Passenger can sue airline over injuries

A passenger who fell from portable stairs while disembarking from an airplane can hold the airline accountable for her injuries, according to a ruling from the 1st U.S. Circuit Court of Appeals that could have national impact.

Jennifer Moore sought to recover damages from British Airways under the Montreal Convention, the international agreement that governs compensation for injuries to air travelers on international flights.

Moore claimed that when she arrived in London on a flight from Boston, the last step of the staircase was unexpectedly higher than the previous steps, causing her to trip.

A U.S. District Court judge granted summary judgement for the airline, ruling that Moore’s injury wasn’t caused by an “unexpected or unusual event” that is “external to the passenger” and thus did not constitute an “accident” as required for liability under Article 17(1) of the Convention.

But the 1st Circuit reversed, finding that an event is “unexpected” when a reasonable passenger with ordinary experience in commercial air travel, standing in the plaintiff’s shoes, wouldn’t expect the event to happen.

“On this scumbled record, it is for a jury to decide whether the plaintiff’s injuries resulted from an accident within the meaning of the Montreal Convention,” Judge Bruce A. Selya wrote for the court. “It follows that the district court erred in granting summary judgment in favor of British Airways.”

The decision is Moore v. British Airways PLC.

Giant step

On Sept. 15, 2018, Moore arrived at London Heathrow Airport on a British Airways flight from Boston.

British Airways used a mobile staircase for passengers to exit the plane because the jet bridge was broken, which is apparently a common practice among air carriers when a jet bridge is not available.

Carrying two pieces of hand baggage, Moore proceeded down more than 20 steps before reaching the last step, which had a significantly longer drop to the tarmac than the drop between each of the other steps.

Not expecting the change in height, she lost her balance, fell and injured her ankles.

Moore’s travel companion was also apparently caught off-guard by the last step. She caught herself and tried to warn Moore, but it came too late. Additionally, the airline had no personnel assisting passengers at the last step and gave no specific warning about the height difference at that step.

In 2019, Moore filed suit against the airline in U.S. District Court, asserting a state-law negligence claim and a claim for damages under the Montreal Convention.

According to Moore, the mobile staircase’s last step was unreasonably dangerous at 13 inches in height, considering that the other steps were only 7.4 inches in height. According to her expert, British safety standards consider the maximum rise people can navigate safely to be 8.7 inches.

British Airways moved for summary judgment, arguing that the Montreal Convention preempted Moore’s state-law claim and that her injuries weren’t compensable because her fall didn’t constitute an “accident” within the meaning of the Convention.

U.S. District Judge Mark D. Mastroianni granted the motion. Moore appealed.

Reasonable passenger standard

The 1st Circuit reversed the district court’s decision.

“The district court granted British Airways’ motion for summary judgment because the plaintiff offered no ‘evidence that the height of the last step was unusual for mobile staircases’ or that this design was ‘atypical from other mobile staircases used to disembark passengers,’” Selya noted. “[S]ummary judgment would be appropriate if the inquiry stopped there. But it does not.”

That’s because Air France v. Saks, a 1985 U.S. Supreme Court decision, doesn’t confine the inquiry to whether the event was unusual — it also requires the court to determine whether the event was unexpected.

In terms of whose perspective is relevant to this calculus — the airline or the passenger — Selya said the definition of “accident” should be judged from the perspective of a reasonable passenger with ordinary air travel experience.

“[I]t would be perverse to force injured plaintiffs to bear the cost of accidents unforeseeable to reasonable passengers with ordinary experience in commercial air travel, especially when such incidents are within the reasonable anticipation of airlines and thus more easily built into their actuarial calculus,” Selya wrote.

Accordingly, the court concluded, summary judgment should have been denied.

Plaintiff’s counsel Kevin Chrisanthopoulos of Westfield, Massachusetts called the decision “a big one” for his client and for any plaintiff injured as a result of traveling on an airline.

“Lawyers may have been reluctant to take on these cases because of the narrow definition of ‘accident’ under the Montreal Convention,” he said to Massachusetts Lawyers Weekly. “But I think this opens the door.”

Aviation law

Virginia Beach attorney Jeremiah A. Denton III, who has more than 40 years of experience in aviation law, told Virginia Lawyers Weekly that “much litigation has surrounded what constitutes an ‘accident’” under the Montreal Convention.

In addition to Air France, Denton pointed out the 2004 Supreme Court case Olympic Airway v. Husain, where the court held that a flight attendant’s “obdurate and unjustifiable refusal to move the passenger was indeed an unexpected or unusual event or happening that was external to the passenger.” The passenger, who had severe asthma, was seated near the smoking section and ultimately died in flight as a result of a reaction to the nearby cigarette smoke.

“The difficulty with applying the Supreme Court’s formula in Air France is that, oftentimes, there can be an injurious or fatal interplay between some aspect of a flight that is expected and usual, and some aspect of a passenger that is internal to the passenger,” Denton said.

Boston attorney Tory A. Weigand, who represents airlines, said the decision in Moore runs counter to the Air France precedent.

“It was the clear intention not to hold air carriers absolutely liable for any harmful occurrence and this decision, while not so holding, moves closer to that result,” Weigand said.

Boston attorney Anthony Tarricone, who represents plaintiffs in aviation accidents, disagreed with Weigand’s analysis, stating the difference in height of the stairway’s last riser created “an unexpected condition as the plaintiff stepped off the staircase to the ground.”

To illustrate the difficulty in applying the Air France analysis, Denton described a hypothetical situation where a passenger experiences cardiac arrest in flight.

“The captain has a choice between making an emergency landing or proceeding on to the scheduled destination,” Denton said. “If he does the latter and the patient dies in consequence of delayed cardiac care, there is, under the formula of Air France, no accident, yet the captain’s inaction would have clearly occasioned his passenger’s death.”

To cover such “anomalous situations where the airline could have eliminated or mitigated an injury incident,” Denton said the Air France formula “might have been better phrased” to include language specifically covering “any event or happening that is reasonably within the power of the airline to prevent or mitigate.”