Conditions of carriage withstand tort claims by delayed passengers

February 1, 2012

Lavine v. American Airlines, Inc. (Md. Special App. Dec. 1, 2011).  Using, the plaintiffs bought two American Airlines tickets for roundtrip transportation originating and terminating at Reagan National Airport, with an intermediate stop at Key West International Airport.  Their outbound itinerary included a connecting flight from Miami International Airport to Key West.  They received an email confirmation that referred to, incorporated, and contained a link to, American’s Conditions of Carriage.

According to the plaintiffs, American personnel at DCA informed them that the flight to MIA was delayed.  The plaintiffs claimed that they requested seats on another flight or a refund and that they only boarded the delayed flight after having been assured by American personnel that, despite the delay, the airline “would provide” them with the connecting flight to Key West.  The plaintiffs alleged that, upon arrival at MIA, American personnel informed them that they only had 15 minutes to reach the gate for the connecting flight.  The plaintiffs asserted that they ran through the airport, inhaling construction debris along the way, but that American did not permit them to board the connecting flight because they had arrived too late.  American obtained and paid for a hotel room for the plaintiffs and gave them a stipend for dinner and breakfast.  The plaintiffs traveled to Key West on an American flight the next day.

In their lawsuit against American, the plaintiffs alleged five counts based on common law theories of negligent and intentional misrepresentation and demanded $10,000 in compensatory damages and $10,000 in punitive damages.  The plaintiffs appealed after the trial court granted the airline’s motion for summary judgment.

The appeals court affirmed the trial court’s judgment.  First, the appeals court held that American was entitled, under 49 U.S.C. § 41707 and 14 C.F.R. Part 253, to incorporate the Conditions of Carriage by reference, that the airline had in fact done so and that the plaintiffs’ allegation that they had not seen, or agreed to, the Conditions of Carriage did not create a genuine dispute of material fact.

The court then held that the Conditions of Carriage operated to prevent the plaintiffs from being able to prove the “false statement” and “reliance” elements of their negligent and intentional misrepresentation claims.  The court held that the plaintiffs could not prove the “false statement” element due to the limitation of liability clauses of the Conditions of Carriage, which provided as follows:  “American is not responsible for or liable for failure to make connections, or to operate any flight according to schedule, or for a change to the schedule of any flight.  Under no circumstances shall American be liable for any special, incidental or consequential damages arising from the foregoing.”

Next, the court held that the plaintiffs had failed to prove reliance on any alleged verbal representations by American personnel because Mr. Lavine, as “an experienced attorney licensed to practice law in Maryland,” could not have justifiably relied on any such representations in view of the limitation of liability clauses in the Conditions of Carriage and a clause providing that “times shown in timetables or elsewhere are not guaranteed and form no part of this contract.”

The court then held that the plaintiffs had failed to establish the proximate cause element of the causes of action because “it is not foreseeable that [appellants] would inhale construction debris and sustain personal injury as a result of an airline scheduling delay.”

Finally, even if the plaintiffs had been able to establish the elements of their causes of action, their claims would not have made it past 49 U.S.C. § 41713(b)(1), the preemption provision of the Airline Deregulation Act, which provides that “a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.”  The court held that this provision preempted the plaintiffs’ tort claims because they were “related to” American’s boarding procedures, which constituted a “service” provided by the airline.

Note:  This opinion has generated interest among non-aviation business litigators and transactional attorneys in Maryland.  In holding that the Conditions of Carriage were part of the parties’ contracts, the court rejected the plaintiffs’ argument that, even if the Conditions were part of the contracts, there was a dispute of fact because American personnel, by their verbal statements at the airport, had modified the Conditions.  The court relied on the “non-modification” clause of the Conditions in rejecting this argument; that clause stated that “[n]o agent, employee or representative of American has authority to alter, modify or waive any provision of the Conditions of Carriage unless authorized in writing by a corporate officer of American,” and the plaintiffs had not offered proof of a corporate officer’s written modification.  Some commentators have opined that this decision appears to conflict with prior Maryland decisions holding that, despite a contractual requirement that any modifications be written, parties can nevertheless verbally modify contracts.  It appears that the more rigorous “corporate officer” written modification requirement gave the court comfort to enforce the non-modification clause in this case.

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.

Court declines to dismiss complaint in passenger heart attack case

April 15, 2008

Watts v. American Airlines, Inc. (S.D. Ind. Oct. 10, 2007).  During a flight from Japan to Chicago in 2005, the passenger had a heart attack and died in a lavatory.  He was discovered by cleaning personnel after the aircraft had landed.

The plaintiff, the passenger’s wife, filed a lawsuit against American.  The airline moved to dismiss the complaint on the grounds that the plaintiff had failed to state a claim under the Montreal Convention, which applied to the transportation at issue and thus provided the plaintiff’s exclusive remedy.

Article 17(1) of the Convention governs an airline’s liability for a passenger’s death or bodily injury; it 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 U.S. Supreme Court has defined an “accident” as “an unexpected or unusual event or happening that is external to the passenger,” not “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.”  In its motion, American contended that no “accident” had occurred because the passenger’s heart attack was caused by his own internal condition that was not related to the operation of the aircraft.

The court disagreed.  Taking the plaintiff’s allegations as true, the court reasoned that “American Airlines’ unusual or unexpected failure to recognize and/or respond to [the passenger’s] heart attack, and its failure to conform to industry custom and practices by responding to his medical emergency, could constitute a link in the chain of the events causing the ill-fated ‘accident’ on board [the flight].”  Accordingly, the court denied American’s motion to dismiss.

Passenger’s seating decision dooms her personal injury lawsuit

September 23, 2007

Zarlin v. Air France (S.D.N.Y. Sept. 6, 2007).  A flight attendant reseated the passenger during an international flight after she complained that the passenger in front of her had deliberately reclined his seat so that it touched her.  Without informing a flight attendant, the passenger returned to her original seat because the alternative seat was too close to a lavatory.  The passenger in front then reclined his seat again, this time “striking and injuring” the plaintiff’s knee.

The passenger sued the airline, seeking damages for “her medical costs, the value lost in a country club membership, and expenses incurred for pool membership and to resurface her tennis court.”  Air France moved for summary judgment on the grounds that the passenger’s injury was not the result of an “accident” with the meaning of Article 17 of the Warsaw Convention, arguing that (i) the reclining of the seat was not an “unusual or unexpected” event and thus not an “accident,” and (ii) the passenger’s decision to return to her original seat was the proximate cause of her injury.

The court granted the airline’s motion.  Although the court expressed “serious doubts” that the reclining of the seat was an “accident,” the court ruled that the existence of disputed facts made the granting of summary judgment on this issue improper.  The passenger was not so lucky with the airline’s proximate cause argument.  The court held that the passenger’s decision to return to her seat was the proximate cause of her injury, reasoning that if she had “remained in the new seat she was offered by Defendant’s flight crew, the incident in question could not have taken place.”  The court concluded that because no reasonable jury could find that the airline’s conduct was the proximate cause of the passenger’s injury, the passenger had failed to establish that an “accident” within the meaning of Article 17 had taken place.  Since the Warsaw Convention provided the passenger’s only possible remedy, her claim failed.

Court grants summary judgment against “undeserving litigant” in personal injury lawsuit

July 31, 2007

Agravante v. Japan Airlines International Co., Ltd. (D. Guam July 9, 2007).  The passenger claimed in his lawsuit against JAL that he suffered back injuries as a result of a “standing takeoff” in 2002.  In a standing takeoff, the flight crew taxis the aircraft to the runway, sets the brakes, sets the engines to a predetermined power setting and then releases the brakes.  The aircraft’s computer controls the takeoff roll and acceleration.  A standing takeoff imparts more force on passengers than a manually-controlled takeoff does but is considered routine in the aviation industry.

The airline moved for summary judgment on the grounds that the passenger’s supposed injuries were not caused by an “accident” within the meaning of Article 17 of the Warsaw Convention and that even if an accident did occur, there is no causal link between such accident and the passenger’s injuries.  Article 17 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.”

The court granted the airline’s motion.  The court generously gave the passenger the benefit of the doubt that the standing takeoff was an “accident” within the meaning of Article 17 but held that the passenger’s allegation that the takeoff was the proximate cause of his injuries “cannot withstand even cursory scrutiny.”  The court noted that the passenger’s “own medical evidence” showed that his back problems were the result of a degenerative disease, not the takeoff, that the passenger had not mentioned any injuries in the incident report he submitted to the airline immediately after the flight and that he did not seek medical treatment until two years after the flight.

In closing its opinion, the court stated:  “The Warsaw Convention imposes a form of absolute liability on international air carriers for accidents which cause passenger injuries.  Since liability under the Convention is nearly absolute, courts should be wary of reckless invocation of the Convention by eager but undeserving litigants.  Here is such an instance of an undeserving litigant.”

Court rules that airline must eat asparagus loss

May 14, 2007

Wea Farms v. American Airlines, Inc. (S.D. Fla. Apr. 18, 2007).  A Peruvian farmer delivered asparagus to American in Lima for shipment to Miami International Airport.  American did not notify the consignee of the asparagus’ arrival in Miami until more than 18 hours had elapsed.  During that time, the asparagus was exposed to the summer heat in Miami and not placed in any type of refrigerated storage.  Not surprisingly, the asparagus suffered severe heat damage and was a total loss.

The shipper sued American for the fair market value of the asparagus at the time it was delivered to the airline.  At the trial, American argued that it was absolved from liability under its tariffs and Article 18.2 of the Montreal Convention because the asparagus had been delivered to it by the shipper in “defective packaging.”

The court found that American or its cargo agent, not the shipper, had been responsible for the packaging.  The court also found that even the shipper had been responsible for the packaging, the proximate cause of the damage to the asparagus was American’s negligence in waiting over 18 hours to contact the consignee while the asparagus sat in the hot summer weather.  Accordingly, the court held American liable to the shipper for the fair market value of the asparagus at the time of delivery.