Airline’s summary judgment motion under the Warsaw Convention denied because passenger had not been “embarking”

Dick v. American Airlines, Inc. (D. Mass. Mar. 12, 2007).  The international travel itinerary of the plaintiff and her elderly mother, who required wheelchair assistance, included a connecting flight at Miami International Airport.  American provided (through a contractor) a wheelchair escort to assist the plaintiff’s mother in getting from the arrival gate to the departure gate.  The escort directed that they use the escalator because the elevator was out of service.  While riding the escalator, the plaintiff’s mother fell backward and injured the plaintiff.

Over two years after the incident, the plaintiff brought a lawsuit alleging a state law cause of action for negligence against American.  American moved for summary judgment on the grounds that the plaintiff’s state law cause of action was preempted by the Warsaw Convention and barred by its “two-year statute of limitations.”  (The incident occurred in 2002, which is why American cited the Warsaw Convention, rather than its successor, the Montreal Convention.)

Article 17 of the Warsaw Convention provides the remedy for a passenger’s personal injury, but it only applies when an “accident” took place on the aircraft “or in the course of any of the operations of embarking or disembarking.”  The court ruled that because the plaintiff “was not sufficiently close in either space or time to the actual physical activity of getting on the aircraft,” she had not been involved in “any of the operations of embarking” when the escalator incident occurred.  Accordingly, the court held that the Convention did not apply and denied American’s motion.

Note:  The court characterized the Warsaw Convention’s requirement that suit be filed within two years as a statute of limitation, but that requirement is really a condition precedent, as the Second Circuit correctly held in Fishman v. Delta Air Lines, Inc.  This is a critical distinction because statutes of limitation are subject to tolling due to infancy and other reasons but conditions precedent are not subject to tolling.  The two-year filing condition precedent is in Article 29 of the Warsaw Convention and in Article 35 of the Montreal Convention.


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