Kelsey Roberts1Kelsey Roberts is a J.D. Candidate at the University of Chicago Law School, Class of 2024. She thanks Benjamin Klein, Matthew Makowski, Annie Kors, and the University of Chicago Law Review Online team. She also thanks her parents for their support and for listening to her ramble on about the law.
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When a passenger suffers injuries on an international flight, any claim for damages against the airline must be brought under the Montreal Convention, a multilateral treaty governing the liability of air carriers. The United States and 137 other countries have ratified the Convention. It is the exclusive remedy for passengers who are injured during international air travel, so stating a claim under the Convention is essential to obtaining relief.
To state a claim under the Convention, a passenger must show that their injury was caused by an “accident” that took place on board the aircraft or while embarking or disembarking. Defining what constitutes an “accident” is tricky and is the subject of ongoing litigation in the United States and abroad. For instance, a terrorist attack is probably an accident, while an overhead bin falling onto a thumb may not be.
This Case Note focuses on Moore v. British Airways PLC (1st Cir. 2022), a recent effort by the First Circuit to address the definition of “accident.” In Moore, the First Circuit considered: from whose perspective should courts determine whether there was an accident—that of the “ordinary, reasonable passenger,” or that of the airline? This Case Note endeavors to show that answering this question is more complicated than the First Circuit presents. It goes on to suggest that adopting the airline’s perspective, as measured by airline policies and industry standards, would be more efficient and provide more clarity to the parties.
I. Article 17(1) of the Montreal Convention
The Montreal Convention was negotiated to protect the interests of passengers on international flights. The First Circuit noted that the Convention aims to “strike an equitable balance that better protects consumers” than its predecessor, the 1929 Warsaw Convention, which—as the Supreme Court described—had the purpose of “limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry.” Article 17(1) of the Montreal Convention governs the basic liability of airlines. In relevant part, it reads: “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 airline is strictly liable under Article 17(1)—meaning the plaintiff need not show negligence by the airline to be entitled to recovery—for damages up to a certain amount (currently about $175,000).
The Convention does not define the term “accident,” and thus deciphering it was left to the courts. Eventually, in Air France v. Saks (1985), the Supreme Court defined an “accident” as “an unexpected or unusual event or happening that is external to the passenger.” Hence an accident is the injury-causing event, not the injury itself. Though Saks defined “accident” under the Warsaw Convention, courts have applied the same definition under the Montreal Convention because the language remained substantially the same. However, over the decades, this definition has proved knotty to apply, and the First Circuit in Moore addressed one ambiguity in the definition: to whom must the event or happening be “unexpected”—the airline or the passenger?
II. Moore v. British Airways
A. The Facts
The plaintiff in Moore, Jennifer Moore, was injured when disembarking a British Airways flight from Boston to London. When the flight landed in London, the flight crew learned that they would need to use a mobile staircase to disembark passengers due to an issue with the jet bridge. British Airways crew readied the mobile staircase, which was of a design regularly used by airlines at the airport, and the passengers began to disembark. When Moore’s travel companion, Tammy Burnett, descended the staircase ahead of Moore, she noticed that the last step was surprisingly higher than the previous steps. Before Burnett could warn Moore, Moore lost her balance, her “ankles turned,” and she fell.
Moore sued under Article 17(1), claiming that the event was an accident. She claimed that it was “unexpected” that she would have to use “a mobile staircase in which the bottom step was 13 inches from the ground, even though the first twenty-odd steps each had a riser height of 7.4 inches.” Moore, however, offered no evidence that the staircase was “unusual for mobile staircases” used to disembark passengers. Consequently, the district court determined that her injuries were not caused by an accident and granted summary judgment to British Airways.
On appeal, however, the First Circuit found that the district court erred by not separately considering whether the event was “unexpected” in addition to “unusual” because of the “obvious daylight” between the two terms. Given that the mobile staircase was regularly used, its higher last step was expected to the airline. Moore argued that the last step would nonetheless be unexpected to a “reasonable passenger with ordinary experience in commercial air travel.” Moore argued the proper perspective from which to decide whether an event was unexpected is that of the “average traveler,” while British Airways contended that the court should adopt the perspective of the airline industry.
B. The First Circuit’s Analysis, Complicated
The First Circuit held that the accident analysis should proceed from the perspective of “a reasonable passenger with ordinary experience in commercial air travel.” The court cited three reasons that supported its conclusion, and this Section discusses counterarguments illustrating that the legal landscape is less clear than the court’s short opinion suggests.
First, the First Circuit asserted that a close reading of Article 17(1)’s text supported its position. The Supreme Court has determined that the word “accident” can include intentional acts, such as a flight attendant refusing to help a passenger. The First Circuit found it anomalous to say that an intentional act by the airline could be unexpected to the airline. In support, the court relied on Black’s Law Dictionary, which defines an accident as “an event [that] is unusual or unexpected by the person to whom it happens.” Therefore, in the First Circuit’s view, it was necessary to consider the event from the perspective of a passenger because an intentional act can only be unexpected to the person “to whom it happens.”
But this is not wholly convincing. First, the Supreme Court in Saks did not include “by the person to whom it happens” in its definition of accident. The First Circuit cannot replace the Court’s definition of “accident” with that of Black’s Law Dictionary. Given the Court’s decision to adopt only part of Black’s definition, little weight, if any, should be given to the unadopted remainder of the definition. Even if it could be considered, the plain meaning of “accident” as defined by Black’s Law Dictionary is not relevant. “Accident” is used as a term of art in Article 17(1), and its definition differs from the everyday meaning. For example, while an accident intuitively would not include an intentional act, it has been interpreted to do that very thing. Therefore, as a term of art, “accident” could conceivably encompass a counterintuitive approach to interpreting “unexpected” by adopting the airline’s perspective.
Second, the First Circuit cited the Montreal Convention’s purpose of protecting passengers and decided that it would be “incongruous” with this goal “if recovery were impossible for injuries suffered due to events that an ordinary, reasonable passenger would not expect to happen.” The Montreal Convention, as the First Circuit noted, was meant to better protect the interests of passengers than the airline-friendly Warsaw Convention. The Montreal Convention proclaims “the importance of ensuring protection of the interests of consumers.” The First Circuit chose to interpret “unexpected” through the lens of a reasonable passenger to effectuate this purpose.
It is arguably unwarranted for the First Circuit to construe the definition of “accident” in favor of passengers for two reasons. First, the Montreal Convention served travelers primarily by eliminating limits of liability for an airline unless the airline “can prove that the damage was not due to its negligence, or was due solely to the negligence of a third party.”2Thomas J. Whalen, The New Warsaw Convention: The Montreal Convention, 25 Air & Space L. 12, 14, 18 (2000). The Convention explicitly made these concessions to passengers in provisions other than Article 17. So, construing “accident” in Article 17(1) to the additional benefit of customers may be overstating the Convention’s purpose. Second, courts have applied the definition of an “accident” in the Warsaw Convention to the Montreal Convention because the drafters of the Montreal Convention more or less copy-and-pasted Article 17’s language from its predecessor. If “accident” carries the same meaning as it did within an airline-friendly treaty, then it should not be read to favor passengers now. Moreover, the strict liability scheme under Article 17(1) was itself an advantageous provision for passengers even under the Warsaw Convention.
The First Circuit might have asserted that Article 17(1) should be interpreted to the benefit of travelers, despite the counterarguments above, because the Montreal Convention is a treaty that categorically “favors passengers rather than airlines.” Yet, the treaty clearly states its goal of achieving “an equitable balance of interests.” The Montreal Convention largely aimed to elevate the interests of passengers to match, not eclipse, the importance afforded to the airlines’ interests in the Warsaw Convention.
Third, and more persuasively, the First Circuit noted that “fixing the inquiry on the passenger’s objectively reasonable expectations” is consistent with the Convention’s strict liability scheme for airlines because it places the cost of an unexpected event with the airline.
Last, the First Circuit devoted most of its reasoning to a short, neat account of “precedent in foreign and American courts” in support of its holding. The next Part explores the cases cited in that analysis and argues that the case law creates more uncertainty than the Moore court suggested.
III. Distinguishing Between Passenger and Airline Expectations is Not Always Easy
This Part begins by describing the cases the Moore court cited in support of its view that whether an incident is “unexpected” is to be judged from the perspective of the passenger. It then offers a more nuanced view of their holdings. The distinction between passengers’ and airlines’ perspectives might be striking on the facts in Moore, but this Part posits that, on the facts of other cases, the passenger’s expectations are wholly based on airline policy.
The First Circuit in Moore began its discussion of case law with a decision rendered in the United Kingdom, appropriately giving weight to interpretations adopted by the courts of other signing countries in the service of uniformity. In Deep Vein Thrombosis and Air Travel Group Litigation (UKHL 2005), passengers who experienced blood clots after long international flights brought suit against multiple airlines. The plaintiffs argued that the airlines’ failure to warn passengers about the risk of blood clots was an “accident.” The House of Lords disagreed, holding that “normal operation of the aircraft in the normal conditions cannot constitute an [A]rticle 17 accident.”
The First Circuit highlighted Lord Scott’s assertion that “unexpected” is to be judged from the viewpoint of the passenger because “[i]t is the injured passenger who must suffer the accident.” Despite what seems like a strong endorsement of the First Circuit’s holding, Lord Scott concluded that the failure to warn was not an accident because there was “no established practice of airlines . . . to issue such warnings” about blood clots. Curiously, this seems to suggest that whether an incident or instance of conduct was an accident depends on the airlines’ policies and practices, not passenger expectations.
The First Circuit then cited Campbell v. Air Jamaica Ltd. (11th Cir. 2014), an Eleventh Circuit case in which the plaintiff was “bumped” from his flight and forced to reschedule. The court found that it was “irrelevant” whether the airline followed “standard procedures for bumping” because the Article 17 analysis “measures only whether the event was unusual from the viewpoint of the passenger.” Bumping was a “routine travel procedure,” and therefore it could not be an accident. Yet, notably, the court said bumping was routine because it was a “systematic, widely practiced, and widely known” “airline industry practice.” Implicit in this reasoning is the premise that a reasonable passenger would expect the possibility of being bumped, having derived that expectation from the airlines’ common practice. Campbell highlights the difficulty in distinguishing the expectations of a reasonable traveler from the industry standards upon which those expectations are based.
It is likely that, in many cases, airline policies and the expectations of the average traveler will be nearly one and the same. If the distinction is a superficial one, is there any reason to advocate for one approach over the other?
IV. Adopting the Airline’s Perspective Could Streamline Litigation and Provide Better Clarity to Airlines, Passengers, and Courts
For the sake of efficiency and clarity, it might be best for courts to analyze “unexpected” from the perspective of the airline. It is easier to discern airline and industry practices, which are usually documented in writing or widely communicated, than to weigh various pieces of evidence establishing who the ordinary passenger is and what that passenger would reasonably expect.
First, adopting the perspective of the airline would considerably reduce the time and resources necessary to determine whether an event was an accident. Compare the evidence required to establish the expectations of a reasonable passenger in Moore with the evidence presented by the airline. The First Circuit said that the trier of fact could infer passenger expectations through complicated expert testimony describing the human body’s mechanics when descending a staircase, the testimony of Moore’s travel companion, and the absence of a warning about the step. On the other hand, the trial court quickly evaluated the airline’s evidence that the staircase was in regular use (which was undisputed by the plaintiff). In terms of efficiency, it would be best to ground what is “unexpected” in airline policy and industry practices.
Further, using airline and industry standards would provide better clarity to passengers, airlines, and courts after a passenger is injured. For example, imagine a traveler burns her mouth on a meal that is served extremely hot. This would constitute an accident if the temperature of the meal was unusual or unexpected compared to the temperature at which meals are served by airlines generally. This example illustrates how adopting the airline’s perspective provides parties with a clearer idea of whether the injury was caused by an accident under Article 17(1). This approach allows for a more accurate assessment of a passenger’s probability of winning a lawsuit, which might even guide parties toward more equitable out-of-court settlements.
Of course, adopting the airline’s perspective could be problematic. It would give airlines effective control over what constitutes an accident, possibly to the detriment of passengers. For instance, consider the industry practice of “bumping” passengers in Campbell. Bumping can be disastrous for travelers, but because it is the common practice of many airlines, Campbell had no recourse. Passengers would be unable to recover for injuries caused by events arising out of bad policies that are nonetheless common in the airline industry.
To temper these concerns, it might be best to use airline policy and industry standards as rebuttable proof, rather than conclusive evidence, of what is unexpected when determining if an accident occurred. This would allow plaintiffs to show that their injury-causing event was so unexpected or so egregious that it should constitute an accident even if it was expected by the airline. Moreover, passengers can still press that the event was “unusual.” The First Circuit in Moore emphasized that there is daylight between “unusual” and “unexpected,” and each warranted separate analysis.
Last, focusing on whether the airline’s actions departed from industry standards could be contrary to Article 17’s strict liability scheme. It is reminiscent of a negligence standard. However, this has not prevented the decisions discussed in the next Part from embracing the airline’s perspective in their “accident” analyses.
V. Some Courts Seem to Have Embraced the Airline’s Perspective
Analyzing “unexpected” from the perspective of the airline could help to streamline cases, and this Part introduces a sample of precedents that support this approach. The 9th Circuit’s holding in Husain v. Olympic Airways (9th Cir. 2002) adopted Olympic Airways’s policies as the benchmark for unusual and unexpected in its analysis. In Husain, an asthmatic passenger died after his request to be seated further away from the smoking section of the plane was denied by a flight attendant who falsely represented that there were no other available seats. Olympic Airways argued that there was no accident because, among other reasons, the passenger’s death was due to “internal reactions to the usual, normal, and expected operation of the aircraft.” The 9th Circuit disagreed, finding that the flight attendant’s refusal to move the passenger was “clearly external to [the passenger]” and was “unexpected and unusual in light of industry standards” and “Olympic policy.”
The Supreme Court’s subsequent decision in Olympic Airways v. Husain (2004) did not foreclose the Ninth Circuit’s approach. On appeal, the Court decided related questions about causation and failures to act under the definition of accident in Article 17(1). The Court assumed, arguendo, that the flight attendant’s conduct was unexpected in light of airline standards. While the Court noted that it “need not dispositively determine” whether it was correct to adopt the airline’s perspective, it also declined to admonish or reject the Ninth Circuit’s approach. The Ninth Circuit has continued to use industry standards to inform its accident analysis, as illustrated by the next case.
More recently, in Baillie v. MedAire Inc. (9th Cir. 2019), the Ninth Circuit held that “industry standards” and “best practices” were relevant when determining if the airline’s refusal to divert a flight after a man suffered a heart attack was an accident. The Ninth Circuit also found industry-focused Federal Aviation Administration requirements to be relevant to, though not determinative of, the accident analysis.
In Tinh Nguyn v. Korean Airline Co. (5th Cir. 2015), the Fifth Circuit held that an “accident” had not occurred because the plaintiff failed to show that employees deviated from internal policies when they did not provide her with a wheelchair. Though it noted that Olympic Airways did not create “a per se rule that any departure from an industry standard of care must be an ‘accident,’” the Fifth Circuit held that failing to ensure the passenger had a wheelchair was not an unusual or unexpected event because it was not a universal policy among airlines to do so.
Finally, in Salih v. Emirates (NSWCA 2020), the Court of Appeal in New South Wales, Australia held that there was no accident in a claim brought by a plaintiff who suffered injuries to her thumb when an overhead locker door did not open in the way that she would have expected. Because there was no evidence that the locker door malfunctioned, there was no accident, despite the fact that the way that the locker door opened was unexpected to the passenger.
VI. The Seatbelt Sign is On: To Be Continued
It is unclear whether Moore was right to adopt the perspective of the “ordinary, reasonable passenger” in its accident analysis. The distinction that the court drew between passenger and airline expectations may often be illusory because passengers come to expect airlines to comply with their policies and industry practices. If so, it might be preferable for courts to use airline industry policy as the benchmark for what is “unexpected” for the sake of efficiency and clarity. But this approach is not without its objections, and courts will likely continue to wrestle with this question as new fact patterns arise.
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Kelsey Roberts is a J.D. Candidate at the University of Chicago Law School, Class of 2024. She thanks Benjamin Klein, Matthew Makowski, Annie Kors, and the University of Chicago Law Review Online team. She also thanks her parents for their support and for listening to her ramble on about the law.