How a 2022 case modernized the protection of airline passenger rights
February 8, 2023 - In most personal injury and wrongful death cases, the claim is litigated according to a strict set of laws tied to where and how the injury took place. However, litigation involving incidents that occur during international air travel are a significant exception to this rule. In 2022, a notable decision in the 1st U.S. Circuit Court of Appeals significantly impacted the legal landscape of who is at fault when an international aviation accident occurs.
In October of 1929, a draft set of rules pertaining to liability in international aviation was presented at the Warsaw Conference. These rules, known as the Warsaw Convention, were put into place in 1933. The primary purpose of the Warsaw Convention was to limit the liability of air carriers and thereby aid the growth of the fledgling international aviation industry. As time passed, however, signatory countries grew frustrated by the Warsaw Convention's low liability limits and perceived bias towards industry, seemingly protecting the airlines over the passengers.
The solution to these shortcomings was a new international treaty called the Montreal Convention, which updated, improved upon, and eventually replaced the Warsaw Convention. The Montreal Convention of 1999 aimed to better protect passengers while offering a more equitable balance of interests between passengers and the airlines.
The Montreal Convention applies to "international carriage" by air, where the places of departure and destination are within the territories of one of the 135 signatory countries. The Montreal Convention has a two-year limitations period to bring injury or death claims and imposes strict liability on air carriers for damages up to approximately $160,000. The plaintiff may exceed the cap on damages if the airline cannot disprove its responsibility for the plaintiff's injuries.
Like the Warsaw Convention before it, the Montreal Convention supersedes domestic liability law, meaning if a claim is invalid under the Convention there will be no available remedy under local law. While these aspects of the law are straightforward, uncertainty comes into play when determining the airline's liability for injuries to passengers within the constraints of the Convention.
Under Article 17 of the Montreal Convention, to establish liability against an airline, the claimant must be able to prove that he or she sustained a bodily injury as the result of an "accident" that occurred either on the aircraft or while boarding or disembarking.
The United States Supreme Court has interpreted "accident" in this context to mean "an unexpected or unusual event or happening that is external to the passenger" and does not occur as the result of the ordinary operation of the aircraft, Air France v. Saks, 470 U.S. 392, 405 (1985). The Supreme Court noted that the term should be applied flexibly and broadly, and only after assessment of all the circumstances surrounding the passenger's injuries.
The Court's definition of "accident," though instructive in many circumstances, created a grey area in the law by not explicitly defining "unusual or unexpected." In particular, the Court failed to indicate who gets to determine whether something is unusual or unexpected: the airline or the passenger?
Many litigants over the years have challenged this open-ended concept of what is considered customary and expected on an ordinary commercial flight, and what is not.
Most recently, the 2022 Massachusetts District Court case Moore v. British Airways PLC Moore v. British Airways PLC, 511 F. Supp. 3d 1 (D. Mass. 2020), tipped the problem of perspective in favor of passengers. In that case, the plaintiff was injured while deplaning via a mobile staircase at London's Heathrow Airport.
Each of the steps had a riser height of 7.4 inches, with the exception of the last step, which measured 13 inches. Plaintiff Moore was injured while stepping from the last step to the ground because, she alleged, the difference in height between the last step and the pavement was unexpected and unusual to her, which caused her to lose her balance and fall.
With the loose definition of "unexpected or unusual" at play, plaintiff originally chose to identify the staircase as the unexpected or unusual element in the scenario, leading the court to side with the airline. The court reasoned that the use of a mobile staircase in place of a jet bridge is not out of the ordinary for airlines, and since the stairs in question were set up and operating properly, an "accident" had not occurred under Article 17.
Plaintiff Moore appealed to the 1st Circuit, Moore v. British Airways PLC, 32 F.4th 110 (1st. Cir, 2022), this time arguing that the height discrepancy between final step and those before it was the unexpected or unusual element giving rise to an accident. But the question remained: Was the plaintiff's surprise at the height discrepancy enough to render the airline at fault even if the stairs had been working properly and no regulations had been violated?
Plaintiff argued that the court should consider the subjective perspective of a "hypothetical average traveler" in determining whether the occurrence had been unexpected or unusual, while British Airways submitted that the court should adopt the perspective of the airline industry, which in this scenario employed an objective definition in line with statutory regulations pertaining to air stairs.
The court held in favor of the plaintiff, noting that the Supreme Court had intentionally chosen the word "or" in the phrase "unusual or unexpected" instead of "and." So while the mobile staircase in question may not have been unusual in the aviation industry, and the height of the last step may have complied with industry regulations, the fact that the height of the last stair had been unexpected to "a reasonable passenger with ordinary experience in air travel" was sufficient to establish an Article 17 accident.
The 1st Circuit cited worldwide authority in its decision, looking to the lead opinion from the House of Lords in a Warsaw Convention case, Deep Vein Thrombosis and Air Travel Group Litigation,Id. at 118, citing  UKHL 72,  1 AC (HL) 495, 504, ¶ 14 (appeal taken from Eng.), in which Lord Scott wrote that courts must examine whether the injury-causing event was "unintended and unexpected from the viewpoint of the victim of the accident."
The court also noted that because the Montreal Convention is a treaty that favors passengers over airlines, Plaintiff Moore's recollection that the sudden drop had been unexpected to her was sufficient to support the occurrence of an accident. The case was remanded back to the District Court and settled shortly before trial.
The outcome of Moore v. British Airways PLC was a significant victory for airline passengers because it opened the door for future injured passengers to seek compensation for accidents caused by unexpected conditions even if those conditions comply with local law and industry regulations. But most importantly, it supported the true intent of the Montreal Convention drafters: to prioritize the safety of commercial airline passengers.