The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ODUNOLA SOWUNMI : CIVIL ACTION
:
v. : No. 23-4373
:
AMERICAN AIRLINES, INC. :
MEMORANDUM
Judge Juan R. Sánchez May 10, 2024
Pro se Plaintiff Odunola Sowunmi was a passenger on a rescheduled flight from Jamaica
to Philadelphia on May 6, 2022; she tested positive for COVID-19 five days later. In this suit, she
brings two claims against Defendant American Airlines (“American”) under the Montreal
Convention, seeking damages and declaratory relief related to her COVID-19 infection (Counts I
and III) and the overnight delay of her flight (Count II). American moves to dismiss the COVID-
related counts, arguing Sowunmi has not pled facts showing American caused her to catch
COVID-19 or that she suffered bodily injury. American also argues Count III is duplicative of
Count I and does not assert an independent cause of action. Because Sowunmi has pled facts
showing a causal link between her wrongful exposure to COVID-19 on American’s flight and her
subsequent infection, and further pled she suffered internal bodily injuries from that infection, the
motion to dismiss will be denied as to Count I. And since Count III is a request for relief based on
the claim asserted in Count I, the motion to dismiss will also be denied as to Count III.
BACKGROUND
Odunola Sowunmi traveled to Jamaica on April 30, 2022, and was scheduled to return to
the United States on May 5, 2022. Pl. First Am. Compl. (hereinafter “Am. Compl.”) ¶ 4, ECF No.
11. Sowunmi’s return flight was cancelled by American Airlines and rebooked for May 6, 2022.
Id. ¶¶ 6, 16. At the time of her trip, the Center for Disease Control and Prevention (“CDC”) and
the U.S. Department of Health and Human Services (“HHS”) required all airline passengers on
international flights to show proof of a negative COVID-19 test, or proof of recovery from
COVID-19 in the last 90 days, to board flights. Id. ¶¶ 7-8. Sowunmi took a COVID-19 test on May
4th for her flight on May 5th, and when the flight was rescheduled, she took another test on May
5th. Id. ¶¶ 13, 17. On May 6th, however, American did not ask passengers for the required COVID-
19 documentation. Id. ¶ 19.
During the flight, Sowunmi learned at least three other passengers had tested positive for
COVID-19 on May 5th. Id. ¶¶ 24-27. These passengers removed their masks numerous times
during the flight, including to sneeze and cough. Id. ¶¶ 31-32. Three days later, Sowunmi began
experiencing COVID-19 symptoms, and five days after the initial exposure, she tested positive.
Id. ¶¶ 35-36. She experienced severe symptoms, including damage to her olfactory epithelium and
bulb, as well as to her blood vessels and brain cells. Id. ¶ 49. Sowunmi attributes her infection to
her COVID-19 exposure on the May 6th flight, as she had taken extensive precautions during and
after her entire trip. See id. ¶¶ 51-67. Those precautions included social distancing, masking, daily
testing, and temperature checks. Id. ¶¶ 55-58. Sowunmi also avoided crowded areas, poorly
ventilated indoor spaces, and public transit. Id. ¶¶ 59-60.
On October 19, 2023, Sowunmi initiated this action in state court, and on November 8,
2023, American removed it to federal court. Not. Removal, ECF No. 1. American filed a motion
to dismiss on November 14, 2023, and Sowunmi filed an amended complaint within 21 days of
service of the motion. See ECF Nos. 6, 11. Accordingly, the Court dismissed the motion to dismiss
as moot pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). Order, Nov. 27, 2023, ECF No.
12. American filed a second motion to dismiss on December 7, 2023. ECF No. 13. Sowunmi filed
a response in opposition the same day, and American filed a reply brief on December 14, 2023.
See ECF Nos. 14, 18. Sowunmi then filed an unauthorized sur-reply on December 21, 2023. See
ECF No. 25.1 The parties also filed a flurry of frivolous motions and briefing, see ECF Nos. 15-
17, 19-22, 24, all of which the Court denied. Order, Dec. 20, 2023, ECF No. 23.
STANDARD OF REVIEW
To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pled “allow[] the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. In evaluating a Rule 12(b)(6) motion, a district
court must separate the legal and factual elements of the plaintiff’s claims. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court must assume the truth of all well-pleaded
factual allegations, construe the facts and the reasonable inferences therefrom “in a light most
favorable to the [plaintiff,]” and “determine whether they ‘plausibly give rise to an entitlement to
relief.’” Oakwood Labs., LLC v. Thanoo, 999 F.3d 892, 904 (3d Cir. 2021) (quoting Ashcroft, 556
U.S. at 679) (alteration in original). Finally, the Court must construe pro se filings liberally. Dluhos
v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976).
DISCUSSION
American moves to dismiss Counts I and III of the First Amended Complaint. Br. Supp.
Def. Am. Airlines’ Mot. Dismiss (hereinafter “Br. Supp. Def.”) 1, ECF No. 13. In Count I,
1 The Court refers Sowunmi to Section II(E)(8) of its Policies & Procedures, available at
https://www.paed.uscourts.gov/sites/paed/files/documents/procedures/sanpol.pdf.
Sowunmi claims she contracted COVID-19 and experienced severe symptoms, including internal
injuries, because of exposure to three infected passengers on the May 6th flight. Sowunmi
attributes this exposure, in turn, to American’s failure to require COVID-19-related documentation
(a negative test or proof of recent recovery). American argues Sowunmi has not pled any facts
showing American’s conduct caused her infection, or showing she sustained a “bodily injury”
within the meaning of the Montreal Convention. Id. As to Count III, Sowunmi asks for a
declaration that “communicable disease[s] such as Covid-19 . . . and the bodily damages [it] causes
constitute bodily injury under the Montreal Convention.” Am. Compl. ¶ 87, ECF No. 11. American
argues Count III should be dismissed because it is duplicative of Count I and asks for a remedy,
instead of asserting a cause of action. Br. Supp. Def. 1, ECF No. 13. Because Sowunmi has pled
facts which show causation and bodily injury, and because a request for relief should not be
“dismissed” like a claim, the motion to dismiss will be denied.
The Convention for International Carriage by Air, referred to as the Montreal Convention,
is an international agreement that governs airlines’ liability for accidents during international air
travel. See S. Treaty Doc. No. 106-45, 1999 WL 33292734. Article 17 of the Montreal Convention
states, in pertinent part, a “carrier is liable for damage sustained in case of . . . bodily injury of a
passenger upon condition only that the accident which caused the . . . injury took place on board
the aircraft.” Id. Art. 17. “An Article 17 claim thus has three elements: (1) an accident; (2) that
caused . . . bodily injury; (3) that took place on the plane.” Campbell v. Air Jam. Ltd., 760 F.3d
1165, 1172 (11th Cir. 2014); accord Terrafranca v. Virgin Atl. Airways Ltd., 151 F.3d 108, 110
(3d Cir. 1998) (citing E. Airlines, Inc. v. Floyd, 499 U.S. 530, 535-36 (1991)).2 American only
2 The Montreal Convention modified a prior treaty, the Warsaw Convention. See Badar v.
Swissport USA, Inc., 492 F. Supp. 3d 54, 57 (E.D.N.Y. 2020). Because “many provisions of the
conventions are similar, . . . courts continue to evaluate provisions of the Montreal Convention
challenges Sowunmi’s claim under the second element, arguing she has not pled causation or
bodily injury. The Court will address each argument in turn.
“Traditionally, courts have applied proximate cause analysis in determining an air carrier’s
liability under the Warsaw Convention.” Margrave v. British Airways, 643 F. Supp. 510, 512
(S.D.N.Y. 1986) (citing cases). Proximate cause is usually a question of fact for a jury, but “where
there is no issue of fact, the issue of proximate cause is one for the court to determine as a matter
of law.” Heeter v. Honeywell Int’l, Inc., 195 F. Supp. 3d 753, 758 (E.D. Pa. 2016). American
attacks Sowunmi’s claim as “wholly speculative” and points out she has not identified a specific
individual who had COVID-19, much less traced her infection to that individual. Br. Supp. Def.
6, ECF No. 13. American further notes Sowunmi could have been exposed to COVID-19 within a
14-day infection window that includes her time in Jamaica, various travel activities before the
flight, and several days in Philadelphia after she deboarded. Id. at 7.
Though American’s arguments are well taken, Sowunmi has pled that she took all
recommended precautions and daily, negative COVID-19 tests leading up to her flight on May
6th; that American did not require passengers to provide documented proof of a negative COVID-
19 test or recent recovery; and that three passengers admitted they had tested positive the day
before, and then removed their masks to cough and sneeze. Am. Compl. ¶¶ 51-65 (precautions),
19 (documentation), 24-27, 31-32 (infected passengers), ECF No. 11. Three days after this
exposure, Sowunmi began experiencing symptoms, and two days after her symptoms appeared,
she tested positive for COVID-19. Id. ¶¶ 35-36. Unlike the cases American cites, Sowunmi has
thus alleged “the amount of time between the . . . exposure and the date [she] began experiencing
using cases interpreting equivalent provisions in the Warsaw Convention. Id. (internal quotation
marks and citations omitted).
COVID-19 symptoms,” Fish v. Princess Cruise Lines, Ltd., No. CV 20-3894, 2020 WL 11885533,
at *4 (C.D. Cal. Aug. 21, 2020), as well as how American’s “failure to adhere to [CDC and HHS
regulations] … exposed [her] to COVID-19.” Brown v. United States, No. 22-cv-404, 2023 WL
2632811, at *15 (M.D. Pa. Mar. 24, 2023). Drawing all inferences in favor of Sowunmi, the Court
concludes she has sufficiently pled causation.
American also asserts Sowunmi has not pled facts alleging she suffered a “bodily injury”
as is required under the Montreal Convention. Br. Supp. Def. 7-8, ECF No. 13. Sowunmi responds
that “communicable disease” is compensable, she suffered internal injuries, and various
authorities’ definitions of bodily injury support her claim. Br. Supp. Pl.’s Resp. Opp’n 7-9 (ECF
pagination), ECF No. 14.
The Montreal Convention’s “bodily injury requirement has ‘a distinctly physical scope.’”
Terrafranca, 151 F.3d at 110-11 (quoting Floyd, 499 U.S. 530 at 547). Per the Third Circuit, “[a]
plausible interpretation of that phrase [bodily injury] indicate[s] a ‘general category of physical
injuries that includes internal injuries caused, for example, by physical impact, smoke or exhaust
inhalation, or oxygen deprivation.” Id. at 110 (quoting Floyd, 499 U.S. at 541). Sowunmi claims
she contracted COVID-19 after she was exposed to “particles and droplets of respiratory fluids”
on the May 6th flight. Am. Compl. ¶ 35, ECF No. 11. This allegation is analogous to smoke or
exhaust inhalation. See Terrafranca, 151 F.3d at 110. And she further alleges her infection resulted
in, inter alia, internal injuries to various parts of her body. Am. Compl. ¶ 49, ECF No. 11. Sowunmi
has thus pled facts alleging she suffered “bodily injury” within the meaning of the Montreal
Convention. The motion to dismiss Count I will be denied.
American also asks the Court to dismiss Count III because “it is essentially . . . identical”
to Count I. Br. Supp. Def. 1, ECF No. 13. This argument fails, as the Court has concluded Count
I should not be dismissed. American further argues Count III should be dismissed because a
declaratory judgment is a remedy, not an independent cause of action. Id. While American
correctly states a declaratory judgment is a remedy, see 28 U.S.C. § 2201(a), dismissal of Count
III does not follow. The Court will treat Counts I and III as one claim which seek two forms of
relief: damages and a declaratory judgment. Therefore, the motion to dismiss will also be denied
as to Count III.
An appropriate Order follows.
BY THE COURT:
/s/ Juan R. Sánchez
Juan R. Sánchez, J.