Chapter § 2A.04 AIR CARRIER LIABILITY

• Jurisdiction: United States
• Publication year: 2021

§ 2A.04 Air Carrier Liability

The Warsaw and Montreal Conventions provide that air carriers "shall be liable" for (1) injuries to passengers,²²² (2) lost, stolen or damaged baggage,²²³ and (3) flight delays.²²⁴ To establish liability under the Convention, the plaintiff must meet specific burdens of proof.

[1] Air Carrier Liability for Physical Injuries

The Warsaw Convention provides:

"The 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." ²²⁵

The Montreal Convention provides:

"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." ²²⁶

The plaintiff's burden of proof against the air carrier that transported the passenger²²⁷ under this provision is to establish that (1) there was a bodily injury,²²⁸ (2) the event in issue constituted an "accident,"²²⁹ (3) there was proximate cause between the "accident" and the injury,²³⁰ and (4) the "accident" took place on board the aircraft or during the course of embarking or disembarking operations.²³¹

In El Al Israel Airlines, Ltd. v. Tseng,²³² the U.S. Supreme Court described Article 17 liability in these terms:

"So read, Article 24 precludes a passenger from asserting any air transit personal injury claims under local law, including claims that fail to satisfy Article 17's liability conditions, notably, because the injury did not result from an 'accident' . . . [or] because the 'accident' did not result in physical injury or physical manifestation of injury. . . . Articles 17, 22 and 24 of the Convention are also designed as a compromise between the interests of passengers seeking recovery for personal injuries, and the interests of air carriers seeking to limit potential liability liability. . . . In Article 17, carriers are denied the contractual prerogative to exclude or limit their liability for personal injury. In Articles 22 and 24, passengers are limited in the amount of damages they may recover, and are restricted in the claims they may pursue by the Convention's conditions and limits."

[a] What Constitutes "Bodily Injury"

The Warsaw and Montreal Conventions provide that an air carrier is liable for damages in the event of the death or "any other bodily injury suffered by a passenger." Damages, however, may be for psychological injuries that may or may not be directly attributable to physical injuries sustained. The Supreme Court has held, however, that under Article 17 of the Warsaw Convention, damages cannot be recovered for purely psychological injuries in the absence of physical injuries.²³³

[b] What Constitutes an "Accident"

Under the Warsaw and Montreal Conventions, a cause of action for physical injuries can only be sustained if the injury was caused by an "accident." The courts have defined an "accident" as an "unexpected, untoward event which happens without intention or design,"²³⁴ and an "undesigned, sudden and unexpected event."²³⁵ However, for purposes of the Warsaw Convention, the Supreme Court has drawn a distinction between the word "accident" when used to describe the event of an injury and when the word is used to describe the cause of an injury.²³⁶ According to the Court, recovery under the Warsaw Convention is proper only when "a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger."²³⁷ However, "when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident."²³⁸ As a result, the Court decided that an ear injury caused by the normal operation of the aircraft's pressurization system was not an accident within the meaning of the Warsaw Convention. With varying results, the courts have addressed the issue of whether an Article 17 "accident" arose from a knee injury,²³⁹ heart attacks,²⁴⁰ scalding injuries,²⁴¹ disputes over seating,²⁴² poor quality cabin air,²⁴³ struck in the eye by fellow passenger's shopping bag,²⁴⁴ failure to use a defibrillator upon request,²⁴⁵ torts committed by terrorist or fellow passenger,²⁴⁶ being trampled on the tarmac by other passengers scrambling for their baggage,²⁴⁷ slip and fall on piece of plastic in the aisle,²⁴⁸ failure to assist and medical aid claims,²⁴⁹ failure to divert flight,²⁵⁰ resisting removal from the United States,²⁵¹ fractured tooth,²⁵² run-away drink cart,²⁵³ damaged wheelchair,²⁵⁴ interference with a business relationship,²⁵⁵ being pushed from behind while disembarking,²⁵⁶ removal from aircraft,²⁵⁷ tripping over a bag in the aisle,²⁵⁸ falling,²⁵⁹ falling out of aircraft,²⁶⁰ ejectment because of passengers need for service animal,²⁶¹ being exposed to a previously used air sickness bag filled with "bio-medical waste,"²⁶² refusing to serve food,²⁶³ failure to provide wheelchair,²⁶⁴ turbulence,²⁶⁵ refusing to remove asthmatic passenger to non-smoking section,²⁶⁶ failing to adequately serve the needs of an ailing passenger,²⁶⁷ ear injuries,²⁶⁸ passenger stepping on another passenger's foot,²⁶⁹ mislabeling of baggage,²⁷⁰ being arrested,²⁷¹ failure to follow policy and procedures,²⁷² fall on slippery lavatory floor,²⁷³ mislabeling of narcotics laden luggage²⁷⁴ sexual assaults²⁷⁵ problems with baggage stored in overhead bins,²⁷⁶ the sounding of a lavatory's fire alarm,²⁷⁷ exposure to insecticide in the aircraft cabin,²⁷⁸ used hypodermic needles,²⁷⁹ giving false information to the police,²⁸⁰ uncomfortable seating,²⁸¹ falling light fixtures,²⁸² a fractured tooth,²⁸³ allergic reaction to food,²⁸⁴ food poisoning,²⁸⁵ injured dog,²⁸⁶ terrorist attacks,²⁸⁷ aggravating effects from drugs,²⁸⁸ slip and fall from airport bus,²⁸⁹ mistaken drink substitution,²⁹⁰ deep vein thrombosis,²⁹¹ failure to warn,²⁹² seat design²⁹³ lost bag containing medication and breathing device,²⁹⁴ refusal to allow passenger to board with two carry on bags,²⁹⁵ passenger assaults,²⁹⁶ hernia,²⁹⁷ intoxicated passengers,²⁹⁸ asthma attacks,²⁹⁹ hijackings,³⁰⁰ bomb scares,³⁰¹ food spills,³⁰² intentional torts,³⁰³ rough landings,³⁰⁴ engine failures,³⁰⁵ delay in taking off due to fog,³⁰⁶ water on aircraft stairs,³⁰⁷ a tire blowout³⁰⁸ defective carpeting on a jetbridge,³⁰⁹ or a defective door.³¹⁰ In addition, the Courts are divided as to whether the injury must be related to the risks of air travel.³¹¹

[c] Proximate Cause

Although the Warsaw and Montreal Conventions provide a cause of action for physical injuries sustained by a passenger while in the control of the air carrier, they do not eliminate the burden of establishing proximate cause. In other words, in cases brought under the Conventions, the plaintiff must establish a cause and effect relationship between the accident and the injury.³¹²

In domestic airline cases, the courts have occasionally permitted the plaintiff to plea res ipsa loquitur which shifts the burden of persuasion to the air carrier.³¹³ Although courts in Warsaw Convention cases have been known, on rare occasion, to grant summary judgment to a plaintiff without requiring a showing of a causal connection,³¹⁴ the general rule under the Convention is to require proof of proximate cause.

[d] Embarking or Disembarking

A physical injury may be sustained by a passenger in an airport or while boarding or leaving the aircraft. The Warsaw and Montreal Conventions provide that the air carrier is liable for injuries sustained during the course of embarking or disembarking operations. However, there comes a point when a passenger is beyond the control of the air carrier. If the accident occurs in an area not within the control of the carrier, then the only possible defendant may be the airport or an independent contractor working for the airport. Both of these potential defendants may be outside of the jurisdiction of a United States court. In this situation, the traveler must try to establish that the accident took place when he was under the control of the air carrier.

The courts, in analyzing whether the passenger was under the control of the air carrier have considered the following factors:

(1) What was the actual location of the accident? For example, had the passenger passed through the air carrier's security and inspection apparatus prior to boarding? Had the passenger passed through the same apparatus after leaving the aircraft and were they waiting for their baggage?

(2) What was the activity in which the passenger was engaged at the time of the accident? For example, was the passenger producing passports for inspection at the time of the accident? Was the passenger seated in a pre-boarding lounge after having passed through security apparatus?

(3) To what extent was the passenger under the physical control of the air carrier at the time of the accident? ³¹⁵

In instances in which the passengers were waiting in a transit lounge prior to leaving the terminal and boarding a bus to take them to the waiting aircraft, they were found to be under sufficient control of the carrier to warrant liability under the Warsaw Convention.³¹⁶ However, when the passenger had left the plane, and was waiting for customs inspection,³¹⁷ already presented his passport for inspection, and was waiting for luggage in the baggage pickup area, the court found that the passenger had proceeded beyond the stage of disembarking and was not in the control of the air carrier.³¹⁸ In general, accidents that occur in airport parking lots, eating areas, or general waiting areas, are not within the ambit of the Warsaw Convention.³¹⁹

[2] Air Carrier Liability for Lost, Stolen or Damaged Baggage

The Warsaw Convention...