JurisdictionUnited States
Publication year2021

§ 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...

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