Petition for Writ of Certiorari — Melissa Suzette Arzu, Individually and as Administrator of the Estate of Kevin Greenidge, Petitioner v. American Airlines, Incorporated

Supreme Court briefAug 12, 2026

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No. ___________

In The

Supreme Court of the United States

MELISSA SUZETTE ARZU,

AS AN INDIVIDUAL AND AS THE ADMINISTRATOR OF THE

ESTATE OF KEVIN ISHMAEL GREENIDGE,

Petitioner,

AMERICAN AIRLINES, INC.,

Respondent.

On Petition for a Writ of Certiorari

To The United States Court of Appeals

For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

DARREN P. NICHOLSON

Counsel of Record

HANNAH M. CROWE

ANNA KATHERINE BENEDICT

BURNS CHAREST LLP

901 Main Street, Suite 5800

Dallas, TX 75202

(469) 904-4550

dnicholson@burnscharest.com

Counsel for Petitioner

QUESTIONS PRESENTED

Article 17 of the Montreal Convention imposes

liability on a carrier for the death or bodily injury of a

passenger caused by an “accident” on an international

flight. In Air France v. Saks, this Court defined

“accident” as “an unexpected or unusual event or

happening that is external to the passenger,” and

instructed that this definition “should be flexibly

applied after assessment of all the circumstances

surrounding a passenger’s injuries.” 470 U.S. 392, 405

(1985). In Olympic Airways v. Husain, the Court

applied this definition to a flight crew’s deficient

response to a passenger’s fatal inflight medical

emergency. 540 U.S. 644 (2004).

In the decision below, the Fifth Circuit held

that a flight crew’s response to a passenger’s fatal

inflight medical emergency cannot be an Article 17

“accident” unless the plaintiff proves both “unusual

circumstances” and the crew’s “willing inaction.” App.

9a.

The questions presented are:

1. Whether a passenger seeking recovery under

Article 17 of the Montreal Convention for injuries

arising from a flight crew’s response to an inflight

medical emergency must prove the crew’s “willing

inaction.”

2. Whether the Montreal Convention preempts

a state law breach of contract claim seeking to enforce

a provision in a carrier’s conditions of carriage to

make a mandatory advance payment upon a

passenger’s death.

PARTIES TO THE PROCEEDINGS BELOW

This case arises out of an action brought in the

Northern District of Texas. The plaintiff was Melissa

Suzette Arzu, as an individual and as the

Administrator of the Estate of Kevin Ishmael

Greenidge, deceased. Ms. Arzu was the appellant in

the Fifth Circuit below. The defendant in the district

court was American Airlines, Inc. American Airlines,

Inc. was the appellee in the Fifth Circuit below.

American Airlines, Inc.’s stock ticker symbol is AAL.

iii

STATEMENT OF RELATED CASES

Arzu v. American Airlines, Inc., No. 4:24-cv00433-P (N.D. Tex.) (judgment entered May 8, 2025);

Arzu v. American Airlines, Inc., No. 25-10606

(5th Cir.) (judgment entered May 14, 2026).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS BELOW .......... ii

STATEMENT OF RELATED CASES ...................... iii

TABLE OF CONTENTS ........................................... iv

TABLE OF APPENDICES ....................................... vi

TABLE OF AUTHORITIES .................................... vii

PETITION FOR A WRIT OF CERTIORARI .............1

INTRODUCTION .......................................................1

OPINIONS BELOW ....................................................3

JURISDICTION ..........................................................3

TREATY PROVISIONS INVOLVED .........................3

STATEMENT OF THE CASE ....................................5

The Montreal Convention’s Uniform

Liability Regime ...............................................5

Kevin’s Death On Flight 614 ...........................7

The Proceedings Below ..................................10

REASONS FOR GRANTING THE PETITION .......12

The Circuits Are Squarely Divided Over

the Definition of Article 17 Accident

When Analyzing a Carrier Crew’s

Response to a Passenger’s Inflight

Medical Emergency ........................................12

The Fifth Circuit Alone Requires

Proof of the Crew’s Subjective

“Willing Inaction” ...................................13

II.

The Eleventh Circuit Applies a

Purely Factual Analysis,

Irrespective of Any “Willing

Inaction”..................................................14

The First, Second, and Ninth

Circuits Likewise Do Not Require

“Willing Inaction” ...................................15

The Conflict Between Courts Is

Acknowledged, Entrenched, and

Outcome-Determinative .........................16

Only This Court Can Restore

Uniformity ..............................................18

The Fifth Circuit’s Preemption Holding

Discards This Court’s Tseng Framework

as Obsolete and Relies on an Incorrect

Reading of the Provision at Issue ..................19

The Panel Rejected This Court’s

Tseng Framework, Further

Confusing the Existing

Disagreement Among the Courts. .........19

American Airlines’ Advance

Payment Provision Does Not Stem

From the Montreal Convention .............21

Under the Fifth Circuit’s Decision

Below, Consumers Have No

Recourse for Contractual

Nonperformance .....................................22

III. The Fifth Circuit Decision Below Is

Wrong ..............................................................23

IV. This Case Is an Ideal Vehicle.........................25

CONCLUSION ..........................................................27

TABLE OF APPENDICES

Page

APPENDIX A – OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED MAY 14, 2026 ..............1a

APPENDIX B – OPINION AND ORDER OF

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

TEXAS, FORT WORTH DIVISION, FILED

MAY 8, 2025 .........................................................21a

vii

TABLE OF AUTHORITIES

Cases

Page(s)

Air France v. Saks,

470 U.S. 392 (1985) ................ 1, 6, 12, 14, 23, 24, 25

Badar v. Swissport USA, Inc.,

53 F.4th 739 (2d Cir. 2022) ................................... 20

Blansett v. Continental Airlines, Inc.,

379 F.3d 177

(5th Cir. 2004) ...................... 2, 13, 16, 17, 18, 23, 24

Caman v. Cont’l Airlines, Inc.,

455 F.3d 1087 (9th Cir. 2006) ............................... 16

Campbell v. Air Jamaica Ltd.,

760 F.3d 1165 (11th Cir. 2014) ............................. 14

Cohen v. American Airlines, Inc.,

13 F.4th 240 (2d Cir. 2021) ............................... 7, 20

Eastern Airlines, Inc. v. Floyd,

499 U.S. 530 (1991) ......................................... 18, 25

El Al Israel Airlines, Ltd. v.

Tsui Yuan Tseng,

525 U.S. 155 (1999) ........ 2, 11, 18, 19, 20, 21, 25, 26

Fishman by Fishman v. Delta Air Lines, Inc.,

132 F.3d 138 (2d Cir. 1998) ...................... 15, 16, 24

In re Nigeria Charter Flights Contract Litig.,

520 F. Supp. 2d 447 (E.D.N.Y. 2007) ................... 20

Krys v. Lufthansa German Airlines,

119 F.3d 1515 (11th Cir. 1997) ....................... 14, 23

McCaskey v. Continental Airlines, Inc.,

159 F. Supp. 2d 562 (S.D. Tex. 2001) ................... 18

viii

Moore v. British Airways PLC,

32 F.4th 110 (1st Cir. 2022) ...................2, 15, 16, 17

Mullaney v. Delta Air Lines, Inc.,

No. 08 Civ. 7324,

2009 WL 1584899 (S.D.N.Y. June 3, 2009) .......... 20

Olympic Airways v. Husain,

540 U.S. 644 (2004) .... 1, 6, 12, 13, 16, 17, 18, 23, 25

Prescod v. AMR, Inc.,

383 F.3d 861 (9th Cir. 2004) ................................. 16

Safa v. Deutsche Lufthansa Aktiengesellschaft, Inc.,

621 F. App’x 82 (2d Cir. 2015) .............................. 24

Tavantzis v. American Airlines, Inc.,

No. 23-cv-05607,

2024 WL 5446322 (N.D. Cal. July 19, 2024) ........ 21

Watts v. American Airlines, Inc.,

No. 1:07-cv-0434,

2007 WL 3019344 (S.D. Ind. Oct. 10, 2007) ......... 17

Weiss v. El Al Israel Airlines, Ltd.,

433 F. Supp. 2d 361 (S.D.N.Y. 2006) .................... 20

Wolgel v. Mexicana Airlines,

821 F.2d 442 (7th Cir. 1987) ................................. 20

Yahya v. Yemenia-Yemen Airways,

No. 08-14789,

2009 WL 3424192 (E.D. Mich. Oct. 20, 2009) ...... 18

Statutes and Other Authorities

28 U.S.C. § 1254(1)..................................................... 3

Ashley Tang, Comment, Surprises in the Skies:

Resolving the Circuit Split on How Courts

Should Determine Whether an “Accident” Is

“Unexpected or Unusual” Under the Montreal

Convention, 98 WASH. L. REV. 1449 (2023) .......... 17

Alexa West, Note, Defining “Accidents” in the

Air, 85 FORDHAM L. REV. 1465 (2016) ................... 17

Convention for the Unification of Certain Rules

for International Carriage by Air, May 28,

1999, S. Treaty Doc. No. 106-45,

2242 U.N.T.S. 309 ................................................ 3, 4

PETITION FOR A WRIT OF CERTIORARI

Petitioner Melissa Suzette Arzu respectfully

petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Fifth Circuit.

INTRODUCTION

Fourteen-year-old Kevin Greenidge died of

cardiac arrest on board American Airlines Flight 614,

an international flight from Honduras to Miami.

While American’s own procedures and broader

industry standards require the cabin crew to

“immediately” notify the flight deck of any passenger

medical emergency, the flight crew on Kevin’s flight

failed to alert the flight deck to his emergency until

after a “significant time” had passed. R. 2759.

The Montreal Convention holds carriers

strictly liable, up to a fixed threshold, for a

passenger’s death or bodily injury caused by an

“accident” on an international flight. For forty years,

this Court’s decisions in Air France v. Saks and

Olympic Airways v. Husain have supplied the

governing definition: an accident is “an unexpected or

unusual event or happening that is external to the

passenger,” and that definition “should be flexibly

applied after assessment of all the circumstances.”

Husain, 540 U.S. at 651 (quoting Saks, 470 U.S. at

405). The courts of appeals have since sharply divided

over what the definition of accident entails when a

flight crew responds—or fails to respond—to a

passenger’s inflight medical emergency.

In the decision below, the Fifth Circuit staked

out the most restrictive position in the country.

Expanding on the court’s prior reasoning in Blansett

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

2004), the panel below held that a carrier crew’s

response to an inflight medical emergency cannot be

an Article 17 accident unless the passenger proves

both “unusual circumstances” and the crew’s “willing

inaction”—a subjective-intent element found nowhere

in the treaty’s text or this Court’s jurisprudence. App.

9a. The Fifth Circuit also held that the crew’s

departures from the carrier’s own emergency

procedures are “not relevant at all.” Id. In the First,

Second, Ninth, and Eleventh Circuits, by contrast, the

accident inquiry is objective. Those courts ask

whether the events surrounding the passenger injury

were unexpected or unusual, without regard to the

crew’s state of mind. The First Circuit previously

identified the Fifth Circuit’s approach as an “outlier”

and explicitly “reject[ed] its reasoning.” Moore v.

British Airways PLC, 32 F.4th 110, 119 n.7 (1st Cir.

2022) (disavowing Blansett reasoning). In other

words, the same record that ended this case as a

matter of law in the Fifth Circuit would have reached

a jury elsewhere.

The panel’s second holding compounds the

conflict. Declaring this Court’s framework in El Al

Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155

(1999) “obsolete,” the panel held that Article 29 of

the Convention “expressly preempts” a passenger’s

breach of contract claim to enforce the advance

payment provision in American’s own Department

of Transportation-approved conditions of carriage.

App. 18a–19a. But courts on the other side of the

disagreement hold that the Convention does not

reach claims to enforce obligations a carrier

voluntarily assumed. Under the decision below, no

passenger in the Fifth Circuit can enforce a promise

that nearly every major carrier incorporates into

every international itinerary.

Both questions are recurring and important.

Inflight medical emergencies number in the tens of

thousands each year, and the Convention exists to

secure a uniform liability regime for international air

carriage. Yet this Court has never construed the

Montreal Convention, and the operative rules now

change at circuit boundaries, hinging a family’s

ability to recover for an inflight death on where the

carrier can be sued.

The petition should be granted.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a) is

reported at 176 F.4th 343. The district court’s order

granting summary judgment (App. 21a) is reported at

782 F. Supp. 3d 361.

JURISDICTION

The judgment of the court of appeals was

entered on May 14, 2026. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

TREATY PROVISIONS INVOLVED

The preamble of the Convention for the

Unification of Certain Rules for International

Carriage by Air, May 28, 1999, S. Treaty Doc. No. 10645, 2242 U.N.T.S. 309 (hereinafter the “Montreal

Convention”) recognizes in relevant part: “the

importance of ensuring protection of the interests of

consumers in international carriage by air and the

need for equitable compensation based on the

principle of restitution[.]”

Article 17(1) of the Montreal Convention

provides: “The carrier is liable for damage sustained

in case of death or bodily injury of a passenger upon

condition only that the accident which caused the

death or injury took place on board the aircraft or in

the course of any of the operations of embarking or

disembarking.”

Article 21(1) provides: “For damages arising

under paragraph 1 of Article 17 not exceeding 100 000

Special Drawing Rights for each passenger, the

carrier shall not be able to exclude or limit its

liability.”

Article 25 provides: “A carrier may stipulate

that the contract of carriage shall be subject to

higher limits of liability than those provided for

in this Convention or to no limits of liability

whatsoever.”

Article 27 provides: “Nothing contained in this

Convention shall prevent the carrier from refusing to

enter into any contract of carriage, from waiving any

defences available under the Convention, or from

laying down conditions which do not conflict with the

provisions of this Convention.”

Article 28 provides: “In the case of aircraft

accidents resulting in death or injury of passengers,

the carrier shall, if required by its national law, make

advance payments without delay to a natural person

or persons who are entitled to claim compensation in

order to meet the immediate economic needs of such

persons. Such advance payments shall not constitute

a recognition of liability and may be offset against any

amounts subsequently paid as damages by the

carrier.”

Article 29 provides in relevant part: “In the

carriage of passengers, baggage and cargo, any action

for damages, however founded, whether under this

Convention or in contract or in tort or otherwise, can

only be brought subject to the conditions and such

limits of liability as are set out in this Convention

without prejudice to the question as to who are the

persons who have the right to bring suit and what are

their respective rights.”

Article 33 provides in relevant part: “An action

for damages must be brought . . . in the territory of

one of the States Parties, either before the court of the

domicile of the carrier or of its principal place of

business, or where it has a place of business through

which the contract has been made or before the court

at the place of destination.”

STATEMENT OF THE CASE

A. The

Montreal

Liability Regime.

Convention’s

Uniform

The Montreal Convention superseded and

modernized its predecessor, the Warsaw Convention,

which had governed international air carriage for

seventy years. The United States ratified the

Montreal Convention in 2003. Honduras is also a

signatory state. The Montreal Convention’s

preamble recognizes “the importance of ensuring

protection of the interests of consumers in

international carriage by air,” and its object is a

harmonized set of liability rules for international

carriage.

The Montreal Convention strikes a deliberate

bargain. Article 17 imposes liability on a carrier for a

passenger’s death or bodily injury “caused by an

accident” on board or in embarking or disembarking

from the aircraft. Under Article 21, the carrier “shall

not be able to exclude or limit its liability” up to a

certain monetary threshold measured in Special

Drawing Rights. The carrier may only present

defenses against damages above the strict liability

threshold. In exchange, Article 29 channels “any

action for damages,” however founded, through the

Convention’s “conditions and . . . limits of liability.”

This Court first examined the language of

Article 17 of the Warsaw Convention in Air France v.

Saks, establishing that an “accident” is “an

unexpected or unusual event or happening that is

external to the passenger,” and the definition “should

be flexibly applied after assessment of all the

circumstances surrounding a passenger’s injuries.”

470 U.S. at 405. In Olympic Airways v. Husain, the

Court affirmed Article 17 liability premised on a flight

attendant’s refusal to move an asthmatic passenger

away from the aircraft’s smoking section and rejected

the argument that crew inaction cannot be an

“accident,” explaining that “[t]he distinction between

action and inaction . . . would perhaps be relevant

were this a tort law negligence case,” but that the

Convention’s accident inquiry turns on the

unexpected or unusual nature of the event. 540 U.S.

at 654–55. While Husain and Saks examined Article

17 of the Warsaw Convention, the accident definition

articulated in these cases is uniformly applied to the

materially identical language of Article 17 of the

Montreal Convention. See Cohen v. American

Airlines, Inc., 13 F.4th 240, 245 (2d Cir. 2021)

(recognizing courts’ practice of analyzing Montreal

Convention “in accordance with case law arising from

substantively similar provisions of its predecessor,

the Warsaw Convention”).

B. Kevin’s Death On Flight 614.

Petitioner Melissa Arzu brought this action

under Article 17 of the Montreal Convention for the

wrongful death of her fourteen-year-old son, Kevin

Greenidge, on American Airlines Flight 614.

Petitioner also brought a breach of contract claim

based on American’s failure to tender payment to

Petitioner under the deceased passenger payment

provision of Tariff No. AA-1.

On June 4, 2022, Kevin Greenidge boarded

American Airlines Flight 614 from Ramón Villeda

Morales International Airport in Honduras to Miami

International Airport in Florida. Kevin was traveling

with several family members including his aunt,

Anna Arzu, and his uncle, Leonard Arzu. Although

Kevin had certain preexisting conditions such as

asthma, diabetes, sleep apnea, and obesity,

“American Airlines assessed Kevin Greenidge as fit to

travel without any special restrictions on AA614.” R.

2031.

During the flight, Kevin became distressed,

asked for his inhaler, clutched his chest, and lost

consciousness. R. 1683. Anna and Leonard called out

for help. After several minutes, a flight attendant

approached Kevin’s seat near the rear of the plane but

halted “like a deer in headlights” and ran away in the

opposite direction. A second flight attendant arrived

and called a “Code Red” to the other flight attendants,

signaling the occurrence of a medical emergency on

board. R. 1689, 1694. None of the Flight 614 flight

attendants alerted the flight deck to the “Code Red”

emergency.

The flight attendants requested assistance

from medically trained passengers. R. 1708. After

several minutes, a registered nurse, Karenna

Thatcher, and a general surgeon, Dr. Rachael

Amador, responded to the scene. Dr. Amador

described the emergency response scene as chaotic,

with “nothing [] really being done.” R. 1725. Dr.

Amador directed the flight attendants and other

passengers to assist her in moving Kevin from his seat

to the ground in the aft galley. R. 1709. Once Kevin

was on the ground, Dr. Amador and Nurse Thatcher

began CPR and the flight attendants retrieved the

onboard automated external defibrillator (“AED”)

machine. R. 1708–09, 1724.

After the AED pads were placed on Kevin and

the AED machine was turned on and analyzing his

heart rhythm, one of the flight attendants left the aft

galley to alert the flight deck to Kevin’s medical

emergency. It is undisputed that at this point in the

flight, “the pilots didn’t know what was going on.” R.

2757. It is also undisputed that the cabin crew on

American Airlines Flight 614 did not notify the

captain of Kevin’s medical emergency until a

“significant time” had passed from the initial “Code

Red” announcement. R. 2759. Industry standards and

American Airlines’ own policies require the cabin

crew to immediately notify the flight deck of

passenger medical emergencies. When asked whether

he should have been notified immediately by the

flight attendants of Kevin’s “Code Red” emergency,

the captain of American Airlines Flight 614 testified

“no comment.” R. 3292.

American Airlines Flight 614 was belatedly

diverted to Cancún, Mexico, where Kevin was

pronounced dead.

Kevin Greenidge’s itinerary was subject to

American Airlines Tariff No. AA-1, which states that

American Airlines “shall make an advance payment”

up to 113,100 Special Drawing Rights in cases of

bodily injury or death of a passenger and that “[i]n the

event of death of a passenger, the amount of the

advance payment shall not be less than 16,000 special

drawing rights, which shall be paid to a

representative of the passenger’s next of kin eligible

to receive such advance payment as determined by

[American Airlines] in its sole discretion.” R. 119.

Tariff No. AA-1 was approved by the United

States Department of Transportation in an Order

approving the Air Transport Association of America’s

(“ATA”) Application for Approval of Agreement,

Antitrust Immunity, and for Other Relief. American

Airlines, through its representative ATA, brought

this application to the Department of Transportation

and represented that it would “make mandatory

advance payments of not less than 16,000 SDRs in the

case of the death of a passenger.” R. 1629. American

Airlines further represented that “[a]lthough the

amount advanced for both injured and deceased

passengers is determined by the carrier in its sole

discretion, this paragraph provides a floor for

determining advance payments in the case of a

passenger’s death.” Id.

In its Order approving the agreement and

granting antitrust immunity for signatory carriers

(including American Airlines), the Department of

Transportation relied upon the mandatory nature of

the advance payment regime, emphasizing that “ATA

states that its advance payment provisions go as far as

practically possible at this time” and “make mandatory

an advance payment of not less than 16,000 SDRs in

the event of the death” of a passenger. R. 1662; see also

R. 1676 (certifying American Airlines’ “adherence” to

the agreement and “compliance with the regulations of

the Department in this area”).

Following Kevin’s death on American Airlines

Flight 614, American Airlines refused to tender the

mandatory payment to Petitioner Arzu. In the district

court, American Airlines took the position that the

advance payment is always in “the airline’s sole

discretion” and that there is no floor of 16,000 SDR in

the event of passenger death. R. 1460.

C. The Proceedings Below.

The district court granted summary judgment

to American across the board. App. 38a. The Fifth

Circuit affirmed1 in principal part. App. 20a.

On the Article 17 claim, the panel held that “a

deviation from internal policy is not relevant” when

determining whether an event is unexpected or

1 The Fifth Circuit opinion incorrectly identifies Petitioner as

Kevin’s aunt. App. 2a. Petitioner is Kevin’s mother, who brought

this suit individually and as the representative of her son’s

estate.

unusual. App. 2a; see also App. 9a (“Indeed, a crew’s

deviations from airline policy are not relevant at all.”).

The panel created a two-element rule for medical

emergency cases, proclaiming that “crew inaction is

an accident only when: (1) unusual circumstances

elevate it to an unexpected and unusual event, and (2)

the inaction is willing.” App. 9a. Because “no evidence

shows that the crew willingly denied appropriate

medical care, for example, by specifically refusing a

request for aid,” the court affirmed as a matter of law,

despite acknowledging that the crew’s response was,

on Petitioner’s evidence, “arguably imperfect” and at

points “chaotic.” App. 10a–12a.

On the contract claim, the parties briefed

preemption under this Court’s decision in Tseng. The

panel held that “the substantive scope test is now

obsolete” and that the Convention “expressly

preempts” Petitioner’s claim to enforce the advance

payment provision of American’s Department of

Transportation-approved conditions of carriage. App.

18a.

The Fifth Circuit also reversed in part, holding

that a genuine dispute of material fact exists as to

whether the onboard AED machine malfunctioned—

which could constitute an Article 17 accident—and

remanded to the district court.2 App. 16a.

2 Petitioner does not seek review of the court of appeals’ ruling

on the AED-malfunction theory, which is not presented by this

petition.

REASONS FOR GRANTING THE PETITION

I. The Circuits Are Squarely Divided Over the

Definition of Article 17 Accident When

Analyzing a Carrier Crew’s Response to a

Passenger’s Inflight Medical Emergency.

In the decades since the United States ratified

the Montreal Convention, courts have struggled to

articulate what constitutes an “accident” under

Article 17, particularly in the context of a passenger

medical emergency. This Court defined the term

under the Convention’s predecessor. In Saks, the

Court held that an accident is an “unexpected or

unusual event or happening that is external to the

passenger,” and that “[t]his definition should be

flexibly applied after assessment of all the

circumstances surrounding a passenger’s injuries.”

Saks, 470 U.S. at 405. In Husain, the Court

reaffirmed that flexible definition in affirming

liability where a crew member’s refusal to reseat an

asthmatic passenger was, as the lower courts had

found, an unexpected or unusual event causally

linked to the passenger’s death. Husain, 540 U.S. at

646, 653–57.

This Court has never addressed the definition

of accident under the successor Montreal Convention,

and lower courts have split over what a plaintiff must

show to prove accident. The sharpest divide among

courts is whether a crew’s response to a medical

emergency must reflect the crew’s “willing inaction.”

The circuits now occupy three camps. The First and

Eleventh Circuits apply a purely objective inquiry;

the Second and Ninth Circuits likewise reject any

intent element; and the Fifth Circuit alone requires

proof of the crew’s subjective willingness.

A. The Fifth Circuit Alone Requires Proof of

the Crew’s Subjective “Willing Inaction.”

In a sharp departure from other courts, the

decision below requires a showing of “willing inaction”

to establish an accident in the context of a passenger

medical emergency. The panel held that “crew

inaction is an accident only when: (1) unusual

circumstances elevate it to an unexpected and

unusual event, and (2) the inaction is willing.” App.

9a (first citing Blansett, 379 F.3d at 181; then citing

Husain, 540 U.S. at 651–57).

“In Blansett, we read Husain to restrict Article

17 claims based on inaction to claims of willing

inaction.” App. 11a. “Here though, no evidence shows

that the crew willingly denied appropriate medical

care, for example, by specifically refusing a request

for aid. Without willing inaction, Arzu’s claims based

on the crew’s response cannot succeed.” Id. Thus,

“absent unusual circumstances and willing inaction,

an ineffective response to a medical emergency is not

an Article 17 accident.” App. 7a. A Montreal

Convention plaintiff in the Fifth Circuit must now

demonstrate not only an unexpected or unusual

event, as this Court’s definition requires, but also the

crew’s subjective willingness.

The panel tacked on a second outlier rule by

further holding that “a crew’s deviations from airline

policy are not relevant at all” to the accident inquiry.

App. 9a. In the Fifth Circuit, then, a jury may never

learn that the carrier’s own manual required the crew

to do precisely what it failed to do. The Fifth Circuit

now requires a monumental hurdle for Montreal

Convention plaintiffs to prove that a crew’s response

to an inflight emergency constitutes an accident.

B. The Eleventh Circuit Applies a Purely

Factual Analysis, Irrespective of Any

“Willing Inaction.”

By contrast, the Eleventh Circuit prescribes a

purely factual analysis, devoid of any inquiry into the

carrier’s intent. Following Saks, it holds “that the

proper approach is indeed to look at a purely factual

description of the events that allegedly caused the

aggravation injury suffered by the plaintiff.” Krys v.

Lufthansa German Airlines, 119 F.3d 1515, 1521

(11th Cir. 1997). Looking to the factual events rather

than crew fault “is in accord with the design of the

Warsaw Convention, which provides carriers a ‘due

care’ defense”: “[h]aving provided for a defense

turning on the absence of negligence, we think it is

unlikely that the drafters intended that the initial

‘accident’ inquiry be resolved by reference to

negligence.” Id. at 1521–22.

The Eleventh Circuit has reaffirmed that

purely fact-based inquiry under the Montreal

Convention. “The fact that a series of events is alleged

to have been caused by ‘crew negligence’ does not

affect whether or not the event itself, as experienced

by the passenger, was unexpected.” Campbell v. Air

Jamaica Ltd., 760 F.3d 1165, 1172 (11th Cir. 2014).

Krys and Campbell make clear that accident turns on

what is unexpected or unusual, regardless of any

“willing inaction.”

C. The First, Second, and Ninth Circuits

Likewise Do Not Require “Willing

Inaction.”

Although the First, Second, and Ninth Circuits

vary somewhat in their articulations of accident,

these courts likewise do not require a showing of

“willing inaction” on the part of the carrier.

The First Circuit fixes the inquiry on the

perspective of a reasonable passenger. “[A]n event is

unexpected when a reasonable passenger with

ordinary experience in commercial air travel,

standing in the plaintiff’s shoes, would not expect that

event to happen.” Moore, 32 F.4th at 120–21. Whether

a crew member displayed “willing inaction” is

irrelevant, because “fixing the inquiry on the

passenger’s objectively reasonable expectations is

consistent with the specific purpose of holding

carriers liable (to a point) for injuries caused by

accidents, whether or not they acted negligently.” Id.

at 120. “[T]he plain meaning of the word ‘accident’ in

Article 17(1) of the Montreal Convention suggests a

focus on the perspective of the passenger, not the

airline.” Id. at 117.

The Second Circuit asks whether the injury

arose “from some inappropriate or unintended

happenstance in the operation of the aircraft or

airline.” Fishman by Fishman v. Delta Air Lines, Inc.,

132 F.3d 138, 143 (2d Cir. 1998). “[A]n injury

resulting from routine procedures in the operation of

an aircraft or airline can be an ‘accident’ if those

procedures or operations are carried out in an

unreasonable manner.” Id. In Fishman, a routine

measure—a hot compress for ear pain—became an

Article 17 accident because it “was carried out in a

way (using excessive, scalding water) that was not

expected, usual, normal, or routine.” Id. The inquiry

is objective; the crew’s intent plays no role.

The Ninth Circuit distinguishes acts of

“omission” from acts of “commission,” holding that a

carrier’s failure to warn of a risk of deep vein

thrombosis when flying was “an act of omission

(inaction that idly allows an unfolding series of events

to reach their natural conclusion) 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. Cont’l Airlines, Inc., 455 F.3d

1087, 1092 (9th Cir. 2006). The Ninth Circuit’s

inquiry turns on the nature of the event, not the

intent behind it. See also Prescod v. AMR, Inc., 383

F.3d 861, 866–68 (9th Cir. 2004) (considering airline

personnel’s seizure of ailing passenger’s carry-on bag

containing breathing device and medication an

Article 17 accident). Despite minor differences in

their articulations, the First, Second, Ninth, and

Eleventh Circuits agree on the crucial point that the

carrier’s state of mind is irrelevant to the accident

inquiry.

D. The

Conflict

Between

Courts

Acknowledged,

Entrenched,

and

Outcome-Determinative.

The courts themselves have acknowledged the

conflict. In Moore, the First Circuit singled out the

Fifth Circuit’s foundational decision. “One outlier

may be Blansett . . . To the extent — if at all — that

Blansett spurns a passenger-focused perspective as to

whether an event is unexpected, we reject its

reasoning.” Moore, 32 F.4th at 119 n.7. Commentators

agree. See Ashley Tang, Comment, Surprises in the

Skies: Resolving the Circuit Split on How Courts

Should Determine Whether an “Accident” Is

“Unexpected or Unusual” Under the Montreal

Convention, 98 WASH. L. REV. 1449, 1449 (2023)

(explaining that “courts are now split on which

methods they should adopt to determine whether an

event constitutes an Article 17 ‘accident’”); Alexa

West, Note, Defining “Accidents” in the Air, 85

FORDHAM L. REV. 1465, 1476 (2016) (noting courts’

interpretations have “creat[ed] inconsistent and

heavily fact-based precedent”).

The conflict is entrenched. The Fifth Circuit

first read Husain to require “willing inaction” in its

2004 Blansett decision; the panel below concocted a

two-element rule that forecloses relief as a matter of

law. On the other side of the widening split, the First

Circuit adopted its objective standard in 2022 after

canvassing the competing case law and expressly

rejected Blansett’s reasoning, while the Eleventh

Circuit has adhered to its purely factual approach for

nearly three decades. Each camp has considered and

rejected the other’s position. Further percolation will

only deepen, not resolve, the division.

The conflict decides cases. In circuits without a

“willing

inaction”

requirement,

materially

indistinguishable claims involving ineffective crew

response, failure to divert, or deviation from

procedures have been recognized as viable claims that

can constitute Article 17 accidents. See, e.g., Watts v.

American Airlines, Inc., No. 1:07-cv-0434, 2007 WL

3019344 (S.D. Ind. Oct. 10, 2007) (considering crew’s

failure to recognize and respond to fatal heart attack

as potential accident); Yahya v. Yemenia-Yemen

Airways, No. 08-14789, 2009 WL 3424192 (E.D. Mich.

Oct. 20, 2009) (allowing amendment of complaint to

allege crew’s refusal to divert despite pleas for medical

attention as an Article 17 accident). Indeed, before

Blansett and Arzu, a district court in the Fifth Circuit

itself allowed such a claim to proceed. McCaskey v.

Continental Airlines, Inc., 159 F. Supp. 2d 562, 572–74

(S.D. Tex. 2001); see also Husain, 540 U.S. at 656

(examining hypothetical presented in McCaskey).

The disparity also

carries

structural

consequences. Article 33 of the Convention channels

many actions to the carrier’s domicile or principal

place of business—for American Airlines, the Fifth

Circuit. The most restrictive accident standard in the

country now governs claims against a major carrier in

its own forum. A family’s recovery for a loved one’s

death on an international flight now turns on the

happenstance of the carrier’s corporate headquarters.

E. Only This Court Can Restore Uniformity.

“The cardinal purpose of the Warsaw

Convention, we have observed, is to ‘achiev[e]

uniformity of rules governing claims arising from

international air transportation.’” Tseng, 525 U.S. at

169 (quoting Eastern Airlines, Inc. v. Floyd, 499 U.S.

530, 552 (1991)).

The Montreal Convention was adopted to

further the “harmonization” of the applicable rules

and to “ensur[e] protection of the interests of

consumers in international carriage by air.” But the

current jurisprudential landscape is neither uniform

nor harmonious.

Without this Court’s guidance, the lower courts

will continue to produce inconsistent, unpredictable

outcomes. Today, the ability of a plaintiff to seek

recourse for passenger injury or death depends on the

forum, as litigants face materially different

definitions of accident in different courts. A set of

facts sufficient to reach a jury in one circuit is

inadequate even to survive summary judgment in

another. Only this Court can restore the uniformity

the treaty promises.

II. The Fifth Circuit’s Preemption Holding

Discards This Court’s Tseng Framework as

Obsolete and Relies on an Incorrect Reading

of the Provision at Issue.

By holding that the Montreal Convention

preempts nonperformance contract claims, the Fifth

Circuit rendered American Airlines’ advance

payment provision meaningless. The consequences

are far-reaching. The millions of consumers traveling

internationally on American Airlines, and on the

many other major carriers whose conditions of

carriage contain the same provision, are now left

without any ability to address nonperformance of the

advance payment provision.

A. The Panel Rejected This Court’s Tseng

Framework, Further Confusing the

Existing Disagreement Among the Courts.

The Fifth Circuit panel below fashioned an

entirely new framework to consider preemption under

the Montreal Convention. The parties briefed

preemption under this Court’s decision in Tseng, which

asks whether a claim falls within the Convention’s

“substantive scope.” El Al Israel Airlines, Ltd. v. Tsui

Yuan Tseng, 525 U.S. 155, 172 (1999). The panel swept

that framework aside: “the substantive scope test is

now obsolete,” it held, because Article 29 “expressly

preempts” any action for damages in contract within

the Montreal Convention’s ambit. App. 15a. In doing

so, the Fifth Circuit rendered this Court’s governing

framework defunct. This alone warrants this Court’s

review. Other circuits, meanwhile, continue to apply

this Court’s framework. The Montreal Convention’s

“provisions may be analyzed in accordance with case

law arising from substantively similar provisions of its

predecessor, the Warsaw Convention.” Cohen, 13 F.4th

at 245.

The Fifth Circuit entered the fray of an existing

conflict among courts. The Seventh Circuit has long

held that claims for a carrier’s total nonperformance

of its contract of carriage fall outside the Convention.

Wolgel v. Mexicana Airlines, 821 F.2d 442 (7th Cir.

1987). The Second Circuit agrees, holding that the

Convention “does not . . . limit or preempt claims for

total non-performance of a contract of carriage.”

Badar v. Swissport USA, Inc., 53 F.4th 739, 744 (2d

Cir. 2022). District courts in the Second Circuit have

followed suit under the Montreal Convention. See In

re Nigeria Charter Flights Contract Litig., 520 F.

Supp. 2d 447, 453–56 (E.D.N.Y. 2007) (finding

contract claims for refusal to transport not

preempted); Weiss v. El Al Israel Airlines, Ltd., 433 F.

Supp. 2d 361, 369 (S.D.N.Y. 2006) (determining

denial of boarding was not preempted); Mullaney v.

Delta Air Lines, Inc., No. 08 Civ. 7324, 2009 WL

1584899, at *2 (S.D.N.Y. June 3, 2009) (“Claims for

non-performance are not preempted under Article 19

of the [Montreal] Convention.”). Other courts

disagree—indeed, the very advance payment

provision at issue here is currently being litigated

against American elsewhere, and a district court in

the Northern District of California recently held such

a claim preempted. See Tavantzis v. American

Airlines, Inc., No. 23-cv-05607, 2024 WL 5446322

(N.D. Cal. July 19, 2024). Whether Tseng’s framework

survives the Montreal Convention, and whether

claims to enforce a carrier’s voluntarily assumed

obligations survive Article 29, now depends on the

forum, and the decision below is the first published

circuit court decision extinguishing enforcement of

the industry-wide advance payment provision.

B. American Airlines’ Advance Payment

Provision Does Not Stem From the

Montreal Convention.

The panel held that the “allegedly breached

terms” of American’s Tariff “are materially identical

to Article 28,” and that because “American’s

continued antitrust immunity is contingent on

Department of Transportation (DOT) approval of the

Conditions, an advance payment was ‘required by its

national law.’” App. 19a. “As a result, any claim based

on their breach falls under Article 29,” and may be

brought only under the Convention’s “conditions and

… limits of liability.” Id.

That reasoning rests on a false premise. The

breached terms are not “identical” to Article 28.

American’s conditions of carriage provide that “[i]n

the event of death of a passenger, the amount of the

advance payment shall not be less than 16,000 special

drawing rights.” R. 119. Article 28, by contrast,

obliges advance payments only “if required by [the

carrier’s] national law.” A promise that exceeds the

treaty’s requirements certainly is not “materially

identical” to them. And the Montreal Convention

elsewhere preserves precisely this freedom of

contract. Article 27 permits carriers to “lay[] down

conditions which do not conflict with” the Convention,

and Article 25 permits carriers to assume obligations

greater than the Convention imposes. The mandatory

advance payment floor originates in the tariff

American presented to the Department of

Transportation—not in the Montreal Convention—

and a claim to enforce it is not preempted, expressly

or impliedly.

C. Under the Fifth Circuit’s Decision Below,

Consumers Have No Recourse for

Contractual Nonperformance.

American is not the only carrier that benefits

from the loophole created below. Nearly all major

domestic carriers include the same advance payment

provision in their international conditions of carriage.

With no ability for passengers to assert breach of

contract claims for nonperformance, carriers have no

incentive to make any advance payment, ever. Under

the decision below, no passenger is entitled to an

advance payment under a carrier’s international

conditions of carriage, even though American and

nearly all other domestic carriers represented to the

Department of Transportation, in exchange for

antitrust immunity, that such payments would be

“mandatory.” R. 1629. Preemption renders the

provision meaningless and works only to harm the

consumers it was written to protect.

III. The Fifth Circuit Decision Below Is Wrong.

Certiorari is warranted whatever the merits,

but the decision below is also incorrect. Article 17

conditions liability on an “accident”— “an unexpected

or unusual event or happening that is external to the

passenger.” Saks, 470 U.S. at 405. Nothing in that

definition, or in the treaty, asks whether the crew

subjectively willed its own inaction. Rather, the

Montreal Convention imposes strict liability up to a

threshold precisely so that recovery does not turn on

the carrier’s state of mind. The Eleventh Circuit made

the same structural point in Krys: having given

carriers a due-care defense, the drafters are unlikely

to have intended the threshold accident inquiry to

turn on the carrier’s culpability. Krys, 119 F.3d at

1521–22.

Husain forecloses the panel’s reading. There,

the airline argued that a flight attendant’s failure to

act could not be an “accident.” This Court disagreed

not because the flight attendant’s refusal was

“willing,” but because “[t]he distinction between

action and inaction . . . would perhaps be relevant

were this a tort law negligence case,” and the

Convention’s inquiry instead asks whether the event

was unexpected or unusual in all the circumstances.

Husain, 540 U.S. at 654–55. The Court added that

“the failure of an airline crew to take certain

necessary vital steps could quite naturally and, in

routine usage of the language, be an ‘event or

happening.’” Id. at 656 n.10. Husain does not hold

that inaction must be shown to be willing. Blansett

inferred that limit from Husain’s facts, and the

decision below has hardened the inference into a

required element. A gloss on a gloss has displaced the

Montreal Convention’s text and this Court’s

instruction that the definition “‘should be flexibly

applied.’” See id. at 651 (quoting Saks, 470 U.S. at

405).

The panel’s categorical rule that the carrier’s

own procedures are “not relevant at all” fares no

better. See App. 9a. Whether an event is “unexpected

or unusual” is necessarily measured against what is

usual, and the carrier’s own manuals, like industry

standards and federal regulations, are the most

natural evidence of “usual” operation. The Second

Circuit, for example, consistently recognizes this

principle. See Fishman by Fishman, 132 F.3d at 143

(emphasizing that routine treatment “carried out in

an unreasonable manner” can constitute accident);

Safa v. Deutsche Lufthansa Aktiengesellschaft, Inc.,

621 F. App’x 82, 83 (2d Cir. 2015) (noting district

court recognized “that an airline’s deviation from

expected policies and procedures can constitute an

‘accident’ under the Montreal Convention”). A

carrier’s internal policies and procedures are an

appropriate, important metric for understanding

what is expected and usual in air travel, and the Fifth

Circuit erred in disavowing their relevance.

The Fifth Circuit’s preemption holding inverts

the Montreal Convention. Article 29 of the

Convention subjects actions “for damages” to the

Convention’s “conditions and . . . limits.” It does not

erase obligations that a carrier voluntarily assumes

in its contract of carriage. What is more, Article 27

expressly preserves the carrier’s freedom to “lay[]

down conditions which do not conflict with” the

Convention, and Article 25 permits carriers to accept

obligations greater than the Convention imposes.

American’s advance payment provision does exactly

this by exceeding the bounds of the Montreal

Convention. Enforcing the provision does not conflict

with the Convention, and extinguishing the provision

entirely serves only to ignore the Convention’s

purpose of protecting consumers while rewarding a

carrier for flouting a mandatory contract provision.

IV. This Case Is an Ideal Vehicle.

This Court has never considered the Montreal

Convention. The treaty entered into force for the

United States more than two decades ago, yet every

decision of this Court in the field—Saks, Floyd, Tseng,

Husain—interpreted its predecessor, the Warsaw

Convention. While the Court’s interpretations of the

predecessor Warsaw Convention are widely applied,

the lower courts have since veered away from the

flexible application of accident mandated by Saks and

Husain, tacking on additional burdens and caveats

that plaintiffs must prove to establish accident. This

case offers the Court its first opportunity to construe

the treaty that now governs every consumer who

engages in international travel in the United States.

The proceedings below were dispositive and

concerned pure questions of law. The Fifth Circuit

rejected the crew-response theory as a matter of law

under its novel “willing inaction” rule, and it disposed

of the contract claim solely on preemption grounds.

Neither holding rests on a disputed fact. In affirming

the district court’s decision, the Fifth Circuit panel

accepted Petitioner’s version of events—an “arguably

imperfect,” “chaotic” response and a flight deck left

uninformed about a medical emergency for a

“significant” amount of time. App. 11a. The legal

questions were resolved on a complete summary

judgment record.

The facts present a recurring scenario in its

tidiest form: an undisputed inflight medical

emergency; undisputed deviations from the carrier’s

own procedures, including a flight deck not alerted to

a Code Red despite a requirement of immediate

notification; and testimony from disinterested

medical professionals who responded to the scene. If

the Fifth Circuit’s “willing inaction” rule controls this

record, it controls every case alleging an Article 17

accident due to a crew’s failure to properly respond to

a passenger’s inflight medical emergency.

Nor

are

there

antecedent

obstacles.

Jurisdiction is secure, the claims were timely, the

questions were the sole grounds of decision, and the

second question arises from the panel’s explicit

rejection of this Court’s framework in Tseng. A single

petition, arising from a single flight, presents both

conflicts cleanly.

This case also presents the Court with an

opportunity to promote the Montreal Convention’s

goal of uniform, harmonious liability for carriers in

international carriage. A liability rule that varies by

circuit defeats the Montreal Convention’s purpose

twice over: domestically, because identical claims fare

differently in different courts of appeals; and

internationally, because the United States cannot

speak with one voice to its treaty partners about how

its courts apply the Montreal Convention.

The preemption question affects millions of

consumers embarking on international travel. Nearly

all major domestic carriers’ international conditions

of carriage contain the same advance payment

provision. If the decision below stands, those

provisions are enforceable by no one. A representation

made to federal regulators in exchange for antitrust

immunity, and printed into every international

itinerary, can currently be broken without

consequence.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DARREN P. NICHOLSON

Counsel of Record

HANNAH M. CROWE

ANNA KATHERINE BENEDICT

BURNS CHAREST LLP

901 Main Street, Suite 5800

Dallas, TX 75202

(469) 904-4550

dnicholson@burnscharest.com

Counsel for Petitioner

AUGUST 12, 2026

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A – OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED MAY 14, 2026 . . . . . . . . 1a

APPENDIX B – OPINION AND ORDER OF

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

TEXAS, FORT WORTH DIVISION, FILED

MAY 8, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED MAY 14, 2026

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 25-10606

MELISSA SUZETTE ARZU, AS AN INDIVIDUAL

AND AS THE ADMINISTRATOR OF THE ESTATE

OF KEVIN GREENIDGE,

Plaintiff-Appellant,

AMERICAN AIRLINES, INCORPORATED,

Defendant-Appellee.

OPINION

Filed May 14, 2026

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:24-CV-433

Before Elrod, Chief Judge, and H igginbotham , and

Graves, Circuit Judges.

Appendix A

James E. Graves, Jr., Circuit Judge:

At 14, Kevin Greenidge tragically died on an American

Airlines flight after his heart stopped. His aunt, Melissa

Arzu, sued to hold American liable under the Montreal

Convention, an international treaty that holds an airline

strictly liable for an injury caused by an “accident”—an

unexpected or unusual event external to the passenger—

on an international flight.

Arzu maintains that the f light crew’s arguably

imperfect medical response, which allegedly violated

American policy, was an accident under Article 17 of the

Convention. But a deviation from internal policy is not

relevant. Nor can an imperfect medical response alone

sustain Article 17 liability. So we AFFIRM summary

judgment on Arzu’s Article 17 and derivative loss of

consortium claims to the extent they rely on these theories.

But Arzu’s accident theory based on American’s

allegedly malfunctioning Automatic External Defibrillator

(AED) should proceed. Compliance with Federal Aviation

Administration (FAA) regulations informs whether an

event is unexpected or unusual. And the FAA required

American to equip Kevin’s flight with a functional AED.

Because a reasonable jury could find that the aircraft’s

AED malfunctioned, we REVERSE summary judgment

on Arzu’s Article 17 and derivative loss of consortium

claims to the extent they rely on her AED-malfunction

theory.

Appendix A

Background

Despite efforts to resuscitate him, Kevin died

on an American Airlines flight.

In June 2022, Kevin Greenidge boarded an American

flight from Honduras to Florida with his family. Kevin

was in poor health. At 14, he weighed 319 pounds, and was

only 5’6” tall. He had asthma, high blood pressure, Type

II diabetes, and sleep apnea.

Forty-five minutes after takeoff, Kevin began

struggling to breathe and asked for his inhaler. The

inhaler did not help. Swiftly, he clutched his chest and lost

consciousness. His aunt and uncle cried for help.

Arguably, the initial response was chaotic. Kevin

lost consciousness during the drink service. This meant

that the drink carts obstructed the flight attendants’

paths toward Kevin. Attendant Judy Gilbert-Blanchard

responded first. Attendant De Fitzpatrick arrived

second, after clambering over a cart. They found Kevin

unresponsive. So Blanchard called a Code Red—a medical

emergency.

With difficulty, attendant Fitzpatrick and two

passengers extricated Kevin from his seat. At the same

time, attendant Brooke Anderson fetched an AED and a

medical kit. Cabin crew also sought medical help over the

intercom. Two medical professionals responded: a nurse,

Karenna Thatcher, and a surgical resident, Dr. Rachel

Amador.

Appendix A

When Dr. Amador arrived, she saw “a lot of commotion

. . . [and] nothing was really being done.” She took charge.

She directed the flight attendants and nearby passengers

to move Kevin to the aft galley. It took at least three people

several minutes to carry him there. Once they arrived,

Dr. Amador and nurse Thatcher began Cardiopulmonary

Resuscitation (CPR) with attendant Fitzpatrick’s help.

Attendant Anderson soon arrived with the AED.

The parties dispute whether the AED malfunctioned.

Its pads initially had trouble sticking to Kevin. Once they

attached, the AED analyzed his heart rhythm. Because

Kevin was asystolic (no cardiac electric activity), it advised

continued CPR.1 After eight minutes, the AED detected

a shockable rhythm and advised a shock. Attendant

Fitzpatrick pressed the shock button. The AED’s internal

data recorded a shock. But four witnesses, including Dr.

Amador and nurse Thatcher, testified that Kevin received

no shock.

Only after retrieving the AED did attendant Anderson

alert the pilots. Although the pilots never contacted the

Physician on Call, 2 they diverted to Cancun immediately.

The flight landed seventeen minutes later. By then, Kevin

was dead.

1. An AED will defibrillate (shock) a patient only if they have

a “shockable rhythm.” Asystole does not respond to defibrillation.

So when a patient is asystolic, the AED will advise CPR to induce

a shockable rhythm. Only then will the machine advise a shock.

2. The Physician on Call is a ground-based service with

physicians “specially trained in handling inf light medical

emergencies and advising which diversion city is most capable of

handling the ill/injured person’s condition.”

Appendix A

B. Arzu sued and the district court granted

summary judgment.

In 2024, Arzu sued American in federal court. She

alleged claims for liability and loss of consortium under

the Montreal Convention, and for Texas-law breach of

contract. After discovery, the parties cross-moved for

summary judgment. The district court granted American’s

motion. Arzu v. Am. Airlines, Inc., 782 F. Supp. 3d 361,

370 (N.D. Tex. 2025) (“Summary Judgment Ord.”).

II. Standard of Review

We review a grant of summary judgment de novo. First

Am. Bank v. First Am. Transp. Title Ins. Co., 585 F.3d

833, 836–37 (5th Cir. 2009). We affirm if the moving party

shows that no genuine dispute of material fact remains,

and it is entitled to judgment as a matter of law. Id. at 837.

“We view the evidence in the light most favorable to the

nonmovant and draw all reasonable inferences in [their]

favor.” Harrison Co. v. A-Z Wholesalers, Inc., 44 F.4th

342, 346 (5th Cir. 2022) (citation modified).

III. Discussion

Arzu appeals the district court’s grant of summary

judgment on her Montreal Convention and breach of

contract claims. To the extent Arzu’s Article 17 claim

relies on her AED-malfunction theory, we reverse. On all

other issues, we affirm.

Appendix A

We partially reverse summary judgment on

Arzu’s Article 17 claim.

A rticle 17 of the Montreal Convention holds a

carrier strictly liable for “death or bodily injury of a

passenger caused by an accident on” an international

flight. Convention for the Unification of Certain Rules

for International Carriage by Air art. 17(1), May 28,

1999, S. Treaty Doc. No. 106-45, 1999 WL 33292734

(“the Montreal Convention”). This is not a negligence

standard. See Air Fr. v. Saks, 470 U.S. 392, 396–408, 105

S.Ct. 1338, 84 L.Ed.2d 289 (1985). Instead, an accident

is “an unexpected or unusual event . . . external to the

passenger.” Id. at 405, 105 S.Ct. 1338. 3 We apply the

definition “flexibly,” assessing all of “the circumstances

surrounding a passenger’s injuries.” Id.

The injury’s cause, not its occurrence, must satisfy the

accident inquiry. Olympic Airways v. Husain, 540 U.S.

644, 650, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004). So a

reaction to the “usual, normal, and expected operation of

[an] aircraft” is not an accident. Saks, 470 U.S. at 406, 105

S.Ct. 1338. But when an external, unexpected or unusual

event causes a passenger’s injury, the airline is liable. See

Husain, 540 U.S. at 649–52, 124 S.Ct. 1221.

3. Some cases explaining the term accident interpreted the

earlier Warsaw Convention. E.g., Saks, 470 U.S. at 396–408, 105

S.Ct. 1338. Because the Montreal Convention adopted Article 17

from the Warsaw Convention, those cases still inform the accident

inquiry. See White v. Emirates Airlines, Inc., 493 F. App’x 526,

529 (5th Cir. 2012).

Appendix A

Arzu advances two accident theories, based on: (1) the

flight attendants’ allegedly ineffective medical response,

and (2) the inflight AED’s alleged malfunction. The former

theory fails, because absent unusual circumstances and

willing inaction, an ineffective response to a medical

emergency is not an Article 17 accident. The latter prevails

because the FAA required American to equip the flight

with a functional AED, and a genuine dispute remains

whether it functioned.

We affirm summary judgment on Arzu’s

Article 17 claim to the extent it relies on

her ineffective response theory.

Arzu seeks to hold American liable for the crew’s

allegedly ineffective response to Kevin’s medical

emergency. She frames this theory as three “egregious

policy deviations”: (a) the failure to immediately notify the

flight deck, (b) the failure to contact the on-call physician,

and (c) the failure to begin CPR immediately.

To the extent Arzu advances a per se accident theory,

it fails. We first rejected a per se approach in Blansett v.

Continental Airlines, Inc., 379 F.3d 177 (5th Cir. 2004).

Blansett suffered a Deep Vein Thrombosis (DVT) episode

on a Continental flight. Id. at 178. Inflight pressurized

conditions exacerbate DVT risk. Id. Blansett argued

Continental’s failure to warn of this risk was necessarily

an accident because it unreasonably deviated from

industry standards. Id. at 179.

Our court disagreed. A per se rule departs from the

proper inquiry: “whether there was an ‘unexpected or

Appendix A

unusual event.’” Id. at 182 (quoting Husain, 540 U.S.

at 657, 124 S.Ct. 1221). Because “Continental’s policy

was far from unique in 2001 and [complied] with [FAA]

expectations . . . [i]ts procedures were neither unexpected

nor unusual.” Id. In other words, the accident inquiry

depends on the frequency of the practice in the industry,

and whether it complies with regulations. See id. at 181–82.

A frequency approach comports with the plain

meanings of unexpected and unusual. An event is

unexpected if it is not “consider[ed] probable or certain.”

Expect, Merriam-Webster’s Collegiate Dictionary (11th

ed. 2020). An event is unusual if it is “uncommon” or

“rare.” Id. And FAA standards provide a commonsense

measure of whether an event is unexpected or unusual.

Passengers should expect an airline to comply with

regulations, and violations should be unusual.

Of course, Blansett addressed whether an internal

policy’s departure from an industry standard constitutes

an Article 17 accident, whereas Arzu relies on a flight

crew’s departure from internal policy. See Blansett, 379

F.3d at 180–82. But our court has relied on Blansett to

reject similar arguments twice. See White v. Emirates

Airlines, Inc., 493 F. App’x 526, 532–35 (5th Cir. 2012)

(per curiam) (no accident: failing to monitor passenger’s

breathing and pulse during CPR, as airline policy

required); Nguyen v. Kor. Air Lines Co., 807 F.3d 133,

138–40 (5th Cir. 2015) (no accident: failing to adhere to

a policy to search for passengers on the wheelchair list

with no wheelchair).

Appendix A

So Blansett and subsequent decisions foreclose any

argument that the flight crew’s alleged deviations from

American’s policy are per se Article 17 accidents. Indeed,

a crew’s deviations from airline policy are not relevant at

all. To assess a policy, we consider its prevalence in the

flight industry and its compliance with regulations. See

Blansett, 379 F.3d at 181–82. Whether a crew complies

with internal airline policy adds little.

The inquiry is whether the underlying events are

“unexpected or unusual.” See Saks, 470 U.S. at 405, 105

S.Ct. 1338. Even crediting Arzu’s version, the crew’s

response does not meet that standard.

Crew inaction can be an Article 17 accident. Blansett,

379 F.3d at 181. But “unusual circumstances” must

“elevate the willing inaction of airline personnel from mere

inertia—from a non-event—to an event both unexpected

and unusual.” Id. In other words, crew inaction is an

accident only when: (1) unusual circumstances elevate it

to an unexpected and unusual event, and (2) the inaction is

willing. See id.; Husain, 540 U.S. at 651–57, 124 S.Ct. 1221.

Husain illustrates this standard. There, a passenger

with asthma was sensitive to cigarette smoke. Husain,

540 U.S. at 648–49, 124 S.Ct. 1221. Over his protests,

flight attendants seated him near the aircraft’s smoking

section. Id. at 647, 124 S.Ct. 1221. They refused his

multiple requests for a new seat. Id. at 647–48, 124 S.Ct.

1221. Eventually, he succumbed to his asthma and died.

Id. at 648, 124 S.Ct. 1221. Because the flight attendant’s

willing refusal to reseat him was unexpected and unusual,

it was an Article 17 accident. Id. at 651, 124 S.Ct. 1221.

10a

Appendix A

Relying on Husain, our court in White rejected a

passenger’s claim that the crew’s imperfect medical

response was an Article 17 accident. 493 F. App’x at

531–32. There, during the final descent, attendants

found a passenger collapsed inside the lavatory. Id. at

527. Although White quibbled with the crew’s emergency

response, they removed the passenger from the lavatory,

laid her on the floor, gave her oxygen, and “alerted the

captain, who notified [airport] medical personnel.” Id. at

528, 530. As a matter of law, these “actions were not so

unexpected or unusual” as to be an Article 17 accident.

Id. at 532.

White joined a chorus of previous decisions rejecting

Article 17 claims based on a crew’s imperfect medical

response. See Krys v. Lufthansa Ger. Airlines, 119 F.3d

1515, 1518–22 (11th Cir. 1997) (no accident: crew failed

to divert plane after passenger’s heart attack because

a physician passenger assured the crew that “there

was nothing to worry about”); Hipolito v. Nw. Airlines,

Inc., 15 F. App’x 109, 111–12 (4th Cir. 2001) (per curiam)

(no accident: crew provided imperfect medical aid but

passenger died of asthma attack); Rajcooar v. Air India

Ltd., 89 F. Supp. 2d 324, 326–28 (E.D.N.Y. 2000) (no

accident: airline employees failed to timely respond to

passenger’s heart attack).

Even crediting Arzu’s version (as we must), she shows

only an arguably imperfect response to Kevin’s emergency.

There is no genuine dispute that the crew: (1) removed

Kevin to the aft galley, (2) secured medical professionals’

help, (3) assisted with CPR, (4) fetched an AED promptly,

11a

Appendix A

and (5) alerted the captain, who (6) diverted to the closest

airport immediately. These facts track White neatly. 493

F. App’x at 527–28.

True, some evidence suggests that attendant

Blanchard could have responded faster. Or Anderson

could have alerted the pilots sooner. Or the pilots could

have contacted the on-call physician. Yet Arzu identifies no

circumstances that elevate the crew’s inaction to “an event

both unexpected and unusual.” See Blansett, 379 F.3d at

181 (citation modified). There is no evidence that the flight

crew’s response was unusually slow or chaotic compared

to other crew’s responses to similar emergencies.

The only unusual circumstance here is the challenge

Kevin’s size posed to the response. Although Arzu

claims that CPR should have begun immediately, a team

performing effective CPR on a 315-pound person in an

airplane aisle is implausible. And Kevin’s large frame

meant that it took at least three people several minutes

to extricate him from his seat and transport him to the

aft galley. Even so, the crew provided extensive aid.

Besides, while Arzu alleges crew inaction, no evidence

suggests that the inaction was willing. In Blansett, we read

Husain to restrict Article 17 claims based on inaction to

claims of willing inaction. Blansett, 379 F.3d at 181. Here

though, no evidence shows that the crew willingly denied

appropriate medical care, for example, by specifically

refusing a request for aid. Without willing inaction, Arzu’s

claims based on the crew’s response cannot succeed.

12a

Appendix A

Arzu counters that rejecting her ineffective-response

allegations would require us to resolve factual disputes.

But she fails to identify a fact dispute that, resolved in her

favor, would elevate the crew’s response to an Article 17

accident. Unlike a negligence standard, Article 17 sharply

restricts which events create liability. See Saks, 470 U.S.

at 405–08, 105 S.Ct. 1338. An arguably ineffective medical

response is not one of those events, without unusual

circumstances and willing inaction. See Blansett, 379

F.3d at 181; Husain, 540 U.S. at 649–57, 124 S.Ct. 1221.

Because Arzu offers no evidence of these requirements,

her ineffective-response theory fails as a matter of law.

There is no genuine dispute that American’s crew

provided extensive aid under challenging circumstances.

Nor is there evidence of unusual circumstances or willing

inaction that might elevate the response to an Article

17 accident. Hence no reasonable jury could find that

the crew’s response was an Article 17 accident. We thus

affirm summary judgment on Arzu’s Article 17 and loss

of consortium claims to the extent they rely on the crew’s

allegedly ineffective response.

We reverse summary judgment on Arzu’s

Article 17 claim to the extent it relies on

her AED-malfunction theory.

But we reverse on Arzu’s Article 17 claim to the

extent it relies on her AED-malfunction theory. Whether

an airline complied with FAA regulations informs the

accident inquiry. And a genuine dispute remains whether

American equipped Kevin’s flight with a functional AED,

in violation of FAA regulations.

13a

Appendix A

Recall that we have generally rejected per se

approaches to Article 17 liability. See Nguyen, 807 F.3d

at 140. But as Blansett instructs, FAA expectations are

relevant to whether an event is unexpected or unusual.

379 F.3d at 182. The FAA did not require Deep Vein

Thrombosis warnings, which bolstered the conclusion

that failure to provide such warnings was not an Article

17 accident. Id. (citing Witty v. Delta Air Lines, Inc., 366

F.3d 380, 385 (5th Cir. 2004)). It follows that a failure to

comply with an FAA regulation is material evidence that

an event was unusual or unexpected. See id. at 181–82.

This is the theory Arzu advances. The FAA required

Kevin’s flight to carry “an approved [AED].” See 14 C.F.R.

§ 121.803(c). Yet four witnesses, two medically trained,

testified that the AED never shocked Kevin. This evidence

suggests that American failed to equip the plane with a

functional AED. Because FAA regulations are relevant, a

reasonable jury could find that this failure was “unusual

or unexpected”—and thus an Article 17 accident.

American urges us to credit its “objective evidence”

that the AED functioned over Arzu’s witness testimony

that it did not.

Granted, if the record “blatantly contradict[s]” a

party’s story, “so that no reasonable jury could believe

it,” that story cannot create a genuine factual dispute. See

Scott v. Harris, 550 U.S. 372, 380–81, 127 S.Ct. 1769, 167

L.Ed.2d 686 (2007). This principle arose in Scott, where

the plaintiff’s claims of lawful driving were untenable,

when a video showed a high-speed car chase. See id. Yet

14a

Appendix A

Scott is “an exceptional case with an extremely limited

holding.” Aguirre v. City of San Antonio, 995 F.3d 395,

410 (5th Cir. 2021). Indeed, our court has declined to apply

Scott’s principle to medical records that cast doubt on

plaintiff’s claims. See Anderson v. McCaleb, 480 F. App’x

768, 771–72 (5th Cir. 2012).

American maintains that the AED’s internal data

contradicts the testimony that it malfunctioned. The

AED’s data recorded a shock eight minutes after its

activation. From the data, American’s expert opined that

“there is no evidence that the AED was faulty.” But two

medically trained fact witnesses contradict this opinion.

Dr. Amador averred that “[a]t no point did the AED . . .

deliver a shock.” Nurse Thatcher could “not recall any

. . . signs from Kevin that would lead [her] to believe he

received a shock.” Two of Kevin’s relatives testified that

they saw no movement when the defibrillator supposedly

shocked Kevin.

American seeks to undermine this testimony. For

instance, it highlights that Kevin’s uncle’s belief that the

AED malfunctioned rests on his experience watching

films. That and similar quibbles are for cross-examination,

not a summary-judgment motion. And the AED data

cannot “show . . . whether the input is accurate, whether

the AED pad[s] . . . malfunction[ed] . . . or whether a shock

. . . was actually delivered.” With this conflicting evidence

and uncertainty, we cannot say that American’s AED data

“blatantly contradicts” the witnesses’ accounts. Cf. Scott,

550 U.S. at 380, 127 S.Ct. 1769.

15a

Appendix A

Nor does Gunter v. Township of Lumberton support

a different approach. 535 F. App’x 144 (3d Cir. 2013).

There, Gunter alleged that police officers delayed more

than ten minutes before rendering medical care. Id. at

146. The dispatch records and the AED activation time

contradicted this timeline, so Gunter’s testimony could

not raise a genuine fact dispute. Id. at 149–50.

Naturally, objective evidence can contradict a

witness’s subjective timeline. If Kevin’s uncle claimed that

the crew never activated the AED until the plane landed,

its internal time data would prevail. But the dispute here

is more complex. American urges us to disregard four

witnesses’ testimony that the AED malfunctioned. It does

so relying on data from the allegedly malfunctioning AED.

If we credit Arzu’s version, it would hardly be surprising

that the AED’s data was inaccurate. This assuredly differs

from Gunter, where the AED’s function was undisputed.

While violating an FA A regulation is not itself

an Article 17 accident, it informs whether an event is

unexpected or unusual. Blansett, 379 F.3d at 181–82. And

a genuine dispute remains whether American equipped

Kevin’s flight with a functional AED, as the FAA requires.4

4. Arzu also maintains that American failed to train its crew

to properly use the AED—another FAA requirement. This theory

finds no support in the record. All flight attendants had completed

the required annual AED training. And Arzu’s intimation that the

imperfect medical response shows that American failed to comply

with the AED-training requirement is an unreasonable inference.

After all, outside of a hospital, it would be difficult to find a team

able to execute their AED training flawlessly.

16a

Appendix A

From this, a reasonable jury could find that the alleged

AED malfunction was an Article 17 accident.

Thus, we reverse summary judgment on Arzu’s

Article 17 claim to the extent it relies on the alleged AED

malfunction. Because the district court granted summary

judgment on the same basis for Arzu’s loss of consortium

claim, we reverse summary judgment on that claim too.

B. We do not affirm on causation grounds.

Because the district court granted summary judgment

on Article 17-accident grounds, it never considered

causation. Summary Judgment Ord., 782 F. Supp. 3d at

367 n.7. But American urges us to affirm on causation

grounds. We decline.

Mostly, American conflates evidentiary admissibility

with evidentiary sufficiency. American argues that

Arzu’s medical expert’s opinion misapprehended survival

statistics for patients who receive defibrillation. And

it argues that the expert’s opinion relies on the faulty

assumption that the AED malfunctioned.

But whether expert testimony has “a reliable basis”

challenges its admissibility. See Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993). If American wished to do so, it should

have moved under Evidence Rule 701 in the district court.

See FED. R. EVID. 701. Indeed, the defendants did just

that in the Texas-law case American cites to support its

reliability challenge. See Johnston v. Ferrellgas, Inc., 96

F.4th 852, 858 (5th Cir. 2024) (quoting Whirlpool Corp.

17a

Appendix A

v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009)). We do not

consider these arguments further.

Admissibility aside, Arzu’s causation evidence creates

a genuine dispute on the issue. “[T]here are often multiple

interrelated factual events that combine to cause any given

injury.” Husain, 540 U.S. at 653, 124 S.Ct. 1221. So long as

an Article 17 accident is one of those events, causation is

satisfied. See id. In other words, to show causation, Arzu

must “prove that some link in the [causal] chain was an

unusual or unexpected event.” See id. at 652, 124 S.Ct.

1221 (citation modified).

Under this standard, Arzu offers sufficient evidence.

Her causation expert, Dr. Warmink, explained that

“prompt . . . CPR and appropriate AED usage results

in survival for a significant percentage of patients.”

Indeed, the fact that the AED detected a shockable

rhythm, “supports that if [CPR] and . . . defibrillation

had been initiated without a significant delay . . . Kevin’s

survival would have been several times more likely.” So

Dr. Warmink opined that “within a reasonable degree

of medical certainty, the delay in . . . [CPR] coupled with

the delayed and ineffectual [AED] usage contributed to”

Kevin’s death. In a later affidavit, Dr. Warmink clarified

that Kevin “more likely than not would have survived his

cardiac arrest” had the crew “promptly” begun CPR “and

effectively utilized a functional [AED].”

So Dr. Warmink opined that the medical response

on Kevin’s flight caused his death, and stood by it. This

is enough for a reasonable jury to find that the AED

malfunction was a “link in the chain” that caused Kevin’s

18a

Appendix A

death. See Husain, 540 U.S. at 653, 124 S.Ct. 1221. This

evidence creates a trial issue, at which American may

challenge his opinion and its basis.

The Montreal Convention preempts Arzu’s

breach of contract claim.

Lastly, Arzu urges us to reverse summary judgment

on her breach of contract claim. In it, she alleges that

American’s Conditions of Carriage (Conditions) required

an advance payment for Kevin’s death. American counters

that the Montreal Convention preempts this claim. We

agree.

The parties rely on an outdated test. They cite

authority holding that the Warsaw (not the Montreal)

Convention displaces any state remedy within its

“substantive scope.” See Mbaba v. Societe Air Fr., 457 F.3d

496, 499 (5th Cir. 2006) (quoting El Al Isr. Airlines, Ltd.

v. Tseng, 525 U.S. 155, 172, 119 S.Ct. 662, 142 L.Ed.2d 576

(1999)). Yet the Montreal Convention, which superseded

the Warsaw Convention, expressly preempts domesticlaw claims. It provides that “any action for damages . . .

whether under this Convention or in contract or in tort or

otherwise, can only be brought subject to the conditions

and . . . limits of liability [of] this Convention.” Montreal

Convention art. 29. Because the Montreal Convention

now expressly preempts the Warsaw Convention, the

substantive scope test is now obsolete. 5

5. This contrasts with the Article 17-accident inquiry, which

persisted unchanged in the Montreal Convention.

19a

Appendix A

While the distinction is important, the result is the

same: the Montreal Convention preempts Arzu’s contract

claim. The allegedly breached terms are “materially

identical to Article 28.” Under that article, a carrier must,

“if required by its national law, make advance payments

. . . to a . . . person . . . entitled to . . . compensation . . .

to meet [their] immediate economic needs.” Montreal

Convention art. 28 (emphasis added).

Because American’s continued antitrust immunity

is contingent on Department of Transportation (DOT)

approval of the Conditions, an advance payment was

“required by . . . national law.” See Montreal Convention

art. 29. When the Montreal Convention replaced the

Warsaw, American joined other airlines to apply for

approval of their updated conditions of carriage to reflect

the new requirements. DOT approved these conditions,

which led to their inclusion in Kevin’s itinerary.

This approval requirement shows the Conditions are

“required by . . . national law.” See Montreal Convention

art. 28. As a result, any claim based on their breach falls

under Article 29. And if a claim falls under the Convention,

it may be brought only under its “conditions and . . . limits

of liability.” See Montreal Convention art. 28. Hence the

Montreal Convention expressly preempts Arzu’s breach

of contract claim.

***

20a

Appendix A

Thus, we REVERSE summary judgment on Arzu’s

Article 17 and derivative loss of consortium claims to the

extent she relies on her AED-malfunction allegations. On

all other issues, we AFFIRM.

21a

AppendixAND

B ORDER OF THE

APPENDIX B — OPINION

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS,

FORT WORTH DIVISION, FILED MAY 8, 2025

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

No. 4:24-cv-00433-P

MELISSA SUZETTE ARZU,

Plaintiff,

AMERICAN AIRLINES, INC.,

Defendant.

Signed May 8, 2025

OPINION & ORDER

Before the Court are two cross-motions for summary

judgment: one filed by Melissa Suzette A rzu, the

administrator of the estate of Kevin Greenidge, and

another filed by American Airlines Inc. (“American

Airlines”). ECF Nos. 49, 53. Having considered both

Motions, other relevant docket filings, and the applicable

law, the Court will DENY Arzu’s Motion and GRANT

American Airlines’ Motion.

22a

Appendix B

BACKGROUND

This case follows the tragic death of fourteen-yearold Kevin Greenidge. On June 4, 2022, Kevin boarded

American Airlines Flight 614 from San Pedro Sula,

Honduras to Miami, Florida. Kevin flew with his aunt

Anna, his uncle Leonard, Leonard’s partner Janell, and

Leonard and Janell’s daughter. Leonard, Janell, and their

daughter sat in row 31. Anna and Kevin sat in row 32.

Kevin sat in the window seat and Anna in the aisle seat.

Nobody sat in the seat between Kevin and Anna.

Following a multi-hour weather delay, Flight 614

departed. After takeoff, Kevin asked Anna for his asthma

inhaler to help him breathe, which Anna provided. But

Kevin’s breathing only worsened. Shortly after reaching

altitude, Kevin became unconscious. Anna began calling

for help, and Leonard unsuccessfully attempted to lift

Kevin from his window seat in row 32.

When the flight attendants responded to Anna’s calls,

they found Kevin unconscious and unresponsive and

called a Code Red. The flight attendants made multiple

announcements requesting assistance from medically

trained passengers. The first passenger to respond was

Karenna Thatcher, a nurse. The second passenger to

respond was Rachel Amador, a general surgeon. When

Thatcher saw Kevin, she indicated that Kevin needed to be

placed on the floor. With the help of multiple people, Kevin

was removed from his seat and placed on the ground.

23a

Appendix B

Once Kevin was on the ground, Thatcher and Amador,

with the help of one flight attendant, began administering

CPR. Another flight attendant brought a medical kit and

an automated external defibrillator (“AED”). Thatcher

and Amador set up the AED and placed the pads on

Kevin. The flight deck was then alerted of the medical

emergency, and just over an hour into the flight, the pilots

began an emergency descent into Cancún International

Airport at 7:33 p.m. The plane arrived at the gate at 7:50

p.m. During the descent, Amador and Thatcher continued

administering CPR and applying the AED machine.

Emergency medical services were waiting at the gate to

transport Kevin to Amerimed Hospital via ambulance.

Kevin was pronounced dead at 8:45 p.m. At the time of

the flight, Kevin weighed 319 pounds and suffered from a

host of diagnosed health complications including asthma,

obesity, sleep apnea, and type II diabetes.

LEGAL STANDARD

Summary judgment is appropriate when the moving

party “shows that there is no genuine dispute as to any

material fact” and “is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if the

evidence presented would allow a reasonable jury to return

a verdict in favor of the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986). A fact is “material” when it might

affect the outcome of a case. Id. Generally, the “substantive

law will identify which facts are material,” and “[f]actual

disputes that are irrelevant or unnecessary will not be

counted.” Id.

24a

Appendix B

When determining whether summary judgment is

appropriate, the Court views the evidence in the light

most favorable to the nonmovant. First Am. Title Ins.

Co. v. Cont’l Cas. Co., 709 F.3d 1170, 1173 (5th Cir. 2013).

In conducting its evaluation, the Court may rely on any

admissible evidence available in the record but need only

consider those materials cited by the parties. Fed. R. Civ.

P. 56(c)(1)-(3). The Court need not sift through the record

to find evidence in support of the nonmovant’s opposition

to summary judgment; the burden falls on the moving

party to simply show a lack of evidence supporting the

nonmovant’s case. See Malacara v. Garber, 353 F.3d 393,

404-05 (5th Cir. 2003).

ANALYSIS

American Airlines’ Motion seeks summary judgment

on all three of Arzu’s claims: (1) the Montreal Convention

claim; (2) the loss-of-consortium claim; and (3) the breachof-contract claim. Arzu’s Motion only seeks summary

judgment on her first and third claims. The Court will

address each claim in the order presented in American

Airlines’ Motion.

A. Montreal Convention Claim

Known formally as the Convention for Unification

of Certain Rules for International Carriage by Air, the

Montreal Convention is an international treaty to which

the United States is a signatory. The Montreal Convention

25a

Appendix B

“applies to all international carriage of persons, baggage

or cargo performed by aircraft for reward.”1

Article 17 provides a remedy to passengers for

damages caused by “accidents” on international flights. 2

Strict liability is imposed against air carriers “for damage

sustained in case of death or bodily injury of a passenger

upon condition only that the accident which caused the

death or injury took place on board the aircraft or in

the course of any of the operations of embarking or

disembarking.” 3 “Accident” is not defined anywhere in

the Montreal Convention. However, in Air France v.

Saks, the Supreme Court of the United States clarified

that an “accident” is “an unexpected or unusual event

or happening that is external to the passenger.” 470

U.S. 392, 395, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985).4

The Saks Court determined that “accident” should “be

1. Convention for the Unification of Certain Rules for

International Carrier by Air, art. 1(1), May 28, 1999, reprinted in

S. TREATY DOC. NO. 106-45, 1999 WL 33292734, at *33 1999

(hereinafter “Montreal Convention”).

2. See id. art. 17.

3. Id.

4. Air France v. Saks considered a claim under the Warsaw

Convention, which predated the Montreal Convention. In 1999, the

Montreal Convention replaced the Warsaw Convention, and courts

have found that interpretations of the Warsaw Convention, such

as in Saks, apply to the Montreal Convention. White v. Emirates

Airlines, Inc., 493 Fed. App’x 526 (5th Cir. 2012) (citations omitted)

(The Montreal Convention replaces the “Warsaw Convention and

all of its related instruments and . . . eliminate[s] the need for the

patchwork of regulation and private voluntary agreements.”).

26a

Appendix B

flexibly applied after assessment of all the circumstances

surrounding a passenger’s injuries.” Id. at 405, 105 S.Ct.

1338. In addition to identifying an unusual or unexpected

event, liability only arises if “a passenger’s injury is caused

by [the] . . . event.” Id. at 392, 105 S.Ct. 1338. The Court

further recognized that “[a]ny injury is the product of a

chain of causes.” Id. at 406, 105 S.Ct. 1338. Thus, when

evaluating causation, a plaintiff need only show that “some

link in the chain was an unusual or unexpected event

external to the passenger.” Id.

Roughly twenty years after Saks, another Supreme

Court case considered an “accident” that occurred when

an airline’s crew refused to help a passenger three

times. See Olympic Airways v. Husain, 540 U.S. 644,

124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004). In Husain, two

airline passengers, husband and wife, boarded a flight

that allowed smoking. See id. at 646-47, 124 S.Ct. 1221.

The husband suffered from asthma and was sensitive

to secondhand smoke. Id. at 647, 124 S.Ct. 1221. Upon

boarding, the husband and wife were seated “three rows

in front of the economy-class smoking section.” Id. The

wife told a flight attendant about the husband’s condition

and asked to be moved, but the flight attendant refused,

saying the plane was full and she was too busy. See id.

Following two more refusals by the flight attendant to

aid the husband, the husband moved to the front of the

plane to get fresh air but soon after began struggling

to breathe and passed away. Id. at 648, 124 S.Ct. 1221.

The lower court determined that “the flight attendant’s

conduct in three times refusing to move [the husband]

was unusual or unexpected” and therefore constituted an

27a

Appendix B

“accident.” Id. at 652, 124 S.Ct. 1221. The lower court’s

finding of an “accident” was not challenged on appeal. Id.

As for causation, and despite the husband’s pre-existing

asthma condition, the Supreme Court found that the

“flight attendant’s refusal on three separate occasions

to move [the husband]” was “a link in the chain of causes

that led to [the husband’s] death.” Id. at 653, 124 S.Ct.

1221 (quotations omitted). Thus, the plaintiffs also proved

causation. Id.

On the other hand, courts have found that a flight

crew’s “imperfect” response to a passenger’s medical

emergency does not necessarily constitute an “accident.”

See, e.g., White v. Emirates Airlines, Inc., 493 Fed. App’x

526, 531 (5th Cir. 2012). For example, in White, a man

and his mother traveled aboard an Emirates Airlines

flight from Dubai to Houston. Id. at 527. As the plane

began its descent, the mother used the lavatory, and five

minutes later, a flight attendant found that the mother

had collapsed. Id. The flight crew took the mother out

of the lavatory, placed her on the ground, administered

oxygen through a mask, and alerted the captain. Id. The

plaintiff alleged that the flight crew’s non-compliance with

the man’s request that the flight crew perform CPR or

use a defibrillator constituted an “accident.” Id. at 530-31.

But the Fifth Circuit affirmed the district court’s grant

of summary judgment in the airline’s favor because “a

flight crew’s arguably imperfect response to a passenger’s

medical emergency does not necessarily constitute an

Article 17 ‘accident.’” Id. at 531.

28a

Appendix B

Plaintiff alleges that the American Airlines crew’s

response to Kevin’s emergency included four different

“accidents”: (1) failure to immediately notify the flight

deck; (2) failure to immediately administer CPR; (3)

failure to contact the physician on call; and (4) failure to

establish and adhere to emergency team roles. ECF No. 55

at 22-28. All four relate to policies found in the American

Airlines Inflight Manual.

For the first, the Inflight Manual requires that flight

attendants contact the flight deck immediately in the event

of a medical emergency. ECF No. 56, App. 045. Plaintiff

argues that the evidence shows such notification did not

occur immediately. See ECF No. 55 at 22. Rather, finding

Kevin unconscious and unresponsive, the flight attendant

waited until Kevin was transferred from his seat to the

galley, Thatcher and Amador began administering CPR,

and the AED began analyzing Kevin’s heart rhythm; only

then was the flight deck notified. Id.

As for the alleged failure to immediately administer

CPR , the In f l ight Manua l di rects that CPR be

“administered immediately” if an unconscious person

is not breathing and there are no signs of life. ECF

No. 56, App. 058. Plaintiff contends the flight crew did

not immediately administer CPR. ECF No. 55 at 24.

Instead, the flight attendants waited for medically trained

passengers to arrive and for Kevin to be removed from

his seat and placed in the galley. Id. At this time, Amador

initiated CPR. Id.

29a

Appendix B

Next, Arzu points out that the Inflight Manual states

that when there is a “Code Red,” the crew should contact

the physician on call. ECF No. 56, App. 042. The physician

on call is a doctor “specially trained in handling inflight

medical emergencies and advising which diversion city is

most capable of handling the ill/injured person’s condition.”

Id. The flight crew never contacted the physician on call.

Lastly, the Inflight Manual requires that flight

attendants establish and adhere to certain roles during

an inflight emergency. ECF No. 56, App. 057. Those

roles include establishing a communicator, responder,

and runner. Id. Arzu asserts that such roles were not

clearly established by the flight crew. ECF No. 55 at 26.

For example, one flight attendant was acting as both the

runner and the communicator. Id.

Even under Arzu’s version of the facts, the American

Airlines crew’s response to Kevin’s emergency does not

amount to an “accident” under the Montreal Convention. 5

This case is unlike other cases in which courts have

found an “accident.” For example, the facts here are not

5. In reaching this holding, the Court notes its agreement

with Judge Edward C. Burks of the Supreme Court of Virginia,

who in 1878, and writing in an equally heartrending opinion, stated:

“The unhappy condition of the appellee excites my commiseration;

but courts of justice are not allowed to be controlled in their

decisions by considerations of that character. ‘Compassion,’ said

an eminent Virginia chancellor, ‘ought not to influence a judge,

in whom, acting officially, apathy is less a vice than sympathy.’”

Harris v. Harris, 72 Va. 31 Gratt. 13, 32 (1878) (quoting Chancellor

George Wythe, Commentary on Field’s Ex’x v. Harrison & wife,

in Wythe’s Reports 282 (Minor’s Ed. 1794)).

30a

Appendix B

analogous to those in Husain, where the flight crew’s

multiple refusals to move the husband from the smoking

section constituted an “accident.” To the contrary, the four

instances highlighted by Arzu reflect concerted efforts

by the crew to provide emergency assistance to Kevin.

Moreover, courts have found that a departure from

an airline’s policy does not necessarily mean that an

“accident” occurred. See Blansett v. Cont’l Airlines, Inc.,

379 F.3d 177, 182 (5th Cir. 2004). In Blansett, the Fifth

Circuit held that there is no per se rule that any deviation

from an airline’s policy would constitute an “accident.” Id.

Instead, any departure from policy must still undergo the

“unexpected or unusual” analysis. See id. at 181-82.

For this reason, this case more closely resembles

White, in which the Fifth Circuit determined no accident

occurred. White, 493 Fed. App’x. at 535. Just as in White,

here it is “undisputed . . . that the [American Airlines]

flight crew responded to [Kevin’s family’s] request for

medical assistance.” Id. at 531. The Court accepts Arzu’s

contentions that there may have been reactionary delays,

confusion of roles, and departures from policy, such as the

failure to contact the physician on call. Notwithstanding

all of that, the flight crew “took action to assist” Kevin

in multiple ways. Id. at 531. The flight attendants sought

medical assistance from other passengers, provided a

medical kit and AED machine, and alerted the flight deck

to facilitate a diversion to Cancún for quicker medical

attention. The Court has little doubt that the American

31a

Appendix B

Airlines crew could have done more to aid Kevin.6 In

fact, there is rarely, if ever, a perfect response to a

medical emergency. But ultimately, even accepting Arzu’s

recitation of the facts, the failure of American Airlines to

follow all relevant procedures, “when evaluated in context

. . . was not unusual or unexpected.” Id. at 534.

Kevin’s underlying conditions also suggest that the

flight crew’s response was not unusual or unexpected.

Again, the unusual and unexpected inquiry must be applied

“flexibly” after “assessment of all the circumstances

surrounding a passenger’s injuries.” Saks, 470 U.S. at 405,

105 S.Ct. 1338. The Court finds that Kevin’s pre-existing

conditions including asthma, obesity, sleep apnea, and

diabetes complicated the flight crew’s emergency response

efforts. Indeed, amid the various emergency protocols,

the crew also navigated the unexpected difficulty of

removing Kevin from his seat, which required assistance

from multiple passengers. As a consequence, CPR could

not be administered immediately because Kevin needed

to be placed on the floor first, as Amador and Thatcher

directed. This complication also likely contributed to the

delay in alerting the flight deck of the emergency. Any

deficiency in following the protocol can, at least to some

extent, be attributed to unique challenges presented in

this situation.

For these reasons, the Court finds that American

Airlines’ response to Kevin’s medical emergency does not

6. The same argument was made in White. See White, 493

Fed. App’x at 531 (“[Plaintiff] faults the flight crew for failing to

do more.”).

32a

Appendix B

constitute an “accident” under the Montreal Convention

and will therefore grant summary judgment in favor of

American Airlines on this claim.7

B. Loss-of-Consortium Claim

Under Texas law, a loss-of-consortium claim is a

derivative claim. See, e.g., Brewerton v. Dalrymple, 997

S.W.2d 212, 217 (Tex. 1999). Arzu’s loss-of-consortium

claim is derivative of her Montreal Convention claim.

Accordingly, given the Court’s ruling on Arzu’s Montreal

Convention claim that there was no “accident,” American

Airlines is also entitled to summary judgment on the lossof-consortium claim.

C. Breach-of-Contract Claim

Both Parties move for summary judgment on Arzu’s

breach-of-contract claim. American Airlines makes two

arguments: (1) that Arzu’s breach-of-contract claim is

preempted by the Montreal Convention; and (2) that

American Airlines’ decision to make a payment was

merely discretionary under the terms of the contract and

therefore the claim fails as a matter of law. Arzu disputes

both contentions and argues that there is no genuine

dispute of material fact that American Airlines owes Arzu

7. Given the Court’s ruling, it need not determine whether

American Airlines was the “cause” of Kevin’s death. And as

a result, American Airlines’ Motion for Leave to File Reply

Appendix concerning expert opinion on the cause of Kevin’s death

is unnecessary. ECF No. 72.

33a

Appendix B

16,000 Special Drawing Rights (“SDR”)8 as a mandatory,

minimum payment. The Court will first discuss whether

the breach-of-contract claim is preempted by the Montreal

Convention before determining whether the agreement

required a discretionary or mandatory payment from

American Airlines.

Preemption by the Montreal Convention

As discussed above, the Montreal Convention

applies to “accidents” that occur during the course of an

international flight.9 Generally, the Montreal Convention

provides an exclusive remedy to address injuries under

its purview.10 This is true even if “a passenger[’s] . . .

injury is not compensable under the Convention,” as

the Court has found here. El Al Israel Airlines, Ltd. v.

Tsui Yuan Tseng, 525 U.S. 155, 160, 119 S.Ct. 662, 142

L.Ed.2d 576 (1999); see also Best v. BWIA W. Indies

Airways Ltd., 581 F. Supp. 2d 359, 362 (E.D.N.Y. 2008)

(citations omitted) (“By its own terms, the [Montreal

Convention], where applicable, preempts the remedies of

a signatory’s domestic law, whether or not the application

of the [Montreal] Convention will result in recovery in a

particular case.”).

8. Approximately $21,000 USD.

9. See Montreal Convention, art. 17.

10. Id. art. 29 (“In the carriage of passengers . . . any action for

damages, however founded, whether under this Convention or in

contract or in tort or otherwise, can only be brought subject to the

conditions and such limits as are set out in this Convention. . . .”).

34a

Appendix B

Nonetheless, as cited by Arzu, there are instances

where the Montreal Convention does not preempt

contractual claims based on nonperformance. See Nankin

v. Cont’l Airlines, Inc., No. CV-09-07851, 2010 WL 342632,

at *7 (C.D. Cal. Jan. 29, 2010) (finding the Montreal

Convention not applicable to plaintiffs’ claims because

airlines refused to perform the contract); Mullaney v.

Delta Air Lines, Inc., No. 08-civ-7324, 2009 WL 1584899,

at *3 (S.D.N.Y. June 3, 2009) (same); In re Nigeria Charter

Flights Contract Litig., 520 F. Supp. 2d 447, 455 (E.D.N.Y.

2007) (same); Weiss v. El Al Israel Airlines, Ltd., 433

F. Supp. 2d 361, 369 (S.D.N.Y. 2006) (same). In each of

these cases, the plaintiff’s contract claim dealt with an

airline failing to transport a passenger. The court in

each case concluded that such nonperformance by the

airline was not preempted by the Montreal Convention

because such “claims [do] not fall within the scope of the

Montreal Convention.” See, e.g., Nankin, 2010 WL 342632,

at *7 (citations omitted). Arzu contends that, like these

cases, American Airlines failed to perform its contractual

obligations by not tendering an advance payment of at

least 16,000 SDR following Kevin’s death on Flight 614.

But unlike the cases A rzu cites, her claim of

nonperformance does not deal with an airline failing to

transport Kevin. This distinction is important because

in Nankin, for example, the court reasoned that the

Montreal Convention would preempt passengers’ claims

for “delays” but not nonperformance of transportation. Id.

And “courts scrutinize the facts to determine whether the

claim” actually related to a refusal to transport or just

a delay. Id. Thus, the cases cited by Arzu do not suggest

35a

Appendix B

that all suits involving nonperformance of contracts avoid

preemption by the Montreal Convention. Rather, they

stand for the proposition that an airline’s nonperformance

of transportation is not preempted because such claims

fall outside the scope of the Montreal Convention.

For this reason, if the Court concluded that Arzu’s

nonperformance claim of the advance payment was not

preempted by the convention, such a holding would expand

the preemption exceptions set forth in Arzu’s cases. The

Court is further wary of making such a determination

given that the nonperformance of the advance payment is

directly tied to Kevin’s death on Flight 614, and the death

of a passenger on an international flight is indisputably

covered by the Montreal Convention.

Nonetheless, the Court need not decide whether the

breach-of-contract claim was preempted by the Montreal

Convention because the Conditions of Carriage are

unambiguous and merely provide for a discretionary

payment by American Airlines. Therefore, the Court

declines to rule on whether Arzu’s breach-of-contract

claim is preempted by the Montreal Convention.

Mandator y vs. Discretionar y Nature of

Contract

As discussed above, the Conditions of Carriage are

unambiguous and do not require any mandatory payment

by the “carrier”: American Airlines. The Conditions of

Carriage provides in relevant part:

36a

Appendix B

(2) In cases of bodily injury or death, the

Carrier shall make an advance payment where

[American] determines it is necessary to meet

the economic needs of, and hardship suffered

by, a Passenger as provided under the following

paragraphs:

(a) Unless a dispute arises over the identity of

the person to whom an advance payment shall

be made, [American] shall, without delay, make

the advance payment to the Passenger in an

amount or amounts determined by the Carrier

in its sole discretion. In the event of death of a

Passenger, the amount of the advance shall not

be less than 16,000 Special Drawing Rights,

which shall be paid to a representative of the

Passenger’s next of kin eligible to receive such

advance payment as determined by [American]

in its sole discretion.

ECF No. 18-3 ¶ 2.

The plain language of the Conditions of Carriage

suggests that American Airlines’ advance payment in

the event of a passenger’s death was non-mandatory.

As a threshold to making an advance payment for

bodily injury or death of a passenger, A merican

Airlines must “determine[] it is necessary to meet the

immediate economic needs of, and hardship suffered by,

a Passenger. . . .” Id. Subparagraph (a) then says that,

“in the event of death of a Passenger, the amount of the

advance payment shall not be less than 16,000 Special

Drawing Rights. . . .” Id. ¶ 2(a). Thus, American Airlines

37a

Appendix B

must first determine that such an advance payment is

necessary to meet the needs of a Passenger, and second, if

such a determination is made, and a death of a passenger

occurred, the payment must not be less than 16,000 SDR.

Given this threshold requirement, American Airlines was

not obligated to make any advance payment. And failure

to make a discretionary payment does not constitute a

breach of contract under Texas law. See, e.g., Farmer

v. Ben E. Keith Co., 919 S.W.2d 171, 177 (Tex. App.—

Fort Worth 1996, no writ) (employer’s failure to make

a discretionary payment to employee did not constitute

breach of contract).11

For these reasons, the Court finds there is no genuine

dispute of material fact that American Airlines did not

breach any agreement, and summary judgment should be

entered on behalf of American Airlines.

11. The Parties make various contentions about the origin

of the contractual language. American Airlines argues that the

Conditions of Carriage originate from the Montreal Convention

itself, further confirming that its provisions are potentially

preempted by the Convention. Arzu argues that the language

is taken from an order by the Department of Transportation

(“DOT”) and that American Airlines is estopped from making

its argument that the advance payment is discretionary given

previous arguments made by American Airlines’ representative

trade organization before DOT. Regardless, “[i]f a contract is

unambiguous on its face, the contract’s meaning and intent of the

parties must be sought within the four corners of the document

and cannot be explained or contradicted by extrinsic evidence.”

Shocklee v. Mass. Mut. Ins. Co., 369 F.3d 437, 439-40 (5th Cir.

2004). A determination of the origin of the Conditions of Carriage

is therefore unnecessary for this Court because the language of

the agreement is clear—the advance payment was non-mandatory.

38a

Appendix B

CONCLUSION

For the foregoing reasons, the Court DENIES Arzu’s

Motion. ECF No. 53. The Court GRANTS American

Airlines’ Motion and ENTERS summary judgment in

American Airlines’ favor on all three counts. ECF No.

49. Given the Court’s rulings, the Court further finds

that American Airlines’ Motion for Leave to File Reply

Appendix is MOOT. ECF No. 72.

SO ORDERED on this 8th day of May 2025.

/s/ Mark T. Pittman

Mark T. Pittman

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.