Passenger’s claim based on seating-related injury fails under Montreal Convention

March 2, 2016

Plonka v. US Airways (E.D. Pa. Oct. 27, 2015).  During a flight from Philadelphia to Germany, the passenger/plaintiff was seated behind a seat under which was affixed a hard plastic box, known as an “IFE box,” that contained wiring for the seatback entertainment system.  The plaintiff alleged in his pro se complaint that, during the takeoff, he sustained an “open wound” when his right leg “bang[ed] against” the box.  The plaintiff sought damages of $125,000 for loss of income and pain and suffering.

After discovery, US Airways moved for summary judgment on the grounds that the plaintiff lacked an actionable claim under the Montreal Convention, which exclusively governed the plaintiff’s claim, because his injury did not result from an “accident” within the meaning of Article 17(1) of the Convention.  Under that provision, “[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.”  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.”

In support of its motion, US Airways contended that it had established beyond dispute that “Airbus, the manufacturer of the aircraft on which Mr. Plonka flew, installed the IFE box in compliance with a design approved by the FAA” and that “[s]eating a passenger near an aircraft component that was installed in compliance with a government-approved design cannot possibly qualify as an unexpected or usual event.”  In opposition, the plaintiff conceded that it was not unusual for a passenger to be seated near an IFE box, but argued that it was his injury from impacting such box that was unusual.

The court sided with US Airways, noting that the U.S. Supreme Court has ruled “it is the cause of the injury – rather than the occurrence of the injury – that must satisfy the definition of ‘accident.’ ”  In the court’s view, while the occurrence of the plaintiff’s injury may have been unusual, there was nothing unusual about the cause of the injury, i.e., the plaintiff being seated behind an FAA-approved aircraft component that was not defective in any manner.  Accordingly, the court granted US Airways’s motion.


Passenger’s fear of contagious disease not compensable under Montreal Convention

November 30, 2015

Jane Doe v. Etihad Airways, P.J.S.C. (E.D. Mich. Oct. 13, 2015).  During a flight from Abu Dhabi to Chicago, the passenger/plaintiff was pricked by a discarded syringe when she reached into in a seatback pocket.  The plaintiff sought treatment from her physician, who prescribed antiviral drugs and HIV and hepatitis tests.  The tests, which were administered over the course of a year, showed that the plaintiff had not developed HIV.

The plaintiff sued Etihad under the Montreal Convention.  She alleged that that her injury had caused her emotional distress and mental anguish, primarily in the form of her fear of developing HIV or hepatitis.  Her husband alleged a derivative loss of consortium claim.

Etihad moved for partial summary judgment on the grounds that the plaintiff’s fear of contagion damages were not recoverable under the Montreal Convention because they did not arise from a “bodily injury” within the meaning of Article 17(1) of the Convention.  That provision states as follows:  “The 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.”  Etihad cited numerous cases arising under the Montreal Convention, and under its Warsaw Convention predecessor, rejecting passengers’ recovery of emotional distress damages that were not caused by any “bodily injury.”

Etihad argued that the plaintiff’s fear of contagion damages were not caused by the “very minor and brief pain” resulting from the needlestick, i.e., the only “bodily injury” that occurred, but by her “unfounded fear of exposure to a contagious disease.”  Etihad also argued that the plaintiff’s fear of contagion damages were too speculative to be recovered under Michigan law.

The court agreed with Etihad’s Montreal Convention argument and granted the airline’s motion.  The court did not consider Etihad’s Michigan law argument.


Court shows the door to passenger’s exit row seating claims

April 3, 2015

Naqvi v. Turkish Airlines, Inc. (D.D.C. Feb. 23, 2015).  While checking in for his Turkish Airlines flight from Washington Dulles International Airport to Istanbul, Turkey, the passenger/plaintiff requested an exit row seat.  According to the plaintiff, airline personnel denied his request but promised him a “leg space seat.”  The plaintiff alleged that, upon boarding the aircraft, he discovered that the exit row seats were occupied by passengers who did not meet the minimum height requirement for such seats and that his assigned seat was not a “leg space seat.”  The plaintiff also alleged that the airline violated several safety requirements, including by not illuminating the seat belt signs before landing.  The plaintiff asserted that the airline’s conduct caused him to suffer “extreme emotional and physical distress.”

In his pro se complaint, the plaintiff advanced causes of action for breach of contract and for discrimination under what the court described as a “kaleidoscope of federal statutes.”  The plaintiff demanded compensatory damages of $250,000 and punitive damages of $150,000.  After removing the case to federal court, Turkish Airlines moved to dismiss the complaint on the grounds that the Montreal Convention preempted its claims and that it failed to state an actionable breach of contract or discrimination claim.

The court granted the motion.  First, the court ruled that the Montreal Convention governed the plaintiff’s claims because they arose from “international carriage” within the meaning of the Convention.  The court then ruled that the Convention preempted the plaintiff’s contract and discrimination causes of action.  According to the court, the result of the preemption was that, unless the plaintiff could “shoehorn his allegations into an actionable claim” under Article 17 of the Convention, which governs compensation “for the type of personal injury alleged” in the case, he could not state any claim whatsoever against the airline.

Article 17(1) of the Montreal Convention provides as follows:  “The 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.”  The court ruled that the plaintiff had failed to plead that his injuries had been caused by an “accident,” as is required to state a claim under Article 17.  Citing cases, the court ruled that, because “disputes over airline seat assignments are neither unexpected nor unusual,” the dispute alleged by the plaintiff did not qualify as an “accident” within the meaning of Article 17.

The court also ruled that the plaintiff’s Article 17 claim failed, even assuming the occurrence of an “accident,” because the plaintiff had failed to “allege that an actionable ‘bodily injury’ resulted from defendant’s purported transgressions.”  The plaintiff had asserted that he had suffered “extreme emotional and physical distress,” but, in accordance with the governing caselaw, the court ruled that physical manifestations of mental injuries did not satisfy the Article 17 “bodily injury” requirement.

Note:  The plaintiff has another pro se case against an airline, Naqvi v. Saudi Arabian Airlines, pending in the same court.

Update:  On February 12, 2016, the court in Naqvi v. Saudi Arabian Airlines granted the airline’s motion for summary judgment.

 


Court downgrades passengers’ seating upgrade lawsuit

January 21, 2015

Gulilat v. Delta Air Lines, Inc. (S.D. Fla. Oct. 29, 2014).  After boarding their flight from New York to Ghana, the two passenger/plaintiffs made a request to a flight attendant that they be reassigned to “upgraded comfort seats,” according to their amended complaint.  The plaintiffs asserted that Delta employees not only denied their request, but that the employees upgraded white passengers to the “comfort seats,” shouted racial epithets at the plaintiffs as they were escorted off the aircraft by authorities in Ghana and falsely stated to such authorities that the plaintiffs had engaged in unlawful conduct during the flight.

The plaintiffs’ amended complaint sought $1 million in damages under Article 17 of the Montreal Convention.  Article 17(1) provides as follows:  “The 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.”

Delta moved to dismiss, and the court granted Delta’s motion.  The court held that the plaintiffs had failed to plead that their injuries had been caused by an “accident,” as is required to state a claim under Article 17.  Citing numerous cases, the court ruled that, because a dispute related to aircraft seating “is neither unexpected nor unusual,” the dispute alleged by the plaintiffs did not qualify as an “accident” within the meaning of Article 17.

The court also ruled that the plaintiffs’ Article 17 claim failed, even assuming the occurrence of an “accident,” because the seating dispute did not result in any “bodily injury” to either plaintiff.  The plaintiffs asserted that they had suffered emotional distress and anxiety, but, in accordance with the governing caselaw, the court ruled that these physical manifestations of emotional distress did not satisfy the Article 17 “bodily injury” requirement.


Ejected passenger’s claims fall, and fail, under Montreal Convention

December 12, 2011

Rogers v. Continental Airlines (D. N.J. Sept. 21, 2011).  The passenger and her daughter boarded the aircraft for a flight from Newark, New Jersey, to Cancun, Mexico, and stood in the forward galley while flight attendants tried to sort out their seat assignments.  While waiting, the passenger answered a call on her mobile phone.  When a flight attendant told her to end the call, she replied that “the pilot didn’t announce not to be on your phone and I’m talking to my Mom” and continued her conversation.  Unimpressed by the passenger’s asserted “mom call” exception to 14 C.F.R. § 91.21, Continental personnel requested that the passenger deplane.  After some resistance by the passenger, and after an airline employee allegedly threw some of her carry-on items from the aircraft onto the jetway, she deplaned.

Continental rebooked the passenger and her daughter on a later flight, and they arrived in Cancun “several hours later than originally scheduled.”

The passenger filed a lawsuit against Continental in state court, alleging claims for intentional infliction of emotional distress, negligent infliction of emotional distress and breach of contract.  The airline removed the case to federal court.

After discovery, the airline moved for summary judgment on the grounds that the Montreal Convention exclusively governed the passenger’s claims and that she had failed to state a viable claim under the Convention.  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.”

In opposition to the motion, the passenger resisted the application of the Convention, arguing that her injuries had occurred in the terminal after she had deplaned.  The court disagreed, finding that the passenger had admitted, in her complaint and during her deposition, that her injuries had occurred on board the aircraft and while disembarking in the jetway.  Thus, the court concluded, the Convention applied.

The court then analyzed whether the passenger had alleged facts sufficient to support a viable “bodily injury” claim under Article 17(1).  The court found that, although the passenger had complained of “physical manifestations of emotional and mental anguish” in her complaint, she had admitted during her deposition that she had, in fact, not sustained any physical injury as a result of the incident at issue.  Accordingly, the court held that her tort and contract claims failed as a matter of law and granted the airline’s motion.


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.


Airline obtains summary judgment in case involving passenger assault and false arrest claims

November 30, 2010

Ginsberg v. American Airlines (S.D.N.Y. Sept. 27, 2010).  The plaintiff was a passenger on an American flight from New York (JFK) to Turks and Caicos.  After visiting the restroom during the flight, the plaintiff moved a food cart out of his way so he could return to his seat.  However, a flight attendant had instructed him to wait for her to move the cart.  The plaintiff and the flight attendant had a confrontation about the cart that involved some physical contact but no injury to the plaintiff.

Upon arrival in Turks and Caicos, the local police boarded the aircraft and asked the plaintiff to accompany them.  The police questioned the plaintiff at their headquarters and then drove him to his hotel.  American refused to transport the plaintiff on the return flight, so he purchased a substitute ticket on a US Airways flight.

The plaintiff sued American in state court, alleging causes of action for assault and battery, false arrest, conspiracy, intentional infliction of emotional distress (related to the return flight) and breach of contract (also related to the return flight).  The plaintiff sought actual damages of over $325,000 and punitive damages of $1 million.  American removed the case to federal court and moved for summary judgment, contending that all of the plaintiff’s tort claims were preempted by the Montreal Convention and offering to refund him the value of the return portion of his ticket in satisfaction of his breach of contract claim.

The court held that the plaintiff’s claims for assault and battery, false arrest and intentional infliction of emotional distress, to the extent they were based on the in-flight events, were preempted by the Montreal Convention.  The court also held that, for the in-flight events, the plaintiff had no claim under Article 17(1) of the Convention, which provides that an airline “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.”  The court reasoned that the plaintiff had no claim under Article 17(1) because no “accident” had occurred, as the plaintiff himself was the proximate cause of his confrontation with the flight attendant, and because the plaintiff had not suffered any “bodily injury” as a result of such confrontation.

The court then held that the plaintiff’s false arrest claim, to the extent it was based on the alleged conduct by American personnel at the police headquarters, was not preempted by the Montreal Convention but that it failed nonetheless because the plaintiff had not proffered any evidence of false statements made by such personnel to the police.

Next, the court held that the plaintiff’s intentional infliction of emotional distress claim failed.  The court concluded that this claim, which was based on American’s refusal to transport the plaintiff on the return flight, was deficient because the plaintiff had failed to proffer evidence that American had engaged in “the requisite outrageous and extreme conduct” or that he had suffered “the requisite severe emotional distress.”

Finally, the court held that the plaintiff’s breach of contract claim was not preempted by the Montreal Convention, but it noted that American had offered to refund the value of the return portion of the plaintiff’s ticket.  The court indicated that American would also be liable to the plaintiff for the “additional cost factor” associated with the substitute US Airways ticket.

Update:  On October 25, 2010, the plaintiff appealed the court’s decision to the Second Circuit.


Follow

Get every new post delivered to your Inbox.