C A R LT O N F I E L D S A T T O R N E Y S A T L A W SKY DOCKET Published by The Aviation Practice Group of Carlton Fields A review of recent U.S. airline liability court activity CONTENTS Winter 2004 PASSENGER'S RACIAL DISCRIMINATION CLAIM ALLOWED................................4 CALIFORNIA FEDERAL COURT REJECTS THREE DVT CLAIMS.............................5 SUPREME COURT HEARS ORAL ARGUMENT IN OLYMPIC AIRWAYS V. HUSAIN CLAIM THAT AIRLINE REFUSED TO PRO- VIDE PASSENGER WITH FIRST CLASS SEAT PREEMPTED BY FEDERAL LAW.....6 The U.S. Supreme Court heard oral argument on November 12, 2003 in Olympic Airways v. Husain. The Supreme Court is considering whether the Greece- WHAT IS THE CURRENT U.S. DOLLAR based airline should be held responsible for the death of an asthmatic passenger who VALUE OF AN SDR?............................7 was seated near the smoking section. At issue is the definition of the word "accident." The question for the court to decide is whether according to the test laid out in a 1985 MICHIGAN STATE COURT RULES FLIGHT CANCELLATION CLAIM PREEMPTED BY Supreme Court decision in Air France v. Saks what happened to the passenger was AIRLINE DEREGULATION ACT.............8 "an unexpected or unusual event" that is "external" to the passenger. In Saks, the court held that an ear injury caused by normal changes in cabin pressure did not constitute OVERHEAD BIN ACCIDENT CLAIM DIS- an accident. MISSED AFTER FEDERAL STANDARD OF CARE APPLIED..............................9 Dr. Abid Hanson, 52, suffered an asthma attack on a flight from Athens, WHICH COUNTRIES ARE HIGH Greece, to New Y ork in January 1998, after being exposed to secondhand smoke. CONTRACTING PARTIES TO THE Hanson, an asthma sufferer for decades, had had difficulty breathing in the smoke-filled WARSAW CONVENTION?..............10 waiting areas at the Athens airport. When he and his family boarded the plane, they found their seats were just three rows from the beginning of the smoking section. A CATERER OWES NO DUTY TO FLIGHT ATTENDANT ONCE SERVING CART flight attendant said the flight was full and that he could not be moved. But attorneys for PLACED ON AIRCRAFT....................10 his family told justices in a filing that there were 11 empty seats and 17 non-smoking seats assigned to airline employees and relatives who were flying for free. AIRLINE PREVAILS ON "ALL NECESSARY MEASURES" DEFENSE UNDER IATA INTERCARRIER AGREEMENT............11 According to Hanson's wife, Rubina Husain, she told the flight attendant several times that her husband needed to be moved away from the smoke. But each time she UPCOMING AIRLINE LIABILITY EVENTS...12 was rebuffed, even as Hanson's breathing difficulties increased. Finally, Hanson moved forward in the cabin for fresher air. He asked his wife to administer a shot of epineph- rine, which he carried in an emergency medical kit. She did so and then went to the back of the plane to find Umesh Sabharwal, an allergist and family friend traveling with them. Sabharwal administered more shots, and performed CPR. But Hanson died. ADVERTISEMENT
Was the death an "accident" under the Warsaw Convention? A northern California federal district court agreed and awarded the widow $1.4 million in damages. In a non-jury trial, U.S. District Judge Charles Breyer found that Hanson's death was caused by an accident as defined in the Warsaw Convention and that because the accident was caused by the willful misconduct of the flight attendant, the family should be awarded $1.4 million in damages. The judge reduced the award by 50% to account for Hanson's contributory negligence. Thereafter, the judge added another $700,000 in non-pecuniary damages, for a total again of $1.4 million. The 9th U.S. Circuit Court of Appeals affirmed the ruling. This spring the Supreme Court blocked his family from collecting $1.4 million from Olympic Airways, to give justices time to consider reviewing the airline's appeal. Lawyers for Olympic asked the court to clarify when air carriers can be blamed for passenger illnesses. The key issue from the airline's perspective is whether airlines should be held liable when a passenger's pre-existing medical condition is aggravated by exposure to the normal condition of the aircraft. The airline argued second-hand ciga- rette smoke in the cabin of an aircraft is normal and expected for a flight that allows smoking. There should be no recovery under the Warsaw Convention when a passenger suffers injury or death from a reaction to this normal aircraft operation. The Air Transport Association, in an amicus curae brief, argued that if Hanson's widow wins, airlines would be responsible for preventing passengers from becoming ill while on a flight. Airlines would have to give passengers health questionnaires before they board a plane so a passenger with a head cold would not be seated near the engines, which could cause an illness created by depressurization. The airline would have to ensure a passenger with a smoke allergy is not seated near the smoking section, or that a passenger with a food allergy not be seated near certain foods. Moreover, the ATA argued, the airline would have to determine if the passenger merely disliked the second-hand smoke or food or whether the passenger had a medical condition. If they failed to do this, the potential result could be more litigation--or lengthy procedures and paperwork to avoid the threat. "Nothing about this case was a departure from the existing Warsaw Convention law on accidents … for in-flight events," said Susie Injijian, a lawyer for the family. "[The case] has nothing to do with smoke in the cabin. It has everything to do with flight attendant misconduct. "If the Supreme Court reverses the decision, Injijian said the rights of the public, includ- ing the elderly, the disabled or people with "above average susceptibility to injury" to compensation for accidents occurring during flight would be greatly reduced. "[Olympic Airways] wants to use this case as a vehicle for redefining accident under the Warsaw Convention," she said. "[In that event,] the Warsaw Convention would only compensate people who have been injured or killed in plane crashes or terrorist attacks," she said. At oral argument, the airline's attorney argued that the issue for this case is "What was the injury-producing-event?" Justice David Souter appeared to agree with the 9th Circuit that the unexpected and unusual event was the refusal of the flight attendant to move Hanson to a "smoke-free zone." Hanson was technically in a non-smoking seat already according to the airline's attorney, but Justice Souter remarked that it was a non-smoking seat that happened to be "in a zone of smoke." Justice Souter and the airline's attorney exchanged their thoughts on whether the flight attendant's action needed to be an act or omission to count as an "event." Souter underscored that what was "accidental" was the "unexpectedness" of the flight attendant's refusal to accommodate a sick passenger. The airline's attorney responded that Souter was co-mingling common-law negligence with the Warsaw Convention's accident standard. SKY DOCKET 2
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