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.


Montreal Convention applies, and time-bars, passenger’s claims despite injury’s occurrence during domestic flight

October 11, 2015

Cattaneo v. American Airlines, Inc. (N.D. Cal. Sept. 24, 2015).  The passenger/plaintiff traveled roundtrip on American’s flights between LAX and Cozumel, Mexico, via DFW, in June 2011.  In her complaint filed in November 2014, the plaintiff alleged that, during the DFW-LAX flight, a flight attendant gave her “an unlidded cup of hot water,” which spilled on her lap when the aircraft encountered turbulence, causing injuries.

American moved to dismiss on the ground that the plaintiff’s claims were time-barred by Article 35(1) of the Montreal Convention, which extinguishes the right to damages if an action is not commenced within two years “from the date of arrival at the destination.”  American noted that the Convention applied even though the alleged injury occurred during the domestic DFW-LAX flight because, under Article 1(2), “international carriage” triggering the application of the Convention exists “where or not there be a break in the carriage.”

The plaintiff responded by arguing that the Convention did not apply because the DFW-LAX flight was “completely domestic.”  The court agreed with American, finding that the plaintiff’s itinerary, which included same-day travel from Cozumel to LAX, objectively demonstrated that the DFW-LAX flight was “part of her longer international trip.”  Accordingly, the court granted American’s motion to dismiss.


Court rejects passenger’s “principal and permanent residence” argument in subject matter jurisdiction dispute

February 13, 2014

Razi v. Qatar Airways Q.C.S.C. (S.D. Tex. Feb. 6, 2014).  A passenger traveling on a roundtrip ticket for transportation originating in Pakistan alleged she was burned by a hot beverage served by a flight attendant during a flight from Doha, Qatar, to Houston.  The passenger filed a lawsuit in a Texas state court, which the airline removed to federal court.

Qatar Airways then moved to dismiss on the grounds that the court lacked subject matter jurisdiction under the Montreal Convention.  Pursuant to Article 33 of the Convention, a plaintiff may bring an action for damages in the United States against a carrier only when the United States is (i) “the domicile of the carrier,” (ii) the “principal place of business” of the carrier, (iii) the place where the carrier has a “place of business through which the contract has been made,” (iv) “the place of destination,” or (v) in cases involving the death or injury of a passenger, the “principal and permanent residence” of the passenger at the time of the accident.

The passenger’s only possible shot at defeating the motion was proving that the United States was her “principal and permanent residence,” which the Convention defined as her “one fixed and permanent abode,” at the time of the incident.  She had alleged in her complaint that she resided in Houston, but the court found that, at the time of the incident, she was a citizen of Pakistan, was traveling to the United States under a “Five-Year Multiple-Entry Visa” and had intended to stay in the United States for only three and a half months.  Based on these findings, the court ruled that the passenger’s “one fixed and permanent abode” was Pakistan, not the United States, and granted the airline’s motion.

Note:  Qatar Airways successfully used a similar subject matter jurisdiction argument in a Maryland case (Alemi v. Qatar Airways) in 2012.


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.


Court denies airline’s summary judgment motion in trip and fall case

September 25, 2011

Walsh v. Koninklijke Luchtvaart Maatschappij N.V. (S.D.N.Y. Sept. 12, 2011).  The plaintiff tripped over a metal bar and fell in a departure gate seating area while walking to join a line of persons waiting to board a flight from Amsterdam to New York.  The plaintiff alleged in his complaint that he sustained a fractured elbow as a result of the fall and that, under the Montreal Convention, KLM is liable for $3 million in damages.

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.”  KLM moved for summary judgment on the grounds that the plaintiff was not injured while “embarking” and that, even if he was, his injury was not caused by an “accident” within the meaning of Article 17(1).

The court denied KLM’s motion.  The court first ruled that a reasonable jury could conclude the plaintiff was injured while “embarking” because the incident occurred while the airline was “exercising control” over the plaintiff.  The court reasoned that the airline had control over the plaintiff because the trip and fall took place in the departure gate seating area and while the plaintiff was walking to join a line in response to the airline’s boarding announcements.

The court then concluded that a reasonable jury could also find that the plaintiff’s trip and fall was an “accident” under Article 17(1), although it admitted that this was the “more difficult question.”  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.”  The airline contended that the plaintiff’s fall was “his own internal reaction to an inert piece of equipment, installed and operating as intended.”  The court disagreed, ruling that a jury could find that the metal bar was unexpected, and thus “external” to the plaintiff, because the photographs submitted by the plaintiff showed that the bar protruded past the seating area and was similar in color to the floor.


Airline not liable for passenger’s deplaning injury caused by fellow passenger

September 21, 2011

Goodwin v. British Airways Plc (D. Mass. Aug. 8, 2011).  The plaintiff had traveled on a British Airways flight from London to Paris.  She alleged in her complaint that, while deplaning, she lost her balance, one of her feet slid into the opening between the aircraft and the jetway and she fell and fractured her ankle.  In her deposition, the plaintiff testified that her fall had been caused by another passenger bumping into her.  According to the airline’s witnesses, the plaintiff lost her footing and fell on her own.

The parties filed cross motions for summary judgment in which they agreed that the Montreal Convention governed the plaintiff’s claim.  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.”  Thus, as the court noted, the “threshold inquiry” in a personal injury case governed by the Convention is whether an “accident” within the meaning of Article 17(1) occurred.

To establish in a U.S. court that an “accident” under Article 17(1) took place, a plaintiff must prove “that (1) an unusual or unexpected event that was external to [the plaintiff] occurred, and (2) this event was a malfunction or abnormality in the aircraft’s operation.”

The airline contended that the first step of the above test had not been satisfied because some bumping and jostling from other passengers is usual and expected while deplaning.  The court disagreed.  Viewing the facts most favorably to the plaintiff, the court found that the alleged bump by the other passenger, which the plaintiff described as having “enough force that it knocked me off my balance and I fell,” was more than “run of the mill jostling” and thus was unexpected.

The airline fared better with respect to the second part of the test.  It contended that the plaintiff’s fall had not resulted from the aircraft’s operation because airline personnel had not had any direct involvement in the events leading to the fall.  The court agreed.  Again viewing the facts most favorably to the plaintiff, the court found that the plaintiff’s fall had been solely caused by another passenger and that there was no evidence of any “out of the ordinary” conditions during deplaning that could have imposed a duty on airline personnel to intervene.  Accordingly, the court granted the airline’s motion and denied the plaintiff’s motion.

Note:  On September 6, 2011, the plaintiff noted her appeal of the court’s ruling.


Montreal Convention two-year limitation period not subject to tolling under local law

January 19, 2011

Duay v. Continental Airlines, Inc. (S.D. Tex. Dec. 21, 2010).  After arriving in Texas on a Continental flight from Switzerland, the plaintiff discovered at the baggage claim area that his custom-fitted wheelchair had been damaged.  Continental provided the plaintiff with a replacement wheelchair, which he used for the remainder of his trip in the United States.

In his complaint against Continental, the plaintiff alleged that the replacement wheelchair caused him to sustain a skin irritation injury that ultimately required surgery.  The plaintiff alleged causes of action for negligence, bailment and breach of contract.

Continental moved to dismiss on the grounds that the plaintiff had failed to perform the condition precedent of filing the lawsuit within the two-year period set forth in Article 35(1) of the Montreal Convention, which provides in part that “[t]he right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination.”  The plaintiff’s flight had arrived in Texas on December 2, 2007, but he did not file his complaint until December 18, 2009.

In opposition, the plaintiff contended that his claims were not barred because Article 35(2) of the Convention allows tolling in accordance with Texas law, and because that state’s discovery rule functioned to toll the running of the two-year period.  Article 35(2) provides that “[t]he method of calculating that period shall be determined by the law of the court seised of the case.”

The court agreed with Continental.  First, citing numerous Warsaw Convention cases and that treaty’s drafting minutes, the court ruled that subjecting the Article 35(1) two-year period to the “various tolling provisions of the member states” would be contrary to the Montreal Convention’s policy goal of achieving uniformity of the rules governing international air transportation claims.  Second, the court rejected the plaintiff’s tolling argument on the grounds that the Texas discovery rule does not apply where the accrual of a limitation period is “specifically defined by law,” and that Article 35(1) “unequivocally prescribes” the accrual date as the date of the arrival of the flight.  Accordingly, the court granted Continental’s motion to dismiss.