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The family of a man who suffered a heart attack on an international flight and later died may be able to recover damages for willful misconduct against Delta Air Lines Inc., an appellate court ruled last week. The 3-1 ruling from the New York Appellate Division, 2nd Department, overturned a lower court decision that dismissed the suit. The appellate court found that a trial was necessary to determine whether the airline crew had acted unreasonably in attempting to help the ailing man. In Kemelman v. Delta Air Lines Inc., 9541B, both the majority and the dissent agreed that the international flight was governed by the Warsaw Convention, which says airlines can be held liable for up to $75,000 per person for accidents during flights that result in injury. But in this case, the majority said, questions remained as to whether Delta was guilty of willful misconduct, which would leave the airline open to greater liability. In January 1994, Roman Zonenashuili traveled first class on a flight from New York’s John F. Kennedy International Airport to Moscow. Four hours into the flight, he began complaining of chest pains and fretting over what he feared was an impending heart attack. Zonenashuili had been smoking and had consumed two or three glasses of cognac, according to the court’s opinion. The senior flight attendant asked the other passengers if there was a doctor on board, but no one came forward. The attendant tried to give Zonenashuili oxygen, but said Zonenashuili pushed the tank away. Another attendant said the oxygen tank was empty. The senior attendant then informed the captain of the situation and asked Zonenashuili if he would like the plane to make an emergency landing so he could go to a hospital. The attendant said Zonenashuili declined the offer, but two passengers disputed this account, saying Zonenashuili had asked to make an emergency landing. As the plane continued on to Moscow, a flight attendant sat with Zonenashuili. He soon lost consciousness. The pilot diverted the plane to Copenhagen, Denmark, and flight attendants again asked if there was a doctor on board. Two doctors came forward, and one tried to administer oxygen to Zonenashuili. The doctor said nothing came out of the oxygen tank. Attempts to resuscitate Zonenashuili after the plane landed in Copenhagen were unsuccessful and he later died in a hospital. His family then filed suit in Nassau County Supreme Court. REVERSED ON APPEAL State Supreme Court Justice Stephen A. Bucaria dismissed the suit, but the 2nd Department last week reversed that ruling, finding that “it cannot be said, as a matter of law, that the routine procedures which [Delta's] employees followed in response to [Mr. Zonenashuili's] medical situation were carried out in a reasonable manner.” In a dissent, Justice Leo F. McGinity agreed there were issues of fact, but said the airline had not engaged in willful misconduct. Citing Piamba Cortes v. American Airlines Inc., 177 F3d 1272, Justice McGinity said the plane’s crew would have to have acted “(1) with intent to cause damage, or (2) recklessly and with knowledge that damage would probably result.” “In my view,” Justice McGinity said, “there is no evidence that Delta’s employees acted intentionally, recklessly with knowledge that their conduct likely would result in damage.” Concurring with the majority opinion were Justices Anita R. Florio, Gloria Goldstein and Howard Miller. Zonenashuili’s family was represented by Kahn Gordon Timko & Rodriques, with Sanford F. Young and Jan B. Rothman of Sanford F. Young PC handling the appeal. Marguerite D. Peck of Downing, Mehrtens & Peck represented Delta.

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