Phifer v. ICELANDAIR , 652 F.3d 1222 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIN PHIFER,  No. 09-56858
Plaintiff-Appellant,
D.C. No.
v.
 2:08-cv-06561-
ICELANDAIR, AKA Icelandair ODW-CW
Northamerica,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
February 17, 2011—Pasadena, California
Filed July 26, 2011
Before: Pamela Ann Rymer and Jay S. Bybee, Circuit
Judges, and Gordon J. Quist, Senior District Judge.*
Opinion by Judge Bybee
*The Honorable Gordon J. Quist, Senior District Judge for the U.S. Dis-
trict Court for Western Michigan, Grand Rapids, sitting by designation.
9601
PHIFER v. ICELANDAIR 9603
COUNSEL
Andrew N. Chang and Stuart B. Esner, Esner & Chang, Glen-
dale, California; Richard C. Devirian, Torrance, California,
for the appellant.
Michael A. Hession, Kevin R. Sutherland, and Nicholas S.
Lieberknecht, Clyde & Co, San Francisco, California, for the
appellee.
OPINION
BYBEE, Circuit Judge:
Today we clarify that a plaintiff does not have to prove that
an airline violated an Federal Aviation Administration
(“FAA”) standard to establish that there was an “accident”
under Article 17 of the Convention of the Unification of Cer-
tain Rules Relating to International Transportation by Air
(“Montreal Convention”). Because the district court held oth-
erwise, requiring the plaintiff to provide evidence the airline
had failed to meet FAA requirements in order to survive sum-
mary judgment, we reverse and remand.
I
After entering her assigned row on Icelandair Flight No.
656, Appellant Elin Phifer bent over, placed two carry-on
bags under the seat in front of hers, stood up, and struck her
head on an overhead television monitor, which was extended
in the down position. Phifer collapsed and was assisted to her
seat by her husband and an Icelandair flight attendant.
9604 PHIFER v. ICELANDAIR
Phifer sued Icelandair in federal district court, alleging that
Icelandair was liable for her injuries under Article 17 of the
Montreal Convention, which establishes that air carriers are
liable for accidents that occur to passengers while they are
boarding, aboard, or disembarking aircraft. S. Treaty Doc. No.
106-45, *33.
The district court granted summary judgment on behalf of
Icelandair because “even assuming a departure from [Icelan-
dair’s] own policies or, possibly, industry standards, [Phifer]
ha[d] still not provided any evidence that [Icelandair]’s con-
duct was in violation of any FAA [Federal Aviation Adminis-
trative] requirements,” rendering any dispute “immaterial.”
Phifer appeals.
II
[1] Article 17 of the Montreal Convention reads in its
entirety:
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 dis-
embarking.
Id. at *33. The Supreme Court has defined “accident” for pur-
poses of Article 17 as “an unexpected or unusual event or
happening that is external to the passenger.” Air France v.
Saks, 470 U.S. 392, 405 (1985).1 The Court has further clari-
1
Although Saks addresses Article 17 of the Warsaw Convention of
1929, rather than Article 17 of the Montreal Convention of 1999, which
governs here, for our purposes, any differences between the provisions are
immaterial. Compare S. Treaty Doc. 106-45, *33 with 49 Stat. 3000 art.
17 (quoted in Saks, 470 U.S. at 397). We read Saks as applicable to our
understanding of Article 17 of the Montreal Convention.
PHIFER v. ICELANDAIR 9605
fied that “when the injury indisputably results from the pas-
senger’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 . . . cannot apply.” Id. at 406.
The Court has directed us to focus our attention on the “ac-
cident which caused the passenger’s injury, and not to [the]
accident which is the passenger’s injury.” Id. at 398. This is
because “[t]he text of the Convention . . . implies that, how-
ever we define ‘accident,’ it is the cause of the injury that
must satisfy the definition rather than the occurrence of the
injury alone.” Id. at 399 (referring to Article 17’s “accident
which caused the death or injury” language). See Olympic
Airways v. Husain, 540 U.S. 644, 646 (2004) (identifying the
“accident” at issue as a flight attendant’s refusal to reseat a
smoke-allergic passenger).
Saks makes clear that here, Icelandair is only liable to
Phifer if her injury was caused by an accident—in this case,
the television monitor’s being down during boarding. Accord-
ingly, Icelandair is only liable if the television monitor’s
being in a down position during boarding (1) was an unex-
pected or unusual event or happening that (2) was external to
Phifer and (3) caused her injuries. See Caman v. Cont’l Air-
lines, 455 F.3d 1087, 1090 (9th Cir. 2006). The parties here
dispute only the first element.2 Therefore, we only review
whether the district court properly determined that the televi-
2
This element requires us to find that the television monitor’s being
down was both (1) an “event” and (2) “unexpected or unusual.” The only
issue before the district court was the “unexpected or unusual” determina-
tion. In its response on appeal, Icelandair raised a second argument—that
the television monitor’s being down was neither “unexpected or unusual”
nor an “event” under Article 17. Because Icelandair did not raise its
“event” argument before the district court, we will not review it here. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n appellate
court will not consider issues not properly raised before the district
court.”). Accordingly, we here address only the issue of whether the tele-
vision monitor’s being down was “unexpected or unusual.”
9606 PHIFER v. ICELANDAIR
sion monitor’s being in a down position during boarding was
not “an unexpected or unusual event or happening.” Saks, 470
U.S. at 405.3
[2] The district court below erred in granting summary
judgment to Icelandair on the ground that, “even assuming a
departure from its own policies or, possibly, industry stan-
dards, [Phifer] ha[d] still not provided any evidence that [Ice-
landair]’s conduct was in violation of any FAA
requirements.” Although FAA requirements may be relevant
to the district court’s “accident” analysis, they are not disposi-
tive of it. We have never held that violation of FAA require-
ments is a prerequisite to suit under Article 17. See Husain v.
Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002) (finding
Article 17 liability without any evidence the airline failed to
meet FAA requirements), aff’d, 540 U.S. 644 (2004); Prescod
v. AMR, Inc., 383 F.3d 861, 868 (9th Cir. 2004) (per curiam)
(same). See also Rodriguez v. Ansett Austl. Ltd., 383 F.3d
914, 919 (9th Cir. 2004) (noting the plaintiff had not submit-
ted evidence of the airline’s failure “to comply with any
industry standard . . . nor any other evidence [of an ‘acci-
dent’]” (emphasis added)). The Supreme Court has suggested
that a per se rule requiring a regulatory violation would be
improper. See Saks, 470 U.S. at 405 (“[The ‘unexpected or
unusual’ liability test] should be flexibly applied after assess-
ment of all the circumstances surrounding a passenger’s inju-
ries.”).
III
[3] We reverse and remand so the district court can deter-
mine under the proper standard whether an Article 17 “acci-
dent” has occurred.
3
We review de novo the district court’s conclusions of law. See Husain,
316 F.3d at 835. Accordingly, we “review de novo the legal question of
whether an ‘accident’ occurred” under Article 17. Prescod v. AMR, Inc.,
383 F.3d 861, 867 (9th Cir. 2004).
PHIFER v. ICELANDAIR 9607
REVERSED AND REMANDED.