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.

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