligently caused psychological trauma, with ensuing emotional harm alone.
Johnson v. State of New York,
a. Standard for Emotional Distress Claims
Where a duty is owed directly to the plaintiff, “[a] breach of th[at] duty of care resulting directly in emotional harm is compensable even though no physical injury occurred when the mental injury is a direct, rather than a consequential, result of the breach and when the claim possesses some guarantee of genuineness.” Ornstein v. N.Y.C. Health & Hosps. Corp.,
In one particularly striking ease, a court held that the plaintiff, a teenage girl who had been locked in a bus overnight, could not recover for the emotional distress she suffered as a result: because the defendants’ duty to check the bus and ensure that no one was left behind ran to all the teens who participated on the trip, it did not suffice to establish a claim for negligent infliction of emotional distress because the “duty would not have been owed particularly to her.” St. John,
This stringent duty requirement is unique to federal cases involving New York state claims for emotional distress. New York state courts generally do not appear to require a specific duty running from the defendant to one plaintiff. But see Rubinstein v. New York Post Corp.,
The duty of a federal court sitting in diversity is to apply New York state law as defined and interpreted by New York state courts. The more restrictive federal cases do not govern. Because there is no indication that New York state courts require the defendant to have a special, unique duty to the plaintiff, she need not established that such a specific duty was owed in the instant case. The more generous rulings of New York state courts apply in defining New York’s common law.
b. Insufficient Guarantees of Genuineness
Plaintiffs may show that their injuries are a direct result of defendant’s breach and that the injuries have the requisite “guarantees of genuineness” in one of two ways:
[A]n individual can recover for the psychic injuries suffered as a result of another’s negligence where there has been no physical impact if the party seeking recovery was subjected to the fear of physical injury as a direct result of the tortious conduct.... Further, .... there may be recovery for the emotional harm, even in the absence of fear of potential physical injury, to one subjected directly to the negligence of another as long as the psychic injury was genuine, substantial, and proximately caused by the defendant’s conduct.
Howard v. Lecher,
In the absence of fear of injury, the requisite guarantees of genuineness can be provided by the shocking or severe nature of the claim itself. See, e.g. Baker v. Dorfman,
In the absence of such special circumstances, “[p]sychiatric testimony may suffice for such a ‘guarantee of genuineness’, but a plaintiffs uncorroborated testimony of upsetness will not.” Luna,
Plaintiff points to cases in which New York courts have awarded a refund of plaintiffs’ travel expenses to compensate for physical discomfort, inconvenience, or mental anguish suffered. See, e.g., Kupferman,
While New York law on the point is not crystal clear and is developing, even under a generous view of present case law, plaintiff has failed to adduce sufficient evidence to support her claim for negligent infliction of emotional distress. It is undisputed that the situation aboard the stranded aircraft was uncomfortable. She was forced to endure seven overnight hours in tight quarters, accompanied by dehydration, headache, nausea, disgust, hunger, thirst, and discomfort. See, e.g., Yumbaca Decl. ¶ 1. But she was never in danger of physical injury, nor could she have reasonably feared such harm to her person. The circumstanсes endured by the plaintiff is substantially less traumatic than other instances in which New York courts have found sufficient “guarantees of genuineness.” Her claim fails as a matter of law.
B. Intentional Infliction of Emotional Distress
Intentional infliction of emo-. tional distress is actionable in New York only for extremely egregious conduct. Murphy v. Am. Home Prods. Corp.,
In order to state a valid intentional infliction of emotional distress claim, a plaintiff must meet a “rigorous, and difficult to satisfy” standard. Howell,
No ruling New York case has been cited supporting a holding that defendant’s conduct was sufficiently outrageous to support a finding of intentional infliction of emotional distress claim. Howell,
Lower courts in New York have sustainеd some claims for intentional infliction of emotional distress, but all of these cases included intentional acts “involv[ing] some combination of public humiliation, false accusations of criminal or heinous conduct, verbal abuse or harassment, physical threats, permanent loss of employment, or conduct contrary to public policy.” Stuto,
Courts in other jurisdictions, applying a similar standard, have found that tarmac delays are not sufficiently unreasonable to constitute intentional infliction of emotional distress. See Ray v. American Airlines, Inc.,
Plaintiff alleges that the defendant intentionally or recklessly failed to fulfill its contractual obligations and general duties as terminal operator or to comply the snow plan. Even if plaintiffs allegations are true, as a matter of law, defendant’s behavior falls short of the requisite egregiousness.
Plaintiff insists that the existence of outrageousness can be extrapolated from federal regulations, promulgated after the events in question, requiring foreign carriers “not permit an international flight to remain on the tarmac at a U.S. airport for more than four hours without allowing passengers to deplane subject to safety, security, and ATC exceptions.” Enhancing Airline Passenger Protections, 76 Fed.Reg. 23110, 23110 (Apr. 25, 2011). This argument is unpersuasive. Regulators specifically declined to extend these regulations to airports or terminals such as TOGA. Id. at 23113 (“After fully considering the comments received, the Department has decided not to promulgate a requirement that airports adopt contingency plans addressing lengthy tarmac delays.”). Nor is the existence of a regulation designed to eliminate lengthy tarmac dispositive of whether those delays are sufficiently outrageous.
The claim of intentional infliction of emotional distress is dismissed.
C. False Imprisonment
To establish a cause of action for false imprisonment under New York law, a plaintiff must show that: “(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Broughton v. State,
Under New York law, “mere knowledge and appreciation of a risk is not the same as the intent to cause injury.... A result is intended if the act is done with the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue.... ” Finch v. Swingly,
Courts in other circuits, analyzing analogous circumstances under substantially similar common law rules, have dismissed claims for false imprisonment where plaintiffs were forced to remain inside a grounded aircraft for several hours. See Ray,
In Abourezk, plaintiff booked a flight to New York in order to attend an event that same evening.
Similarly, in Ray, plaintiffs flight was held on a tarmac for nine hours due to bad weather conditions at its final destination.
In the instant case, plaintiff initially consented to her confinement in the aircraft for the purposes of her transportation from Rome to New York. Her consent was limited to that purpose; she did not consent to be detained indefinitely aboard the aircraft. As described in Part VI(AX1), defendant had a duty to provide a safe means of egress from the airplane; it is assumed, for the purposes of this motion, that its failure tо ensure that there were adequate ground handling staff was the proximate cause of her confinement. The question remains, however, whether defendant’s failure to provide a means of egress was intentional.
In general, courts are reluctant to decide issues of intent on a motion for summary judgment. See Johnson v. Ganim,
In this case, plaintiff has failed to create a genuine issue of material fact as to the defendant’s intent to confine her. Nothing in the record demonstrates that the defendant was more than merely negligent in its handling of the events of late December 2010. While it was likely that passengers would be confined in the aircraft for some period of time after landing, this possibility fell far short of the high probability that is required for defendant’s knowledge to rise to the level of intent. No reasonable juror could conclude otherwise.
The claim for false imprisonment is dismissed.
Construing all disputed facts in her favor, plaintiffs claims fail as a matter of New York state law.
VIII. Conclusion
Plaintiff suffered psychic harm from her overnight confinement on a plane stranded on the snowbound tarmac of JFK. A reasonable jury could find that her suffering was caused by TOGA’s negligent breach of a duty to her.
Nevertheless, her claims are not recognized by New York law. Nor are they permitted by the Montreal Convention. The gravamen of the case is for feelings of distress for which recovery does not lie. The case is dismissed.
No costs or disbursements are awarded.
SO ORDERED