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UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARIA HIDALGO-LOBATO and LUIS 

LOBATO,

Plaintiffs,

v.

AMERICAN AIRLINES, INC., and AMR 

CORPORATION,

Defendants.

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: OPINION

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: No. 2:10-cv-3212 (WHW)

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:

Walls, Senior District Judge

Defendants American Airlines, Inc. and AMR Corporation (“Defendants”) move for 

summary judgment against Plaintiffs Maria Hidalgo-Lobato and Luis Lobato (“Plaintiffs”). The 

motion, decided without oral argument under Federal Rule of Civil Procedure 78(b), is denied.

FACTUAL AND PROCEDURAL BACKGROUND

On February 18, 2009, Plaintiff Maria Hidalgo-Lobato travelled on an American Airlines 

flight from Ecuador to Newark Liberty International Airport. Pl. Compl. ¶ 4. Shortly after exiting 

the plane, as she was walking on the jetbridge, also referred as the airplane ramp, that connects 

the airplane to the terminal, she tripped and fell, fracturing her humerus. Id. ¶ 5. 

Ms. Hidalgo-Lobato does not know what caused her to fall, except that it was “something 

hard” beneath the carpet. Hidalgo-Lobato Dep. 20:13-22 (ECF No. 11-4). Her daughter, Maria 

Lobato, who was present at the time of the incident, testified that she does not know what caused 

the fall either, but she felt with her foot a “metal joint” under the carpet that created a bump. 

Lobato Dep. 17:17-19:8 (ECF No. 11-5).

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Hidalgo-Lobato and her husband, Luis Lobato, sued Defendants under Section 601(b) of 

the Federal Aviation Act of 1958 (49 U.S.C. § 1301 et seq.) and under the Warsaw Convention, 

49 U.S.C. § 40105 et seq.; Compl. at 1-2. The former claim alleges negligence, the latter claim 

alleges strict liability. Id. at 3, 4. Plaintiff husband asserts a state law claim for loss of 

consortium. Id. at 4. Defendants answered the complaint, asserting (among other defenses) that 

Plaintiff Hidalgo-Lobato’s own negligence “either caused or contributed to” the accident and 

damages she suffered. Defs.’ Answer, at 4 (ECF No. 3).

In 2011, each side moved for summary judgment. ECF Nos. 9-16. In December 2011, 

Defendants informed the Court that they had filed for bankruptcy protection and that this action 

was thus subject to the automatic stay found in 11 U.S.C. §§ 362(a)(1), (3). Notice of Suggestion 

of Bankruptcy (ECF No. 17). The Court responded by dismissing the case administratively 

without prejudice. Order Dismissing Case, Feb. 14, 2012 (ECF No. 19). On February 1, 2013, 

the parties informed the Court that they had agreed to allow the case to proceed despite the 

pending bankruptcy, subject to certain limitations. Letter from Pls.’ Counsel (ECF No. 20). On 

April 30, 2013, Plaintiffs moved to reopen the case and the Court granted the motion. ECF Nos. 

21-23.

On February 19, 2014, Defendants once again moved for summary judgment. ECF No. 

25. Plaintiffs opposed the motion and Defendants replied. ECF Nos. 27, 28. The parties have not 

briefed what effect the bankruptcy stay and the lifting of that stay have on the 2011 motions for 

summary judgment, so the Court will not decide those motions. 

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DISCUSSION

I. Standard under the Montreal Convention 

The parties agree that the Montreal Convention, also known as the Convention for the 

Unification of Certain Rules for International Carriage by Air, which supplanted the Warsaw 

Convention, is the sole means for recovery of personal injuries sustained during international air 

travel. Pls.’ Mot. for Summ. J. (June 27, 2011) (“Pls.’ 2011 Motion”), at 4 (citing El Al Israel 

Airlines v. Tseng, 525 U.S. 155, 161 (1999)) (ECF No. 10-1); Defs.’ Mot. for Summ. J. (Feb. 19, 

2014) (“Defs.’ 2014 Motion”), at 5 (citing same) (ECF No. 25-1).

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Article 17 of the Convention reads: 

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.

Convention for the Unification of Certain Rules for Int’l Carriage by Air art. 17, May 28, 1999

(entered into force on Nov. 4, 2003), S. Treaty Doc. No. 106-45, 1999 WL 33292734, at *16-17. 

This breaks down to three required showings: (1) an “accident” leading to (2) injury or death (3) 

that occurred while the passenger was onboard the flight or while “embarking and 

disembarking.” Waters v. Port Auth. of N.Y. & N.J., 158 F. Supp. 2d 415, 423 (D.N.J. 2001) 

(citing Tseng, 122 F.3d 99, 102 (3d Cir. 1997), rev’d on other grounds, 525 U.S. 155 (1999)).

 

1 Though Defendants’ brief refers to the Montreal Agreement, it quotes the language of and 

provides the Westlaw citation for the Montreal Convention. The Montreal Agreement is a 1966 

“private agreement among airlines that has been approved by the United States Government.” 

Air France v. Saks, 470 U.S. 392, 395 (1985) (citing Liability Limitations of Warsaw 

Convention and Hague Protocol, 31 Fed. Reg. 7302-01 (May 19, 1966)). The Montreal 

Convention is a 1999 treaty, “not to be confused with the MP4 [Montreal Protocol 4] or 

Montreal Agreement.” Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 

780 (7th Cir. 2008). If the Defendants intentionally cited the Montreal Agreement, they have not 

explained why. Regardless, the Court concludes that the Montreal Convention governs.

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Defendants moved for summary judgment in 2011, claiming that there had been no 

showing that an “accident” had occurred. Defs.’ Mot. for Summ. J. (June 23, 2011) (ECF No. 9-

1). Plaintiff opposed and filed its own motion for summary judgment, claiming it had sufficiently 

made all three showings. Pls.’ Opp’n to Defs.’ 2011 Mot. for Summ. J. (July 11, 2011) (ECF No. 

14); Pls.’ 2011 Motion at 5-9. As Defendants point out, though their 2014 motion is a carbon 

copy of their 2011 motion, Plaintiffs have composed a new opposition. Defs.’ Reply (March 19, 

2014) at 5 n.1 (ECF No. 28). This time around, Plaintiffs’ primary argument in opposition is that 

whether an “accident” occurred is a question of fact for the jury. Pl.’s Opp’n to Def.’s 2014 Mot.

(March 5, 2014) (ECF No. 27). 

a) There is a genuine issue of material fact about whether an “accident” occurred.

An airline can be liable under Article 17 only if “a passenger’s injury is caused by an 

unexpected or unusual event or happening that is external to the passenger.” Air France, 470 

U.S. at 405. “This definition should be flexibly applied after assessment of all the circumstances 

surrounding a passenger’s injuries.” Id. (citation omitted). Whether an accident has occurred is a 

question of fact: “In cases where there is contradictory evidence, it is for the trier of fact to 

decide whether an ‘accident’ as here defined caused the passenger’s injury,” with the caveat that 

there is no accident “when the injury indisputably results from the passenger’s own internal 

reaction to the usual, normal, and expected operation of the aircraft.” Id. See also Manion v. Am. 

Airlines, Inc., 17 F. Supp. 2d 1, 5 (D.D.C. 1997) (“Summary judgment can only be granted if, as 

a matter of law, the Court concludes that plaintiff’s injuries were not caused by an accident 

pursuant to the Warsaw Convention.”).

Cases from the Third Circuit discussing Saks involve facts too different to be helpful 

here, but a decision from the Second Circuit is persuasive. In Magan v. Lufthansa German 

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Airlines, Plaintiff was injured when his flight encountered turbulence. 339 F.3d 158, 160 (2d Cir. 

2003). The District Court adopted the Federal Aviation Administration’s distinction between 

“light” or “moderate” turbulence and “severe” or “extreme” turbulence, and held that only the 

latter constitutes an “accident” under the Warsaw Convention because light turbulence is 

common and severe turbulence is “exceedingly rare.” Magan v. Lufthansa German Airlines, 181 

F. Supp. 2d 396, 401 (S.D.N.Y. 2002), rev’d, 339 F.3d 158 (2d Cir. 2003). The Court granted the 

airline’s motion for summary judgment. Id. at 404. But the Second Circuit reversed, concluding 

that genuine issues of material fact remained regarding both what type of turbulence is normal 

for a given flight and what type occurred on the flight in question. 339 F.3d at 165. It held that 

the court below was wrong to decide as a matter of law that some types of turbulence are always 

accidents and other types are never accidents. Id. Second, the panel held that the differing 

assessments of the turbulence by the plaintiff’s witnesses and the flight crew amounted to 

sufficient “contradictory evidence” requiring the question to go to a jury. Id. at 165-66. 

Here there are genuine issues of material fact about the usual condition of an airport 

jetbridge, including the appearance or size of any bumps or ridges below the carpet, caused by 

metal joints or otherwise. And the parties dispute the condition of the jetbridge at the time of 

Plaintiff wife’s fall. 

Cases cited by Defendants are off the mark: In Sethy v. Malev-Hungarian Airlines, the 

court found no accident when a passenger tripped over luggage left in the aisle during boarding. 

No. 98-cv-8722 (AGS), 2000 WL 1234660, at *4 (S.D.N.Y. Aug. 31, 2000), aff’d, 13 Fed. Appx. 

18 (2d Cir. 2001). In Rafailov v. El Al Israel Airlines, the court found no accident where a 

passenger slipped during the flight on a plastic bag left under a seat. No. 06-cv-13318 (GBD), 

2008 WL 2047610, at *3 (S.D.N.Y. May 13, 2008). And in Ugaz v. American Airlines, the court 

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found no accident when a plaintiff fell on an inoperable escalator—an escalator that had stopped 

and become, effectively, a stair. 576 F. Supp. 2d 1354, 1365 (S.D. Fla. 2008). Those courts 

granted summary judgment to defendant airlines, but they are distinguishable from ours. In 

Sethy, Rafailov, and Ugaz, it was clear that the cause of the plaintiff’s injury was something one 

would expect to encounter during air travel. Here, there is a genuine issue of material fact as to 

whether the condition of the jetbridge was typical or expected.

On the other hand, courts have at times decided on summary judgment that an event is an 

accident, like an airline’s failure to remove a hypodermic needle from a seat, Waxman v. C.I.S. 

Mexicana de Aviacio, S.A. De C.V., 13 F. Supp. 2d 508, 512 (S.D.N.Y. 1998), or an airline’s 

failure to monitor an overhead compartment from which liquor bottles fell, Maxwell v. Aer 

Lingus, Ltd., 122 F. Supp. 2d 210, 212-13 (D. Mass. 2000). See also Gezzi v. British Airways 

PLC, 991 F.2d 603, 604 (9th Cir. 1993) (per curiam) (affirming finding of district court after a 

bench trial that presence of water on stairs was an accident); Alleyn v. Port Authority of New 

York, 58 F. Supp. 2d 15, 18 (E.D.N.Y. 1999) (noting that parties did not dispute whether the step 

of an escalator collapsing was an accident).

In this case, the trial jury will decide those issues.

CONCLUSION

Defendants’ motion for summary judgment is denied. 

June 4, 2014

/s/ William H. Walls

United States Senior District Judge

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