# Amicus Curiae Brief — Olympic Airways v. Husain

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0644%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 644

## Text

1 Buprome Cour, >.
FILED

‘AUG 29 2003

Ne. 68-1868 OVPICE OF THE CLPRX

In the Supreme Court of the United States

OLYMPIC AIRWAYS, PETITIONER

RUBINA HUSAIN, INDIVIDUALLY, AND
AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF ABID M. HANSON, DECEASED, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATESAS AMICUS CURIAE
SUPPORTING RESPONDENTS

WILLIAM H. Tart, IV
Legal Adviser
Departmen: of State
Washington, D.C. 20520

KIRK K. VAN TINE
General Counsel
Department of Transportaticn
Washington, D.C. 20590

THEODORE B. OLSON
Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

BARBARA MCDOWELL
Assistant to the Solicitor
General

ROBERT S. GREENSPAN
LOWELL V. STURGILL JR.
Attorneys

Department of Justice
Vashington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether an airline’s unreasonable refusal to assist a
passenger who becomes ill during an international flight, in
violation of industry standards and the airline’s own policies,
constitutes an “accident” within the meaning of Article 17 of
the Warsaw Convention.

(I)

— — — — —

D éêÄ²Ä Ä

TABLE OF CONTENTS

Page
Interest of the United States . .. 1
Statement 1 — '(„ 2
Summary of argument 6 —— 10

Argument:

An airline’s unreasonable refusal to come to the aid
of an ill passenger is an “accident” that can give
rise to liability under the Warsaw Convention 12
A. Anairline employee’s response to a medical crisis

can constitute an “accident” within the meaning

of Article 17 of the Warsaw Convention 12
B. Subjecting airlines to liability under the Warsaw

Convention for injuries caused by their unrea-

sonable response to a medical crisis properly

balances the interests of passengers and

1111113111331 22
C. The lower courts correctly held that the re-

fusal of petitioner’s flight attendant to render

assistance to Dr. Hanson when informed of his

medical condition was an “accident” under the

Warsaw Convention ...t.

N

TABLE OF AUTHORITIES

Cases:

Abramson v. Japan Airlines Co, 739 F. 2d 130
(3d Cir. 1984), cert. denied, 470 U.S. 1059 (1985). 27, 28, 29
Affiliated Ute Citizens v. United States, 406 U.S:

1111 18
Air Crash at Little Rock, Ark., In re, 219 F.3d 503
(8th Cir. 2002) 2 — 14

Air Disater at Lockerbie, Scotland, on Dec. 21, 1988,
In re, 37 F.3d 804 (2d Cir. 1994), cert. denied, 513
EEE TET 14

(IIT)

IV V
Cases Continued: Page Cases Continued: Page
Air France v. Saks, 470 U.S. 392 (1985) passim Magan v. Lufthansa German Airlines, No. 02-7172,
BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) 18 a 2003 WL 21912258 (2d Cir. Aug. 12, 2003) 14
Bayer Corp. v. British Airways, PLC, 210 F.3d 236 t McCaskey v. Continental Airlines, Inc., 159F.
(4th Cir. 2000) 20 Supp. 2d 562 (S.D. Tex. 2001) 18, 26, 29
Benson v. Tacoma Ry. & Power Co., 98 P. 605 ; McDowell v. Continental Airlines, Inc., 54 F. Supp.
(Wash. 1908) 23 ' 2d 1313 (S. D. Fla. 1999) 17, 23, 29
Chan v. Korean Air Lines, Ltd., 490 U.S. 122 . Northern Trust Co. v. American Airlines, Inc.,
(1989) . 491 N.E.2d 417 (Ill. App. Ct. 1986) 14
Deep Vein Thrombosis & Air Travel Group Litig., Re, ' Povey v. Civil Aviation Safety Auth., 7223 of 2001,
EWCA Civ 1005 (C. A. Eng. July 3, 2003) — 20-21 No. BC 200207836 (Sup. Ct. Victoria, Australia
Diaz Lugo v. American Airlines, Inc., 686 F. Supp. Dec. 20, 2002) 21
373 (D. P.R. 1988) . 14 Rajcooar v. Air India Ltd., 89 F. Supp.2d 324
Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (E. D. N. v. 2000) 14
(1991) ... — 3,4 Rynne v Lauda-Air Luftfahrt Aktiengelsellschaft
El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 [2003] OC 004 (Dist. Ct. Queensland Feb. 7,
(1999) .... - 1, 2,3, 2003) 21
4, 11, 12, 22, 25 Scherer v. Pan Am. World Airways, Inc., 387
Fardette v. New York & S. Ry., 180 N. V. S. 179 N. v. S. 2d 580 (N.Y. App. Div. 1976) 14
(N.Y. App. Div. 1920) 23 Schneider v. Swiss Air Transport Co., 686
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. F. Supp. 15 (D. Me. 1988) 27
101 (1989) 18 Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S.
Fishman v. Delta Air Lines, Inc., 132 F.3d 138 176 (1982) 12
(2d Cir. 1998) 15, 26 Turturro v. Continental Airlines, 128 F. Supp. 2d
Fulop v. Malev Hungarian Airlines, 175 F. Supp.2d 170 (S.D.N.Y. 2001) 26-27
651 (S.D.N.Y. 2001) 15, 16, 21, 26, 29 Williams v. Louisville & N. R. Co., 43 So. 576 (Ala.
Gezzi v. British Airways PLC, 991 F.2d 603 (9th 1907) 23
Cir. 1993) 14 Zicherman v. Korean Air Lines Co., 516 U.S. 217
Gupta v. Austrian Airlines, 211 F. Supp.2d 1078 | (1996) 2
N. D. Ill. 2002) 26 |
—— v. Delta Air Lines, Inc., 740 N. V. S. 2d Treaties and statutes:
434 (N.Y. App. Div. 2002) 27 | Convention for the Unification of Certain Rules
Krys v. Lufthansa German Airlines, 119 F.3d 1515 for International Carriage by Air, May 28, 1999,
(11th Cir. 1997), cert. denied, 522 U.S. 111] (1998) 20, ) ICAO Doc. 9740 4
27, 28, 29 Art. 17(1) 5
Langadinos v. American Airlines, Inc., 199 F. 3d 68 Art. 21 4
(Ist Cir. 1999) 7 27 Art. 33 4

VI

Treaties and statutes—Continued: Page

Art. 53(6) 5
Convention for the Unification of Certain Rules
Relating to International Transportation by Air,

Oct. 12, 1929, 49 Stat. 3000 (1929) passim
49 Stat. 3005 ...... 13
Art. 1(1) 2
Art. 17 2, 3, 4, 5, 8, 12, 13, 19, 20
Art. 170 5
Art. 18 3. 19
Art. 19 4
Art. 20 2,4
Art. 20(1) 19, 20
Art. 21 3
Art. 22(1) 2
Art. 23 3
Art. 24 3
Art. 25 3, 20
Art. 25(1) 3
Art. 28(1) 4

Montreal Protocol No. 4 to Amend the Convention for
the Unification of Certain Rules Relating to Inter-
national Carriage by Air, Sept. 25, 1975, ICAO Doc.

9148 3

15 U.S.C. 1601 et seq. 18

49 U.S.C. 40105 note 2

49 U.S.C. 44701(d)(1)(A) 23
Miscellaneous:

149 Cong. Rec. $10,870 (daily ed. July 31, 2003) 4

International Air Transport Association: Agreement

Relating to Liability Limitations of the Warsaw

Convention, Order 97-1-2 (Dep’t Transp. Jan. 8,

1997), available in 1997 WL 4834 4
Andreas F. Lowenfeld & Allan I. Mendelsohn,

The United States and the Warsaw Convention,

80 Harv. L. Rev. 497 (1967) 2,3

VII
Miscellaneous Continued: Page

Georgia Panter Nielson, Fron Sky Girl to Flight

Attendant: Women and the Making of a Union

— . ache aetna diana carrera 24
Johanna Omelia & Michael Waldock, Come Fly With

Us! A Global History of the Airline Hostess

Ee 24
Restatement (Second) of Torts (1965) 18, 23
S. Exec. Rep. No. 105-20 (1998) 3
S. Treaty Doc. No. 106-45, 106th Cong., 2d Sess. (2000) ... 5

Ferdinand S. Tinio, Accident Insurance: Death or Injury

Intentionally Inflicted by Another as Due to Accident

to Accidental Means, 49 A.L.R.3d 673 (1983) 16
Edward A. Tomlinson, The French Experience with

Duty to Rescue: A Dubious Case for Criminal

Enforcement, 20 N. V. L. Sch. J. Int’! & Comp. L.

451 (2000) 18
United Air Lines, Flight attendant history: 1926-1933,

(visited Aug. 27, 2003) 24
Tory A. Weigand, Accident, Exclusivity, and

Passenger Disturbances Under the Warsaw Con-

vention, 16 Am. U. Int! L. Rev. 891 (2001) .
A.D. Woozley, A Duty to Rescue: Some Thoughts on
Criminal Liability, 69 Va. L. Rev. 1273 (1983) 13-19

In the Supreme Court of the United States

No. 02-1348
OLYMPIC AIRWAYS, PETITIONER
Vv.

RUBINA HUSAIN, INDIVIDUALLY, AND
AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF ABID M. HANSON, DECEASED, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

As a party to the Warsaw Convention, the United States
has a substantial interest in the manner in which the Con-
vention is interpreted by the courts of this Country. The
United States also has a substantial interest in the achieve-
ment of a sensible balance between protecting U.S. citizens
who travel by air outside this Country, including assuring
compensation for those who are killed or injured in doing so,
and protecting U.S. air carriers from undue and excessive
liability. The United States has participated as amicus
curiae in other cases in this Court concerning the Warsaw
Convention, including El Al Israel Airlines, Ltd. v. Tseng,
525 U.S. 155 (1999); Chan v. Korean Air Lines, Ltd., 490 U.S.
122 (1989); and Air France v. Saks, 470 U.S. 392 (1985).

(1)

STATEMENT

I. a. The Convention for the Unification of Certain Rules
Relating to International Transportation by Air (Oct. 12,
1929), 49 Stat. 3000, popularly known as the Warsaw Con-
vention, prescribes a comprehensive set of legal principles to
govern “all international transportation of persons, baggage
or goods performed by aircraft” with respect to carriers’ li-
ability to passengers, shippers, and consignees. Art. 1(1).’
See generally Andreas F. Lowenfeld & Allan I. Mendelsohn,
The United States and the Warsaw Convention, 80 Harv. L.
Rev. 497 (1967). The Convention was designed to “foster
uniformity in the law of international air travel,” Zicherman
v. Korean Air Lines Co., 516 U.S. 217, 230 (1996), and “to
accommodate or balance the interests of passengers seeking
recovery for personal injuries, and the interests of air carri-
ers seeking to limit potential liability,” El Al Israel Airlines,
Ltd. v. Tseng, 525 U.S. 155, 170 (1999).

To protect passengers’ interests, for example, Article 17
allows a passenger to make out a prima facie case of liability
for personal injuries without having to prove that the airline
was at fault, as long as the passenger can prove that his
injury was caused by an “accident.” Article 20 allows the
airline to avoid liability by proving that it took “all necessary
measures to avoid the damage or that it was impossible for
[the airline] to take such measures.” The combined effect of
Article 17 and Article 20 is to shift the burden of proof with
respect to fault from the passenger to the airline. See
Lowenfeld & Mendelsohn, supra, 80 Harv. L. Rev. at 499-
500.

To protect the airline industry’s interests, Article 22(1)
limits the amount that can be recovered under Article 17 in

the event of a death or bodily injury. That limit was set at

1 All references to Articles of the Warsaw Convention refer to the
reproduction of the Convention that follows the note at 49 U.S.C. 40105.

‘Gs ta Owe

125,000 French francs, equivalent in 1929 to approximately
$8300, a “low amount even by 1929 standards.” Eastern Air-
lines, Inc. v. Floyd, 499 U.S. 530, 546 (1991); see Lowenfeld
& Mendelsohn, supra, 80 Harv. L. Rev. at 499 & n.10. Under
Article 25(1), however, that limit ceases to apply if the dam-
age is caused by the “willful misconduct” of the airline or its
agent, acting within the scope of his employment.” In addi-
tion, Article 21 enables an airline to avoid or reduce its liabil-
ity Hilf the carrier proves that the damage was caused by or
contributed to by the negligence of the injured person.”

To prevent airlines from circumventing Article 17 by re-
quiring passengers, as a condition of receiving transporta-
tion, to waive their right to bring suit for personal injury,
Article 23 nullifies “[aJny provision tending to relieve the
carrier of liability.“ Article 24, in turn, prevents passengers
from seeking to circumvent the limitations in the Warsaw
Convention (and in particular its limitation on damages) by
bringing suit under domestic law outside the terms of the
Convention. Article 24 thus gives preemptive effect to
Article 17 as well as Article 18, which concerns loss of or

2 Montreal Protocol No. 4 to Amend the Convention for the Unifica-
tion of Certain Rules Relating to International Carriage by Air (1975)
contains language that amends Article 25’s protection of passengers by
replacing the words “willful misconduct” with the words “done with intent
to cause damage or recklessly and with knowledge that damage would
probably result,” as long as the airline’s employee or agent was acting
“within the scope of his employment.” S. Exec. Rep. No. 105-20 at 29
(1998). The United States Senate gave its advice and consent to ratifica-
tion of the Protocol in 1998, and it entered into force for the United States
on March 4, 1999. See Tseng, 525 U.S. at 174 n.14. Because the facts
giving rise to this case took place in 1997, Montreal Protocol No. 4 does not
apply here.

3 When the Warsaw Convention was drafted, airlines in some coun-
tries made their services contingent upon a passenger’s contractual
waiver of the right to bring suit for personal injury, and-such waivers
were often enforceable in court. See Tseng, 525 U.S. at 170.

damage to baggage and cargo, and Article 19, which con-
cerns delay. See Tseng, 525 U.S. at 168-169.

Over the years, airlines have entered into various agree-
ments, with the support and approval of the United States
Government, to waive significant aspects of the liability
limitations imposed by the Warsaw Convention. See Floyd,
499 U.S. at 549.

b. On July 31, 2003, the United States Senate gave its
advice and consent to ratification of the Convention for the
Unification of Certain Rules for International Carriage by
Air, done at Montreal on May 28, 1999. 149 Cong. Rec.
$10,870 (daily ed. July 31, 2003). That new Convention mod-
ernizes, and is intended ultimately to replace, the Warsaw
Convention and its related protocols. Among the significant
provisions in the new Convention are the removal of all caps
on liability for passengers’ death or bodily injury, the crea-
tion of strict liability for recoveries up to 100,000 Special
Drawing Rights (approximately $139,000) with liability
subject to certain defenses above that amount (Art. 21), and
the establishment of an additional basis for jurisdiction in the
courts of the principal and permanent residence of the
passenger under certain conditions (Art. 33). In many

4 In the most recent such agreement, concluded in 1996, several dozen
major airlines agreed to waive any limit on compensatory liability for
claims arising under, and satisfying the liability conditions of, Article 17.
Those airlines further agreed to waive the defense of non-negligence
under Article 20 (and thereby effectively agreed to strict liability) for such
claims in an amount up to 100,000 Special Drawing Rights, which, at the
current exchange rate, equals approximately $139,000. See International
Air Transport Association: Agreement Relating to Liability Limitations

of the Warsaw Convention, Order 97-1-2 (Dep’t Transp. Jan. 8, 1997),
available in 1997 WL 4834.

5 The Warsaw Convention provides that an action may be brought
“before the court of the domicile of the carrier or of his principal place of
business, or where he has a place of business through which the contract
has been made, or before the court at the place of destination.” Art. 28(1).

—

respects, the new Convention closely follows the language of
the Warsaw Convention, as amended by subsequent
protocols. The text of Article 17(1), which concerns liability
for death or bodily injury, is not significantly different from
the text of Article 17 of the Warsaw Convention, and was
not intended to constitute a change in substance with respect
to the meaning of the term “accident.”

The new Montreal Convention will enter into force 60
days after 30 countries deposit instruments of ratification,
acceptance, approval, or accession. Art. 53(6). The United
States has not yet deposited its instrument of ratification,
although 29 other countries have done so. The deposit of the
United States’ instrument of ratification will result in the
Convention’s entering into force for the United States 60
days thereafter. The new Convention will apply to all round-
trip international travel beginning and ending in the United
States or beginning and ending in the territory of another

party, as well as to one-way travel between the parties to
that Convention.

6 Article 17(1) of the 1999 Montreal Convention reads:

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.

The Article-by-Article Analysis of the Convention in the President’s
submission of the 1999 Montreal Convention to the Senate stated with
respect to Article 17(1):

Paragraph I provides for carrier liability for death or bodily injury of
a passenger caused by an accident on board the aircraft or in the
course of embarking or disembarking. The carrier’s limited defenses
to liability are provided for elsewhere in the Convention (i.e., Article
21, below). It is expected that this provision will be construed con-
sistently with the precedent developed under the Warsaw Con-
vention and its related instruments.

S. Treaty Doc. No. 106-45, 106th Cong., 2d Sess., at 9 (2000).

2. In late 1997, Dr. Abid Hanson, a 52-year old physician,
and his wife, Rubina Husain, traveled with their children and
another family from San Francisco to Athens and Cairo for a
vacation. Dr. Hanson, who suffered from asthma and was
sensitive to tobacco smoke, was not aware before embarking
on the trip that the airline, petitioner Olympic Airways, per-
mitted passengers to smoke cigarettes on international
flights. At the airport, therefore, Dr. Hanson requested
seats for himself and his family in the non-smoking section of
the aircraft. The family was seated away from the smoking
section on their flights from New York to Athens and from
Athens to Cairo, and Dr. Hanson experienced no problems
breathing on either flight. Pet. App. 36a.

Dr. Hanson and his family arrived early at the Cairo air-
port for their return flights to ensure that they would be
seated in the non-smoking section. After receiving the
family’s seat assignments, Ms. Husain showed the check-in
agent a letter signed by Dr. Hanson’s brother, also a physi-
cian, explaining that Dr. Hanson had a history of asthma, and
asked the agent to see that the family was seated in the non-

smoking section of the plane. Pet. App. 36a-37a.

Dr. Hanson began experiencing breathing difficulties dur-
ing a layover in the Athens airport, where he was directed to
wait in a room where many people were smoking. When the
family boarded their flight from Athens to San Francisco,
they discovered that they had been assigned seats toward
the rear of the airplane cabin, three rows in front of the
economy-class smoking section. Pet. App. 37a.

When the family reached their seats, Ms. Husain advised
an Olympic Airways flight attendant, Maria Leptourgou,
that Dr. Hanson could not sit in a smoking area, and said,
“You have to move him.” Pet. App. 38a. The flight atten-
dant paid little attention to Ms. Husain’s request and told
her to “havea seat.” Ibid. After the plane was fully boarded
but before takeoff, Ms. Husain again asked Ms. Leptourgou

m

to move Dr. Hanson, explaining that he was allergie to
smoke.” Ibid. Although Ms. Husain was “adamant” about
her request, Ms. Leptourgou replied that she could not as-
sign Dr. Hanson to a different seat because the plane was
“totally full” and she was too busy at the moment to assist
them. Ibid.

Shortly after takeoff, the captain turned off the “no
smoking” signs. At that point, passengers in the smoking
section began smoking, and passengers from other rows
stood in the aisles behind Dr. Hanson, smoking and socializ-
ing. As a result, Dr. Hanson was surrounded by ambient
smoke. When the smoke began to bother Dr. Hanson, Ms.
Husain spoke with Ms. Leptourgou a third time, stating,
“You have to move my husband from here.” Pet. App. 39a.
Ms. Leptourgou curtly refused, again stating that the plane
was full. Jbid. Ms. Leptourgou told Ms. Husain that Dr.
Hanson could switch seats with another passenger, but that
Ms. Husain herself would have to ask other passengers to do
so, without the aid of the flight crew. Ms. Husain, becoming
more desperate and adamant, told Ms. Leptourgou that Dr.
Hanson “had to move,” even if the only available seat was in
the cockpit or in first-class, but Ms. Leptourgou refused to
provide any assistance. Id. at 40a.

Unknown to Dr. Hanson and his party, there were 11
empty passenger seats on the aircraft, some of which were in
the non-smoking economy class. Pet. Br. 5-6. In addition,
there were 28 “non-revenue” passengers on the flight, 15 of
whom were seated in economy class rows 15 through 36,
much farther from the smoking section, which began in row
51, than were Dr. Hanson and his family, who were seated in
row 48. Pet. App. 37a, 40a.

Smoking increased after the meal service. Dr. Hanson
asked Ms. Husain for a new inhaler, since his had become
empty and the smoke was bothering him, and moved toward
the front of the plane to breathe fresher air. He then

gestured to Ms. Husain to get the epinephrine that he car-
ried in an emergency kit that Ms. Husain had stored in a
carry-on bag. Ms. Husain administered a shot of epinephrine
to Dr. Hanson and ran to the rear of the cabin to awaken Dr.
Umesh Sabharwal, an allergy specialist, with whom Dr.
Hanson and his family had been traveling. Pet. App. Ala.

Dr. Sabharwal observed that Dr. Hanson was in respira-
tory distress. Dr. Sabharwal gave Dr. Hanson another shot
of epinephrine and began to administer CPR. Dr. Sabharwal
and Ms. Husain also administered oxygen to Dr. Hanson, but
Dr. Sabharwal eventually concluded that oxygen was not
useful because Dr. Hanson could not breathe spontaneously.
Other passengers also attempted to help Dr. Hanson, but he
died shortly thereafter. Pet. App. 42a-43a.

3. Ms. Husain, on behalf of herself and Dr. Hanson’s
estate, and the couple’s children, all of whom are respon-
dents here, filed this wrongful death suit in California state
court under Article 17 of the Warsaw Convention. The case
was removed to federal court, which, after a bench trial, held
petitioner liable for Dr. Hanson’s death.’

The district court held that the repeated refusal of peti-
tioner’s flight attendant to assign Dr. Hanson to another seat
was an “accident” within the meaning of Article 17 of the
Warsaw Convention. Pet. App. 5la-52a. The court applied
the definition of that term articulated in Air France v. Saks,
470 U.S. 392, 405 (1985): “an unexpected or unusual event or
happening that is external to the passenger.” The court
reasoned that the flight attendant’s conduct was external to
Dr. Hanson and, because it was in “blatant disregard of
industry standards and airline policies,” was not expected or
usual. Pet. App. 5la-52a, 58a. The court noted that “the
recognized standard of care for flight attendants during

7 The flight attendant, Ms. Leptourgou, did not testify at trial. Pet.
App. 38a.

international air travel demands that a flight attendant make
efforts to accommodate a passenger who indicates that he or
she needs to be moved for medical reasons.” Id. at 52a. The
court further noted that petitioner’s own policies likewise
require flight attendants to attempt to move passengers who
become ill during flights, if doing so could alleviate their
condition. Ibid.

In addition, the district court held that the flight atten-
dant’s refusal to reseat Dr. Hanson caused his death, Pet.
App. 59a-60a; that the flight attendant engaged in “willful
misconduct,” id. at 65a-7la, thereby removing the limits on
compensatory damages under the Warsaw Convention; that
Dr. Hanson was contributorily negligent in not attempting to
switch seats independently, id. at 74a-75a; and that his
negligence contributed to his death at a rate of 50%, id. at
78a. The court consequently reduced respondents’ recovery
by half. Id. at 79a-80a.

The district court awarded respondents $700,000 in pecu-
niary damages and another $700,000 in non-pecuniary dam-
ages. Pet. App. 31a, 80a

4. The Ninth Circuit affirmed. Pet. App. 1a-21a.

The court of appeals, reviewing the district court’s “acci-
dent” determination under the “clearly erroneous” standard
because it was “inextricably intertwined with the facts,” held
that “the district court’s findings and conclusions are well-
grounded in the record.” Pet. App. 15a, 21a. Applying the
Saks definition, the court agreed that the flight attendant’s
refusal to reseat Dr. Hanson “was clearly external to Dr.
Hanson, and it was unexpected and unusual in light of
industry standards, Olympic policy, and the simple nature of
Dr. Hanson’s requested accommodation.” Jd. at 14a. The
court of appeals further concluded that an airline’s failure to
act, as well as its affirmative acts, may constitute an “acci-
dent”: “The failure to act in the face of a known, serious risk
satisfies the meaning of ‘accident’ within Article 17,” the

10

court explained, “so long as reasonable alternatives exist
that would substantially minimize the risk and implementing
these alternatives would not unreasonably interfere with the
normal, expected operation of the airplane.” Ibid.

The court of appeals also affirmed the district court’s de-
terminations that the “accident” caused Dr. Hanson's death,
Pet. App. 15a-17a, and that the flight attendant’s actions and
inactions amounted to “willful misconduct,” id. at 20a-21a.

SUMMARY OF ARGUMENT

The Warsaw Convention imposes liability on an airline for
a passenger’s death or bodily injury caused by an “accident”
that occurred in connection with an international flight. In
Air France v. Saks, 470 U.S. 392 (1985), this Court explained
that the term “accident” in the Convention refers to “an
unexpected or unusual event or happening that is external to
the passenger,” and not to “the passenger’s own internal
reaction to the usual, normal, and expected operation of the
aircraft.” Id. at 405-406. Accordingly, the court concluded
that a passenger’s hearing loss “caused by normal operation
of the aircraft’s pressurization system,” id, at 395, was not an
“accident” under the Convention, id. at 407.

When a passenger becomes il] during an international
flight, the airline’s response to the illness may amount to “an
unexpected or unusual event,” and thus satisfy the definition
of “accident,” applied with the “flexib[ility]” that Saks re-
quires. 470 U.S. at 405. The inquiry turns on whether or not
airline personnel’s response to the medical crisis is objec-
tively reasonable in the circumstances, as measured against
industry standards, individual airline policies and practices,
and general standards of care. If airline personnel’s conduct
is unreasonable under that analysis, the passenger’s result-
ing death or bodily injury is not, as in Saks, a “reaction to the
usual, normal, and expected operation of the aircraft,” id. at
405-406, but instead is the result of something aberrational

11

in the aircraft’s operation. Both action and inaction by air-
line personnel in the face of a medical crisis may constitute
an “accident”: an airline employee’s refusal to assist an ill
passenger, as occurred here, is not meaningfully distinguish-
able from an affirmative act.

The understanding that an “accident” may consist of an
airline’s “unexpected or unusual” response to a medical crisis
is fully consistent with the Convention’s text and structure,
and it advances the Convention’s purpose of balancing the
interests of air passengers and air carriers. See El Al Israel
Airlines, Ltd. v. Tseng, 525 U.S. 155, 170 (1999). Common
carriers have traditionally been understood to have a duty to
come to the aid of passengers who suffer illness or injury
while in transit. A passenger thus has every reason to ex-
pect that airline personnel will respond reasonably to a
medical crisis that occurs during flight. If they do not, and
thereby aggravate a passenger’s condition, the airline may
fairly be held accountable for that “accident.”

Here, the district court properly analyzed whether the
flight attendant’s repeated refusal to reseat an asthmatic
passenger amounted to an “accident” under the Convention.
The district court considered whether the flight attendant’s
conduct was “unexpected or unusual” in view of the industry
standard of care, petitioner’s own policies, and what would
reasonably have been expected from airline personnel in the
circumstances. See Pet. App. 53a-55a. Having concluded
that the flight attendant acted in “blatant disregard of in-
dustry standards and airline policies,” id. at 58a, the district
court correctly concluded that her conduct was an “accident”
that could give rise to liability under the Convention.

12

ARGUMENT

AN AIRLINE’S UNREASONABLE REFUSAL TO
COME TO THE AID OF AN ILL PASSENGER IS AN
“ACCIDENT” THAT CAN GIVE RISE TO LIABILITY
UNDER THE WARSAW CONVENTION

If airline personnel refuse to render reasonable assistance
to a passenger who becomes ill on an international flight, an
“accident” has occurred within the meaning of Article 17 of
the Warsaw Convention. Any resulting bodily injury or
death of the passenger is actionable under the Convention.
That conclusion satisfies the definition of an Article 17
“accident” that this Court articulated in Air France v. Saks,
470 U.S. 392 (1985), is consistent with the text and structure
of the Convention, and serves the Convention’s purpose of
balancing the interests of passengers and air carriers. That
conclusion also accords with the United States’ interpreta-
tion of the Convention, to which Arlespeet is ordinarily due.”
El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 168 (1999);
Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-
185 (1982). Accordingly, the courts below correctly held that
the refusal of petitioner’s flight attendant to respond to
repeated requests to reseat an asthmatic passenger away
from the smoking section of the aircraft was an “accident”
under Article 17.

A. An Airline Employee’s Response To A Medical Crisis
Can Constitute An “Accident” Within The Meaning Of
Article 17 Of The Warsaw Convention

1. Article 17 of the Warsaw Convention, the article that
establishes an airline’s prima facie liability for a passenger’s
death or bodily injury, provides:

The carrier shall be liable for damage sustained in the
event of the death or wounding of a passenger or any
other bodily injury suffered by a passenger, if the acci-

13

dent which caused the damage so sustained took place on
board the aircraft or in the course of any of the opera-
tions of embarking or disembarking.

Art. 17 (emphasis added). The governing French text of
Article 17 similarly refers to damage caused by “l’accident.”
49 Stat. 3005. Recovery is available under the Convention,
therefore, only if a passenger’s death or bodily injury results
from an “accident” that occurred in connection with the
flight.

In Saks, this Court held that a passenger’s “loss of
hearing proximately caused by normal operation of the air-
craft’s pressurization system” was not an “accident” within
the meaning of Article 17. 470 U.S. at 395, 407. The Court
noted that the Warsaw Convention nowhere defines the
term “accident,” the context in which the term is used is not
“illuminating,” and “the records of [the Convention's] nego-
tiation offer no precise definition of ‘accident.’” Jd. at 399,
403. The Court nonetheless was able to discern the term’s
meaning from the text, structure, and history of the Con-
vention and from the parties’ subsequent conduct. See id. at
398-405.

The Court concluded that an “accident” of the sort that
can give rise to liability under the Warsaw Convention is “an
unexpected or unusual event or happening that is external to
the passenger.” 470 U.S. at 405. In contrast, the Court
observed that, “when the injury indisputably results from
the passenger’s own internal reaction to the usual, normal,
and expected operation of the aircraft, it has not been caused
by an accident, and Article 17 of the Warsaw Convention
cannot apply.” Jd. at 406. The Court made clear that the
definition of “accident” in Article 17 “should be flexibly ap-
plied after assessment of all the circumstances surrounding a
passenger’s injuries.” Jd. at 405.

14

Consistent with the definition of “accident” articulated in
Saks, passengers may seek recovery under the Warsaw
Convention for death or bodily injury resulting from airplane
crashes, see, e. g., In re Air Crash at Little Rock, Ark., 291
F.3d 503 (8th Cir. 2002); terrorist attacks, see, e.g., In re Air
Disaster at Lockerbie, Scotland, on Dec. 21, 1988, 37 F.3d 804
(2d Cir. 1994), cert. denied, 513 U.S. 1126 (1995); and other
flight-related occurrences, see, e.g., Magan v. Lufthansa
German Airlines, No. 02-7172, 2003 WL 21912258 (2d Cir.
Aug. 12, 2003) (turbulence); Gezzi v. British Airways PLC,
991 F.2d 603, 604-605 (9th Cir. 1993) (water on stairway to
aircraft); Diaz Lugo v. American Airlines, Inc., 686 F. Supp.
373, 375 (D.P.R. 1988) (spill of hot liquid). Such events are
“unexpected or unusual” in the operation of an aircraft and
are “external to the passenger.” Saks, 470 U.S. at 405.

Under that definition, however, passengers cannot re-
cover for death or bodily injury resulting from heart attacks,
strokes, or similar medical events that occur on an aircraft
but are unrelated to its operation. See, e.g., Rajcooar v. Air
India Ltd., 89 F. Supp. 2d 324, 328 (E.D.N.Y. 2000); North-
ern Trust Co. v. American Airlines, Inc., 491 N.E.2d 417,
422 (Ill. App. Ct. 1986). Nor may passengers recover for
death or bodily injury caused by the routine operation of an
aircraft, such as hearing loss resulting from a normal change
in pressurization, as in Saks, or deep-vein thrombosis result-
ing from tight seating arrangements, see e.g., Scherer v. Pan
Am. World Airways, Inc., 387 N.Y.S.2d 580, 581 (N.Y. App.
Div. 1976). As a general matter, such injuries are the result
of “the passenger’s own internal reaction to the usual,
normal, and expected operation of the aircraft.” Saks, 470
US. at 406.

2. A different situation is presented when, as here, a pas-
senger seeks to recover not for death or bodily injury
resulting from his medical condition alone, but for death or
bodily injury resulting from an airline’s response to his

15

medical condition. In appropriate circumstances, the airline’s
response, including a refusal to respond, satisfies the defini-
tion of an “accident” under the Warsaw Convention, applied
with the “flexib[ility}” that Saks requires, 470 U.S. at 405.

Airline personnel's acts, or refusals to act, in a medical
crisis necessarily are events “external to the passenger.”
Saks, 470 U.S. at 405. A flight attendant’s response to a
passenger’s illness, like a pilot's response to severe weather
or an equipment malfunction, is part of the “operation of the
aircraft.” Id. at 406. And, if that response deviates from
what would be “usual, normal, and expected” in the circum-
stances, ibid., the Warsaw Convention’s requirement of an
“accident” is satisfied. See, e.g., Fishman v. Delta Air Lines,
Inc., 132 F.3d 138, 141 (2d Cir. 1998) (when a flight attendant
treated a passenger’s earache by applying a scalding com-
press, the passenger could seek recovery under the Warsaw
Convention for the resulting burns to her neck and shoulder,
because “the scalding by a flight attendant [was] an unex-
pected, unusual event that was external to [the passenger]”);
Fulop v. Malev Hungarian Airlines, 175 F. Supp. 2d 651,
664-665 (S.D.N.Y. 2001) (when a passenger suffered a heart
attack, the flight crew’s failure to make an unscheduled
landing, in alleged violation of its own policies, may be
sufficiently unexpected or unusual to be an accident); see
also pp. 26-27, infra (citing similar cases).

Whether an airline employee’s response to a medical crisis
is “unexpected or unusual,” and thus an “accident,” turns on
its objective reasonableness “after assessment of all the cir-
cumstances.” Saks, 470 U.S. at 405; see, e. g., Fulop, 175 F.
Supp. 2d at 670 (“What is unusual or unexpected should be
gauged by what objectively is usual or reasonably to be
expected under particular eireumstances.“).“ The relevant

A similar approach is applied in insurance law, which generally con-
siders an injury inflicted on an insured by a third person to be “due to

16

circumstances may include the nature of the assistance
required by the passenger; the extent to which the flight
crew knew, or should have known, of the passenger’s need
for assistance; the location, conditions, and remaining dura-
tion of the flight when assistance was required (severe and
prolonged turbulence, for example, could preclude move-
ment around the aircraft); whether providing the assistance
could pose a risk to the other passengers or crew (as might
exist, for example, if an unscheduled landing had to be made
in a dangerous area); and any recommendations by medical
professionals. In many instances, as here, the inquiry may
be informed by “industry norms, internal policies and pro-
cedures, and general standards of care,” Fulop, 175 F. Supp.
2d at 665, although the absence of formal standards or
policies should not be dispositive.”

It still must be established, of course, that the “accident”
—that is, the airline’s objectively unreasonable action or
inaction—caused the passenger’s death or bodily injury.
That requirement can be satisfied even if the passenger's
internal medical condition was the initial link in the chain of
events that caused his death or bodily injury. As the Court
observed in Saks, “{aJny injury is the product of a chain of
causes, and we require only that the passenger be able to
prove that some link in the chain was an unusual or

accident or accidental means where it was neither foreseen, expected, nor
anticipated by the insured.” Ferdinand S. Tinio, Accident Insurance:
Death or Injury Intentionally Inflicted by Another as Due to Accident to
Accidental Means, 49 A.L.R.3d 673, 678 (1973) (footnotes omitted). In the
present context, however, the analysis focuses on what would reasonably
have been anticipated in the circumstances, not on what the injured
passenger subjectively would have anticipated.

9 Contrary to the suggestion of amicus Air Transport Association (Br.
14 n.12), therefore, airlines would not be able to avoid liability under the
Warsaw Convention simply by declining to adopt standards or policies for
addressing medical events that occur during flight.

— —

17

unexpected event external to the passenger.“ 470 U.S. at
406. If, therefore, it is established that the passenger’s death
would not have occurred, or his injury would not have been
as severe, but for the flight crew’s “unexpected or unusual”
response to his medical condition, the death or bodily injury
would not have “result[ed) from the passenger’s own inter-
nal reaction to the usual, normal, and expected operation of
the aircraft,” ibid. (emphasis added), but instead from an
aberration in the aircraft’s operation.

3. The same analysis applies whether the asserted “acci-
dent” involves action or inaction on the part of the airline. In
the context of international air travel, an airline employee’s
refusal to assist an ill passenger, as occurred in this case, is
not meaningfully distinguishable from an airline employee’s
affirmative act. Contrary to petitioner’s suggestion (Br. 18-
21), both are correctly viewed as an “event or happening”
within the Saks definition of “accident.” It would create per-
verse incentives, moreover, if a flight attendant’s coming to
the aid of an ill passenger could give rise to liability under
the Warsaw Convention, if done negligently or wrongfully,
whereas a flight attendant’s ignoring increasingly desperate
requests to assist the passenger could never do so. See
McDowell v. Continental Airlines, Inc., 54 F. Supp. 2d 1313,
1320 (S.D. Fla. 1999) (observing that such a distinction would
ereateſ] an incentive to airlines * * to completely refuse
to treat passengers who are in need of medical helpꝰ). c

1 See Tory A. Weigand, Accident, Exclusivity, and Passenger Distur-
bances Under the Warsaw Convention, 16 Am. U. Int'l L. Rev. 891. 955
(2001) (“{I]t is certainly consistent with the Warsaw scheme to find, ‘after
assessment of all the circumstances,’ that an ‘accident’ occurs when a flight
crew does not make reasonable efforts to assist stricken passengers. Such
action or inaction, if contrary to established airline procedures or stan-

ro be ‘unusual and unexpected’ in modern air travel.”) (emphasis

18

The fallacy of the position that an “accident” under the
Warsaw Convention cannot take the form of inaction is
demonstrated by a hypothetical situation posited by the
court in McCaskey v. Continental Airlines, Inc., 159 F.
Supp. 2d 562, 574 (S.D. Tex. 2001). Suppose, said the court,
that “a passenger inexplicably collapsed and ceased breath-
ing through no initial accident,” and “a medical doctor in-
forms the crew that the passenger’s life could be saved, but
only if the flight landed within one hour.” Ibid. If, the court
continued, “{t]he plane is within thirty minutes of a suitable
airport, but the crew blithely elects to continue on a planned
cross-country flight,” It he notion that this is not an unusual
event is staggering.” Ibid. ;

More generally, common carriers have traditionally been
understood to have a duty to provide reasonable assistance
to passengers who become ill or injured, so that a failure to
act in those circumstances can give rise to liability. See
Restatement (Second) of Torts § 314A(1) (1965) (see p. 23,
infra). The law imposes liability in other circumstances as
well for failure to act when under a duty to do so.”

I See, e.g., Restatement (Second) of Torts § 314B (duty to provide aid
to injured employee); 15 U.S.C. 1601 et seg. (consumer credit disclosure);
42 U.S.C. 1395dd (duty of hospital to treat emergency patients); BMW of
N. Am., Inc. v. Gore, 517 U.S. 559, 568-570 (1996) (describing the “patch-
work of rules” existing under state statutory and case law relating to “dis-
closure obligations of automobile manufacturers, distributors, and
dealers”); Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115-118
(1989) (obligation to disclose information relating to employee benefit
plans); Affiliated Ute Citizens v. United States, 406 U.S. 128, 150-154
(1972) (obligation to disclose material information under securities laws).
See also Edward A. Tomlinson, The French Experience with Duty to
Rescue: A Dubious Case for Criminal Enforcement, 20 N.Y.L. Sch. J.
Int'l & Comp. L. 451, 452 & n. 2 (2000) (observing that “[mJost civil law
countries * * * recognize a general duty to rescue in their criminal

codes” and identifying those countries); A.D. Woozley, A Duty to Rescue:

Some Thoughts on Criminal Liability, 69 Va. L. Rev. 1273, 1273-1274

19

4. The text and structure of the Warsaw Convention are
fully consistent with the conclusion that an “accident” in-
cludes an airline’s unreasonable response to a medical situa-
tion that arises during flight. Petitioner’s arguments to the
contrary are without merit.

As the Court recognized in Saks, the Warsaw Convention
does not define an “accident” for purposes of Article 17. 470
U.S. at 399. Nor does the context provide any clear indica-
tion of which events causing a passenger’s death or injury
qualify as an “accident.” Ibid. It therefore cannot be, as
petitioner asserts (Br. 16), that “the express language of
Article 17” resolves the question here.

In Saks, the Court discerned only two textual “clues to
the meaning of ‘accident’” in the Warsaw Convention: (i) the
distinction between an “accident,” the event giving rise to
liability for death or bodily injury under Article 17, and an
“occurrence,” the event giving rise to liability for loss or
damage of baggage under Article 18, and (ii) the distinction
in Article 17 itself between the “accident” and the “injury.”
See 470 U.S. at 398-399. Both distinctions are preserved by
treating an airline’s “unexpected or unusual” response to a
medical crisis as an “accident.” Such an “accident” is distinct
from whatever death or bodily injury it causes. And, other
causes of death or bodily injury, such as the passenger’s own
internal response to ordinary aircraft conditions, remain
mere “occurrences” outside the coverage of Article 17.

Contrary to petitioner’s suggestion (Br. 16, 26-27), Article
20(1) does not speak to the question here. Article 20(1)
permits an airline to avoid liability under the Convention by
proving that it took “all necessary measures to avoid the

damage or that it was impossible” to do so. According to
petitioner, the Convention’s drafters, Ihlaving provided for

(1983) (“In civil-law countries a statutory requirement to render aid,
subject to various conditions, is quite common.”).

20

a defense turning on the absence of negligence,” would not
have “intended that the initial ‘accident’ inquiry be resolved
by reference to negligence.” Br. 27 (quoting Krys v. Luf-
thansa German Airlines, 119 F.3d 1515, 1522 (11th Cir.
1997), cert. denied, 522 U.S. 1111 (1998)). As the Court rec-
ognized in Saks, however, although Article 17 “involves an
‘inquiry into the nature of the event which caused the
injury,” while Article 20(1) involves an inquiry into “the care
taken by the airline to avert the injury,” “these inquiries
may on occasion be similar.” 470 U.S. at 407. Although the
Article 17 inquiry is quite similar to the Article 20(1) inquiry
in a case such as this one, those inquiries diverge in most
cases, in which the “accident” consists of something other
than the “unexpected or unusual” conduct of the airline’s
own personnel.”

5. Two foreign courts, which follow the Saks definition of
an “accident” under the Warsaw Convention, have sug-
gested that the definition is satisfied in cireumstances such
as those here.

In a recent decision of the Court of Appeals of England
and Wales, Lord Phillips held that an “accident” could not
arise from airlines’ failure to minimize, or warn of, the risks
of deep-vein thrombosis. Re Deep Vein Thrombosis & Air

12 Nor does Article 25, which eliminates the monetary limit on liability
in cases of “willful misconduct,” suggest that the existence of an “accident”
cannot be determined by reference to the reasonableness of airline per-
sonnel’s conduct. Although the “accident” inquiry and the “willful miscon-
duct” inquiry may overlap in some Warsaw Convention cases, “willful mis-
conduct” requires a greater degree of culpability than does unreason-
ableness and, according to some courts, a showing of the actor’s subjective
state of mind. See, e.g., Bayer Corp. v. British Airways, PLC, 210 F. 3d
236, 238-240 (4th Cir. 2000). Thus, as the district court recognized here,
the flight attendant’s refusal to reseat Dr. Hanson could be an “accident”
without being “willful misconduct.” Compare Pet. App. 50a-60a with id. at
65a-7 la.

21

Travel Group Litig., [2003] EWCA Civ 1005 (July 3, 2003)
(Transcript: Smith Bernal). Lord Phillips reasoned that an
“omission to act” of that sort cannot constitute an accident.
Lord Phillips nonetheless viewed the flight attendant’s re-
fusal to reseat Dr. Hanson in this case—as well as the air-
line’s refusal to make an emergency landing after a passen-
ger suffered a heart attack in Fulop, 175 F. Supp. 2d at 673
—as involving conduct that can constitute an accident under
the Convention. With respect to this case, Lord Phillips
observed that At he refusal of the flight attendant to move
Dr. Hanson cannot properly be considered as mere inertia,
or a non-event,” but instead “was a refusal to provide an
alternative seat which formed part of a more complex inci-
dent, whereby Dr. Hanson was exposed to smoke in circum-
stances that can properly be described as unusual and
unexpected.”

The Supreme Court of Victoria, in an Australian case
under the Warsaw Convention also involving deep-vein
thrombosis, described the present case as “illustrat[ing] the
point that an accident, as Saks uses the word, may include
action or inaction by airline staff” or the airline itself. Povey
v. Civil Aviation Safety Auth., 7223 of 2001, No. BC
200207836 (Dec. 20, 2002). The court added that, “[wJhere,
objectively viewed, an airline would be expected to act ir. a
particular way (or refrain from doing so) having regard to
what is usual or expected in air travel at the time of injury,
its failure to so act could constitute an accident.”"

13 Although the court in Povey declined to dismiss the case before trial,
suggesting that a failure to warn of deep-vein thrombosis might be an
“accident” under the Warsaw Convention, other Australian courts have
held to the contrary without addressing the present case. See, e.g., Rynne

v. Lauda-Air Luftfahrt Aktiengelsellschaft, 2003] QDC 004 (Dist. Ct.
Queensland Feb. 7, 2003).

22

B. Subjecting Airlines To Liability Under The Warsaw
Convention For Injuries Caused By Their Unrea-
sonable Response To A Medical Crisis Properly
Balances The Interests Of Passengers And Airlines

Allowing passengers to seek recovery for death or bodily
injury caused by an airline’s “unexpected or unusual” re-
sponse to a medical crisis accords with the Warsaw Con-
vention’s purpose “to accommodate or balance the interests
of passengers seeking recovery for personal injuries, and the
interests of air carriers seeking to limit potential liability.”
Tseng, 525 U.S. at 170. The interests served by imposing
liability on airlines in such circumstances are substantial; the
interests served by precluding recovery are not.

The Court has recognized that a flexible application of the
“accident” definition ameliorates the harshness to passen-
gers of the Warsaw Convention’s exclusivity in affording a
remedy for their injuries and prevents airlines from
“escap[ing] liability” for their own wrongful conduct. Tseng,
525 U.S. at 172; see U.S. Br. 18-19 n.11, Tseng (No. 97-475)
(observing that “(t]he expansive scope of the term ‘accident’
is one answer to the * * * concern that carriers not escape
liability for their intentional torts”) (citation omitted). As
Tseng implies, such flexibility is especially warranted when,
as here, the consequence would be to subject an airline to
liability under the Warsaw Convention for injuries caused by
its own misconduct and that of its agents, not by unrelated
third parties or natural forces. Indeed, if the “accident”
definition is “flexibl[e]” enough to “encompass torts commit-
ted by terrorists or fellow passengers,” as the Court noted
with seeming approval in Saks, the definition surely is flexi-
ble enough to encompass the “unexpected or unusual” con-
duct of an airline’s own employees. 470 U.S. at 405; ef.
Tseng, 525 U.S. at 165 n.9.

A passenger has every reason to expect that an airline
will respond reasonably to a medical crisis that arises during

23

a flight. As noted above, the law has traditionally viewed
common carriers, such as airlines, as standing in a “special
relation” to their passengers, which imposes a duty “to
protect [passengers] against unreasonable risk of physical
harm” and “to give them first aid after it knows or has
reason to know that they are ill or injured, and to care for
them until they can be cared for by others.” Restatement
(Second) of Torts § 314A(1); see id. emt. d (“The duty to give
aid to one who is ill or injured extends to cases where the
illness or injury is due to natural causes, to pure accident, to
the acts of third persons, or to the negligence of the plaintiff
himself, as where a passenger has injured himself by
clumsily bumping his head against a door.”); McDowell, 54 F.
Supp. 2d at 1319 (“It is recognized in most jurisdictions that
airlines owe a heightened duty of care to their passengers.”);
ef. 49 U.S.C. 44701(d)(1)(A) (noting “the duty of an air
carrier to provide service with the highest possible de
safety in the public interest“). * *
Airline passengers, even more so than passengers of other
common carriers, are uniquely dependent on the carrier for
their health, safety, and comfort while on board. By neces-
sity, when passengers step onto an airplane, they place their
well-being in the hands of the airline. Passengers must
depend on airline personnel not only to pilot the aireraft to

The common law duty of carriers to protect passengers who are ill or
incapacitated, including those incapacitated as a result of their voluntary
intoxication, was well established at the time that the Warsaw Convention
was drafted. See, e.g., Fardette v. New York & S. Ry., 180 N.Y.S. 179
(N.Y. App. Div. 1920) (question of fact existed on whether railroad was
negligent in requiring intoxicated passenger to stand on outdoor platform
of car rather than taking a seat inside); Benson v. Tacoma Ry. & Power
Co., 98 P. 605 (Wash. 1908) (jury could find that railroad was negligent in
allowing intoxicated passenger to stand on platform); Williams v. Louis-
ville & N. R. Co., 43 So. 576 (Ala. 1907) (railroad could be held liable for
negligence of its employees in assisting ill passenger in boarding train).

24

its destination, but also to maintain the air pressure and
temperature of the cabin, to control the behavior of other
passengers, and even to supply the very air that they
breathe. A passenger, moreover, must remain within the
narrow confines of the cabin—perhaps in his own seat—for
hours at a time between scheduled landings. (An unsched-
uled landing, even when feasible, cannot be immediate.) It is
thus essential, and reasonably to be expected, that flight
attendants and other airline personnel will respond appropri-
ately to medical situations that arise during flight. If they
instead respond in an “unexpected or unusual” manner
(which may include not responding at all), and thereby cause
a passenger's death or bodily injury, the airline may fairly be
held accountable for that “accident” under the Warsaw
nvention.“ .
2 airline industry is unlikely to be burdened signifi-
cantly by recognizing such incidents to be “accidents.” Cases
similar to this one, fortunately, are relatively few. It re-
mains available to the airline, moreover, to establish that its
conduct was not “unexpected or unusual” in the particular

15 A passenger who becomes ill during a flight has particular reason to
2 a flight attendant to come to his assistance. The flight —
role has traditionally been associated with the protection of passengers
safety and health aboard the aircraft. In fact, when flight attendants were
introduced into commercial aviation in the early 1930s (and thus during
the period immediately following the entry into force of the Warsaw Con-
vention), many airlines required their flight attendants to be nurses, a
practice that continued until the demand for nurses increased during
World War II. See, g., Johanna Omelia & Michael Waldock, Come Fly
With Us! A Global History of the Airline Hostess 12-13, 18, 32 (2003); id.
at 25 (quoting airline’s promotional pamphlet referring to its “stewardess-
nurses”); Georgia Panter Nielsen, From Sky Girl to Flight Attendant:
Women and the Making of a Union 10 (noting that original flight atten-
dants wore their nurse uniforms during flights), 24 (1982); United Air
Lines, Flight attendant history: 1926-1933 (visited Aug. 27, 2003)
.

— —

25

circumstances or was not a cause of the passenger’s injury.
Other defenses, such as comparative fault, that may reduce
or eliminate the airline’s liability may be available as well.
And even when an airline is found liable, the payment of
compensation would typically be limited to a single pas-
senger’s death or bodily injury, in contrast to cases involving
crashes and similar events involving the death or bodily
injury of many passengers.

Contrary to the suggestion of amicus Air Transport As-
sociation (Br. 15), the Warsaw Convention’s other purpose,
achievling] uniformity of rules governing claims from
international air transportation,” Tseng, 525 U.S. at 169, is
not undermined by the understanding of “accident” urged
here. The Court determined in Saks that the term “acci-
dent,” in European as well as American jurisprudence,
refers to events that are “fortuitous, unexpected, unusual, or
unintended.” 470 U.S. at 400. An airline’s “unexpected” or
“unusual” response to a medical crisis during flight fits
comfortably within that definition. Indeed, as noted above
(at pp. 20-21), courts in two other countries have indicated

that conduct of the sort at issue here can constitute an
“accident” under the Convention.

C. The Lower Courts Correctly Held That The Refusal Of
Petitioner's Flight Attendant To Render Assistance To
Dr. Hanson When Informed Of His Medical Condition
Was An “Accident” Under The Warsaw Convention

1. The district court’s decision in this case, affirmed by
the court of appeals, reflects the correct approach to deter-
mining the existence of an “accident” under the Warsaw
Convention.

The district court focused on whether the flight atten-
dant’s conduct—not Dr. Hanson’s asthma and sensitivity to
the cabin’s ambient cigarette smoke, standing alone—“was

26

an ‘unusual’ or ‘unexpected’ event.” Pet. App. 50a. The
court then analyzed whether the flight attendant’s refusals
to reseat Dr. Hanson were indeed “unusual” or “unex-
pected,” considering whether, and to what extent, such con-
duct deviated from “the accepted industry standard of care,”
petitioner’s own policies, and what Dr. Hanson would
reasonably have expected from airline personnel. /d. at 53a-
55a. In particular, the court relied on “extensive testimony
on the standard of care for flight attendants in situations
such as this,” which “demands that a flight attendant make
efforts to accommodate a passenger who indicates that he or
she needs to be moved for medical reasons,” “even if the
flight hals] no empty seats in the economy section.” Id. at
52a. The court also relied on evidence that petitioner’s own
policy was to “make efforts to move passengers who become
ill during flights if moving those passengers will assist in
their recovery,” including “a passenger [who] must be moved
because of smoke - related illness.” Id. at 53a. Based on all of
that evidence, the court could properly conclude that the
flight attendant’s “failure to respond appropriately to Ms.
Husain’s requests and her failure to comply with the
applicable standards of care were both ‘unexpected’ and
unusual“ and consequently were “actionable under the
Warsaw Convention.” Id. at 58a-59a; see id. at 14a (affirm-
ing that the flight attendant’s conduct was “unexpected and
unusual in light of industry standards, Olympic policy,” and
the reasonableness of the request for assistance).

Several courts have similarly recognized that airline per-
sonnel’s unreasonable response to a medical crisis can consti-
tute an “accident” under the Warsaw Convention. See e. g.,
Fishman, 132 F.3d at 143; Gupta v. Austrian Airlines, 211
F. Supp. 2d 1078, 1083-1085 (N.D. Ill. 2002); Fulop, 175 F.
Supp. 2d at 673; McCaskey, 159 F. Supp. 2d at 571; Turturro
v. Continental Airlines, 128 F. Supp. 2d 170, 175 n.1

27

(S.D.N.Y. 2001); Kemelman v. Delta Air Lines, Inc., 740
N.Y.S.2d 434, 435 (N.Y. App. Div. 2002)."®

2. Other courts, following the lead of the Third and
Eleventh Circuits, have declined to find an “accident” when
a flight crew’s allegedly negligent action or inaction aggra-
vated a passenger’s medical condition. See Abramson v.
Japan Airlines Co., 739 F.2d 130, 132-133 (3d Cir. 1984),
cert. denied, 470 U.S. 1059 (1985); Krys, 119 F.3d at 1520-
1522 (citing additional cases).

In Abramson, a case that predated Saks, flight attendants
refused to provide a place where a passenger who suffered a
paraesophageal hiatal hernia attack could lie down and
administer a “self-help remedy.” Relying on cases involving
passengers who suffered hearing loss or other medical con-
sequences as a result of normal flight, see 739 F.2d at 132-
133, the Third Circuit stated that, “{iJn the absence of proof
of abnormal external factors, aggravation of a pre-existing
injury during the course of a routine and normal flight
should not be considered an ‘accident’ within the meaning of
Article 17,” id. at 133. Without expressly addressing
whether, or in what circumstances, a flight attendant’s
response to a medical crisis could be an “abnormal external
factor[],” the court held that “the alleged acts and omissions
of [the airline] and its employees during the routine flight on
which [the plaintiff] was a passenger do not. constitute an
‘accident.’” Ibid."

16 Cf. Langadinos v. American Airlines, Inc., 199 F.3d 68, 71 (Ist Cir.
2000) (flight attendant’s continuing to serve alcohol to passenger whose
behavior was already “erratic” and “aggressive” was an “accident”);
— v. Swiss Air Transport Co. Ltd., 686 F. Supp. 15, 17 (D. Me.
1988) (flight attendant’s refusal to assist passenger by asking
passengers
in front of her to raise their seats could be an “accident”).

7 In Saks, the Court cited Abramson as one of several cases
“refus(ing] to extend the term [‘accident’] to cover routine travel pro-
cedures that produce an injury due to the peculiar internal condition of a

28

In Krys, after a passenger suffered a heart attack, the
flight crew failed to make an unscheduled landing, thereby
aggravating the damage to the passenger’s heart. The
Eleventh Circuit reasoned that the external event that could
be said to have caused the passenger’s aggravated injury
was “the continuation of the flight from its scheduled point of
departure to its scheduled point of arrival.” 119 F.3d at
1521. The court concluded, therefore, that the aggravated
injury “arises not from an ‘unexpected or unusual happen-
ing,’ but rather from the ‘passenger’s own internal reaction
to the usual, normal, and expected operation of the aircraft.’”
Ibid. (quoting Saks, 470 U.S. at 405-406). The court acknowl-
edged, however, that “this is a close question,” and noted
that “it is at least arguable that where injury is caused by
crew negligence, the injury arises from ‘an unexpected or
unusual event or happening external to the plaintiff.’” bid.
(quoting Saks, 470 U.S. at 405).

The courts in Abramson and Krys did not apply the War-
saw Convention’s “accident” definition with the flexibility
that Saks requires. When those cases were decided, the
Third and Eleventh Circuits had held, contrary to this
Court’s subsequent decision in Tseng, that the Convention
did not preempt other remedies not subject to the Conven-

passenger.” 470 U.S. at 405. The citation of Abramson was accompanied
by the parenthetical description “sitting in airline seat during normal
flight which aggravated hernia not an ‘accident.’” [bid. The proposition
for which the Court cited Abramson is consistent with the United States’
position here: that the “accident” requirement is not satisfied when a
passenger suffeis ai illness or injury during, or in reaction to, “the usual,
normal, and expected operation of the aircraft.” Id. at 406. The “accident”
requirement may be satisfied, however, when the flight crew responds to
the illness or injury in a manner that is not “usual, normal, and expected.”
The Court did not characterize Abramson as taking any position on the
latter point; indeed, Abramson itself recognized that “abnormal external
factors” may constitute an “accident.” 739 F. 3d at 133.

29

tion’s monetary limits on recovery. Abramson, 739 F.2d at
134; Krys, 119 F.3d at 1522-1530. For that reason, the airline
in Krys argued that “a negligent response to a passenger’s
heart-attack symptoms constitutes an ‘accident,’” while the
plaintiffs argued that “there was no ‘accident’ within the
terms of the Warsaw Convention.” 119 F.3d at 1519. Sev-
eral courts have questioned whether Abramson and Krys
would have applied the “accident” definition in the same
manner had they understood that the Convention was the
plaintiffs’ exclusive remedy. See Fulop, 175 F. Supp. 2d at
666; McCaskey, 159 F. Supp. 2d at 573; McDowell, 54 F.
Supp. 2d at 1319-1320.

In sum, as the lower courts recognized in this case, an
airline employee’s response to a passenger’s illness can con-
stitute an “accident” under the Warsaw Convention, if that
response is “unexpected or unusual” as measured against
industry standards, airline policies and practices, or other
indicia of what would be reasonable in the circumstances.

CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
THEODORE B. OLSON

Solicitor General
PETER D. KEISLER
WILLIAM H. TAFT, IV Assistant Attorney General
Legal Adviser EDWIN S. KNEEDLER
Department of State Deputy Solicitor General
KIRK K. VAN TINE BARBARA MCDOWELL
General Counsel Assistant to the Solicitor
Department of Transportation General

ROBERT S. GREENSPAN
LOWELL V. SUTRGILL JR.

Attorneys

AUGUST 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0644%3A10. Public record. Not legal advice.