Shawn Carriker v. Emirates Airlines, Inc. , 493 F. App'x 526 ( 2012 )

Case: 11-20843 Document: 00512004054 Page: 1 Date Filed: 10/01/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 1, 2012
No. 11-20843 Lyle W. Cayce
Clerk
TAMALA WHITE; SHAWN CARRIKER; ROBERT CARRIKER, Individually
and as Representatives of the Estate of Carol Wilson,
Plaintiffs - Appellants
v.
EMIRATES AIRLINES, INCORPORATED,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-2635
Before KING and HIGGINSON, Circuit Judges, and FOOTE, District Judge.*
PER CURIAM:**
Emirates Airlines passenger Carol Wilson suffered a heart attack shortly
before her flight from Dubai landed in Houston. She died soon thereafter.
Wilson’s son, Shawn Carriker, together with her other children, brought suit
against Emirates Airlines pursuant to the Convention for the Unification of
Certain Rules for International Carriage by Air. They alleged that the flight
*
District Judge of the Western District of Louisiana, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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crew’s response to Wilson’s emergency constituted an “accident” under Article
17 of the Convention, and that this “accident” caused Wilson’s death. The lower
court granted Emirates Airlines’ summary judgment motion, holding that the
crew’s response was not an “accident” under Article 17. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 13, 2010, Plaintiff-Appellant Shawn Carriker (“Carriker”) and his
mother, seventy-year-old Carol Wilson (“Wilson”), traveled on Emirates Airlines
(“Emirates”) Flight 211 from Dubai to Houston. As the plane began its descent
into Houston, Wilson left her seat to use the lavatory. Approximately five
minutes later, a flight attendant checked the lavatory and found that Wilson had
collapsed while inside. The flight attendant summoned Carriker. Carriker
observed that Wilson’s breathing was shallow and her eyes were unfocused.
Carriker tried to communicate with Wilson, but was unsuccessful. Raed
Abdallah (“Abdallah”), the lead flight attendant, was called upon to assist.
Wilson was taken out of the lavatory and placed on the ground, face-up, in the
aisle.
With roughly ten minutes remaining until the plane was to land in
Houston, Abdallah began to administer emergency aid to Wilson, guided by
Emirates’ “In-Flight Services Cabin Crew Emergency Manual” (the “ Emirates
Manual”). The Manual contains procedures to be followed when a passenger has
collapsed, as reflected by the acronym “DRS ABCD.” The acronym stands for the
following steps: (1) Assess Dangers, (2) Check Responses, (3) Shout for Help, (4)
Open Airway, (5) Check Breathing, (6) Start CPR (if no breathing), and (7) Use
Defibrillator. These steps are to be performed during the “primary survey.” As
part of a “secondary survey,” to be performed when there is no longer a threat
of immediate danger, the crew is directed to monitor the passenger’s vital signs.
If necessary, the crew is also directed to contact MedLink (a medical advice
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service), inquire into whether a medical professional is onboard, and request
medical assistance upon arrival.
Although the parties dispute the exact measures that members of the
flight crew (including Abdallah) undertook, there is no genuine dispute that the
crew (1) removed Wilson from the lavatory and placed her on the floor, (2)
administered oxygen through a mask, and (3) alerted the captain, who notified
medical personnel at the airport. The crew instructed Carriker to return to his
seat due to the imminent landing. The parties disagree as to whether members
of the flight crew stayed with Wilson and monitored her vital signs after
Carriker returned to his seat, though Carriker acknowledges that a flight
attendant was no more than two feet away from Wilson during landing. The
plane landed in Houston approximately ten to fifteen minutes after the crew first
discovered Wilson in the lavatory.
After landing, EMS personnel boarded the plane and took over Wilson’s
care. The captain ordered all passengers to remain seated until EMS could
board. Carriker disembarked and waited in the jetway. Although Wilson was
conscious and responsive when EMS arrived, she lost consciousness when she
was placed in a wheelchair. The paramedics performed CPR on Wilson after they
removed her from the plane, but did not use a defibrillator. Wilson was taken to
a nearby hospital, and died two days later. No autopsy was performed, but the
probable causes of death were listed as a myocardial infarction, cardiogenic
shock, metabolic acidosis, and respiratory failure.
Carriker and Wilson’s other children1 filed suit against Defendant-
Appellee Emirates pursuant to Articles 17 and 21 of the Convention for the
Unification of Certain Rules for International Carriage by Air (“Montreal
1
Tamala White and Robert Carriker, individually and as representatives of Carol
Wilson’s estate, are also named plaintiffs in this case. For simplicity’s sake, we will refer to
the Plaintiffs-Appellants as “Carriker.”
3
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Convention”). The parties consented to proceed before a magistrate judge
pursuant to 28 U.S.C. § 636(c), and Emirates moved for summary judgment. The
magistrate judge granted Emirates’ motion and dismissed the lawsuit,
concluding that Carriker had not shown a genuine issue of material fact as to
whether Wilson’s death was caused by an “accident,” as that term is used in the
Montreal Convention. Carriker timely appealed.
II. STANDARD OF REVIEW
This court reviews a lower court’s 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). Summary judgment is appropriate if the moving party can show that
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED R. CIV. P. 56(a). “A factual dispute is
‘genuine’ if a reasonable trier of fact could return a verdict for the nonmoving
party.” James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008). In
considering a summary judgment motion, this court views the evidence in the
light most favorable to the nonmoving party. United Fire & Cas. Co. v. Hixson
Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). However, “[u]nsubstantiated
assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.” Brown v. City of Houston,
337 F.3d 539, 541 (5th Cir. 2003).
III. DISCUSSION
A. Background
The United States is a party to the Montreal Convention, which governs
the international air carriage of passengers, baggage, and cargo. The Convention
provides an airline passenger’s exclusive remedy; a passenger may not maintain
“an action for personal injury damages under local law when her claim does not
satisfy the conditions for liability under the Convention.” El Al Isr. Airlines, Ltd.
v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999). Under Article 17 of the
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Convention, air carriers are liable for “accidents” that injure passengers while
they are boarding, aboard, or disembarking a flight. Article 17, as officially
translated from the governing French text, 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.
Convention for the Unification of Certain Rules for International Carrier by Air,
art. 17(1), May 28, 1999, reprinted in S. TREATY DOC. NO. 106-45 (2000), 1999
WL 33292734, at *33 (1999).2 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.” Id. at *7.
Nevertheless, “[i]t is expected that [Article 17] will be construed consistently
with the precedent developed under the Warsaw Convention and its related
instruments.” Id. at *16.
The Montreal Convention does not provide a definition of the word
“accident,” as used in Article 17. The Supreme Court has, however, addressed
the meaning of the term in two decisions: Air France v. Saks, 470 U.S. 392
(1985), and Olympic Airways v. Husain, 540 U.S. 644 (2004). In Saks, the
plaintiff experienced pressure in her left ear as her flight landed in Los Angeles.
470 U.S. at 394. She disembarked the plane without informing Air France
personnel of her discomfort. Id. When Saks consulted a doctor five days later, the
doctor found that Saks had become permanently deaf in her left ear. Id. The
Supreme Court considered whether Saks’s injury constituted an “accident” under
Article 17. In concluding that it did not, the Court reasoned that “liability under
Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused
2
The Montreal Convention entered into force in the United States on November 4,
2003. See U.S. DEP’T OF STATE, TREATIES IN FORCE 332 (2011).
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by an unexpected or unusual event or happening that is external to the
passenger.” Id. at 405 (emphasis added). The Court further explained:
This definition should be flexibly applied after assessment of all the
circumstances surrounding a passenger’s injuries. . . . In cases
where there is contradictory evidence, it is for the trier of fact to
decide whether an “accident” as here defined caused the passenger’s
injury. But 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.
Id. at 405-06 (citations omitted). Recognizing the difficulty in proving causation,
the Court reasoned that the passenger is required only “to prove that some link
in the chain was an unusual or unexpected event external to the passenger.” Id.
at 406. Because Saks’s injury was not caused by an “unexpected or unusual
event or happening that is external to the passenger,” the Court concluded that
it was not an “accident.” Id.
The Court again interpreted Article 17 in Olympic Airways v. Husain, 540
U.S. 644 (2004). There, the plaintiff and her husband traveled on an Olympic
Airways flight from Egypt to the United States. Id. at 646-47. The plaintiff’s
husband was an asthma sufferer whose condition was aggravated by cigarette
smoke. Id. Because Olympic Airways permitted smoking on its international
flights, the couple requested seats in the non-smoking section. Id. They were
assigned seats a mere three rows away from the smoking section. Id. at 647. The
plaintiff told a flight attendant that her husband was allergic to smoke, and
asked that he be moved farther away from the smoking section. Id. The flight
attendant refused and stated that the flight was full, even though seats were in
fact available. Id. at 648, 648 n.2. The plaintiff’s husband ultimately died aboard
the flight as a result of an asthma attack. See id. at 648. On appeal, the Supreme
Court considered whether a “carrier’s unusual and unexpected refusal to assist
a passenger is a link in a chain of causation resulting in a passenger’s
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pre-existing medical condition being aggravated by exposure to a normal
condition in the aircraft cabin.” Id. at 646. The Court first clarified that, under
Saks, “it is the cause of the injury—rather than the occurrence of the
injury—that must satisfy the definition of ‘accident.’” Id. at 650 (citing Saks, 470
U.S. at 399). The Court then explained, “[t]he relevant ‘accident’ inquiry under
Saks is whether there is ‘an unexpected or unusual event or happening.’ The
rejection of an explicit request for assistance would be an ‘event’ or ‘happening’
under the ordinary and usual definitions of these terms.” Id. at 654-55 (citation
omitted). Because the flight attendant’s rejection of Husain’s request was
“unexpected or unusual,” the Court held that it constituted an “accident” under
Article 17. Id. at 657.
B. Analysis
On appeal, Carriker argues that his case is analogous to Husain, as the
flight crew’s response to Wilson’s emergency constituted an unexpected or
unusual event or happening that was external to the passenger. Specifically,
Carriker faults the flight crew for (1) refusing his request for medical assistance
and (2) failing to follow Emirates’ policies in attending to Wilson. Emirates
responds that its reaction to Wilson’s medical emergency cannot be considered
an “accident” unless that reaction was so thoroughly deficient as to be considered
unexpected or unusual under the circumstances.
1. Refusal of Request for Medical Assistance
Carriker contends that he requested that the flight crew perform CPR or
use a defibrillator on Wilson, and that the flight crew’s non-compliance with his
request constituted an “accident” under Article 17. In addition to Husain, he
relies upon Yahya v. Yemenia-Yemen Airways, No. 08-14789, 2009 WL 3424192
(E.D. Mich. Oct. 20, 2009), and Prescod v. AMR, Inc., 383 F.3d 861 (9th Cir.
2004) (per curiam), to support this position. In Yahya, a flight crew refused to
divert a flight after being apprised of a passenger’s life-threatening condition,
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and instead told the passenger to wait approximately ninety minutes for the
plane to arrive at its planned destination in Yemen. The passenger died before
the plane landed. 2009 WL 3424192, at *1. In finding that this conduct, if
proved, would constitute an Article 17 “accident,” the court reasoned, “[u]nder
Husain, the [flight] crew’s decision not to [divert] the airplane . . . constitutes an
‘event or happening’ required for an ‘accident’ to be found under Article 17 of the
Montreal Convention.” Id. at *6. In Prescod, an airline lost a passenger’s
essential medical bag after promising the passenger that the bag would travel
with her. The passenger arrived at her destination without the bag and later
died because she lacked access to her medical supplies. 383 F.3d at 863-66. The
court found, after a bench trial, that this incident constituted an “accident”
because although airline employees knew the passenger needed the bag, and had
promised her that she could keep it with her, they nevertheless took it from her
and subsequently lost it. Id. at 868-70.
The factual circumstances before us are distinguishable from the scenarios
presented by Husain, Yahya, and Prescod. Here, the undisputed facts
demonstrate that the Emirates flight crew responded to Carriker’s request for
medical assistance. Indeed, it is uncontested that the crew took action to assist
Wilson during the final minutes of the flight. Abdallah and other crew members
moved Wilson to the floor, gave her oxygen, and alerted the captain, who
arranged for medical assistance for Wilson once the plane arrived.
Carriker does not deny that these actions occurred. Rather, he faults the
flight crew for failing to do more. In his deposition, he stated that he “asked [the
flight crew] about doing CPR. And – or those – I called them paddle things,” but
that the flight attendant thought Wilson had just fainted. Abdallah stated in his
deposition, however, that he did not commence CPR or defibrillation because
Wilson was breathing throughout the incident. Moreover, it is unclear whether
Carriker merely asked about the advisability of such procedures or specifically
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requested that they be used. Regardless, Carriker is not a medical professional,
and the crew’s decision not to comply with his requests was not unexpected or
unusual, given that both parties acknowledge that Wilson was breathing when
she was discovered in the lavatory. In fact, the record demonstrates that EMS
personnel never used a defibrillator on Wilson, even after they removed her from
the plane and assessed her vital signs. In light of these circumstances, the crew’s
response to Wilson’s emergency was not so unexpected or unusual as to
constitute an “accident” under Article 17.
Our conclusion is consistent with the decisions of other circuits, which
have reasoned that even a flight crew’s arguably imperfect response to a
passenger’s medical emergency does not necessarily constitute an Article 17
“accident.” In Hipolito v. Nw. Airlines, Inc., 15 F. App’x 109 (4th Cir. 2001) (per
curiam), for example, a passenger who suffered an asthma attack aboard an
international flight was unable to obtain the voltage necessary to operate his
nebulizer. Id. at 110. In responding to the emergency, a flight attendant
provided the passenger an oxygen bottle, but it proved inoperable. The flight
attendant then sought the assistance of several doctors onboard. Two doctors
attended to the passenger and administered oxygen and other medications, but
the passenger nevertheless died. Id. at 110-11. Applying Saks, the court granted
summary judgment for the airline, agreeing with the district court’s assessment
that the flight attendant’s failure to provide a fully functional bottle of oxygen
was “not the type of external, unusual event for which liability is imposed under
the Warsaw Convention.” Id. at 112.
In another case, a passenger suffered a heart attack while aboard an
international flight from Miami to Frankfurt. Krys v. Lufthansa Ger. Airlines,
119 F.3d 1515 (11th Cir. 1997). When he first began to feel ill, the passenger
contacted a flight attendant, who requested assistance from several doctors
onboard. Id. at 1517. A doctor attending to the passenger initially determined
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that the passenger was not in danger, so the flight crew—ostensibly relying on
the doctor’s opinion—declined to make an unscheduled landing. Id. at 1517.
After arriving as planned in Germany, the passenger was transported to a
hospital where doctors concluded that he had suffered a heart attack. Id. When
the passenger subsequently sued the airline for its response to the emergency,
the Eleventh Circuit affirmed that, on these facts, the flight crew’s “continuation
of the flight to its scheduled point of arrival” was not an “accident.” Id. at 1522.
Other courts have arrived at similar conclusions. See Rajcooar v. Air India
Ltd., 89 F. Supp. 2d 324, 328 (E.D.N.Y. 2000) (“A heart attack does not meet
th[e] definition [of ‘accident’] . . . . Nor does allegedly inadequate medical care
without some showing of unexpected circumstances.”) (citations omitted);
Abramson v. Japan Airlines Co., Ltd., 739 F.2d 130, 133 (3d Cir. 1984),
abrogated on other grounds by El Al Isr. Airlines, Ltd., 525 U.S. at 160-61
(holding that a flight attendant’s refusal to allow a passenger to lie down to
alleviate a medical condition did not constitute an “accident,” and explaining,
“[i]n 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”).
Even in the midst of an imminent landing, the flight crew here did far
more in response to Wilson’s incident than did many of the crews confronted
with medical emergencies in the cases we have reviewed. While different
circumstances might have required the Emirates crew to take further steps to
assist Wilson, under the circumstances presented in this case, the magistrate
judge properly concluded that the crew’s actions were not so unexpected or
unusual as to constitute an “accident” under Article 17.
2. Failure to Follow Policies and Procedures
Carriker also argues that the flight crew’s failure to follow the policies set
forth in the Emirates Manual constituted an unexpected or unusual event.
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Carriker specifically takes issue with the crew’s alleged failure to monitor
Wilson’s breathing and pulse rates in accordance with airline policy, or to seek
assistance from a medical professional onboard. Emirates responds that an
airline’s failure to follow its own procedures or industry standards does not
necessarily constitute an “accident” under the Montreal Convention.
Carriker relies principally on Fulop v. Malev Hungarian Airlines, 175 F.
Supp. 2d 651 (S.D.N.Y. 2001). There, a passenger had a heart attack shortly
after his flight departed from Budapest. Id. at 652. Contrary to established
airline procedure, the crew decided not to divert the flight after consulting a
doctor onboard. Id. at 652, 664. The court denied the airline’s motion for
summary judgment with respect to the plaintiff’s Article 17 claim, allowing for
the possibility that an airline’s failure to abide by its own procedures respecting
flight diversion in response to a medical emergency could constitute an
“accident” under certain circumstances. The court reasoned that “the ordinary
traveler reasonably would expect that . . . in handling life-threatening
exigencies, airlines . . . would be particularly scrupulous and exacting in
complying with their own industry norms, internal policies and procedures, and
general standards of care.” Id. at 665. Accordingly, the court concluded, an
airline’s “alleged deviation from its own rules and standards that were in place
to deal with passengers stricken by medical emergencies may be sufficient to
support a determination that such an event . . . was unusual or unexpected, and
thus an accident . . . .” Id.
Carriker’s reliance on Fulop is misplaced, as this court rejected its per se
approach in Blansett v. Cont’l Airlines, Inc., 379 F.3d 177 (5th Cir. 2004). There,
the plaintiff suffered an episode of deep vein thrombosis (“DVT”) aboard a flight,
resulting in a stroke. Id. at 178. The likelihood of DVT is heightened by
pressurized conditions on a plane, and at the time of the injury, certain airlines
(but not Continental) had added DVT warnings to their pre-flight instructions.
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Id. Nevertheless, federal law did not require such warnings. Id. at 178-79. The
plaintiff brought suit, alleging that Continental was liable for his injury. Id. As
framed by this court, the case presented the question of “whether Continental’s
failure to provide warnings and instructions concerning DVT could have
constituted a covered ‘accident’ under article 17.” Id. at 179.
The court held that Continental’s failure to warn of DVT did not constitute
an “accident.” The court first distinguished the case from Husain, explaining
that, in the case before it, unlike in Husain, “no request was made of the airline;
the flight staff was entirely passive.” Id. at 180. The court then reasoned:
[T]he Supreme Court has held that some kinds of inaction can
constitute an “accident.” In Husain, specific refusals to render
requested aid constituted an “unexpected or unusual event.” We
take note also of the Court’s mention of the example proffered by the
district judge a quo in [McCaskey v. Cont’l Airlines, Inc., 159 F.
Supp. 2d 562, 574 (S.D. Tex. 2001)], in which he speculated that it
would be an “unusual and unexpected event” if an air crew decided
not to divert a flight to save the life of a passenger who suddenly
became ill. In Husain and the McCaskey hypothetical, unusual
circumstances existed to elevate the willing inaction of airline
personnel from mere inertia—from a non-event—to an event both
“unexpected and unusual.”
No such circumstances were thrust on the flight crew in the present
case, and their compliance with the regular policy of their airline
was hardly unexpected. Rather, the Blansetts allege that the
“unexpected” nature of the alleged event arose not from the choices
of the flight attendants, but from the Continental policymakers who
decided not to mandate DVT warnings on Continental flights.
Id. at 181 (footnotes and internal citations omitted). The court assumed that
Continental’s failure to warn of DVT was a departure from an industry standard
of care, but rejected the plaintiff’s argument that such a departure necessarily
constituted an “accident.”
In doing so, the court refused to “depart from the demonstrated will of the
Supreme Court by creating a per se rule that any departure from an industry
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standard of care must be an ‘accident,’” reasoning instead that “[s]ome
departures from an ‘industry standard’ might be qualifying accidents under
Article 17, and some may not.” Id. at 181-82. The relevant question is whether
any particular departure was an “unusual or unexpected event.” Id. at 182. The
court then concluded, “Continental’s failure to warn of DVT was not an ‘unusual
or unexpected event’ and not a qualifying ‘accident.’ Though many international
carriers in 2001 included DVT warnings, . . . many did not. Moreover,
Continental’s battery of warnings was in accord with the policies of the Federal
Aviation Administration, which prescribes what warnings airlines should issue
to passengers.” Id. Thus, “[i]t was not an unexpected or unusual decision for
Continental merely to cleave to the exclusive list of warnings required of it by
the agency that has regulatory jurisdiction over its flights.” Id. In holding that
an airline’s unreasonable departure from industry standards did not necessarily
establish an unusual or unexpected event, the court cited Fulop as an example
of the “unreasonable departure” approach it rejected in the aftermath of Husain.
Id. at 180-81 & n.2.
Although Blansett addressed departures from industry standards of care
rather than departures from an airline’s internal policy, its reasoning applies
here. As Blansett clearly demonstrates, the inquiry for purposes of Article 17 is
not whether Emirates failed precisely to adhere to its procedures, but rather
whether any such failure constituted an “unexpected or unusual event or
happening that is external to the passenger.” Saks, 470 U.S. at 405.
Even accepting as true Carriker’s contention that the Emirates flight crew
failed to follow all relevant procedures set forth in the Emirates Manual, we
agree with the magistrate judge that, when evaluated in context, the crew’s
failure to do so was not unusual or unexpected. As noted, the plane was in its
final descent when a flight attendant first discovered that Wilson had collapsed
in the lavatory. Accordingly, the flight crew’s ability to respond was limited by
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the short time period in which it had to act and by the need to ensure the safety
of other passengers and crew. For instance, because other passengers were
required to be seated during landing, it was inadvisable for the crew to seek
assistance from medical professionals who may have been onboard. Moreover,
it would have made little sense to contact MedLink to obtain advice regarding
possible diversion of the flight. Thus, even if we assume the flight crew failed to
follow all internal procedures in responding to the emergency, Carriker has not
shown that any such departures were unusual or unexpected under the
circumstances.
Under Saks, courts must apply the definition of “accident” “flexibly . . .
after assessment of all the circumstances surrounding a passenger’s injuries.”
Id. As evaluated under the unique circumstances of this case, we conclude that
the flight crew’s failure to follow all Emirates procedures in handling Wilson’s
emergency did not constitute an Article 17 “accident.”3 Because the flight crew’s
response to Wilson’s medical emergency was not an “accident” under Article 17,
we need not consider whether that response constituted a “link in the chain” of
causation leading to Wilson’s death. See id. at 406.4
3
The remaining authorities cited by Carriker involve factual circumstances
significantly different from those now before us. See Fishman v. Delta Air Lines, Inc., 132 F.3d
138 (2d Cir. 1998) (holding that the use of a scalding hot compress to ease a child’s earache
was unexpected and unusual and therefore constituted an “accident”); McCaskey, 159 F. Supp.
2d at 574 (holding that “a failure to divert [a flight due to a medical emergency] is not ipso
facto an accident,” but “the notion that a failure to divert can never present a jury question is
more than this Court is willing to hold”); Watts v. Am. Airlines, Inc., No. 1:07-cv-0434, 2007
WL 3019344 (S.D. Ind. Oct. 10, 2007) (denying a motion to dismiss where a passenger had a
heart attack in an airplane lavatory and was not discovered until after landing). Given the
unique factual scenario presented by this case, we draw little benefit from these decisions.
4
Near the conclusion of her order, the magistrate judge stated that proving the
existence of an “accident” establishes only a prima facie case of liability, after which the
burden shifts to the airline to prove that it took “all necessary measures to avoid the damage
or that it was impossible for [the airline] to take such measures.” Carriker objects to this
statement of the law. The rule upon which the magistrate judge relies originated in Article 20
of the Warsaw Convention, the predecessor to the Montreal Convention. See Convention for
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IV. CONCLUSION
In light of the foregoing, the judgment of the district court is AFFIRMED.
the Unification of Certain Rules for International Carrier by Air, May 28, 1999, reprinted in
S. TREATY DOC. NO. 106-45 (2000), 1999 WL 33292734, at *7 (1999); Montreal Convention art.
55. The Montreal Convention lacks a provision analogous to Article 20 of the Warsaw
Convention, though it does limit liability to 100,000 Special Drawing Rights per passenger if
the carrier can prove that any damage resulting from an “accident” was not due to the
“negligence or other wrongful act or omission” of the carrier. Montreal Convention art. 21.
Because we find no Article 17 “accident” here, we need not devote further attention to this
provision.
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