PHILADELPHIA – A Delaware County woman who claimed she was injured inside the bathroom of one of its flights from New York to London is pushing back against British Airways’ attempt to dismiss her case.
Amina Diab of Upper Darby first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on July 31 versus British Airways, PLC, of Harmondsworth, Great Britain.
“On Aug. 5, 2018, Diab was a fare paying passenger lawfully aboard the flight pursuant to a contract of carriage entered into between Diab and British Airways in the United States subject to the terms of the Montreal Convention. During the flight, after take-off and climb out to cruise level flight, the subject aircraft was involved in an accident within the meaning and intent of Article 17(1) of the Montreal Convention when it encountered an unexpected or unusual event or occurrence external to Diab, which consisted of severe and extreme turbulence which caused Diab to suffer serious harm,” the suit said.
“More specifically, after seeing that the seat belt sign was turned off, Diab walked down the aisle and entered the lavatory when, without warning, she was violently thrown about the lavatory causing her to rotate forcefully about her right knee causing Diab to suffer immediate severe pain to her right knee.”
According to Diab, she pressed the emergency call button, the flight crew responded with ice and pain relief medication and a report was made. On Aug. 6, 2018, after Diab arrived at her final destination, she presented to the Hôpital privé Pays de Savoie in France, seeking emergency treatment for pain in her knee. But due to “the extensive swelling of her right knee and the need for more sensitive imaging”, no additional diagnosis or care could be rendered at that time.
On Aug. 9, 2018, Diab said she went to Hôpitaux du Pays du Mont-Blanc, again complaining of pain to her right knee. It was determined that Diab suffered a severe knee sprain with a probable ruptured ACL, however a definitive diagnosis was not able to be rendered at such time.
“Upon returning home, on Sept. 8, 2018, Diab presented to the Delaware County Memorial Hospital Emergency Department again complaining of right knee pain. Diab was evaluated and diagnosed with abnormal tenderness and swelling of the knee, and instructed to follow-up with an orthopedic surgeon immediately,” the suit said.
“As a result of this incident, imaging including an MRI and evaluation confirms that Diab suffered a lateral patellar dislocation with bone marrow contusions of the anterior lateral femoral condyle and medial and inferior patella, as well as sprain of the posterior medial patellofemoral ligament; and a sprain of the proximal medial collateral ligament and has had to undergo months of physical therapy and draining of her knee.”
Counsel for British Airways filed a motion to dismiss for lack of personal jurisdiction on Oct. 13.
“There is no allegation that British Airways is incorporated in the Commonwealth of Pennsylvania or maintains its principal place of business in Pennsylvania. Indeed, British Airways is incorporated in the United Kingdom and maintains its principal place of business in Harmondsworth, England,” the motion said, in part.
“Plaintiff’s allegations in the complaint that British Airways ‘intentionally avails itself to markets’ within Pennsylvania and transports passengers by air in Pennsylvania do not suffice to establish general jurisdiction over British Airways. For these reasons, British Airways’ contacts with Pennsylvania are insufficient to support general jurisdiction here.”
British Airways also argued that specific jurisdiction over itself was not proven.
UPDATE
On Oct. 23, Diab filed a response to the dismissal motion and argued the Court has jurisdiction over British Airways.
“Although British Airways is incorporated in the United Kingdom and maintains its principal place of business in Harmondsworth, England, it has consented to the general jurisdiction of this Court by virtue of its registration to do business in the Commonwealth of Pennsylvania since Oct. 14, 1997 under Entity Number 2779655,” counsel for Diab stated.
“In addition, as discovery will reveal, British Airways’ contacts with the Commonwealth of Pennsylvania are sufficiently continuous and systemic to establish general personal jurisdiction over British Airways. British Airways has received millions of dollars in taxpayer subsidies from the Commonwealth of Pennsylvania as a result of and to ensure continued and systemic contacts here. This alone is sufficient basis to establish personal jurisdiction.”
Diab’s attorneys contend that in its zeal to obtain dismissal, British Airways argues that it is “essentially immune from suit because it is not subject to general jurisdiction anywhere in the United States” and “suggests that its activities (such as selling airline tickets to a passenger and the location of an originating flight) do not amount to specific jurisdiction.”
Diab’s counsel further argue that it is due the opportunity to conduct jurisdictional discovery, before the Court decides the motion.
For counts of strict liability and strict carrier liability under the Montreal Convention, the plaintiff is seeking damages in excess of 128,821 Special Drawing Rights (or $175,000), plus interest, costs and attorney’s fees and such other relief as this Court deems just and proper, and a trial by jury.
The plaintiff is represented by Eric H. Weitz and Max S. Morgan of The Weitz Firm in Philadelphia, plus Vincent S. Dicioccio of the Law Office of Vincent S. Dicioccio in Bryn Mawr.
The defendant is represented by Lisa Carney Eldridge of Clark Hill in Philadelphia, plus Anthony U. Battista, Marissa N. Lefland and Samantha M. Holloway of Condon & Forsyth, of New York, N.Y.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-03744
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com