Caman v. Continental Airlines ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUY CAMAN, an individual,  No. 03-56810
Plaintiff-Appellant,
v.  D.C. No.
CV-02-08958-JFW
CONTINENTAL AIRLINES, INC.,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
February 15, 2006—Pasadena, California
Filed August 2, 2006
Before: Betty B. Fletcher and Consuelo M. Callahan,
Circuit Judges, and Morrison C. England, Jr.,
District Judge.*
Opinion by Judge England
*The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
8739
CAMAN v. CONTINENTAL AIRLINES, INC. 8741
COUNSEL
Clay Robbins III, Los Angeles, California, argued the cause
for the appellant.
William J. Boyce, Houston, Texas, argued the cause for the
appellee. With him on the briefs were Rachel G. Clingman,
Houston, Texas, and Jeffrey A. Worthe, Santa Ana, Califor-
nia.
OPINION
ENGLAND, Circuit Judge:
This action is brought pursuant to Article 17 of the Conven-
tion for the Unification of Certain Rules Relating to Interna-
tional Transportation by Air, Oct. 12, 1929, art. 17, 49 Stat.
8742 CAMAN v. CONTINENTAL AIRLINES, INC.
3000, T.S. No. 876 (1934), reprinted in note following 49
U.S.C. § 40105 (“Warsaw Convention” or “Convention”).
The parties agree, and we concur, that this action is governed
exclusively by the Warsaw Convention. The scope of our
review is limited to whether appellant Guy Caman (“Caman”)
can establish liability against appellee Continental Airlines
(“Continental”) under the Convention.1 We hold that the dis-
trict court properly granted summary judgment in favor of
Continental on the ground that Continental’s failure to warn
Caman of the possibility of developing Deep Vein Thrombo-
sis (“DVT”) during the course of an international flight does
not constitute an “accident” under the Warsaw Convention.
Accordingly, we affirm.
BACKGROUND
Caman alleges that he developed DVT while on board an
international flight operated by Continental. Caman’s axial
argument is that Continental’s failure to advise him of the risk
of DVT, which can result from immobility, dehydration and
being cramped in a small pitch seat over the course of an
international flight, constitutes an “accident” for purposes of
establishing liability under the Warsaw Convention.
The following facts are uncontested. On May 28, 2002,
Caman departed from Los Angeles, California, on a flight
bound for Paris, France. The flight was uneventful with no
equipment malfunction or other anomaly occurring. Caman
did not receive any warning regarding the potential hazard of
developing DVT on his international flight. During the course
of his air travel, up to and including his disembarkation from
the aircraft, Caman did not request any assistance or other
accommodation from Continental personnel. Upon his arrival
1
A passenger whose injury is not compensable under the Warsaw Con-
vention because it entails no “bodily injury” or was not the result of an
“accident” will have no recourse to an alternate remedy. El Al Isr. Airlines
v. Tseng, 525 U.S. 155, 160-61 (1999).
CAMAN v. CONTINENTAL AIRLINES, INC. 8743
in France, Caman found it difficult to walk on his right leg
and immediately sought medical attention. He was diagnosed
with DVT and was admitted to a hospital where he remained
for three days. He received therapy amounting to injections
several times a week for the next month.
STANDARD OF REVIEW
Caman appeals the district court’s grant of summary judg-
ment in favor of Continental. We review the district court’s
grant of summary judgment de novo. Carey v. United Air-
lines, 255 F.3d 1044, 1047 (9th Cir. 2001). Interpretations of
treaties, such as the Warsaw Convention, are questions of law
that are also reviewed de novo. Hosaka v. United Airlines,
Inc., 305 F.3d 989, 993 (9th Cir. 2002).
ANALYSIS
[1] Caman seeks review of the lower court’s ruling that an
air carrier’s failure to warn passengers of the risk of develop-
ing DVT during international air travel is not an “accident”
for purposes of Article 17 liability. Article 17 of the Warsaw
Convention imposes liability on an air carrier for a passen-
ger’s death or bodily injury caused by an “accident” that
occurred in connection with an international flight. Olympic
Airways v. Husain, 540 U.S. 644 (2004). The term “accident”
in the Warsaw Convention has been defined as an “unex-
pected or unusual event or happening that is external to the
passenger,” and not “the passenger’s own internal reaction to
the usual, normal, and expected operation of the aircraft.” Air
France v. Saks, 470 U.S. 392, 405-06 (1985).
[2] It is well settled that the development of DVT as the
result of international air travel, without more, does not con-
stitute an “accident” for purposes of Article 17 liability. See,
e.g., Rodriguez v. Ansett Austl. Ltd., 383 F.3d 914, 919 (9th
Cir. 2004); Scherer v. Pan Am. World Airways, Inc., 54
A.D.2d 636, 387 N.Y.S.2d 580, 581 (App. Div. 1976). Gener-
8744 CAMAN v. CONTINENTAL AIRLINES, INC.
ally, courts reach this conclusion because the development of
DVT is nothing more than a passenger’s own internal reaction
to the usual, normal, and expected operation of the aircraft.
Rodriguez, 383 F.3d at 917. Since the development of DVT
itself does not constitute an Article 17 “accident,” Caman
would have us conclude that Continental’s failure to warn him
of the risk of DVT constitutes an Article 17 “accident.” While
this issue has been expressly decided by a sister circuit as well
as by sister signatories to the Warsaw Convention, it is an
issue of first impression in this circuit. Given the narrow
ambit of the issue coupled with the unsettled state of the law,
a brief recitation of both controlling precedent as well as
related domestic cases follows.
I.
The seminal case on the issue of what constitutes an acci-
dent under Article 17 of the Warsaw Convention is Air
France v. Saks, 470 U.S. 392. In Saks, an airline passenger
became permanently deaf in one ear after experiencing severe
pain and pressure in that ear during the plane’s descent into
Los Angeles en route from Paris. The plaintiff sued the air
carrier under the Warsaw Convention, contending that her
injury was the result of an “accident” occurring during her
international flight. Justice O’Connor delivered the opinion of
the Court and held that Article 17 liability arises only if a pas-
senger’s injury is caused by an “unexpected or unusual event
or happening that is external to the passenger.” Id. at 405. The
conditions precedent to Article 17 liability are as follows: 1)
an unexpected or unusual event; 2) external to the passenger;
3) that causes the plaintiff’s injury. See id.; see also Rodri-
guez, 383 F.3d at 917.
[3] Nearly two decades after Saks was decided, the
Supreme Court revisited the question of what constitutes an
Article 17 “accident.” Husain, 540 U.S. 644. In Husain, a pas-
senger severely allergic to tobacco smoke suffered a fatal
asthma attack after the flight attendant repeatedly refused to
CAMAN v. CONTINENTAL AIRLINES, INC. 8745
assist him in finding a seat further away from the plane’s
smoking section. Id. at 653. With respect to whether the flight
crew’s refusal to reseat the decedent was “unusual or unex-
pected,” the Court expressly declined to decide the question.2
Id. at 653. Instead, the Court adopted the district court’s find-
ing that the air crew’s departure from relevant industry stan-
dard was unusual or unexpected conduct satisfying part of the
first condition precedent. Id. at 652-53. Next, the Court con-
sidered whether inaction can constitute an “event” for pur-
poses of Article 17 liability. The Court rejected Olympic
Airways’ argument that only affirmative conduct can consti-
tute an “event” under Article 17. In dismissing that argument,
the majority of the Court concluded that the air crew’s failure
to assist, or inaction, can constitute an Article 17 “event.” Id.
at 654-57. With respect to the element of causation, the Court
concluded that the failure of the air crew to reseat the dece-
dent together with exposing him to smoke were each links in
the causal chain leading to his expiration and entitling his
wife, the plaintiff, to relief. Id. at 654.
In Blansett v. Continental Airlines, Inc., 379 F.3d 177 (5th
Cir. 2004), the plaintiff sought relief on the identical theory
presented here. Namely, Blansett argued that the airline’s fail-
ure to warn him of the potential for developing DVT is an
Article 17 “accident” because the decision not to warn pas-
sengers of a known risk is a departure from industry standard
and is, therefore, unexpected.3 Id. at 181. Based in part on
2
The Supreme Court’s discussion of this issue in Husain is as follows:
“As an initial matter, we note that petitioner did not challenge in the Court
of Appeals the District Court’s finding that the flight attendant’s conduct
in three times refusing to move [the passenger] was unusual or unexpected
in light of the relevant industry standard or petitioner’s own company pol-
icy. . . . Consequently, we need not dispositively determine whether the
flight attendant’s conduct qualified as ‘unusual or unexpected’ under Saks,
but may assume that it was for purposes of this opinion.” Husain, 540 U.S.
at 652-53.
3
This argument is directly drawn from the Husain decision. As noted
supra, the Husain Court expressly declined to decide whether the refusal
to assist a passenger was “unexpected.” See n.2, supra. Rather, the Court
adopted the district court’s reasoning that the departure from industry stan-
dard made the air crew’s conduct “unexpected.” Husain, 540 U.S. at 653.
8746 CAMAN v. CONTINENTAL AIRLINES, INC.
Husain’s reasoning that inaction can constitute an event, the
plaintiff urged that the air carrier’s failure to warn also com-
prised an Article 17 “event.” Id.The Blansett court carefully abstained from creating a per
se rule that any departure from an industry standard consti-
tutes an Article 17 “accident.” Id. at 182. Instead, the court
pointed to the absence of any Federal Aviation Administration
requirement that warnings of DVT be issued on international
flights as evidence that a failure to warn of DVT is not “unex-
pected” and, therefore, outside the scope of Article 17. As the
court explained in summation, “[i]t was not an unexpected or
unusual decision for Continental merely to cleave to the
exclusive list of warnings required of it by the agency that has
regulatory jurisdiction over its flights.” Id.
In Rodriguez this court addressed circumstances very simi-
lar to those presented here. Specifically, we considered first
whether developing DVT can constitute an Article 17 “acci-
dent,” and second, whether a failure to warn of the risk of
DVT can constitute an Article 17 “accident.” 383 F.3d 914.
On the merits of the first claim, we concluded that “there was
no event external to the passenger, let alone an unusual or
unexpected event.” Id. at 918. As to the failure to warn claim,
we declined to decide whether failure to warn of DVT can
constitute an “accident.” Id. at 919. Rather, we decided that
Rodriguez had failed to create a genuine issue of material fact
by failing to submit evidence establishing the industry custom
or the airline’s own policy, and failing to establish whether
the airline complied with either the industry standard or its
own company policy. Id.The foregoing decisions have left unresolved certain issues
salient to this court’s inquiry. Specifically, whether an air car-
rier’s departure from either industry standard or its own com-
pany policy are the appropriate benchmark for determining
whether an event is “unexpected or unusual” conduct under
CAMAN v. CONTINENTAL AIRLINES, INC. 8747
Article 174 and, more importantly, whether the inaction
alleged here is sufficient to constitute an Article 17 “event.”
II.
[4] The starting point of our analysis is, of course, the text
of the Convention and the context in which the written words
are used. Saks, 470 U.S. at 396-97. The text of Article 17 is
as follows:
The carrier shall be liable for damage sustained in
the event of the death or wounding of a passenger or
any other bodily injury suffered by a passenger, if
the accident which caused the damage so sustained
took place on board the aircraft or in the course of
any of the operations of embarking or disembarking.
Art. 17, 49 Stat. 3018. The foregoing language clearly estab-
lishes the liability of international air carriers for accidents
resulting in harm to passengers sustained during any opera-
tions of the aircraft. Conversely, Article 20(1) provides a
defense for air carriers. The language of Article 20(1) is as
follows:
The carrier shall not be liable if he proves that he
and his agents have taken all necessary measures to
avoid the damage or that it was impossible for him
or them to take such measures.
Art. 20, 49 Stat. 3019.
With respect to considering these two Articles, the
4
We recognize that there are questions as to whether an air carrier’s
departure from an industry standard or its own company policy is “unex-
pected” for the purpose of defining an Article 17 “accident.” We decline
to address this question as our holding today does not turn on the resolu-
tion of that issue.
8748 CAMAN v. CONTINENTAL AIRLINES, INC.
Supreme Court explained that “[t]he ‘accident’ requirement of
Article 17 is distinct from the defenses in Article 20(1), both
because it is located in a separate article and because it
involves an inquiry into the nature of the event which caused
the injury rather than the care taken by the airline to avert the
injury.” Saks, 470 U.S. at 407. The Court went on to clarify
that, while these two inquiries may on occasion be similar,
courts should decline to employ that similarity to repeal Arti-
cle 20(1). Id. Attributing liability to an air carrier for failing
to do all it can to prevent an injury that is inherent in air
travel, as Caman is here requesting, improperly shifts the
focus of the inquiry from the nature of the event which caused
the injury to the alleged failure of the air carrier to avert the
same. In addition, interpreting the term “accident” to include
a failure to warn of a possible risk of flight would incorporate
into Article 17 an inquiry that is properly left to analysis
under Article 20(1) once it has been established that an acci-
dent has occurred. Husain, 540 U.S. at 649 n.5 (“After a plain-
tiff has established a prima facie case of liability under Article
17 by showing that the injury was caused by an ‘accident,’ the
air carrier has the opportunity to prove under Article 20 that
it took ‘all necessary measures to avoid the damage or that it
was impossible for [the airline] to take such measures.’ ”
(quoting 49 Stat. 3019) (alteration in original) (emphasis
added)).
[5] Applying the treaty’s text and Supreme Court precedent
to the facts of this case, we hold that Caman cannot establish
his DVT was the result of an “accident” because he cannot
show that it resulted from an “unexpected or unusual event.”
Saks, 470 U.S. at 404, 406. Specifically, we hold that Conti-
nental’s failure to warn Caman of DVT is not an “event” as
that term is discussed in Saks and Husain. Rather, Continen-
tal’s failure to warn was an act of omission (inaction that idly
allows an unfolding series of events to reach their natural con-
clusion) as opposed to an act of commission (inaction that
produces an effect, result or consequence) as in Husain’s
rejection of a direct plea for help.
CAMAN v. CONTINENTAL AIRLINES, INC. 8749
[6] For the foregoing reasons, we conclude that Continen-
tal’s failure to warn Caman of the risk of developing DVT is
not an Article 17 “accident.” Accordingly, he cannot obtain
relief under the Warsaw Convention.
AFFIRMED.