Ninth Circuit again rejects passengers’ deep vein thrombosis arguments

Twardowski v. American Airlines, Inc. (9th Cir. (Cal.) July 30, 2008).  The passengers in these consolidated appeals alleged that they had suffered injuries from deep vein thrombosis (“DVT”) they had developed during flights for which they had bought tickets between 2001 and 2004.  They alleged that the airlines were liable for such injuries because the airlines had not warned the passengers of the risk of developing DVT, despite public statements that the International Air Transport Association (“IATA”), airline medical officers, and even the august English House of Lords, had made, before the flights at issue, suggesting that the airlines issue such warnings.

Before the trial court, the airlines had successfully moved for summary judgment under Article 17 of the Warsaw Convention, which applied to the flights at issue and thus provided the passengers’ exclusive remedy against the airlines.  Article 17 of the Convention governs an airline’s liability for a passenger’s death or bodily injury; it provides as follows:  “The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  The U.S. Supreme Court has defined an “accident” under Article 17 as “an unexpected or unusual event or happening that is external to the passenger,” not “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.”

In separate prior decisions, the Ninth Circuit had held that developing DVT during a flight is not an “accident” within the meaning of Article 17, and that an airline’s failure to warn about the risk of DVT is not an “event” within the meaning of the foregoing Supreme Court definition of an “accident.”  In Twardowski, the passengers – reaching for what was almost certainly the last arrow in the DVT quiver – argued that the airlines’ failure to comply with the suggestions by IATA and others to warn passengers about DVT was an unexpected “event” and, thus, an “accident” within the meaning of Article 17.

The Ninth Circuit rejected the passengers’ arguments.  It reasoned that an airline’s failure to warn a passenger about DVT does not become an unexpected “event,” and thus an Article 17 “accident,” just because various groups and individuals have publicly suggested that the airline give such warnings.  The court drew a distinction between the general suggestions made to the airlines in this case and the specific requests for health-related assistance made by passengers to airlines in certain other cases in which the courts held that the airlines’ failure to comply with those requests constituted an unexpected “event.”

Court holds that no implied ACAA private right of action exists

Wright v. American Airlines, Inc. (E.D. Mo. Mar. 3, 2008).  The plaintiff filed suit for herself and her minor son against American, alleging that her son was injured because he was denied accommodations for his disability, osteogenesis imperfecta, also known as “Brittle Bone Disease,” while traveling on American’s flights.  She alleged a cause of action under the federal Air Carrier Access Act, 49 U.S.C. § 41705, which prohibits airlines from discriminating against disabled persons, as well as various state law causes of action.  According to the plaintiff, DOT had determined that American had violated the ACAA with respect to its treatment of her son by failing to provide timely lift assistance and accurate information as to the aircraft’s accessibility.

American moved to dismiss the ACAA count on the grounds that an individual has no private right of action to enforce the ACAA.  The ACAA does not expressly provide a private right of action.  American contended that the ACAA’s comprehensive administrative enforcement scheme, which gives DOT the power to force compliance with the ACAA, to revoke an airline’s carrier certificate and to impose fines, indicates that Congress did not implicitly intend to provide individuals with a private right of action to enforce the ACAA.

The court agreed with American.  Although the Eighth Circuit had concluded in a 1989 case that an implied private right of action to enforce the ACAA did exist, the Supreme Court had adopted a new test in Alexander v. Sandoval, a 2001 case, that restricted the circumstances under which a court may determine that a implied private right of action exists under a federal statute.  Siding with other post-Sandoval cases, the court held that the ACAA does not provide a private right of action, reasoning that the statute’s extensive administrative enforcement scheme suggested that Congress “intended to preclude alternative means of enforcing the statute.”  Accordingly, the court dismissed the ACAA count.

Court declines to dismiss complaint in passenger heart attack case

Watts v. American Airlines, Inc. (S.D. Ind. Oct. 10, 2007).  During a flight from Japan to Chicago in 2005, the passenger had a heart attack and died in a lavatory.  He was discovered by cleaning personnel after the aircraft had landed.

The plaintiff, the passenger’s wife, filed a lawsuit against American.  The airline moved to dismiss the complaint on the grounds that the plaintiff had failed to state a claim under the Montreal Convention, which applied to the transportation at issue and thus provided the plaintiff’s exclusive remedy.

Article 17(1) of the Convention governs an airline’s liability for a passenger’s death or bodily injury; it provides as follows:  “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  The U.S. Supreme Court has defined an “accident” as “an unexpected or unusual event or happening that is external to the passenger,” not ”the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.”  In its motion, American contended that no “accident” had occurred because the passenger’s heart attack was caused by his own internal condition that was not related to the operation of the aircraft.

The court disagreed.  Taking the plaintiff’s allegations as true, the court reasoned that “American Airlines’ unusual or unexpected failure to recognize and/or respond to [the passenger’s] heart attack, and its failure to conform to industry custom and practices by responding to his medical emergency, could constitute a link in the chain of the events causing the ill-fated ‘accident’ on board [the flight].”  Accordingly, the court denied American’s motion to dismiss.

Montreal Convention inapplicable where injured passenger unable to prove that airline regarded multi-airline carriage as “single operation”

Kruger v. United Air Lines, Inc. (N.D. Cal. Nov. 1, 2007).  While waiting on a jetway to board a flight from San Francisco to Seattle, the passenger was inadvertently struck on the head by a backpack swung by another boarding passenger.  The passenger was able to board but became “dazed and nauseated” during the flight due to the incident.

The passenger’s complaint against United alleged that the Montreal Convention governed her claims and also that the airline was liable under various state common law tort causes of action, including negligence, negligent training and supervision of employees and negligent infliction of emotional distress.

United moved to dismiss the complaint on the grounds that the passenger’s state common law claims were preempted by the Montreal Convention.  In its motion, United expressed doubt that the Montreal Convention governed the case, as the incident appeared to have occurred in connection with a domestic flight, but United correctly stated that the court had to accept the passenger’s allegation that the Convention governed as true for purposes of the motion.  As previously reported, the court held that the Convention preempted the passenger’s state common law tort causes of action but that she had stated sufficient facts to plead a cause of action under Article 17 of the Convention by alleging “bodily injury” (the in-flight nausea) that had been caused by an “accident” (the backpack incident) during the course of embarking.

United then moved for summary judgment, arguing that the Montreal Convention did not apply because the jetway incident had occurred in connection with a domestic flight, not an international flight.  Prior to the flight at issue, the passenger had traveled on a United flight from Los Angeles to San Francisco and, before that, on a Qantas flight from Australia to Los Angeles.  Since more than one airline was involved in the transportation, for the flight at issue to constitute “international carriage” governed by the Montreal Convention, it had to be part of “one undivided carriage” under Article 1(3).  Under Article 1(3), a series of flights is considered “one undivided carriage” only “if it has been regarded by the parties as a single operation.”

The court held that the passenger had failed to produce sufficient objective evidence that United had regarded her flights “as a single operation.”  In support of its conclusion, the court noted that the United and Qantas tickets “were not issued by the same travel agent or made as part of a package,” that “they were reserved and paid for separately,” that “the two airlines did not have code sharing agreements and were not partners in the same worldwide alliance,” that “there were no communications between the airlines to coordinate the flights,” and that “the facts of one airline’s itinerary or ticketing was not reflected on the other airline’s itinerary or ticket.”  Accordingly, the court granted United’s motion for summary judgment.

Note:  The court’s summary judgment ruling did not end the case.  The court allowed the passenger to refile her state common law tort causes of actions against United – the very ones that the court had earlier held were preempted by the Montreal Convention – and she did so.

Court partially grants airline motion to dismiss injured passenger’s complaint

Levy v. Continental Airlines, Inc. (E.D. Pa. Oct. 1, 2007).  During a flight from Houston to Philadelphia, the passenger was injured when a large ceramic bowl fell from a broken or improperly closed overhead compartment and struck her head.  The passenger filed a lawsuit against the airline, alleging that it had negligently violated duties of care established by Pennsylvania statutory and common law and by federal regulations.

Continental moved to dismiss on the grounds that the passenger’s state law claims were preempted by the Federal Aviation Act and that the federal regulations she cited were not applicable to the case.  The court granted part, and denied part, of the motion.  The court agreed that the Federal Aviation Act preempted the state laws pled by the passenger because the Act completely preempts state standards of care in the field of aviation safety.

As to the passenger’s claims based on federal regulations, the court held that the complaint contained sufficient factual allegations to state a cause of action for violation of the standards established in 14 C.F.R. §§ 121.589 and 125.589, which deal with carriage of cargo in the passenger cabin and crewmember training.  But the court dismissed the passenger’s claims based on 14 C.F.R. §§ 25.787 and 25.853, which establish aircraft design and manufacturing standards of care, because the airline only operated the aircraft and had nothing to do with its design or manufacture.

Passenger’s seating decision dooms her personal injury lawsuit

Zarlin v. Air France (S.D.N.Y. Sept. 6, 2007).  A flight attendant reseated the passenger during an international flight after she complained that the passenger in front of her had deliberately reclined his seat so that it touched her.  Without informing a flight attendant, the passenger returned to her original seat because the alternative seat was too close to a lavatory.  The passenger in front then reclined his seat again, this time “striking and injuring” the plaintiff’s knee.

The passenger sued the airline, seeking damages for “her medical costs, the value lost in a country club membership, and expenses incurred for pool membership and to resurface her tennis court.”  Air France moved for summary judgment on the grounds that the passenger’s injury was not the result of an “accident” with the meaning of Article 17 of the Warsaw Convention, arguing that (i) the reclining of the seat was not an “unusual or unexpected” event and thus not an “accident,” and (ii) the passenger’s decision to return to her original seat was the proximate cause of her injury.

The court granted the airline’s motion.  Although the court expressed “serious doubts” that the reclining of the seat was an “accident,” the court ruled that the existence of disputed facts made the granting of summary judgment on this issue improper.  The passenger was not so lucky with the airline’s proximate cause argument.  The court held that the passenger’s decision to return to her seat was the proximate cause of her injury, reasoning that if she had “remained in the new seat she was offered by Defendant’s flight crew, the incident in question could not have taken place.”  The court concluded that because no reasonable jury could find that the airline’s conduct was the proximate cause of the passenger’s injury, the passenger had failed to establish that an “accident” within the meaning of Article 17 had taken place.  Since the Warsaw Convention provided the passenger’s only possible remedy, her claim failed.

Court analyzes “accident” location in ruling on passenger remand motion

Bunis v. Israir GSA, Inc. and Israir Airlines & Tourism, Ltd. (E.D.N.Y. July 30, 2007).  The passenger arrived at JFK on an international flight and deplaned.  At the arrival gate, the passenger asked an airline employee for a wheelchair.  After waiting 20 minutes, the passenger started walking toward the baggage claim area.  In the international arrivals area, but beyond the arrival gate, the passenger began to have chest pains.  The passenger made it to the baggage claim area, where he asked for medical assistance.  He was taken to a hospital by ambulance.

The passenger filed a state court lawsuit against the airline alleging negligence causes of action.  The airline removed the case to federal court on the grounds that the court had original jurisdiction under the Warsaw Convention.  The passenger moved to remand the case to state court, arguing that the Convention did not apply because he had not been in the process of “disembarking” when he sustained his injuries.  Article 17 of the Convention provides that “[t]he carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  If the passenger had been in the process of “disembarking” when the “accident” occurred, Article 17 would apply and the court would have jurisdiction under the Convention.

In analyzing this issue, the court rejected both parties’ contention that the “accident” had occurred in the baggage claim area, i.e., where the passenger had asked for medical assistance.  The court ruled that the accident in this case was the airline’s failure to provide the requested wheelchair, and that this failure had occurred while the passenger was at the arrival gate.  Given the proximity of the arrival gate to the aircraft, the court held that the accident had occurred while the passenger was in the course of disembarking.  Accordingly, the court denied the passenger’s remand motion.

Injured passenger prevails on issue of whether “accident” occurred

Wipranik v. Air Canada (C.D. Cal. May 15, 2007).  During a flight from Canada to Israel in 2004, the passenger asked a flight attendant for a cup of hot tea.  After the passenger had placed the cup on her tray table, the seat in front of her moved, causing the cup to slide off the tray table and onto her lap.  The passenger claimed that she suffered injuries as a result of this incident.

Air Canada moved for summary judgment on the grounds that the cause of the passenger’s injuries was not an “accident” under Article 17 of the Warsaw Convention.  That article provides that “[t]he carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  Where the Warsaw Convention (or the Montreal Convention, its successor) applies, it provides the only remedy for the passenger.  Thus, if there has been no “accident,” even a seriously injured passenger has no remedy against an airline.

The U.S. Supreme Court has defined an “accident” under the Warsaw Convention as “an unexpected or unusual event or happening that is external to the passenger.”  Applying this definition, the court held that the incident was an accident; it reasoned as follows:  “The slide of the tea off of the tray table and its fall onto Plaintiff’s lap were events ‘external’ to Plaintiff.  Moreover, those events were unusual and unexpected.  Although it may be common for an airline seat to shake when its occupant moves around, it is not common for beverages placed on the tray table behind that seat to be so jolted by the movement that they fall onto another passenger.  It is the failure of the tray table to hold beverages securely despite passenger movement in the seat in front that is unexpected.”  Accordingly, the court denied the airline’s motion.

The court granted the plaintiff’s cross-motion for summary judgment that the airline was liable for her injuries.  However, the court also held that the airline had the opportunity, pursuant to Article 21 of the Warsaw Convention, to prove at trial that the passenger’s damages should be reduced by her contributory negligence.  Article 21 provides that “[i]f the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability.”

Court grants summary judgment against “undeserving litigant” in personal injury lawsuit

Agravante v. Japan Airlines International Co., Ltd. (D. Guam July 9, 2007).  The passenger claimed in his lawsuit against JAL that he suffered back injuries as a result of a “standing takeoff” in 2002.  In a standing takeoff, the flight crew taxis the aircraft to the runway, sets the brakes, sets the engines to a predetermined power setting and then releases the brakes.  The aircraft’s computer controls the takeoff roll and acceleration.  A standing takeoff imparts more force on passengers than a manually-controlled takeoff does but is considered routine in the aviation industry.

The airline moved for summary judgment on the grounds that the passenger’s supposed injuries were not caused by an “accident” within the meaning of Article 17 of the Warsaw Convention and that even if an accident did occur, there is no causal link between such accident and the passenger’s injuries.  Article 17 provides that “[t]he carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

The court granted the airline’s motion.  The court generously gave the passenger the benefit of the doubt that the standing takeoff was an “accident” within the meaning of Article 17 but held that the passenger’s allegation that the takeoff was the proximate cause of his injuries “cannot withstand even cursory scrutiny.”  The court noted that the passenger’s “own medical evidence” showed that his back problems were the result of a degenerative disease, not the takeoff, that the passenger had not mentioned any injuries in the incident report he submitted to the airline immediately after the flight and that he did not seek medical treatment until two years after the flight.

In closing its opinion, the court stated:  “The Warsaw Convention imposes a form of absolute liability on international air carriers for accidents which cause passenger injuries.  Since liability under the Convention is nearly absolute, courts should be wary of reckless invocation of the Convention by eager but undeserving litigants.  Here is such an instance of an undeserving litigant.”

Injured passenger embraces Warsaw Convention then tries, without success, to avoid it

Sanchez-Morrabal v. Omni Air Services, Co. (D. Puerto Rico July 6, 2007).  Way back in 2001, the passenger fell off a ramp and injured his leg while boarding an aircraft in Honduras for a flight to Puerto Rico.  In his 2006 lawsuit against the airline, one of the passenger’s causes of action was for relief under the Warsaw Convention.  The airline moved to dismiss on the grounds that the passenger’s lawsuit was barred by Article 29(1) of the Warsaw Convention, which provides that “[t]he right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped.”

Backpedaling furiously, the passenger moved for leave to amend his complaint to drop the Warsaw Convention cause of action.  The court granted the passenger’s motion but the amendment just rearranged a deck chair on the Titanic.  The court held that the Convention applied because both Honduras and the U.S. are signatories to the Convention and because, pursuant to Article 17, the passenger was “in the course of any of the operations of embarking” when the accident occurred.  The passenger argued that the Convention did not apply because he was not provided with a ticket, as required by Article 3, but the court correctly ruled that an airline’s failure to comply with the ticket requirement “does not affect the Convention’s applicability, only the airline’s ability to avail itself of the limits imposed on its potential liability.”  The court dismissed the lawsuit as time-barred pursuant to Article 29.

Note:  Because the two-year limit of Article 29 of the Warsaw Convention is a condition precedent to suit, not a statute of limitation, it is not subject to tolling.  The same is true with the two-year limit of Article 35 of the Montreal Convention, the successor to the Warsaw Convention.