Case 2:19-cv-01263-SMM Document 1 Filed 02/22/19 Page 1 of 9
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`Frank I. Powers (#013369)
`H a r r i s P o w e r s & C u n n i n g h a m
`361 East Coronado Road, Suite 101
`Phoenix, Arizona 85004-1525
`Telephone 602-271-9344
`Fax 602-252-2099
`hpc@hpclawyers.com
`Attorney for Plaintiff
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`United States District Court
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`District of Arizona
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`Plaintiff,
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`Ann Schmal,
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`American Airlines, Inc., a Delaware
`corporation,
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`
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`vs.
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`Defendant.
`
`No.:
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`Complaint
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`(Jury trial demanded)
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`Plaintiff Ann Schmal alleges as follows:
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`I.
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`Introduction
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`1.
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`Plaintiff Ann Schmal (“Schmal”) brings this action under laws of the State
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`of Arizona and The Montreal Convention, June 23, 2000, S. Treaty Doc. No. 106–45,2242
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`U.N.T.S. 309, seeking redress for damages in excess of $75,000 USD as a result of
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`Defendant American Airlines, Inc.’s (“American Airlines”) strict liability for its
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`employees’ and agents' acts and vicarious liabilities for its employees’ and agents'
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`negligence.
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`Frank I. Powers (#013369)
`H a r r i s P o w e r s & C u n n i n g h a m
`361 East Coronado Road, Suite 101
`Phoenix, Arizona 85004-1525
`Telephone 602-271-9344
`Fax 602-252-2099
`hpc@hpclawyers.com
`Attorney for Plaintiff
`
`
`
`United States District Court
`
`District of Arizona
`
`
`
`Plaintiff,
`
`Ann Schmal,
`
`
`
`
`
`American Airlines, Inc., a Delaware
`corporation,
`
`
`
`
`vs.
`
`Defendant.
`
`No.:
`
`
`Complaint
`
`(Jury trial demanded)
`
`
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`)
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`Plaintiff Ann Schmal alleges as follows:
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`I.
`
`Introduction
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`1.
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`Plaintiff Ann Schmal (“Schmal”) brings this action under laws of the State
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`of Arizona and The Montreal Convention, June 23, 2000, S. Treaty Doc. No. 106–45,2242
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`U.N.T.S. 309, seeking redress for damages in excess of $75,000 USD as a result of
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`Defendant American Airlines, Inc.’s (“American Airlines”) strict liability for its
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`employees’ and agents' acts and vicarious liabilities for its employees’ and agents'
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`negligence.
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`Case 2:19-cv-01263-SMM Document 1 Filed 02/22/19 Page 2 of 9
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`II.
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`Parties
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`2.
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`Schmal is and has been a citizen of the State of Arizona at all times material
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`to this Complaint.
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`3.
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`Upon information and belief, American Airlines is a corporate citizen of the
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`State of Delaware and the State of Texas because it is incorporated in Delaware with its
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`principal place of business in Texas.
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`4.
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`American Airlines was licensed to conduct business and was conducting
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`business in the State of Arizona during the time material to this Complaint. Such business
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`included providing passenger airline flights to and from Phoenix, Arizona.
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`5.
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`At all times material to this Complaint, American Airlines maintained a
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`registered agent for service of process in the State of Arizona.
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`III.
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`Jurisdiction and Venue
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`6.
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`The Court may properly maintain jurisdiction over American Airlines
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`because: (1) American Airlines conducts substantial business in the State of Arizona and
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`Schmal’s claims arise from such business; (2) American Airlines maintains agents, has a
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`physical presence, offices and property within the State of Arizona; and (3) American
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`Airlines’ contacts with the State of Arizona and this Court are sufficient to support an
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`exercise of jurisdiction that comports with traditional notions of fair play and substantial
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`justice.
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`7.
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`The Court has original subject-matter jurisdiction over all claims asserted
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`herein because the amount in controversy, exclusive of interest and costs, exceeds $75,000
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`3496-002
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`Case 2:19-cv-01263-SMM Document 1 Filed 02/22/19 Page 3 of 9
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`and the suit is between citizens of different states. 28 U.S.C. § 1332(a).
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`8.
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`Pursuant to 28 U.S.C. § 1331, the Court has original subject-matter
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`jurisdiction over Schmal’s claim arising from the Montreal Convention.
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`9.
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`Venue is proper in the United States District Court, District of Arizona
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`because under 28 U.S.C. § 1391, American Airlines resides in the judicial district.
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`IV. Factual Allegations
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`10.
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`The allegations contained in paragraphs 1-9 of this Complaint are
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`incorporated by this reference as if the same were set forth again in full.
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`11. On February 26, 2017, Schmal traveled from Hong Kong to Phoenix,
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`Arizona. Schmal was a passenger on American Airlines flight 192 from Hong Kong to
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`Los Angeles, California. Schmal had a connecting American Eagle flight from Los
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`Angeles to Phoenix, Arizona, on flight 5675.
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`12. Approximately one and a half hours after takeoff, American Airlines flight
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`attendants began serving dinner. Upon information and belief, the flight attendants were
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`employees or agents of American Airlines.
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`13. American Airlines flight attendants were delivering dinner to passengers. At
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`least one flight attendant carried two entrées at a time on a small tray and used tongs to
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`deliver them to passengers.
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`14. While Schmal was sitting in her seat, an American Airlines flight attendant
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`approached Schmal carrying a beef filet entrée and a pasta and sauce entrée. Schmal had
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`ordered the beef filet.
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`3496-002
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`Case 2:19-cv-01263-SMM Document 1 Filed 02/22/19 Page 4 of 9
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`15. After delivering Schmal her entrée, the flight attendant spilled the pasta and
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`sauce onto Schmal. There was no turbulence at the time.
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`16.
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`The pasta and sauce entrée were scalding hot and caused severe burns to
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`Schmal’s arm.
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`17.
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`18.
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`Schmal was immediately in pain, which worsened during and after the flight.
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`Flight attendants located a burn kit containing gel, gauze and a gel-soaked
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`pad. Flight attendants poured gel onto Schmal’s arm and wrapped it in gauze but did not
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`apply the gel-soaked pad.
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`19.
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`Flight attendants incorrectly used the burn kit on Schmal.
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`20.
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`21.
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`Schmal’s burns blistered, which worsened during and after the flight.
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`Flight attendants did not page a doctor to tend to Schmal’s burns and did not
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`turn on the plane’s cabin lights.
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`22.
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`Schmal arrived in Phoenix that night and was seen by an on-call Registered
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`Nurse at Schmal’s house. The nurse provided Schmal with initial burn-injury treatment.
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`23. On February 27, 2017, Schmal was treated at Urgent Care for her burns.
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`Schmal was provided with prescriptions for Silvadene burn cream and pain medication and
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`was instructed on post-burn wound care.
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`24. Over the next month, Schmal’s skin withered and peeled away from the burn.
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`Schmal’s arm was painful and itchy.
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`25. On March 21, 2017, Schmal was seen by a dermatologist. Schmal was
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`advised the pigmentation in her skin was damaged and unlikely to ever return to normal.
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`3496-002
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`Case 2:19-cv-01263-SMM Document 1 Filed 02/22/19 Page 5 of 9
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`26. Over the next months, Schmal continued to treat her burns with a regime of
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`cream, wrapping, cold compresses and anti-inflammatory medication. The wound needed
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`protection twenty-four hours a day.
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`27. On October 3, 2017, Schmal returned to the dermatologist to discuss
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`additional treatment for the burn, resulting scarring, and UV protection.
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`28.
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`Schmal is permanently disfigured and has an increased risk of developing
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`skin cancer at the burn site. When exposed to sunlight, Schmal must now wear protective
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`fabric over her arm or apply sun screen with a rating of SPF 70 or more to mitigate her
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`now increased likelihood of developing skin cancer.
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`V.
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`Causes of Action
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`Count One: Montreal Convention
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`29.
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`The allegations contained in paragraphs 1-28 of this Complaint are
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`incorporated by this reference as if the same were set forth again in full.
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`30. At the time Schmal was burned, American Airlines was engaged in
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`international carriage as defined in Article 1 of the Montreal Convention, and the Montreal
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`Convention is therefore applicable to this action.
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`31.
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`Pursuant to Articles 17 and 21 of the Montreal Convention and inflation
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`adjustments, American Airlines is strictly liable for damages suffered in an “accident”
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`causing bodily injury to a passenger on board the aircraft up to 113,100 Special Drawing
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`Rights. American Airlines is also liable for damages beyond 113,100 Special Drawing
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`Rights unless American Airlines proves that (a) such damage was not due to the negligence
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`Case 2:19-cv-01263-SMM Document 1 Filed 02/22/19 Page 6 of 9
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`or other wrongful act or omission of the carrier or its servants or agents; or (b) such damage
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`was solely due to the negligence or other wrongful act or omission of a third party.
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`32. American Airlines’ flight attendant spilling scalding hot pasta and sauce on
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`Schmal during the flight’s dinner service, and the subsequent in-flight treatment of Schmal,
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`are “accidents” within the meaning of Article 17 of the Montreal Convention.
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`33. As a result of scalding hot pasta and sauce being spilled on Schmal, and the
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`in-flight treatment after being burned, Schmal was severely burned and disfigured. Schmal
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`suffered physical pain and suffering, shock, emotional distress, disfigurement,
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`embarrassment, anxiety, anguish, loss of enjoyment of life, and further injuries and
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`damages as will be proven at trial.
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`34. American Airlines is strictly and vicariously liable for the actions of its
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`employees and agents that caused injury to Schmal.
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`35. American Airlines and/or its employees and agents acted negligently, acted
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`wrongfully, and wrongfully omitted actions in a manner that directly and proximately
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`caused and/or contributed to Schmal’s injuries. Such acts and omissions include but are
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`not limited to:
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`a.
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`American Airlines flight attendants prepared and overheated the pasta
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`and sauce entrée to a dangerous scalding hot temperature.
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`b.
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`American Airlines and/or flight attendants used containers that were
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`inadequate to hold scalding hot contents and/or protect against
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`spillage.
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`Case 2:19-cv-01263-SMM Document 1 Filed 02/22/19 Page 7 of 9
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`c.
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`American Airlines flight attendants failed to safely and appropriately
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`handle a scalding hot pasta and sauce entrée when delivering dinners,
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`spilling it onto Schmal.
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`d.
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`American Airlines flight attendants inappropriately treated Schmal’s
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`burns.
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`e.
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`American Airlines flight attendants did not attempt to page a medical
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`provider to tend to Schmal’s burns during the flight.
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`36. As a direct and proximate result of the incident described, the negligent and
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`tortious actions of American Airlines and/or its employees and its agents, Schmal has
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`suffered permanent injuries and damages as are described below.
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`Count Two: Negligence
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`37.
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`The allegations contained in paragraphs 1-36 of this Complaint are
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`incorporated by this reference as if the same were set forth again in full.
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`38. American Airlines and/or its employees owed its passengers, including
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`Schmal, the duty to exercise a reasonable degree of care under the circumstances. Such
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`duty included, but was not limited to, preventing and protecting Schmal against being
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`burned by a scalding hot entrée, and appropriately rendering and seeking aid after Schmal
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`was burned.
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`39. American Airlines and/or its employees breached such duty to Schmal by,
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`inter alia, the actions and omissions described in this Complaint.
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`40. American Airlines is liable for the acts and omissions of its employees and
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`Case 2:19-cv-01263-SMM Document 1 Filed 02/22/19 Page 8 of 9
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`agents.
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`41. As a direct and proximate result of the breach of the duty American Airlines
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`and/or its employees and agents owed to Schmal, Schmal has suffered permanent injuries
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`and damages as are described below.
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`VI. Damages
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`42.
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`The allegations contained in paragraphs 1-41 of this Complaint are
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`incorporated by this reference as if the same were set forth again in full.
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`43. As a direct and proximate result of the described incident, and the negligent
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`and tortious actions and omissions of American Airlines and/or its employees and agents,
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`Schmal has suffered past and future injury and damages, including pain, discomfort,
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`suffering, disfigurement, scarring, anxiety, medical expenses, emotional distress,
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`embarrassment, anguish, loss of enjoyment of life, and further injuries and damages as will
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`be proven at trial.
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`VII. Prayer for Relief
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`44. Wherefore, Schmal prays for judgment against American Airlines, in
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`amounts to be proven at trial, for damages as outlined above, and as follows:
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`a.
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`b.
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`c.
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`d.
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`e.
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`For general damages as alleged.
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`For special damages as alleged.
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`For pre-judgment and post-judgment interest as allowable by law.
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`For costs and reasonable attorneys’ fees as allowable by law.
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`For other and further relief as the Court may deem just and equitable.
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`Case 2:19-cv-01263-SMM Document 1 Filed 02/22/19 Page 9 of 9
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`VIII. Jury Demand
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`Schmal requests a jury trial on all issues in this matter.
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`Respectfully submitted this __ day of February, 2019.
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`Harris Powers & Cunningham
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`
`s/ Frank I. Powers
`By:
`Frank I Powers
`Attorney for Plaintiff
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