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07/20/88 David Potter Duff, v. Trans World Airlines

July 20, 1988

DAVID POTTER DUFF, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

TRANS WORLD AIRLINES, INC., DEFENDANT-APPELLEE AND CROSS-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

527 N.E.2d 498, 173 Ill. App. 3d 266, 123 Ill. Dec. 35 1988.IL.1124

Appeal from the Circuit Court of Cook County; the Hon. Angelo D. Mistretta, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

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 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. *fn1 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, ...


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