Caman v. Continental Airlines

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUY CAMAN, an individual,  No. 03-56810

Plaintiff-Appellant,

v.  D.C. No.

CV-02-08958-JFW

CONTINENTAL AIRLINES, INC.,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted

February 15, 2006—Pasadena, California

Filed August 2, 2006

Before: Betty B. Fletcher and Consuelo M. Callahan,

Circuit Judges, and Morrison C. England, Jr.,

District Judge.*

Opinion by Judge England

*The Honorable Morrison C. England, Jr., United States District Judge

for the Eastern District of California, sitting by designation.

8739

CAMAN v. CONTINENTAL AIRLINES, INC. 8741

COUNSEL

Clay Robbins III, Los Angeles, California, argued the cause

for the appellant.

William J. Boyce, Houston, Texas, argued the cause for the

appellee. With him on the briefs were Rachel G. Clingman,

Houston, Texas, and Jeffrey A. Worthe, Santa Ana, Califor-

nia.

OPINION

ENGLAND, Circuit Judge:

This action is brought pursuant to Article 17 of the Conven-

tion for the Unification of Certain Rules Relating to Interna-

tional Transportation by Air, Oct. 12, 1929, art. 17, 49 Stat.

8742 CAMAN v. CONTINENTAL AIRLINES, INC.

3000, T.S. No. 876 (1934), reprinted in note following 49

U.S.C. § 40105 (“Warsaw Convention” or “Convention”).

The parties agree, and we concur, that this action is governed

exclusively by the Warsaw Convention. The scope of our

review is limited to whether appellant Guy Caman (“Caman”)

can establish liability against appellee Continental Airlines

(“Continental”) under the Convention.1 We hold that the dis-

trict court properly granted summary judgment in favor of

Continental on the ground that Continental’s failure to warn

Caman of the possibility of developing Deep Vein Thrombo-

sis (“DVT”) during the course of an international flight does

not constitute an “accident” under the Warsaw Convention.

Accordingly, we affirm.

BACKGROUND

Caman alleges that he developed DVT while on board an

international flight operated by Continental. Caman’s axial

argument is that Continental’s failure to advise him of the risk

of DVT, which can result from immobility, dehydration and

being cramped in a small pitch seat over the course of an

international flight, constitutes an “accident” for purposes of

establishing liability under the Warsaw Convention.

The following facts are uncontested. On May 28, 2002,

Caman departed from Los Angeles, California, on a flight

bound for Paris, France. The flight was uneventful with no

equipment malfunction or other anomaly occurring. Caman

did not receive any warning regarding the potential hazard of

developing DVT on his international flight. During the course

of his air travel, up to and including his disembarkation from

the aircraft, Caman did not request any assistance or other

accommodation from Continental personnel. Upon his arrival

1

A passenger whose injury is not compensable under the Warsaw Con-

vention because it entails no “bodily injury” or was not the result of an

“accident” will have no recourse to an alternate remedy. El Al Isr. Airlines

v. Tseng, 525 U.S. 155, 160-61 (1999).

CAMAN v. CONTINENTAL AIRLINES, INC. 8743

in France, Caman found it difficult to walk on his right leg

and immediately sought medical attention. He was diagnosed

with DVT and was admitted to a hospital where he remained

for three days. He received therapy amounting to injections

several times a week for the next month.

STANDARD OF REVIEW

Caman appeals the district court’s grant of summary judg-

ment in favor of Continental. We review the district court’s

grant of summary judgment de novo. Carey v. United Air-

lines, 255 F.3d 1044, 1047 (9th Cir. 2001). Interpretations of

treaties, such as the Warsaw Convention, are questions of law

that are also reviewed de novo. Hosaka v. United Airlines,

Inc., 305 F.3d 989, 993 (9th Cir. 2002).

ANALYSIS

[1] Caman seeks review of the lower court’s ruling that an

air carrier’s failure to warn passengers of the risk of develop-

ing DVT during international air travel is not an “accident”

for purposes of Article 17 liability. Article 17 of the Warsaw

Convention imposes liability on an air carrier for a passen-

ger’s death or bodily injury caused by an “accident” that

occurred in connection with an international flight. Olympic

Airways v. Husain, 540 U.S. 644 (2004). The term “accident”

in the Warsaw Convention has been defined as an “unex-

pected or unusual event or happening that is external to the

passenger,” and not “the passenger’s own internal reaction to

the usual, normal, and expected operation of the aircraft.” Air

France v. Saks, 470 U.S. 392, 405-06 (1985).

[2] It is well settled that the development of DVT as the

result of international air travel, without more, does not con-

stitute an “accident” for purposes of Article 17 liability. See,

e.g., Rodriguez v. Ansett Austl. Ltd., 383 F.3d 914, 919 (9th

Cir. 2004); Scherer v. Pan Am. World Airways, Inc., 54

A.D.2d 636, 387 N.Y.S.2d 580, 581 (App. Div. 1976). Gener-

8744 CAMAN v. CONTINENTAL AIRLINES, INC.

ally, courts reach this conclusion because the development of

DVT is nothing more than a passenger’s own internal reaction

to the usual, normal, and expected operation of the aircraft.

Rodriguez, 383 F.3d at 917. Since the development of DVT

itself does not constitute an Article 17 “accident,” Caman

would have us conclude that Continental’s failure to warn him

of the risk of DVT constitutes an Article 17 “accident.” While

this issue has been expressly decided by a sister circuit as well

as by sister signatories to the Warsaw Convention, it is an

issue of first impression in this circuit. Given the narrow

ambit of the issue coupled with the unsettled state of the law,

a brief recitation of both controlling precedent as well as

related domestic cases follows.

I.

The seminal case on the issue of what constitutes an acci-

dent under Article 17 of the Warsaw Convention is Air

France v. Saks, 470 U.S. 392. In Saks, an airline passenger

became permanently deaf in one ear after experiencing severe

pain and pressure in that ear during the plane’s descent into

Los Angeles en route from Paris. The plaintiff sued the air

carrier under the Warsaw Convention, contending that her

injury was the result of an “accident” occurring during her

international flight. Justice O’Connor delivered the opinion of

the Court and held that Article 17 liability arises only if a pas-

senger’s injury is caused by an “unexpected or unusual event

or happening that is external to the passenger.” Id. at 405. The

conditions precedent to Article 17 liability are as follows: 1)

an unexpected or unusual event; 2) external to the passenger;

3) that causes the plaintiff’s injury. See id.; see also Rodri-

guez, 383 F.3d at 917.

[3] Nearly two decades after Saks was decided, the

Supreme Court revisited the question of what constitutes an

Article 17 “accident.” Husain, 540 U.S. 644. In Husain, a pas-

senger severely allergic to tobacco smoke suffered a fatal

asthma attack after the flight attendant repeatedly refused to

CAMAN v. CONTINENTAL AIRLINES, INC. 8745

assist him in finding a seat further away from the plane’s

smoking section. Id. at 653. With respect to whether the flight

crew’s refusal to reseat the decedent was “unusual or unex-

pected,” the Court expressly declined to decide the question.2

Id. at 653. Instead, the Court adopted the district court’s find-

ing that the air crew’s departure from relevant industry stan-

dard was unusual or unexpected conduct satisfying part of the

first condition precedent. Id. at 652-53. Next, the Court con-

sidered whether inaction can constitute an “event” for pur-

poses of Article 17 liability. The Court rejected Olympic

Airways’ argument that only affirmative conduct can consti-

tute an “event” under Article 17. In dismissing that argument,

the majority of the Court concluded that the air crew’s failure

to assist, or inaction, can constitute an Article 17 “event.” Id.

at 654-57. With respect to the element of causation, the Court

concluded that the failure of the air crew to reseat the dece-

dent together with exposing him to smoke were each links in

the causal chain leading to his expiration and entitling his

wife, the plaintiff, to relief. Id. at 654.

In Blansett v. Continental Airlines, Inc., 379 F.3d 177 (5th

Cir. 2004), the plaintiff sought relief on the identical theory

presented here. Namely, Blansett argued that the airline’s fail-

ure to warn him of the potential for developing DVT is an

Article 17 “accident” because the decision not to warn pas-

sengers of a known risk is a departure from industry standard

and is, therefore, unexpected.3 Id. at 181. Based in part on

2

The Supreme Court’s discussion of this issue in Husain is as follows:

“As an initial matter, we note that petitioner did not challenge in the Court

of Appeals the District Court’s finding that the flight attendant’s conduct

in three times refusing to move [the passenger] was unusual or unexpected

in light of the relevant industry standard or petitioner’s own company pol-

icy. . . . Consequently, we need not dispositively determine whether the

flight attendant’s conduct qualified as ‘unusual or unexpected’ under Saks,

but may assume that it was for purposes of this opinion.” Husain, 540 U.S.

at 652-53.

3

This argument is directly drawn from the Husain decision. As noted

supra, the Husain Court expressly declined to decide whether the refusal

to assist a passenger was “unexpected.” See n.2, supra. Rather, the Court

adopted the district court’s reasoning that the departure from industry stan-

dard made the air crew’s conduct “unexpected.” Husain, 540 U.S. at 653.

8746 CAMAN v. CONTINENTAL AIRLINES, INC.

Husain’s reasoning that inaction can constitute an event, the

plaintiff urged that the air carrier’s failure to warn also com-

prised an Article 17 “event.” Id.

The Blansett court carefully abstained from creating a per

se rule that any departure from an industry standard consti-

tutes an Article 17 “accident.” Id. at 182. Instead, the court

pointed to the absence of any Federal Aviation Administration

requirement that warnings of DVT be issued on international

flights as evidence that a failure to warn of DVT is not “unex-

pected” and, therefore, outside the scope of Article 17. As the

court explained in summation, “[i]t was not an unexpected or

unusual decision for Continental merely to cleave to the

exclusive list of warnings required of it by the agency that has

regulatory jurisdiction over its flights.” Id.

In Rodriguez this court addressed circumstances very simi-

lar to those presented here. Specifically, we considered first

whether developing DVT can constitute an Article 17 “acci-

dent,” and second, whether a failure to warn of the risk of

DVT can constitute an Article 17 “accident.” 383 F.3d 914.

On the merits of the first claim, we concluded that “there was

no event external to the passenger, let alone an unusual or

unexpected event.” Id. at 918. As to the failure to warn claim,

we declined to decide whether failure to warn of DVT can

constitute an “accident.” Id. at 919. Rather, we decided that

Rodriguez had failed to create a genuine issue of material fact

by failing to submit evidence establishing the industry custom

or the airline’s own policy, and failing to establish whether

the airline complied with either the industry standard or its

own company policy. Id.

The foregoing decisions have left unresolved certain issues

salient to this court’s inquiry. Specifically, whether an air car-

rier’s departure from either industry standard or its own com-

pany policy are the appropriate benchmark for determining

whether an event is “unexpected or unusual” conduct under

CAMAN v. CONTINENTAL AIRLINES, INC. 8747

Article 174 and, more importantly, whether the inaction

alleged here is sufficient to constitute an Article 17 “event.”

II.

[4] The starting point of our analysis is, of course, the text

of the Convention and the context in which the written words

are used. Saks, 470 U.S. at 396-97. The text of Article 17 is

as follows:

The carrier shall be liable for damage sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffered by a passenger, if

the accident which caused the damage so sustained

took place on board the aircraft or in the course of

any of the operations of embarking or disembarking.

Art. 17, 49 Stat. 3018. The foregoing language clearly estab-

lishes the liability of international air carriers for accidents

resulting in harm to passengers sustained during any opera-

tions of the aircraft. Conversely, Article 20(1) provides a

defense for air carriers. The language of Article 20(1) is as

follows:

The carrier shall not be liable if he proves that he

and his agents have taken all necessary measures to

avoid the damage or that it was impossible for him

or them to take such measures.

Art. 20, 49 Stat. 3019.

With respect to considering these two Articles, the

4

We recognize that there are questions as to whether an air carrier’s

departure from an industry standard or its own company policy is “unex-

pected” for the purpose of defining an Article 17 “accident.” We decline

to address this question as our holding today does not turn on the resolu-

tion of that issue.

8748 CAMAN v. CONTINENTAL AIRLINES, INC.

Supreme Court explained that “[t]he ‘accident’ requirement of

Article 17 is distinct from the defenses in Article 20(1), both

because it is located in a separate article and because it

involves an inquiry into the nature of the event which caused

the injury rather than the care taken by the airline to avert the

injury.” Saks, 470 U.S. at 407. The Court went on to clarify

that, while these two inquiries may on occasion be similar,

courts should decline to employ that similarity to repeal Arti-

cle 20(1). Id. Attributing liability to an air carrier for failing

to do all it can to prevent an injury that is inherent in air

travel, as Caman is here requesting, improperly shifts the

focus of the inquiry from the nature of the event which caused

the injury to the alleged failure of the air carrier to avert the

same. In addition, interpreting the term “accident” to include

a failure to warn of a possible risk of flight would incorporate

into Article 17 an inquiry that is properly left to analysis

under Article 20(1) once it has been established that an acci-

dent has occurred. Husain, 540 U.S. at 649 n.5 (“After a plain-

tiff has established a prima facie case of liability under Article

17 by showing that the injury was caused by an ‘accident,’ the

air carrier has the opportunity to prove under Article 20 that

it took ‘all necessary measures to avoid the damage or that it

was impossible for [the airline] to take such measures.’ ”

(quoting 49 Stat. 3019) (alteration in original) (emphasis

added)).

[5] Applying the treaty’s text and Supreme Court precedent

to the facts of this case, we hold that Caman cannot establish

his DVT was the result of an “accident” because he cannot

show that it resulted from an “unexpected or unusual event.”

Saks, 470 U.S. at 404, 406. Specifically, we hold that Conti-

nental’s failure to warn Caman of DVT is not an “event” as

that term is discussed in Saks and Husain. Rather, Continen-

tal’s failure to warn was an act of omission (inaction that idly

allows an unfolding series of events to reach their natural con-

clusion) as opposed to an act of commission (inaction that

produces an effect, result or consequence) as in Husain’s

rejection of a direct plea for help.

CAMAN v. CONTINENTAL AIRLINES, INC. 8749

[6] For the foregoing reasons, we conclude that Continen-

tal’s failure to warn Caman of the risk of developing DVT is

not an Article 17 “accident.” Accordingly, he cannot obtain

relief under the Warsaw Convention.

AFFIRMED.