Passenger’s backpack beaning lawsuit survives airline’s motion to dismiss

Kruger v. United Airlines, Inc. (N.D. Cal. Mar. 1, 2007).  While waiting on a jetway to board a flight departing from San Francisco, 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 backpack incident.

The passenger sued United, alleging state common law causes of action for negligence, negligent training and supervision of employees and negligent infliction of emotional distress; her husband also sued the airline, alleging loss of consortium.  United moved to dismiss the complaint on the grounds that the plaintiffs’ claims were preempted by the Montreal Convention.

The court held that the Convention did preempt 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” (in-flight nausea) that had been caused by an “accident” (the backpack incident) during the course of embarking.  The court also held that (i) the passenger’s husband’s loss of consortium claim was cognizable under the Convention because California law permits such claims, (ii) the plaintiffs’ punitive damages claim was not cognizable because the Convention does not permit recovery of punitive damages, and (iii) the plaintiffs’ emotional distress claim was limited by the Convention to those distress claims arising from the passenger’s physical injuries.

Update:  As reported here, on November 1, 2007, the court granted United’s motion for summary judgment in this case.

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