Court denies airline’s summary judgment motion in trip and fall case

September 25, 2011

Walsh v. Koninklijke Luchtvaart Maatschappij N.V. (S.D.N.Y. Sept. 12, 2011).  The plaintiff tripped over a metal bar and fell in a departure gate seating area while walking to join a line of persons waiting to board a flight from Amsterdam to New York.  The plaintiff alleged in his complaint that he sustained a fractured elbow as a result of the fall and that, under the Montreal Convention, KLM is liable for $3 million in damages.

Under Article 17(1) of the Convention, “[t]he 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.”  KLM moved for summary judgment on the grounds that the plaintiff was not injured while “embarking” and that, even if he was, his injury was not caused by an “accident” within the meaning of Article 17(1).

The court denied KLM’s motion.  The court first ruled that a reasonable jury could conclude the plaintiff was injured while “embarking” because the incident occurred while the airline was “exercising control” over the plaintiff.  The court reasoned that the airline had control over the plaintiff because the trip and fall took place in the departure gate seating area and while the plaintiff was walking to join a line in response to the airline’s boarding announcements.

The court then concluded that a reasonable jury could also find that the plaintiff’s trip and fall was an “accident” under Article 17(1), although it admitted that this was the “more difficult question.”  To establish in a U.S. court that an “accident” under Article 17(1) took place, a plaintiff must prove that the injury was caused by “an unexpected or unusual event” that was “external to the passenger.”  The airline contended that the plaintiff’s fall was “his own internal reaction to an inert piece of equipment, installed and operating as intended.”  The court disagreed, ruling that a jury could find that the metal bar was unexpected, and thus “external” to the plaintiff, because the photographs submitted by the plaintiff showed that the bar protruded past the seating area and was similar in color to the floor.

Airline not liable for passenger’s deplaning injury caused by fellow passenger

September 21, 2011

Goodwin v. British Airways Plc (D. Mass. Aug. 8, 2011).  The plaintiff had traveled on a British Airways flight from London to Paris.  She alleged in her complaint that, while deplaning, she lost her balance, one of her feet slid into the opening between the aircraft and the jetway and she fell and fractured her ankle.  In her deposition, the plaintiff testified that her fall had been caused by another passenger bumping into her.  According to the airline’s witnesses, the plaintiff lost her footing and fell on her own.

The parties filed cross motions for summary judgment in which they agreed that the Montreal Convention governed the plaintiff’s claim.  Under Article 17(1) of the Convention, “[t]he 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.”  Thus, as the court noted, the “threshold inquiry” in a personal injury case governed by the Convention is whether an “accident” within the meaning of Article 17(1) occurred.

To establish in a U.S. court that an “accident” under Article 17(1) took place, a plaintiff must prove “that (1) an unusual or unexpected event that was external to [the plaintiff] occurred, and (2) this event was a malfunction or abnormality in the aircraft’s operation.”

The airline contended that the first step of the above test had not been satisfied because some bumping and jostling from other passengers is usual and expected while deplaning.  The court disagreed.  Viewing the facts most favorably to the plaintiff, the court found that the alleged bump by the other passenger, which the plaintiff described as having “enough force that it knocked me off my balance and I fell,” was more than “run of the mill jostling” and thus was unexpected.

The airline fared better with respect to the second part of the test.  It contended that the plaintiff’s fall had not resulted from the aircraft’s operation because airline personnel had not had any direct involvement in the events leading to the fall.  The court agreed.  Again viewing the facts most favorably to the plaintiff, the court found that the plaintiff’s fall had been solely caused by another passenger and that there was no evidence of any “out of the ordinary” conditions during deplaning that could have imposed a duty on airline personnel to intervene.  Accordingly, the court granted the airline’s motion and denied the plaintiff’s motion.

Note:  On September 6, 2011, the plaintiff noted her appeal of the court’s ruling.

Airline not liable for refusing to transport customer who lacked required travel documents

March 28, 2011

Reed v. Delta Airlines, Inc. (S.D.N.Y. Mar. 23, 2011).  The plaintiff and her dog, Blondie, arrived at John F. Kennedy International Airport to check in for their flight to Ghana.  Delta personnel informed the plaintiff that she lacked certain documents that Ghana required for Blondie to enter the country.  The plaintiff put Blondie in a cab to her son’s home and reentered the terminal, only to later discover that Blondie had departed with the plaintiff’s passport.  In accordance with Delta’s conditions of carriage, the airline’s personnel refused to transport the plaintiff due to her failure to present a passport, and they rebooked her on a subsequent flight.

The plaintiff sued Delta, claiming that it was liable for refusing to transport her (and Blondie, the co-plaintiff) under breach of contract, implied contract and covenant of good faith and fair dealing causes of action, and under several tort causes of action as well.  The plaintiff requested damages totaling over $1.2 million.

Delta moved for summary judgment on the grounds that it had not breached the parties’ contract, that the plaintiff’s implied contract and good faith and fair dealing claims failed given the existence of an express contract between the parties and that the plaintiffs’ tort claims were preempted by 49 U.S.C. § 41713(b), the preemption provision of the Airline Deregulation Act.  The court agreed.

The court held that the plaintiff’s breach of contract claim failed because Delta had “acted within its rights” under its conditions of carriage, which specifically allowed the airline to refuse to transport the plaintiff for failing to present a passport and to refuse to transport Blondie because the plaintiff lacked certain documents required by Ghana.  The court agreed that the plaintiff’s implied contract and good faith and fair dealing claims failed because the parties had entered into an express contract.

The court then turned to the plaintiff’s various tort claims.  It held that not only were the plaintiff’s tort claims preempted by the ADA because they all “involve[d] Delta’s boarding practice which is an airline service,” but because also they lacked substantive merit, and it analyzed the deficiencies of each claim.

Race discrimination claim preempted by Warsaw Convention

March 8, 2011

Sewer v. LIAT (1974) Ltd. (D. Virgin Islands Feb. 16, 2011).  The plaintiff had purchased a ticket for a LIAT flight from the British Virgin Islands to Antigua.  The flight was overbooked, so airline personnel informed the plaintiff that he would have to take a later flight.  Undeterred, the plaintiff (and the other waiting would-be passengers) pushed past the airline’s gate personnel and boarded the aircraft.  Airline personnel asked the plaintiff to leave the aircraft because he did not have a seat, and he did so.  An off-duty police officer arrested and handcuffed the plaintiff, who was briefly detained in an airport holding cell and released without being charged with any crime.

The plaintiff filed suit against the airline, asserting claims of race discrimination, defamation and intentional or negligent infliction of emotional distress, although the plaintiff only pursued the discrimination claim.  The court described the plaintiff as “a black West Indian with dreadlocks in his hair who believes in the underlying tenets of Rastafarianism.”

LIAT moved for summary judgment, and the court granted the motion.  The court agreed with the airline that the plaintiff’s discrimination claim was preempted by the Warsaw Convention, citing King v. American Airlines (written by now-Justice Sotomayor) and several other cases.  The court also held that the plaintiff had no claim under the Warsaw Convention because bumping is a well-established airline industry practice and, thus, is not an “unexpected or unusual event” constituting an “accident” under Article 17.  Finally, the court held that, even if the bumping had constituted an “accident,” the plaintiff’s claim still failed because his injuries, bruised and swollen wrists, were caused by the off-duty police officer in the airport, not by airline personnel on the aircraft.

Note:  Plaintiff filed the case in 2002, and LIAT filed its summary judgment motion in 2009.  Cases seem to move at a leisurely pace in the Virgin Islands, in both federal and state courts.

Holders of airline gift cards who did not use them, lost them

February 13, 2011

Restivo v. Continental Airlines, Inc. (Ohio App. Jan. 20, 2011).  Continental sold gift cards for air transportation that were valid for one year after issuance.  Purchasers agreed in writing to the one-year validity period.  When the airline refused to honor expired cards, cardholders commenced a class action lawsuit, alleging that Continental had violated Ohio’s gift card and consumer protection statutes and had been unjustly enriched.

Continental moved to dismiss the statutory claims on the grounds that they were preempted by the Airline Deregulation Act.  The preemption provision of the ADA, 49 U.S.C. § 41713(b)(1), provides in part that “a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.”  Continental argued that the unjust enrichment claim should be dismissed because the parties had entered into express contracts.  The trial court granted the motion to dismiss and the cardholders appealed.

On appeal, as to their statutory claims, the cardholders argued that a Continental gift card is not a “service” within the meaning of Section 41713(b)(1) but, rather, is simply the equivalent of money.  The court disagreed, holding that because the gift card’s only purpose is to allow the purchase of air transportation from the airline, it is “related to” the airline’s “price, route, or service.”  The court reasoned that “the fact that the gift card postpones the eventual purchase of an airline ticket does not alter that the gift card is still related to the provision of air transportation.”

As to the cardholders’ unjust enrichment claim, the court held that the existence of valid contracts between the parties prevented any recovery under such theory.

Accordingly, the court affirmed the trial’s court judgment.

Montreal Convention two-year limitation period not subject to tolling under local law

January 19, 2011

Duay v. Continental Airlines, Inc. (S.D. Tex. Dec. 21, 2010).  After arriving in Texas on a Continental flight from Switzerland, the plaintiff discovered at the baggage claim area that his custom-fitted wheelchair had been damaged.  Continental provided the plaintiff with a replacement wheelchair, which he used for the remainder of his trip in the United States.

In his complaint against Continental, the plaintiff alleged that the replacement wheelchair caused him to sustain a skin irritation injury that ultimately required surgery.  The plaintiff alleged causes of action for negligence, bailment and breach of contract.

Continental moved to dismiss on the grounds that the plaintiff had failed to perform the condition precedent of filing the lawsuit within the two-year period set forth in Article 35(1) of the Montreal Convention, which provides in part that “[t]he right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination.”  The plaintiff’s flight had arrived in Texas on December 2, 2007, but he did not file his complaint until December 18, 2009.

In opposition, the plaintiff contended that his claims were not barred because Article 35(2) of the Convention allows tolling in accordance with Texas law, and because that state’s discovery rule functioned to toll the running of the two-year period.  Article 35(2) provides that “[t]he method of calculating that period shall be determined by the law of the court seised of the case.”

The court agreed with Continental.  First, citing numerous Warsaw Convention cases and that treaty’s drafting minutes, the court ruled that subjecting the Article 35(1) two-year period to the “various tolling provisions of the member states” would be contrary to the Montreal Convention’s policy goal of achieving uniformity of the rules governing international air transportation claims.  Second, the court rejected the plaintiff’s tolling argument on the grounds that the Texas discovery rule does not apply where the accrual of a limitation period is “specifically defined by law,” and that Article 35(1) “unequivocally prescribes” the accrual date as the date of the arrival of the flight.  Accordingly, the court granted Continental’s motion to dismiss.

DOT enforces consumer-friendly interpretation of Montreal Convention baggage liability provisions

January 4, 2011

As previously reported, on March 26, 2009 DOT issued a “Guidance on Airline Baggage Liability and Responsibilities of Code-Share Partners Involving International Itineraries” that states in part as follows:  “Although carriers may wish to have tariff terms that prohibit passengers from including certain items in checked baggage, once a carrier accepts checked baggage, whatever is contained in the checked baggage is protected, subject to the terms of the [Montreal] Convention, up to the limit of 1000 SDRs (Convention, Article 22, para. 2).”  (On December 30, 2009, the 1,000 SDR limit was increased to 1,131 SDRs, which is currently equivalent to about $1,750.)

Upon receiving a consumer complaint after the 90-day grace period for compliance with the Guidance, DOT initiated an enforcement action regarding Air France’s policies and practices with respect to items of checked baggage lost or damaged in transit to or from the United States.  DOT’s specific concern was over the airline’s General Conditions of Carriage, which disclaimed liability for “valuable, fragile or perishable items” in checked baggage and the reliance of the airline’s Customer Relations Department on such disclaimer to deny liability for the loss or damage of jewelry, electronic equipment and similar items.

By a Consent Order issued on December 23, 2010 (Order 2010-12-26), DOT announced that it and Air France had reached a settlement.  Under the settlement, Air France agreed to modify its policies and practices in order to comply with the Guidance and to pay a compromise assessment of $50,000 (and an additional $50,000 should it violate the Order within a year).

Note:  In a November 18, 2010 ruling, the Canadian Transportation Agency struck down an airline’s tariff rule, as well as a proposed revised version of such rule, that purported to preclude an airline’s liability for fragile and valuable items in baggage checked in connection with carriage subject to the Montreal Convention.  See Lukács v. WestJet (Decision No. 477-C-A-2010).  On February 1, 2011, the Federal Court of Appeal denied WestJet’s application for leave to appeal the agency’s decision.


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