On the evening of December 26, 2010, a blizzard swept through the New York metropolitan area, dumping nearly fifteen inches of snow on John F. Kennedy International Airport (“Kennedy Airport”). The blizzard clogged highways and bus routes, making travel nearly impossible and resulting in the closure of Kennedy Airport for a twenty-four hour period. When the airport re-opened on the evening of December 27, 2010, there were extensive residual problems: aircraft which had been preparing to depart when the airport closed were stuck at the gates, a large number of airport workers were unable to report for work, ground vehicles were buried in snow, and there was inadequate staff available in connection with departing and arriving aircraft.
As a result of the above conditions, Vivian Vumbaca, an Italian citizen residing in New York, was required to sit on the tarmac aboard an Alitalia flight for nearly six hours after her flight had landed at the airport. During that period, she later alleged, she was forced to endure “cramped, uncomfortable and malodorous conditions without food, water and sanitation for nearly seven hours”1 and, as a result, suffered emotional distress. Ms. Vumbaca commenced a class action in federal court on behalf of herself and every other passenger on incoming flights to Kennedy Airport between December 27, 2010 and December 31, 2010, who were required to wait on the tarmac more than three hours after landing.
While the aftermath of the blizzard affected all transportation operations in the New York metropolitan area, Ms. Vumbaca chose to sue only Terminal One, the smallest terminal operator at Kennedy Airport, with twelve gates, and which exclusively services international flights. Ms. Vumbaca alleged that there was insufficient staff on hand to handle incoming flights and that Terminal One was negligent in not clearing the gates and ramp area more quickly so that departing flights could leave and arriving aircraft could promptly park at the gates. Ms. Vumbaca asserted claims on behalf of herself and all of her putative class members for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and false imprisonment. After converting Terminal One’s motion to dismiss into a motion for summary judgment and ordering the parties to conduct expedited discovery, Judge Jack Weinstein, a distinguished Senior Federal Judge with forty-five years on bench, granted Terminal One’s motion for summary judgment, finding that Ms. Vumbaca could not recover for her claimed injuries under either New York law or the provisions of the Montreal Convention.
The District Court first found that the Montreal Agreement applied since Terminal One was acting as the “agent of the carrier” in carrying out the duties of the airline in providing safe transport to the passenger’s destination. While both parties initially argued that the Montreal Convention was not applicable to the case, a position which found authority in some leading commentaries,2 Judge Weinstein concluded that the Montreal Convention was applicable. While the Convention does not define the term “agent”, and the U.S. Supreme Court has provided no guidance on point, lower courts have held that an entity such as Terminal One is an agent of the air carrier if it performs services in furtherance of the contract of carriage. In determining that Terminal One was an agent of the air carriers it serves, the Court found that Terminal One’s operations were a vital part of Alitalia’s contract of carriage, i.e. those services that are necessary to get aircraft to and from the gates, and thus Terminal One falls under the umbrella of the Montreal Convention. This finding has an interesting practical effect: while it subjects terminal operators to liability under the Montreal Convention, it limits the terminal operators’ liability for delay and personal injury damages under Articles 19 and 17 of the Montreal Convention, respectively.
Having determined the Convention was applicable, the Court then found that Ms. Vumbaca did not sustain a “bodily injury” as required by Article 17 and, therefore, she was unable to recover for her alleged personal injury. Citing numerous cases holding that that emotional harm was not compensable under Article 19 of the Convention, the District Court also found that Ms. Vumbaca’s inconvenience in arriving home late and in having to return to the airport to retrieve her baggage did not support a claim for damages under Article 19. Accordingly, the Court dismissed all of Ms. Vumbaca’s Convention-based claims.
Turning to New York law, the District Court found that even if New York law, rather than the Montreal Convention, governed Ms. Vumbaca’s claims, she was still not entitled to recover. The Court held that Terminal One, as an airport terminal operator, had a common law duty to make sure that passengers on arriving flights had safe and prompt access to the terminal building. The record evidenced that Terminal One was short staffed following the blizzard and was having difficulty cleaning aircraft and getting them out so as to permit passengers on arriving aircraft to disembark. Therefore, held the Court, it was foreseeable that Ms. Vumbaca could be harmed as a result of the delay as international flights continued to arrive at Terminal One without open gates to accommodate the arriving flights. However, it went on to find that Ms. Vumbaca’s claims for dehydration, headache, nausea, disgust, hunger, thirst and discomfort were purely claims for emotional distress under New York law. As the Court noted, claims of emotional distress “like emotional harms, they are difficult to quantify and easy to fabricate”.3
New York cases have held that there are limited situations where plaintiffs can recover on emotional distress claims. Those cases arise where plaintiffs have suffered emotional harm directly as a result of a breach of duty owed to a third party, but only where that third party is in the “zone of danger”. Because Ms. Vumbaca was never in any real danger as a result of this incident, the Court concluded that her claims for emotional distress were insufficient to permit recovery under New York law. Likewise, the Court made short work of the claims for intentional infliction of emotional distress and false imprisonment, finding that under New York law recovery for intentional infliction of emotional distress is actionable only in cases of “extremely egregious conduct.”4 Even if Ms. Vumbaca’s allegations were true, Judge Weinstein concluded that Terminal One’s behavior fell far short of the prerequisite of egregiousness. Likewise, the claim for false imprisonment was dismissed because Ms. Vumbaca could not show that there was any genuine issue of material fact as to Terminal One’s intent to confine her on board the aircraft. The record was devoid of any evidence that Terminal One was not more than merely negligent in the handling of its events concerning the arrival of aircraft at Kennedy Airport. Finding that no reasonable juror could conclude otherwise, the District Court dismissed the claim for false imprisonment and dismissed the Complaint under both New York law and the Montreal Convention. As Judge Weinstein noted, “Hers is a most appealing case. Yet the law can only give her sympathy, not monetary compensation”.5
Conclusion
The time for appeal in the Vumbaca case recently expired and the decision is final.
Vumbaca has the potential to be a very important decision since it extends the potential liability of a terminal operator far beyond what it originally may have contemplated, i.e., liability to passengers on flights for delay or personal injuries unconnected with the basic operations of the airport terminal. However, most terminal operators will have protected themselves against such liability exposure in their contractual agreements with air carriers. The silver lining for the terminal operator is that, under Judge Weinstein’s analysis, the terminal operator may be entitled to the protections of the Montreal Convention with respect to claims for delay and personal injury.
1 Vumbaca v. Terminal One Group Association L.P., ___ F. Supp. 2d, 2012 WL 1377074 (E.D.N.Y. 2012).
2 1 Lee S. Kreindler, Aviation Accident Law § 10.04[2][d] (2011) and Paul S. Dempsey and Michael Milde, International Air Carrier Liability: The Montreal Convention of 1999 (McGill University, Centre for Research in Air & Space Law 2005).
3 Vumbaca at *22.
4 Vumbaca at *27.
5 Vumbaca at *1.