Brandi Wallace v. Korean Air

POOLER, Circuit Judge,

concurring:

I concur in the result and in the majority’s able discussion of the Warsaw Convention, but I write separately because I would decide the case on a ground the majority avoids. At issue in this case is whether a tort committed by a fellow passenger constitutes an “accident” under Article 17 of the Warsaw Convention. The district court dismissed the case holding that airlines are only “liable for torts that are proximately caused by the abnormal or unexpected operation of the aircraft ... the abnormal or unexpected conduct of airline personnel,”or that involve “a risk characteristic of air travel.” Wallace v. Korean Air, No. 98 Civ. 1039, 1999 WL 187213 *4 (S.D.N.Y. Apr. 6, 1999). The majority now reverses, assuming without deciding that the district court’s interpretation of “accident” was correct, but holding that the sexual assault Wallace suffered met that definition — a factual issue neither briefed nor argued by counsel. I would reverse in more straightforward fashion, because I believe that the lower court’s holding contradicts Supreme Court precedent. We need not reach the complicated, always fact laden, and irrelevant question of what constitutes a risk characteristic of air travel. 1

Imposing an “inherent in air travel” requirement does not comport with the plain meaning of the Supreme Court’s decision in Air France v. Saks, 470 U.S. 392 , 105 S.Ct. 1338 , 84 L.Ed.2d 289 (1985). A co-passenger’s tort satisfies the Supreme Court’s interpretation of “accident” as “an unexpected or unusual event or happening that is external to the passenger,” and the Court did not also include a “characteristic of air travel” requirement in the definition. See Saks, 470 U.S. at 405 , 105 S.Ct. 1338 . Although the Court stated that its definition should “be flexibly applied,” id., the Court did not thereby authorize courts to add more hurdles for a plaintiff to overcome. Rather, the Court approved lower court decisions that had already read Article 17 “broadly enough to encompass torts committed by terrorists or fellow passengers.” Id. (citing cases). When the Supreme Court partially restated its holding, *301 it again avoided any mention of the inherent risks of air travel: “[a]ny injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger.” Id. at 406 , 105 S.Ct. 1338 . What the Court left to district courts to decide is “whether an ‘accident’ as here defined caused the passenger’s injury.” Id. The majority mistakes this for an invitation to decide what is an accident.

The context of the Court’s holding in Saks also supports the view that “characteristic of air travel” is not a necessary element of an Article 17 accident. Valerie Saks’s unfortunate left-ear deafness was caused by the normal operation of the airplane pressurization system. Article 17 of the Warsaw Convention makes air carriers liable for injuries sustained by a passenger, “if the accident which caused the damage so sustained took place on board the aircraft....” At the district court, Air France argued that “accident” means an “abnormal, unusual or unexpected occurrence” aboard the aircraft. See Saks, 470 U.S. at 395 , 105 S.Ct. 1338 . Ms. Saks argued for a “hazard of air travel” definition. See id. The district court agreed with Air France. The Ninth Circuit disagreed and concluded that absolute liability attached “for injuries proximately caused by the risks inherent in air travel.” Saks v. Air France, 12A F.2d 1383, 1384 (9th Cir.1984) rev’d 470 U.S. 392 , 105 S.Ct. 1338 , 84 L.Ed.2d 289 (1985).

I recite this history to put in context the two competing constructions the Court had before it when it held, “We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or usual event or happening that is external to the passenger.” Saks, 470 U.S. at 405 , 105 S.Ct. 1338 . The Court adopted the view advanced by Air France at the district court and rejected the view-advanced by Ms. Saks — the “inherent in air travel” view. Conspicuously absent from the Court’s decision is language concerning air travel and its inherent risks. Nonetheless, the district court in this case saw fit to engraft an “inherent in air travel” requirement into the Saks test when it dismissed Ms. Wallace’s claim. The majority, like the district court, fails to recognize that the Supreme Court has already implicitly rejected that interpretation.

The majority concludes that we need not reach the interpretation of “accident,” and that we should not do so. I disagree, because I believe the Supreme Court has spoken to the issue and resolved it. We, therefore, have an obligation to address the Supreme Court’s interpretation of Article 17. Saks is the law as explained to us by the Court, and it is our duty to implement the Court’s articulation of Article 17, not the district court’s. This duty looms especially large since other courts have misinterpreted Article 17 and Saks . In the instant case, the district court’s addition of a prong to the definition demonstrates the need for a clearly understood rule in our circuit. Our decision today will leave district courts wondering what to do in future cases with respect to a question the Supreme Court has already answered.

. For example, one might argue that being strapped into one's seat next to a stranger is not so much a characteristic of air travel as it is a characteristic of any form of public transportation. If we adopt, even provisionally, the district court’s approach, an even more "Talmudic" question arises than the one the majority avoids: how associated with air travel need a hazard be before it can fairly be described as "characteristic”?