District Court Confirms That Air Carriers Have No Direct Duty to Ground Victims Absent Physical Injuries
December 18, 2007
On September 4, 2007, defendant American Airlines and Airbus Industrie G.I.E. secured a motion for summary judgment in a decision that will likely prove significant for future aviation litigation cases. In an opinion by Judge Robert W. Sweet, the United States District Court for the Southern District of New York clarified two major issues in granting the defendants’ motion for summary judgment in In re Air Crash at Belle Harbor, New York on November 12, 2001 (Michael Morley, Jr. v. American Airlines, Inc.), 508 F. Supp. 2d 204 (S.D.N.Y. 2007).
The Morley case arose out of the crash of an Airbus A-300 aircraft, operated as American Airlines Flight 587, on November 12, 2001, in Belle Harbor, New York. All 260 persons on board the aircraft died, five residents of Belle Harbor were killed and additional residents suffered injuries and personal property damages.
This specific summary judgment motion involved a three-year-old boy who was in his home in Belle Harbor with his grandmother at the time of the accident. While inside the home, the two heard a loud explosion when Flight 587 crashed across the street. The house immediately caught fire from the impact of the crash. Morley and his grandmother escaped from the burning house physically unscathed, and, once safe outside, watched their house burn down. Morley has since had to undergo fourteen months of psychotherapy focused on relieving post-traumatic nightmares and fears related to the fire. Morley’s father brought an action in his son’s name to recover damages for personal injuries, as well as for his own loss of his son’s services, companionship and comfort due to the injuries. The plaintiffs also attempted to establish a third cause of action for a claim of negligent infliction of emotional distress. However, the complaint alleged no physical injuries to either the boy or to his father.
Under New York Law, there are two generally accepted methods of proving a claim of negligent infliction of emotional distress: (1) the “bystander” or “zone of danger” theory, and (2) the “direct duty” theory. The Morley plaintiffs conceded they did not have a claim under the bystander theory, so the main issue of the case was essentially whether airlines and aircraft manufacturers owe a direct duty, absent physical injury, to people on the ground. The plaintiffs argued that the “guarantee of genuineness” cause of action allowed for recovery of emotional distress damages regardless of whether there was a direct duty to the plaintiff, and regardless of whether the plaintiff suffered any physical injury. Specifically, the plaintiffs argued that there was an “especial likelihood of genuine and serious mental distress” arising from the accident (even absent a direct duty) that entitled them to collect damages.
The defendants argued to the contrary, contending that the “guarantee of genuineness” theory of recovery is effectively an alternative manifestation of the “direct duty” theory. Specifically, the defendants noted that the case law on which plaintiffs relied to support this proposition involved scenarios in which “guarantee of genuineness” claims were only colorable because they were also accompanied by a direct duty to those respective plaintiffs. The court agreed with defendants, concluding that unless a direct duty was owed to plaintiffs, there was no basis for recovery.
In determining whether the defendants owed plantiffs a direct duty, the court clarified the question left unanswered from Judge Hellerstein’s decision in In re September 11 Litigation, 280 F. Supp. 2d 279 (S.D.N.Y. 2003), holding that, in the absence of any physical injury, airlines and aircraft manufacturers do not owe a direct duty to a non-passenger. The court noted that this issue had already been resolved by two earlier cases arising out of the crash of Avianca Flight 52, which declined to extend an air carrier’s direct duty to “all the non-passengers its planes fly over on a daily basis” and held that an airline’s duty was limited to those non-passengers who had suffered physical injury. See In re Air Crash Disaster at Cove Neck (Tissenbaum v. Aerovias Nacionales De Colombia, S.A.), 885 F. Supp. 434 (E.D.N.Y. 1995); Hassanein v. Avianca Airlines, 872 F. Supp. 1183 (E.D.N.Y. 1995). As In re September 11 Litigation cited both Avianca cases “with approval,” the Court reasoned that Judge Hellerstein did not intend to extend air carriers’ duties to non-passengers who suffered no physical injuries. Therefore, as no direct duty was owed to Morley, the defendants’ motion for summary judgment was granted and the plaintiffs’ claims were dismissed with prejudice.
The court also dismissed the father’s claims for loss of companionship, comfort and services of his son, as New York does not allow recovery by a parent for the loss of consortium of a child in a personal injury case. See Gilbert v. Stanton Brewery, Inc., 295 N.Y. 270, 67 N.E.2d 155 (1946). These claims also failed because they were derivative of his underlying claim for emotional distress, which, as the court established, lacked a basis in law.
For more information, email David Harrington or Lindsay Tasher at david.harrington@hklaw.com or lindsay.tasher@hklaw.com, respectively, or call toll free, 1-888-688-8500.
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