Appeal from the Circuit Court of Cook County; the Hon. James
A. Geroulis, Judge, presiding.
JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:
This appeal arises from a jury verdict in favor of plaintiffs, executors of the estate of Richard Nardi, following Nardi's death due to congestive heart failure while a passenger on defendant's plane from Acapulco, Mexico, to Chicago. The trial in the circuit court of Cook County was on plaintiffs' two-count complaint which alleged that defendant was negligent. The pertinent facts follow.
The evidence presented at trial revealed that Richard Nardi was 52 years old and resided in Western Springs, Illinois, with his wife and three children. Nardi was treated by Dr. Edward A. Newman of Chicago between July 11, 1956, and December 12, 1975, for heart and heart-related ailments. During that period, at Dr. Newman's direction, Nardi was hospitalized on the following three occasions. He was hospitalized from December 15, 1972, to December 23, 1972, for complaints of upper gastric and chest pain and for evaluation of gastrointestinal or cardiac pathology. Nardi was examined in the cardiac unit, but no pathology was found. From August 19, 1975, to September 23, 1975, he was hospitalized for subacute bacterial endocarditis, an infected heart valve. Two weeks later, he was readmitted, on October 10, 1975, and was hospitalized until October 19, 1975, for chest pain. Thereafter, he continued to see Dr. Newman.
In December 1975, Nardi planned a family trip to Acapulco. Flight reservations were made on American Airlines for January 1, 1976, with a return for January 7, 1976. Their tickets were issued to them on December 16, 1975.
On the morning of their expected departure, January 1, 1976, Nardi awoke with a cough. He called Dr. Newman. The family departed as planned. During the flight to Acapulco that morning, Nardi did not have any problems. At the Acapulco Princess Hotel, where the Nardis stayed, Nardi continued to cough during the remainder of the day and he was tired. That night, he continued to cough, was restless and could not sleep.
The following morning, Nardi again awoke with a cough and was tired. With Mrs. Nardi, he went to their hotel medical office, where Nardi saw Dr. Bello, a staff physician, who gave him cough medicine. During the day Nardi continued to cough, but he walked around the hotel and was in the swimming pool. That night he continued to cough and could not sleep.
On January 3, Nardi again saw Dr. Bello at the hotel medical office. Dr. Bello gave Nardi an antibiotic and more cough medicine. Nardi talked to Dr. Bello again that afternoon. That night, Nardi could not sleep well and continued to cough. Thereupon, Nardi called Dr. Newman in Chicago.
On January 4, Nardi continued coughing and returned to Dr. Bello that morning. At 4 p.m., after spending his time at the pool or in his room, Nardi saw Dr. Louis Luhrs Eigkelboom, an Acapulco cardiologist, who came to the hotel at Dr. Bello's request. Dr. Eigkelboom examined Nardi and gave him an electrocardiogram. Dr. Eigkelboom's diagnosis was heart failure and the possibility of an acute infarction. He injected Nardi with a diuretic and gave him nitroglycerin pills for the pressure in his chest and isorbid pills to relieve the pain and expand his coronary arteries. After seeing Dr. Eigkelboom, Nardi talked to Dr. Bello. Nardi then again telephoned Dr. Newman in Chicago. He also telephoned his business office in Chicago and arranged to be met at O'Hare airport and driven to Michael Reese Hospital.
During the afternoon of January 4, Mrs. Nardi called defendant airlines to make reservations for the family on the next flight from Acapulco to Chicago. There was only one first-class seat available on the next flight, January 5, 1976, Flight 104, and she booked that seat for Nardi. Mrs. Nardi planned to leave with the children on the next flight that could accommodate them.
On the night of January 4, Nardi remained in his hotel room. Nardi continued to cough and was restless, but did not complain of pain. At 11 p.m., Mrs. Nardi called the house physician, who came to their room. Neither Nardi nor his wife went to bed. Nardi paced the room and coughed.
At 7 a.m. on January 5, Dr. Eigkelboom came to Nardi's hotel room. He examined Nardi and found that he was anxious and experiencing congestive heart failure. He administered a second electrocardiogram and diagnosed Nardi as having heart failure caused by a myocardial infarction.
Dr. Eigkelboom gave Nardi injections of digitalis, a diuretic, and bottles of nitroglycerin and isorbid. He gave Nardi the electrocardiogram sheets of January 4 and 5. Mrs. Nardi told Dr. Eigkelboom that she had been in contact with Dr. Newman in Chicago.
Later, during the morning of January 5, Mrs. Nardi called Nardi's business office in Chicago and asked that Dr. Newman be contacted for instructions for the return flight from Acapulco to Chicago. She was put on hold and was subsequently told that Dr. Newman had been contacted and had approved the use of oxygen for Nardi on the flight but doubted that Nardi would need it. She was also advised that Nardi would be met at O'Hare Airport in Chicago with a wheelchair and that arrangements had been made for his admission to Michael Reese Hospital upon his arrival. Mrs. Nardi left the children in the hotel with a babysitter and accompanied her husband in a taxi from their hotel to the airport.
The Nardis arrived at the Acapulco airport on January 5 at about 8:45 a.m. Mrs. Nardi asked a skycap for a wheelchair, in which Nardi was wheeled to the American Airlines ticket counter. Mrs. Nardi told the agent that Nardi was ill, and Nardi was preboarded. It was the airline's practice to first board ill and disabled passengers. Nardi was wheeled to the DC-10 aircraft, but walked up the boarding stairs. Mrs. Nardi also boarded and they were met inside the doorway by Claire Bischofhausen, an American Airlines flight attendant. Nardi walked to his seat unassisted. When he sat down, he was winded and perspiring. Mrs. Nardi told Bischofhausen she did not think that Nardi would need oxygen although a doctor had approved his use of it. When Mrs. Nardi deplaned, Nardi was not in distress and was breathing normally. Prior to takeoff, Betty Westberry, the senior flight attendant, talked to Bischofhausen and to Nardi and then advised flight Captain Brownloe Whitehead that Nardi had been preboarded. When Westberry left Nardi, he was "breathing normal" and his color was "good."
Flight 104 departed Acapulco at 9:45 a.m. During the flight, Captain Whitehead discovered that the aircraft was losing fluid in the number three hydraulic system, which would affect the flight controls of the aircraft but not the engines. There was no need to prepare for an emergency landing.
The aircraft began its descent to Mexico City to board additional passengers. As Westberry approached her seat for landing, she noted that Nardi was leaning forward in his seat, perspiring and having difficulty breathing. Westberry immediately obtained ice water and towels and bathed Nardi with them while another flight attendant placed an oxygen mask over Nardi's nose and mouth.
During the taxi of the aircraft to the terminal, Westbury informed Captain Whitehead that Nardi was on oxygen. Bischofhausen asked Nardi how he was feeling and if he wanted medical help. Nardi said he was breathing better with oxygen and told Bischofhausen he did not want to leave the aircraft. When the aircraft reached the terminal, Nardi told his friend, Lee Flaherty, who also was a passenger in the first-class section, that he was not feeling well and was returning to Chicago to see his doctor. Nardi was pale but his speech was coherent and rational.
Before Captain Whitehead left the aircraft, he stopped at Nardi's seat, knelt down and "chatted with [Nardi], some consoling words * * * something like that." Captain Whitehead did not notice anything unusual about Nardi's color. He observed that Nardi's facial color was good and that his breathing was normal with the oxygen. Nardi continued on oxygen on the recommendation of Captain Whitehead, who thought that Nardi's problem was related to the altitude of Mexico City. Nardi pulled his oxygen mask from his nose and mouth when he talked to Captain Whitehead.
Flight attendants Bischofhausen and Westberry continued to administer oxygen and to check on Nardi, whose condition appeared satisfactory to Westberry. Westberry "would stop by occasionally and pat him on the shoulders and say how are you doing, is everything okay, and I always got a response of yes." Whitehead and Bischofhausen were concerned, however, that the aircraft's oxygen supply would be depleted and were advised by airline agents that oxygen was available at the airport terminal's medical clinic. After approximately an hour, American Airlines agent Jose Galindo, Bischofhausen, Westberry and Captain Whitehead talked to Nardi and attempted to convince him that he should be taken in a wheelchair to the medical clinic. Nardi protested leaving the aircraft. He was persuaded to go only after he was assured that he would be returned to the aircraft to continue his flight home when the aircraft was repaired.
The medical clinic at Mexico City airport was operated by the Mexican government. Donald Fraser, the manager of American Airlines at Mexico City, sent his secretary, Silvia Ridolfi, to the medical clinic to translate for Nardi. Nardi was conscious and coherent but his color by this time was abnormal and he was having difficulty breathing without oxygen. Oxygen was brought to the clinic from American Airlines and administered to Nardi because the oxygen tanks in the clinic would not work. Dr. Penechay, a physician at the clinic, examined Nardi and determined that Nardi should be taken to a hospital, but Nardi refused and insisted upon being returned to the aircraft. Nardi said that he would not go to "any damn Mexican hospital." Fernando Cruz, an American Airlines supervisor, then asked Dr. Penechay if Nardi could continue on the flight and Dr. Penechay said yes. Nardi, while still using oxygen, was then returned to the aircraft in a wheelchair.
Shortly after Nardi returned to the aircraft, and while the aircraft was still at the terminal, Nardi was examined at the request of Captain Whitehead by Dr. Michael V. Miller, a thoracic vascular surgeon who boarded the aircraft at Mexico City. Dr. Miller talked with Nardi, took his pulse, found him to be mildly cyanotic (bluish in color) and that his breathing was a bit labored. Nardi was still using oxygen. Whitehead and Bischofhausen asked Dr. Miller if Nardi could continue the flight to Chicago and Miller told them that Nardi could do so. A few moments later, Nardi complained that he was having severe abdominal pains. When asked whether he had any medication with him, Nardi took a bottle of nitroglycerin out of his pocket and a pill was given to him. According to Bischofhausen, "shortly after [that] he stood up and started grabbing in the stomach area. He kept saying, `oh doctor, I'm in such pain.'" At that time, Dr. Miller again felt his stomach, took his pulse and said that Nardi was "losing ground at that point." Dr. Miller concluded that the situation "demanded reassessment" and advised that Nardi could not make the flight and had to be taken to a hospital. Bischofhausen then instructed a ground agent to call for an ambulance.
Nardi was removed from the aircraft in a wheelchair while still on oxygen. As Nardi was taken off the aircraft, another doctor, Dr. Mijanjos, a cardiovascular surgeon who was also a passenger on the aircraft, assumed control. Mijanjos used tourniquets and ordered lasix, a diuretic, to be purchased by a ground agent. Nardi was in the airport terminal approximately 20 to 30 minutes before the ambulance arrived and took him to the British Cowdray Hospital in Mexico City. The trip took approximately 35 minutes. En route, Nardi was given oxygen. A medical team at the hospital had been alerted and administered medical aid to him, including electrical shock. The physicians in the hospital emergency room were unable to save Nardi, and he was later pronounced dead. An autopsy recorded the cause of death as an organic heart disease.
A year later, on April 13, 1977, plaintiffs filed a two-count complaint in the circuit court of Cook County. Count one alleged, inter alia, that on January 3, 1976, the day Nardi purchased his ticket, defendant was informed that Nardi was "in ill health" and would require careful attention as a passenger, that defendant failed to remove Nardi from the aircraft when it became apparent that the stopover in Mexico City would be considerably longer than anticipated, and that defendant negligently failed to immediately transport Nardi to the Mexico City hospital when it became apparent that Nardi's condition required medical treatment which could only be rendered at the hospital. Count two of the complaint was withdrawn.
Defendant's amended answer asserted as an affirmative defense that the provisions of the Warsaw Convention (Convention) and the Montreal Agreement (which modified the Convention by raising the liability limit for air carriers and waiving the defense of due care) apply to this case and exclusively govern the rights and liabilities of the parties. *fn1 Defendant further alleged that Nardi was contributorily negligent in not following a physician's recommendation to enter a hospital in Acapulco and not fly to Chicago. Defendant denied any liability and denied that plaintiffs were entitled to judgment in "any amount of money whatsoever."
In reply to the affirmative defense, plaintiffs denied that the international treaty limited defendant's liability. Defendant filed a motion for partial summary judgment on the ground that the Convention and Montreal Agreement apply to the facts of this case and limit defendant's liability, if any, to provable damages of $75,000. The motion was denied. The trial court subsequently ruled that in this case, there was no "accident" as that term is used in article 17 of the Convention, and that the limit of monetary liability provided by the Convention and the Montreal Agreement therefore did not apply to this case.
The jury found that Nardi was 60% contributorily negligent and awarded plaintiffs $1,030,212 in damages. Following the denial of defendant's post-trial motion, defendant appealed.
• 1 We first agree with the trial court's determination that no accident occurred in this case. An accident has been defined as an unusual or unexpected happening. An event or occurrence is not an accident if it results solely from the state of health of the passenger and is unconnected with the flight. (Warshaw v. Trans World Airlines, Inc. (E.D. Pa. 1977), 442 F. Supp. 400, 412.) In the case at bar, Nardi's ill health (heart condition) was an inherent weakness or disability and was not the result of an unusual or unexpected happening which was connected with the flight. We therefore see no reason to disturb the trial court's ruling on this issue.
• 2 We turn next to the question of whether an airline passenger who died from a pre-existing physical ailment during a flight stopover has any cause of action against the air carrier for the carrier's alleged negligence when no accident occurred. A recent case, Abramson v. Japan Airlines Co. (3d Cir. 1984), 739 F.2d 130, decisively addresses and decides this question. In Abramson, the plaintiff was on an international flight when he suffered an attack from a pre-existing paraesophageal hiatal hernia. His subsequent complaint alleged that the airline was liable under the Warsaw Convention and that it was further liable for the airline employees' negligent and wilful misconduct which allegedly aggravated his hernia. The District Court granted the airline's motion for summary judgment on the ground that the Warsaw Convention was inapplicable since there was no accident. The appeals court affirmed that ruling. The court further ruled that when the Convention is inapplicable, an airline's liability to a passenger may be established by traditional common law rules. Thus, the court held, since article 17 of the Warsaw Convention was inapplicable because there was no accident, plaintiff's alternative theories of recovery against the airline under State law were not precluded and the trial court erred when it failed to consider plaintiff's common law negligence and wilful misconduct claims. (739 F.2d 130, 134.) The cause was reversed and remanded.
Other decisions are instructive on the question of whether a claim can be brought against an airline on other grounds when the Warsaw Convention is inapplicable. In Husserl v. Swiss Air Transport Co. (S.D.N.Y. 1975), 388 F. Supp. 1238, 1246, the court stated that "injuries not comprehended by the terms of the Convention" may give rise to causes of action not subject to any of the conditions or limits of the Warsaw Convention. The court further stated that, "It would have been a simple matter to preclude all relief for * * * unenumerated types of injuries; but no article to that effect was incorporated [in the Convention]." In an earlier proceeding in the same case, Husserl v. Swiss Air Transport Co. (S.D.N.Y. 1972), 351 F. Supp. 702, 706, the court concluded:
"* * * [T]he Convention does not `exclusively regulate' the relationship between passenger and carrier on an international flight, but rather sets limits on and renders uniform certain of the aspects of that relationship. * * * Thus, it would seem to follow that if the Convention `applies,' it applies to limit not eliminate liability; if it does not apply, it leaves liability to be established according to traditional common law rules." (Emphasis added.)
The court in Hernandez v. Air France (1st Cir. 1976), 545 F.2d 279, 284, also considered this issue and determined:
"To give passengers who are so injured [by a terrorist attack in the air terminal] a strict liability remedy against the carrier * * * but to relegate the nonpassengers [in the air terminal] to their remedies under local law, would be odd indeed. It would seem to be more rational in this grey area * * * to treat passengers and ...