Duff v. Trans World Airlines, Inc.

527 N.E.2d 498, 173 Ill. App. 3d 266, 123 Ill. Dec. 35, 1988 Ill. App. LEXIS 1051
CourtAppellate Court of Illinois
DecidedJuly 20, 1988
DocketNo. 87—0588
StatusPublished

This text of 527 N.E.2d 498 (Duff v. Trans World Airlines, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duff v. Trans World Airlines, Inc., 527 N.E.2d 498, 173 Ill. App. 3d 266, 123 Ill. Dec. 35, 1988 Ill. App. LEXIS 1051 (Ill. Ct. App. 1988).

Opinion

JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, David Potter Duff, appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendant, Trans World Airlines, Inc. (TWA). TWA cross-appeals from an order of the circuit court denying its Code of Civil Procedure section 2 — 611 motion for sanctions (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) against Duff. We affirm.

This appeal arises as a result of a trip taken by Duff in 1985 and 1986. Duff began his trip on December 27, 1985, when he left Chicago on a Pan-American World Airways (Pan-Am) flight to New York. Duff then traveled on Pan-Am flights to Caracas, Venezuela; Durban, South Africa; Lima, Peru; Santiago, Chile; Rio de Janeiro, Brazil; Capetown and Johannesburg, South Africa; Harar, Ethiopia; Nairobi, Kenya; Cairo, Egypt; and Casablanca, Morocco. Duff then traveled from Morocco to Madrid, Spain. On February 8, 1986, Duff returned from Madrid to New York on an Iberia Airlines flight. Once in New York, Duff was scheduled to take a TWA flight to Chicago. This flight was delayed approximately four hours.

Thereafter, Duff filed a complaint against TWA in which he alleged that TWA failed to leave New York at the scheduled departure time, negligently damaged his luggage and lost or damaged items in Duff’s luggage. On September 10, 1986, the trial court granted TWA’s motion for partial summary judgment on Duff’s claim concerning baggage and lost items. Duff does not appeal from that order.

TWA then filed another motion for summary judgment on Duff’s remaining claim for damages due to flight delay. In its motion, TWA argued that summary judgment was appropriate based upon (1) article XX(1) of the Convention for the Unification of Certain Rules Relating to International Transportation by Air (Warsaw Convention) (49 U.S.C. §1502 et seq. (1976)); (2) the contractual terms of the TWA airline ticket issued to Duff; and (3) Duff’s lack of any damage occasioned by his delayed departure. On January 27, 1987, the trial court granted summary judgment in favor of TWA on Duff’s remaining claim alleging damages due to flight delay. TWA also filed section 2— 611 motion for sanctions against Duff which the trial court denied. This appeal and cross-appeal followed. We affirm.

We first address Duff’s appeal. Based upon our examination of the record in this case, it appears that Duff’s primary contention on appeal is that the trial court erred in relying upon article XX(1) of the Warsaw Convention in granting summary judgment in TWA’s favor. We disagree.

Initially, the record does not reflect the basis of the trial court’s order granting summary judgment in favor of TWA. However, as we may uphold the trial court’s determination if its is supported by the record, we find no error in the trial court’s determination here.

The Warsaw Convention is a multilateral treaty to which over 126 countries are adherents.1 The Warsaw Convention provides for uniform documentation for passengers and cargo on international flights and limits the liability of air carriers in the event of accident and loss. To form a contract for international travel, the Warsaw Convention requires that both parties contemplate international travel. With respect to the requirement that international travel be contemplated by the parties, Duff essentially contends that his flight from New York to Chicago was purely domestic and therefore not subject to the Warsaw Convention. We find no merit to this argument.

Initially, our review of the record indicates that in a period of about seven weeks, Duff traveled to New York; Caracas, Venezuela; Durban, South Africa; Lima, Peru; Santiago, Chile; Rio de Janeiro, Brazil; Capetown and Johannesburg, South Africa; Harar, Ethiopia; Nairobi, Kenya; Cairo, Egypt; Casablanca, Morocco; New York, New York; and Chicago, Illinois. The airline tickets for these flights were purchased by Duff from Pan-Am, and the TWA ticket contained the Warsaw Convention notice.

In addition, in his answer to TWA’s interrogatories, Duff stated that at the time of this event, he was employed as a “lawyer, realtor, insurance and travel agent” and was acting within the scope of his employment as a travel agent during his trip. Duff further answered that when he purchased the tickets for his trip, he was listed as a registered travel agent with the Airlines Reporting Corporation.

Our review of the record further discloses that all of the airline tickets for Duff’s travels, including his TWA ticket for the New York to Chicago portion of his trip, were paid for in one lump sum of $4,043. We believe it is clear that Duff contracted for international travel when he purchased the tickets for his travel. We also believe it is clear that Duff’s return flight from New York to Chicago was part of his overall international travels. We, therefore, find no merit to Duff’s contention that he was not engaged in international travel at the time that his TWA flight from New York to Chicago was delayed.

Having determined that the Warsaw Convention applies to Duff’s claim for damages due to delay, we next address the specific articles of the Warsaw Convention governing such a claim. Article 19 of the Convention provides that a “carrier shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods.” (49 U.S.C. §1502 (1976).) Article 20(1) relieves a carrier of liability if he can prove that he and his agents took all measures necessary to avoid the damage or that it was impossible for him or them to take such measures.

In the present case, TWA offered the affidavit of two supervisors of ground operations for TWA and certified airframe and power plant mechanics. In these affidavits, the supervisors stated that they had reviewed the aircraft maintenance logs of February 8, 1986, for the aircraft used for TWA flight 757. These records indicated that prior to the scheduled departure of TWA flight 757, the aircraft developed certain mechanical malfunctions, including a malfunction of the stabilizer cruise trim. At that time, TWA personnel determined that in order to insure the safety of the passengers, certain repairs to the aircraft were required. These repairs were completed in the most expeditious manner possible, after which flight 757 departed for Chicago.

In response to TWA’s motion for summary judgment, Duff filed what purports to be a counteraffidavit. Our examination of this affidavit reveals that it is insufficient to raise material questions of fact as to the applicability of the Warsaw Convention and TWA’s entitlement to summary judgment based on article XX(1) of the Convention.

Duff, however, further argues that pursuant to the case of Wolgel v. Mexicana Airlines (7th Cir. 1987), 821 F.2d 442, his claim against TWA is an action for nonperformance of a contract and outside the parameters of the Warsaw Convention. We find no merit to this argument.

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527 N.E.2d 498, 173 Ill. App. 3d 266, 123 Ill. Dec. 35, 1988 Ill. App. LEXIS 1051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duff-v-trans-world-airlines-inc-illappct-1988.