El-Zoobi v. United Airlines, Inc.

2016 IL App (1st) 150813, 2016 WL 868874

• Court: Appellate Court of Illinois
• Decided: March 16, 2016
• Docket: 1-15-0813
• Status: Unpublished

Opinion

2016 IL App (1st) 150813 No. 1-15-0813 Fourth Division March 3, 2016

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

SAM EL-ZOOBI, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 14 L 3156 ) UNITED AIRLINES, INC., an Illinois ) Honorable Corporation, ) John P. Callahan, ) Judge Presiding. Defendant-Appellee. )

______________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Howse concurred in the judgment and opinion.

OPINION

¶1 This case is before us on appeal of the trial court's order granting defendant United

Airlines, Inc.'s motion to dismiss plaintiff Sam El-Zoobi's tortious interference with a

business relationship and intentional infliction of emotional distress claims pursuant to

section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West

2012)). Plaintiff alleged that defendant, through its agent, filed a report with his employer, No. 1-15-0813

the Federal Aviation Administration (FAA), containing false information concerning his

failure to comply with a crew member instruction on board an international flight from

Washington D.C. to Beijing, China. Defendant filed a motion to dismiss asserting that these

claims are governed by the Convention for the Unification of Certain Rules for International

Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S. 309 (Montreal

Convention), and plaintiff failed to state a claim under the Convention's terms. The court

agreed and dismissed the complaint. Plaintiff appeals contending that his claims are not

governed by the Montreal Convention and consequently defendant is subject to liability

under local laws. For the following reasons, we affirm.

¶2 BACKGROUND

¶3 Although the parties dispute many of the details concerning the circumstances of this

case, they agree on the material facts at issue. On March 18, 2012, plaintiff was a passenger

on United Airlines flight 897 from Dulles International Airport in Washington D.C. to

Beijing, China. Brenda Dismuke, the "purser" (i.e., the flight attendant in charge), testified in

her deposition that prior to take off, an announcement was made for all passengers to turn off

their electronic devices. Thereafter, plaintiff contends that he asked United flight attendant

Janet Tucker if his phone could be in "airplane mode." Defendant maintains, however, that

Tucker observed plaintiff with his cell phone on and asked him to turn it off. Instead, he

insisted that the cell phone was in "airplane mode," which he argued was sufficient.

Regardless, it is undisputed that at some point Tucker asked plaintiff to turn off his cell

phone and plaintiff refused. Tucker then informed Dismuke that plaintiff would not turn off

his cell phone. Dismuke made another general announcement for passengers to turn off all

electronic devices. She then approached plaintiff and asked him to turn off his phone. Again,

-2- No. 1-15-0813

he refused. Dismuke went to the cockpit and told Captain Donald Roberts that she had an

issue with plaintiff because he refused to turn off his cell phone. Captain Roberts sent another

pilot to speak to plaintiff. The pilot returned and told Dismuke and Captain Roberts that

plaintiff had informed him that he was an employee of the FAA. Captain Roberts then told

Dismuke to solve the problem and was prepared to bring the plane, which was taxiing, back

to the gate if the issue was not resolved. Dismuke testified that she went back to plaintiff and

requested that he turn off his cell phone. She stated that at first plaintiff was dismissive and

would not look at her or respond to her. Because of this behavior she was concerned that he

would not follow her directions in an emergency situation. Eventually, plaintiff told her that

his cell phone was off. Dismuke then asked him if he would listen to her in case of an

emergency and he told her that he would. With this assurance, Dismuke felt comfortable that

he would comply with her orders and she returned to Captain Roberts and told him that "I

think it'll be fine" and that the phone was off. According to plaintiff, however, the flight took

off after his conversation with the pilot and he did not speak to Dismuke again until later in

the flight.

¶4 Approximately a few hours into the flight, Dismuke approached plaintiff. She asked his

name and for his FAA credentials. Plaintiff told her that he was a program manager for the

FAA but that he could not produce any identification. He did provide his work telephone

number. At some point during the flight, Dismuke decided that she was going to report

plaintiff to the FAA. The flight arrived in Beijing without further incident.

¶5 Dismuke testified that immediately upon arriving at her hotel, she went to the FAA

website and filed a complaint against plaintiff on the agency's help hotline. Plaintiff points

-3- No. 1-15-0813

out that a heading on the copy of the e-mail produced by the FAA has a March 28, 2012, date

which is 10 days after the flight arrived. In its entirety, the complaint states:

"I WAS THE PURSER ON THIS FLIGHT. FA TOLD THIS PASSENGER IN 11 A

THAT HE WOULD HAVE TO TURN OFF HIS PHONE. HE SAID HE DIDN'T NEED

TO. THEN HE SAYS IT IS OK TO HAVE PHONE IN AIRPLANE MODE. SHE SAID

NO[.] HE INSISTED. I WENT BACK THERE TO TALK TO HIM, HE WAS

ARROGANT AND DID NOT WANT TO FOLLOW INSTUCTIONS. THE PILOT

HAD TO COME OUT[.] HE IDENTIFED HIMSELF AS "FAA" INSINUATING THAT

HE WAS THE ONE THAT KNEW THE RULES AND HE COULD DO SO. WE HAD

TO DELAY THE FLIGHT TO HANDLE YOUR EMPLOYEE, MR. ELZOOBI. HE

WAS RUDE, ARROGANT, AND NON COMPLIANCE [sic]. I TOLD THE CAPTAIN

THAT I WOULD ALLOW HIM TO STAY ON BOARD IF HE WOULD COMPLY

WITH WHATEVER I ASKED OF HIM IN AN EMERGENCY. HE TOLD ME I WAS

MAKEING [sic] MORE OF THE SITUATION THAN I NEEDED TO BUT HE

DOESN'T UNDERSTAND EVENTENTLY [sic][.] WE HAVE RULES AND WE ARE

UNDER A TIME FACTOR TO DEAL WITH HIM. WE WERE ALREADY TAXIING

TO TAKE OFF. HE NEEDS TO DISCIPLINED [sic] FOR HIS BEHAVIOR AND

IMPLYING THAT HE WAS 'THE FAA'! CALL ME WITH QUESTIONS."

¶6 Dismuke testified that she decided to file the complaint because either plaintiff was an

employee of the FAA, in which case the agency should know that he was not following the

rules and was not compliant, or he was not a FAA employee but was impersonating an

employee, which she thought would also concern the agency. She further explained that if he

-4- No. 1-15-0813

was an employee, the FAA could address his behavior and it would not be an issue for a

subsequent flight crew.

¶7 Thereafter, the FAA contacted United and United requested that Dismuke file a flight

attendant irregularity report through United. She did so and that report was almost identical

to the complaint she filed with the FAA but additionally stated, inter alia, that:

"[plaintiff] WOULD NOT PRODUCE AN ID AND AFTER ASKING HIM

REPEATEDLY HE FINALLY SAID THAT HE DIDN'T HAVE IT. THEN I ASKED

HIM TO WRITE HIS INFORMATION FOR ME AND WHAT DEPARTMENT.

FINALLY AFTER MUCH PRODING [sic] HE SAID HE WAS A PROGRAM

MANAGER WITH THE FAA. HE WAS TRYING TO IMPERSONATE A FAAA [sic]

INSPECTOR AND TRYING TO INTIMIDATE US."

As a result of the complaint and follow-up investigation, the FAA sent plaintiff a "Notice of

Proposed Civil Penalty" in the amount of $6,000. Subsequently, after internal review of the

incident, the FAA withdrew the "Notice of Proposed Civil Penalty."

¶8 On March 18, 2014, plaintiff filed a complaint in the circuit court of Cook County against

defendant alleging tortious interference with a business relationship and intentional infliction

of emotional distress. He alleged that because of the "false complaint," he lost an opportunity

for a promotion and suffered and continues to suffer loss of advancement as well as "severe

emotional distress." Thereafter, defendant filed a motion to dismiss pursuant to section 2-

619 of the Code asserting that the Montreal Convention governs plaintiff's claims and that he

failed to state a claim under the Convention's terms. Id.; 735 ILCS 5/2-619 (West 2012). The

court granted defendant's motion and concluded that the Montreal Convention controlled in

-5- No. 1-15-0813

this case because the alleged harm was caused by events that occurred on board an

international flight. Plaintiff appeals the judgment of the circuit court.

¶9 ANALYSIS

¶ 10 The primary issue on appeal is whether the Montreal Convention governs this case.

Plaintiff contends that it does not apply because the alleged harm was caused by defendant's

agent filing an allegedly false report against him to his employer, which did not occur on the

plane. Defendant maintains that the convention does apply because the alleged harm was

caused by his behavior on board the plane which led Dismuke to filing the complaint.

¶ 11 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint but

asserts an affirmative defense or other matter that avoids or defeats the plaintiff's claim.

DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). An affirmative matter is one which

completely negates the cause of action. Van Meter v. Darien Park District, 207 Ill. 2d 359,

367 (2003). When ruling on a section 2-619 motion, the court construes the pleadings in the

light most favorable to the nonmoving party and the motion should only be granted if there is

no set of facts that would support a cause of action. Reynolds v. Jimmy John's Enterprises,

LLC, 2013 IL App (4th) 120139, ¶ 31. Section 2-619 motions present questions of law,

which we review de novo. Id.

¶ 12 The Montreal Convention succeeded the Warsaw Convention and came into effect on

November 4, 2003. Benjamin v. American Airlines, Inc., 32 F. Supp. 3d 1309, 1314-15 (S.D.

Ga. 2014). As a treaty of the United States, it is the supreme law of the land. Id. at 1315. The

purpose of the Montreal Convention is to provide uniform rules governing claims arising out

of international air transportation. Id. at 1314-15; El Al Israel Airlines, Ltd. v. Tsui Yuan

Tseng, 525 U.S. 155, 169 (1999). It represents a balance of the airlines' need to limit

-6- No. 1-15-0813

potentially endless liability and passengers' interests in recovering for injuries. Tsui Yuan

Tseng, 525 U.S. at 170. The Convention applies to personal injury actions when the alleged

harm occurred on board an international flight or in the process of embarking or

disembarking from an international flight. Kruger v. Virgin Atlantic Airways, Ltd., 976 F.

Supp. 2d 290, 301 (E.D.N.Y. 2013). For these claims, the Montreal Convention limits airline

carriers' liability to where the harm is caused by an "accident" and results in bodily injury. Id.

at 301-03. 1 Article 17 is "identical to its predecessor, the Warsaw Convention, and

precedents discussing this article of the Warsaw Convention are generally also applicable to

the Montreal Convention." Kruger, 976 F. Supp. 2d at 301.

¶ 13 The United States Supreme Court has held that when a claim falls within the scope of the

Montreal Convention, there can be no recovery under state law. El Al Israel Airlines, Ltd. v.

Tsui Yuan Tseng, 525 U.S. 155, 171 (1999). Thus, a passenger's exclusive remedy is through

the Montreal Convention and all other claims are preempted. Id. This is true even if the terms

of the convention would not allow recovery. Kruger, 976 F. Supp. 2d at 318. In Tsui Yuan

Tseng, the Court reasoned:

"Construing the Convention, *** to allow passengers to pursue claims under local

law when the Convention does not permit recovery could produce several anomalies.

Carriers might be exposed to unlimited liability under diverse legal regimes, but would be

prevented, under the treaty, from contracting out of such liability. Passengers injured

physically in an emergency landing might be subject to the liability caps of the

1 Article 17 of the Montreal Convention, in pertinent part, provides, "[t]he 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." Montreal Convention, art. 17.

-7- No. 1-15-0813

Convention, while those merely traumatized in the mishap would be free to sue outside of

the Convention for potentially unlimited damages." Tsui Yuan Tseng, 525 U.S. at 157.

¶ 14 To determine whether a claim falls within the scope of the Montreal Convention, we

consider the event that caused the injury not the occurrence of the injury itself. Air France v.

Saks, 470 U.S. 392, 398 (1985). We apply a proximate cause analysis to ascertain the cause

of an injury. Cush v. BWIA International Airways Ltd., 175 F. Supp. 2d 483, 487 (E.D.N.Y.

2001). Proximate cause consists of "cause in fact" and "legal cause." Turcios v. The DeBruler

Co., 2015 IL 117962, ¶ 23. Cause in fact is generally established by the " 'but for' test" or the

" 'substantial factor' test." Id. Under the " 'but for' test," an event is not the cause of an injury

if the injury would have occurred without it. Id. Under the " 'substantial factor' test," an event

is a cause of an injury if it was a material element and a substantial factor in bringing about

the injury. Id. By contrast, legal cause looks to the foreseeability of the alleged harm and

courts assess whether a reasonable person would see that type of injury as a likely result of

his or her conduct. Id. ¶ 24.

¶ 15 The parties have provided case law regarding where a triggering event occurred to argue

that the causal event occurred either off or on the plane, respectively. These cases consider

factors such as "(1) the activity of the passengers at the time of the accident; (2) the

restrictions, if any, on their movements; (3) the imminence of actual boarding; [and] (4) the

physical proximity of passengers to the gate." (Internal quotation marks omitted.) Aquino v.

Asiana Airlines, Inc., 130 Cal. Rptr. 2d 223, 228-29 (Cal. Ct. App. 2003). We find this case

law inapposite. The relevant inquiry at issue here is what is the cause of plaintiff's alleged

harm. If the sole cause is Dismuke's physical act of filing the complaint, as plaintiff contends,

then it clearly occurred off the plane. If, however, the cause is the altercation on the plane,

-8- No. 1-15-0813

which led Dismuke to filing the complaint, as defendant maintains, then the cause

indisputably occurred on the plane.

¶ 16 Although analyzing a different issue, we find the United States Supreme Court's guidance

on the cause of an injury in Saks instructive. 470 U.S. at 398. In Saks, the court examined the

cause of an alleged injury to assess whether it was from an "accident" or merely an

"occurrence" for purposes of the Montreal Convention. The court explained that "[a]ny injury

is the product of a chain of causes, and we require only that the passenger be able to prove

that some link in the chain was an unusual or unexpected event external to the passenger." Id.

at 406. Similarly, here, although we are not determining the cause of the alleged injuries to

analyze whether it was an "accident," we look to the entire "chain of causes" of plaintiff's

injury to determine whether a link in the causal chain occurred on board the airplane.

¶ 17 Here, both plaintiff's and defendant's versions of the facts indicate that a verbal

altercation occurred on board the plane. Accepting plaintiff's version, however, as we must:

first Tucker asked plaintiff to turn off his phone and he refused; then Dismuke asked plaintiff

to turn off his phone and he refused; and eventually a pilot asked him to turn off his phone, at

which point he finally turned it off. It is apparent that plaintiff told a member of the flight

staff that he was an employee of the FAA. Plaintiff maintains that when Dismuke approached

him during the flight to ask him for his FAA employee ID, which he did not have, she

"harassed" him. He ultimately told her he was a FAA program manager and gave her his

work telephone number. Then, sometime between 1 and 10 days later, Dismuke filed a

complaint against plaintiff containing allegedly false information.

¶ 18 Regardless of what occurred on the plane, it is clear that but for those events, Dismuke

would not have filed the complaint and plaintiff would not have suffered his alleged injury.

-9- No. 1-15-0813

Furthermore, it is reasonably foreseeable that a flight attendant would file a report against a

passenger that he or she believes is unruly. Defendant argues, and we agree, that the conduct

on the plane cannot be separated from the physical act of filing the complaint. The events on

the plane were not remote as plaintiff argues, but rather were the first causal link in the chain

that led Dismuke to file the complaint which allegedly caused plaintiff's injuries.

Additionally, we note that plaintiff asserts that the complaint contained "false" information

regarding what occurred on the plane. It would be impossible for him to prove his claims

without presenting evidence of the events on the plane and that Dismuke's version was

"false." To now claim that filing the complaint is independent of those events is illogical.

¶ 19 We are mindful that it is uncertain when exactly the complaint was filed. Dismuke

testified that she filed it immediately upon arriving at her hotel in Beijing. The heading on

the e-mail that was produced by the FAA has the date of March 28, 2012. Plaintiff asserts

that this discrepancy creates a question of fact that precludes this case from being dismissed.

We do not agree. Even if Dismuke did not file the claim immediately, the events on board the

plane prompted her to file it. We therefore find that plaintiff's alleged harm was caused by

events that took place on board an international flight, and the Montreal Convention governs.

¶ 20 To hold otherwise would encourage inconsistent results that undermine the purpose of the

Montreal Convention. The Convention's objective is to provide uniform rules for events that

occur on international flights, including disagreements between flight attendants and

passengers, and to limit airlines' liability. Requiring flight attendants to file complaints before

they disembark in order to avoid liability in the event that a passenger alleges the complaint

is false would be cumbersome and interrupt their other important duties.

- 10 - No. 1-15-0813

¶ 21 Plaintiff makes the additional argument that article 25 of the Montreal Convention

provides an exception that allows passengers to bring claims under local law for wilful

misconduct, which includes his intentional tort claims. Defendant contends that this

argument is waived on appeal because it was not argued in the court below. We agree. Our

review of the record reveals that plaintiff did not argue that his claims fell under an exception

to the Convention in the circuit court, and thus, it cannot be raised for the first time on

appeal. Jackson v. Hooker, 397 Ill. App. 3d 614, 617 (2010).

¶ 22 In holding that the Montreal Convention controls, we affirm the court's dismissal of

plaintiff's complaint. Plaintiff concedes that neither his tortious interference with a business

relationship nor his intentional infliction of emotional distress claims, which do not allege an

"accident" or bodily injury, can stand under the terms of the Convention.

¶ 23 CONCLUSION

¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 25 Affirmed.

- 11 -