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.”

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