October 24, 2018 Articles

The Unfriendly Skies: International Carrier Liability for Unruly Passengers

By Paula L. Wegman and John Maggio

Unruly and disruptive passenger incidents are one of the top safety issues that concern cabin crew. Numbering almost 10,000 per year, such incidents can cause delays and affect the safety of everyone flying. International Air Transport Ass’n, Unruly and Disruptive Passengers. Passenger assaults stemming from onboard disputes provide numerous issues for courts to consider in determining whether an accident caused a bodily injury.

Introduction to International Claims

While passenger claims resulting from onboard disputes that arise on U.S. domestic flights are governed by state or federal law, similar claims in the international realm are governed by international treaties. For claims that arise from incidents on roundtrip flights from the U.S. with certain other countries, the Montreal Convention would govern liability. Convention for the Unification of Certain Rules for International Carriage by Air art. 17 § 1, May 28, 1999, S. Treaty Doc. No. 106-45 (2000), 2242 U.N.T.S. 350. The Montreal Convention, which entered into force on November 4, 2003, succeeded the Warsaw Convention as the treaty governing air carrier liability. Convention for the Unification of Certain Rules Relating to International Carriage by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11. It unifies and replaces the system of liability that derives from the Warsaw Convention for those parties within the scope of coverage. The Montreal Convention is applicable to all “international carriage of persons, baggage, or goods performed by aircraft for reward.” There are currently 132 parties to the Montreal Convention that adhere to its provisions. International Air Transport Ass’n, Parties to the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999.

A carrier’s liability for passenger personal injury is set forth in Article 17 of the Montreal Convention. Under Article 17(1), an air carrier is liable for a bodily injury sustained by a passenger if the injury was caused by an accident. Although the convention does not define “accident,” the U.S. Supreme Court has explained that an accident is an “unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U.S. 392, 405 (1985). To recover under Article 17 of the Montreal Convention, a plaintiff must establish that an “accident” caused bodily injuries. Article 17 provides that an airline is liable for any accident in which a passenger is injured either on the plane or during the process of embarking or disembarking the aircraft. However, the definition of “accident” does not extend to incidents involving the “usual, normal, and expected operation of the aircraft.” Saks, 470 U.S. at 405. The accident must be an unexpected event, external to the passenger, that is the proximate cause of the passenger’s injury. Whether claims fall within the meaning of an Article 17 “accident” is an issue that repeatedly arises in cases governed by the Montreal Convention.

Forcible Removal of Passengers

Onboard disputes may result in the removal of an unruly passenger. When faced with issues regarding the forcible removal of passengers, courts look to whether the passenger was first asked to leave the plane voluntarily. Once instructed by an authorized airline representative to leave an aircraft, the passenger has a duty to obey. If the passenger refuses to comply with the request, the chain of causation is broken.

In Cush v. BWIA International Airways, Ltd., a passenger refused to leave the aircraft after he had been informed by immigration officials that he was not permitted to travel. 175 F. Supp. 2d 483 (E.D.N.Y. 2001). Although the passenger did not know he was asked to leave by immigration officials, the court found that he was aware, or should have been aware, that the airline had approved of his removal; the airline personnel made eye contact but did not respond, indicating their approval of the removal. Id. at 488. Once aware that his removal was requested with official sanction, the passenger was obligated to depart the aircraft. His refusal to voluntarily disembark resulted in a forcible removal. The court explained that when a passenger is forcibly removed after refusing to disembark at the request of airline officials, or at the request of those authorized and accompanied by airline officials, the passenger’s refusal to disembark, not the decision to remove the passenger, proximately causes any injuries. Without the necessary element of causation, the case was dismissed.

Generally, courts have granted summary judgment in relation to unruly passengers who suffer injuries from their voluntary refusal to disembark. Even when courts have denied summary judgment, juries have sided with defendant airlines in such situations. In Sirico v. British Airways, the court denied summary judgment, but following a trial, the jury awarded no damages. No. 98-CV-4938(FB), 2002 WL 113877, at *1 (E.D.N.Y. Jan. 22, 2002). In Sirico, the defendant airline moved for summary judgment claiming that the plaintiff’s refusal to voluntarily disembark, not the actions of the airline, proximately caused her injuries. The underlying facts surrounding the passenger’s removal from the aircraft were disputed, and the court therefore denied summary judgment, finding that there was a triable issue of fact as to whether the plaintiff refused to leave the plane. After a trial, however, the jury found that no accident occurred and entered a verdict in favor of the airline.

Passenger and Crew Member Altercations

In Ginsberg v. American Airlines, the plaintiff asserted a multitude of claims arising out of an altercation with a flight attendant on a commercial flight. No. 09 CIV 3226 LTS KNF, 2010 WL 3958843, at *1 (S.D.N.Y. Sept. 27, 2010). During the flight, the plaintiff used the restroom located in the rear of the aircraft. He attempted to return to his seat but was told that he would need to wait for the beverage cart to be moved by the flight attendant. At one point, the flight attendant walked toward the rear to serve a beverage, and the plaintiff began pulling the cart toward the rear of the plane. Before the plaintiff reached the rear of the plane with the cart, he had a confrontation with the flight attendant. The plaintiff asserted that the flight attendant pushed and shoved him. The plaintiff was scheduled to return on an American Airlines flight the following week. He attempted to check in but was told that was not on the flight and his ticket had been marked “no go.” Id. at *1. The plaintiff filed an action against American Airlines, but the court granted summary judgment in part for all of the claims except the contract dispute. The court reasoned that no “accident” occurred and there was no “bodily injury” suffered as required by the Montreal Convention for the imposition of damages liability. Id. at *4. “The altercation on board the plane regarding the moving of the food and beverage cart was not ‘an unexpected or unusual event or happening that [was] external to the passenger.’” Id. The plaintiff was instructed to wait for the cart to be moved by the flight attendant, and when she temporarily left the cart, he willfully disregarded her instructions and moved the cart with the knowledge that an altercation could occur. “Furthermore, Plaintiff’s own decision to move the cart, which he knew was contrary to the crew instructions and would provoke a confrontation with the flight attendant, proximately caused the incident; the external source element of the definition of accident clearly is not met here.” Id.

In Glassman-Blanco v. Delta Airlines,the plaintiff alleged that he was wrongly accused by a flight attendant of smoking in the lavatory during the flight, which led to an argument, a physical confrontation with the flight attendant and one of the pilots, and eventually the plaintiff’s physical removal from the aircraft. No. 13-CV-4287 (KAM), 2016 WL 5017468, at *1 (E.D.N.Y. Feb. 3, 2016). The plaintiff asserted numerous claims against the airline, including negligence, assault, and battery. The carrier moved for summary judgment, but the magistrate judge declined to dismiss the case altogether, recommending that the plaintiff file a new complaint alleging that the physical confrontation with the crew was an “accident” under Article 17. Id. at *5. On review, the district court judge decided that the case should be dismissed without an opportunity to re-file because an amendment would be futile. Id. The undisputed testimony showed that the crew had physically restrained the plaintiff and later removed him from the flight after he became disruptive and aggressive, and refused to follow instructions, which distracted the flight crew from their duties. Id. at *4. Because these circumstances arose as a result of the passenger’s own behavior, they were not external to him and could not constitute an accident under Article 17. Id.

Passenger-on-Passenger Assaults

In Price v. British Airways, the defendant’s motion for summary judgment was granted following an onboard altercation between two passengers. No. 91 CIV. 4947 (JFK), 1992 WL 170679, at *1 (S.D.N.Y. July 7, 1992). In Price, the plaintiff was a ticketed passenger on a British Airways flight from New York to London with an intermediate stop in Manchester, England. The plaintiff consumed several alcoholic beverages during the first leg of the trip. After the aircraft had safely landed and taxied to the gate in Manchester, the plaintiff exchanged words with another passenger and was subsequently punched in the face, suffering a bloody nose. Following this, the Manchester police arrested the plaintiff and escorted him to a local police station where he remained for eight hours. The plaintiff claimed that the defendant was strictly liable for any injuries sustained during the flight and that the willful misconduct of the defendant in its operations of the flight caused his injuries. The court held that the incident in this case was not an “accident” within meaning of Article 17. Id. The court quoted Professor Goedhuis, a reporter at the drafting of the Warsaw Convention: “In the example . . . in which a passenger is injured in a fight with another passenger, it would be unjustifiable to declare the carrier liable by virtue of article 17, because the accident which caused the damage had no relation with the operation of the aircraft.” Id. at *3. Similarly, the incident from which the plaintiff brought suit exhibits no relation to the defendant’s operation and control of the aircraft. The decision stated that “[t]o suggest that a fistfight between two passengers is a characteristic risk of air travel is absurd. Such a fracas is not a characteristic risk of air travel nor may carriers easily guard against such a risk through the employment of protective security measures.” Id. The carrier’s motion for summary judgment was granted and the complaint was dismissed.

In Lahey v. Singapore Airlines, the plaintiff, accompanied by her three children and their nanny, boarded a Singapore Airlines flight from Singapore to New York. While the aircraft was parked at the gate before takeoff, the plaintiff reclined her seat back fully. 115 F. Supp. 2d 464 (S.D.N.Y. 2000). The passenger seated behind her began “shoving his knees into the back of her seat,” and the plaintiff returned her seat to the upright position. Id. at 465. The plaintiff complained to a flight attendant about the passenger kicking and pushing her seat. Following takeoff, the crew informed the passengers that it was safe to push their seats back, and the plaintiff reclined her seat to once again feel kicking and pushing from behind. The crew suggested several possible solutions to the dispute, including switching seats, but both parties refused. Id. at 466. Shortly after meal service, the plaintiff was punched from behind through the gap between her seat and the adjacent seat. The blow knocked her glasses off, and as she stood up, a tray of food was thrown at her and she was struck on the side of her head with a plastic entrée dish. The plaintiff suffered a laceration of the scalp as well as a cut on her nose and head. The plaintiff sued the carrier for injuries sustained from the altercation and also sought attorney fees.

The case proceeded to a two-day bench trial, and the court held that this incident was an “accident” under Article 17. Id. Under the Montreal Convention, the accident must be an unexpected event, external to the passenger, that causes the passenger’s bodily injury. The plaintiff testified that she was “shocked and surprised” when she was struck on the temple from between the seats, and the court found that the crew could not have reasonably expected that a passenger would throw his tray of food at another passenger. Id. at 467. Accordingly, these events qualified as an Article 17 accident that caused the plaintiff’s bodily injury (cuts to her face and a “small dent in her head”), triggering liability for the carrier, and the court awarded the plaintiff $10,000 as compensation for her physical injuries and mental anguish. Id. at 468.

Sexual Assault

Sexual assault incidents on commercial flights have been recognized as air carrier liability for torts committed by passengers. In Wallace v. Korean Air, a female passenger brought suit against the airline for injuries suffered when a fellow passenger sexually assaulted her. 214 F.3d 293 (2d Cir. 2000). The plaintiff was in a window seat next to two male passengers on a flight from Korea to California. Id. at 295. She was fully clothed in the darkened plane when she fell asleep about three hours into the flight. Nevertheless, the plaintiff awoke to find that the man in the seat next to her had unbuckled her belt, unzipped her shorts, and placed his hands into her underpants.

The plaintiff hit him hard and climbed out of her chair to escape to the rear of the aircraft where she informed a flight attendant of the assault and was reassigned to another seat. Upon arrival in Los Angeles, the plaintiff disclosed the incident to the police, who arrested the man, and he later pleaded guilty to the crime of engaging in unwelcome sexual conduct with another person. The plaintiff brought action against Korean Air alleging that it was liable for the sexual assault under the Warsaw Convention. The district court dismissed the claim, finding there was no act or omission by the airline personnel representing a departure of the normal operation of a flight. No. 98 CIV. 1039 RPP, 1999 WL 187213, at *4 (S.D.N.Y. Apr. 6, 1999). The air carrier was granted summary judgment and the plaintiff appealed.

On appeal, the Second Circuit concluded that the characteristics of air travel increased the plaintiff’s vulnerability to the assault. The plaintiff was cramped into a confined space beside two strangers whom she did not know, the lights were turned down, and the sexual predator was left unsupervised. Wallace, 214 F.3d at 299. The court determined the assault was “an unexpected or unusual event or happening external to the passenger” and thus constituted an Article 17 “accident.” Id. at 300. The lower court’s decision was vacated, and the case was remanded for further proceedings.

Conclusion

Passenger-on-passenger assault, altercations between passengers and flight attendants, and unruly passengers are significant concerns for international carriers. Generally, whether an incident is classified as an “accident” depends on its foreseeability during a flight. Courts have consequently held that no Article 17 “accident” has occurred when it results from the normal and expected use of the aircraft. On the other hand, if the incident was an unexpected or unusual event that was external to the passenger, courts conclude that it does constitute an “accident.” Courts also tend to refrain from punishing airlines when their employees take the proper steps in managing situations caused by unruly passengers. When passengers are asked to voluntarily leave and refuse, the refusals break the chain of causation, and any resulting injuries are a consequence of their own actions.
 

Paula L. Wegman is a partner with Adler Murphy & McQuillen LLP in Chicago, Illinois, and John Maggio is a partner with Condon & Forsyth LLP in New York, New York, and Miami, Florida.  This article was prepared with the assistance of Chelsea Schell, an associate with Condon & Forsyth LLP in New York, New York; Ajay Mohandas, JD candidate 2020, University of Florida Levin College of Law; Elizabeth D. Ingram, JD candidate 2019, Northwestern Pritzker School of Law; and Catherine S. Kim, JD candidate 2019, Chicago-Kent College of Law.


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