Parnass v. British Airways, PLC, 1:19-cv-04555 (MKV)

JEFFREY D. PARNASS, Plaintiff, v. BRITISH AIRWAYS, PLC, Defendant.

No. 1:19-cv-04555 (MKV)

United States District Court, S.D. New York

September 21, 2021

OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT

MARY KAY VYSKOCIL UNITED STATES DISTRICT JUDGE

Plaintiff Jeffrey D. Parnass brings this action against Defendant British Airways, PLC (“BA”) for injuries he allegedly sustained aboard a flight between London and New York. Parnass seeks to hold BA liable under Article 17 of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”), which imposes strict liability on air carriers for passenger injuries caused by “accidents.” BA moved for summary judgment on Plaintiff's claims, arguing that there was no “accident” on the flight in question and that Plaintiff has not adequately established causation at this stage. For the reasons that follow, the motion is DENIED.

BACKGROUND

Beginning in early 2017, Plaintiff experienced pain around his left knee at the distal hamstring tendon. P 56.1 ¶ 24; Def Supp. 56.1 ¶¶ 52-53.^[1] From February through May 2017 Plaintiff underwent physical therapy and other treatments for the pain, to no avail. Pl. 56.1 ¶¶ 23-30; Def Supp. 56.1 ¶¶ 52-59.^[2] By the middle of May Plaintiff's physician “recommend[ed] an MRI to rule out [a] meniscal tear” in Plaintiff's knee. Def. Supp. 56.1 ¶ 58. However, as noted below, Plaintiff did not undergo that procedure until after the flight at issue in this case. Related to the knee issues, Plaintiff also suffers from undescribed issues with his gastrocnemius muscle, which, as the Court understands them, cause pain when Plaintiff's leg is in a certain position or when objects make contact with the muscle. Def. Supp. 56.1 ¶¶ 68, 79, 81-82.

Plaintiff's specific claims in this case relate to a BA commercial flight he took on May 29, 2017. That day, Plaintiff traveled on BA flight 2273 from London Gatwick Airport to John F. Kennedy International Airport in New York. Pl. 56.1 ¶ 4. Sometime earlier Plaintiff had flown to London without incident. Pl. 56.1 ¶ 5. For the return flight, Plaintiff purchased a ticket in the “World Traveler Plus” cabin of the plane, BA's premium economy cabin. Pl. 56.1 ¶¶ 6-7. When he booked his ticket for the flight, Plaintiff informed BA of a recent surgery and of his inability to keep his leg in a straight position for long periods of time. Def. Supp. 56.1 ¶ 60. During Plaintiff's flight, the premium economy section was full to capacity. Pl. 56.1 ¶ 8. While the parties disagree about whether certain other seats were “available, ” it appears from the record that there were thirteen unoccupied seats in the Business Class cabin of the plane and ten unoccupied seats in the Economy cabin. See Def. Supp. 56.1 ¶¶ 73, 84; see also Battista Aff. Ex. E (detailing the “Passenger Load Details” of the flight and reflecting that there were unoccupied seats in both the Business and Economy cabins).^[3] Apparently, there was no First-Class cabin on the flight in question. See Battista Aff. Ex. E.

At some point during the flight, the footrest for Plaintiff's seat became locked in a “halfway upright position.” Pl 56.1 ¶ 9; Def. Supp 56.1 ¶ 62. Plaintiff attempted to put his feet on the locked footrest, but it caused him pain to do so. Def. Supp. 56.1 ¶ 69. It also caused him pain to place his feet under the locked footrest, in part because only a portion (the parties dispute how much) of his feet could fit there. Def. Supp. 56.1 ¶ 68. It took Plaintiff approximately 1520 minutes to first get the attention of a flight attendant to address the issue. Def. Supp. 56.1 ¶ 63. It then took another 30-40 minutes for a senior flight attendant to inform Plaintiff that the footrest was locked in position. Def. Supp. 56.1 ¶¶ 64-65.

Once Plaintiff had the attention of the senior flight attendant, Plaintiff reiterated that he recently had foot surgery, and stated that he was experiencing pain, related to that surgery, by the locked footrest. Def. Supp. 56.1 ¶ 71. Plaintiff sought to be relocated to a seat that had a footrest or which would allow him to recline. Def. Supp. 56.1 ¶¶ 71-72, 89. The senior flight attendant advised Plaintiff that she may be able to vacate an occupied seat to accommodate him but did not offer to move him to one of the unoccupied seats. Pl. 56.1 ¶ 13; Def. Supp. 56.1 ¶ 72. Eventually, Plaintiff was offered a single seat in the last row of the plane that would not recline and in front of which another passenger was fully reclined. Def. Supp. 56.1 ¶ 75. Plaintiff expresses that he will never sit in a seat that cannot recline due to the possibility of a passenger in front of him reclining into his gastrocnemius muscle. Def. Supp. 56.1 ¶¶ 80-81. Only after being offered this single seat, Plaintiff inquired about being reseated in the unoccupied seats in Business Class but was told that the seats were “off limits” and “partially broken, like maybe the TV.” Def. Supp. 56.1 ¶¶ 86-88. Plaintiff was not offered any other seat on the plane but would have taken “any seat that reclined.” Def. Supp. 56.1 ¶ 89. Instead, Plaintiff remained in his originally assigned seat with the broken footrest and had to twist and alter his position to avoid pain. Def. Supp. 56.1 ¶¶ 66-70, 90.

After Plaintiff's flight landed in New York, and while he still was at the airport, he did not experience any sharp knee pain and did not request any medical assistance in connection with disembarking the plane, going through customs, or collecting his baggage. Pl. 56.1 ¶¶ 1619. In the days following the flight, Plaintiff emailed BA's customer service department to request a reimbursement and future upgrade for the issues experienced on the May 29 flight. Pl. 56.1 ¶ 20. In his email, Plaintiff did not mention any issues with his left knee or knee pain. Pl. 56.1 ¶ 21. However, within two or three days of the flight, Plaintiff was experiencing sharp pain in his left knee and scheduled an appointment with his physician as a result. Def. Supp. 56.1 ¶¶ 91-92. While Plaintiff certainly had been experiencing pain in his left knee pre-flight and as early as January 2017, see Pl. 56.1 ¶¶ 39, 41, the parties dispute the severity of the pain after the May 29 flight.

Plaintiff finally underwent an MRI, as recommended before the flight, on June 11, 2017. Pl. 56.1 ¶ 31. The test revealed a lateral meniscus tear in Plaintiff's left knee. Pl. 56.1 ¶ 32. During a follow-up appointment with his physician on June 23, Plaintiff “denied trauma or other inciting events” for the injury and, specifically, did not mention the BA flight on May 29. Pl. 56.1 ¶¶ 33-34. Plaintiff eventually received a second opinion about the knee pain and underwent surgery to repair what the surgeon described as a “complex tear [of the lateral meniscus] with a large displaced flap component involving approximately 50% of the width of the lateral meniscus.” Pl. 56.1 ¶ 44; Def. Supp. 56.1 ¶¶ 96, 102. Plaintiff submits that the tear was caused by his needing to move to minimize or avoid pain on the May 29 flight as a result of the broken footrest.

LEGAL STANDARD

“Summary judgment is appropriate only when, ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 69 (2d Cir. 2015) (quoting Fed.R.Civ.P. 56(a)). However, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. at 248. A material factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The Court's role here “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011).

The moving party bears the initial burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It may satisfy this burden “in either of two ways: (1) by submitting evidence that negates an essential element of the nonmoving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.” Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017) (citation omitted). If the moving party satisfies its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citing Anderson, 477 U.S. at 249). The opposing party “‘must do more than simply show that there is some metaphysical doubt as to the material facts' and ‘may not rely on conclusory allegations or unsubstantiated speculation.'” Id. (first quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); and then quoting FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)). Nevertheless, “if there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party that supports a finding that a material factual dispute exists, summary judgment is improper.” United Rentals (N. Am.), Inc. v. Conti Enters., Inc., 293 F.Supp.3d 447, 451 (S.D.N.Y. 2018) (citing Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).

DISCUSSION

Defendant seeks summary judgment essentially on two grounds....