Passenger cannot sue airline over injuries: Fall from mobile stairs not ‘unexpected event’

Civil Action No. 19-30007-MGM

Moore v. British Airways PLC

THE ISSUE

Could a passenger who fell from portable stairs while disembarking an airplane hold the airline accountable for her injuries?

DECISION 

No (U.S. District Court)

LAWYERS

Kevin Chrisanthopoulos of Westfield (plaintiff)

Anthony U. Battista, Samantha M. Holloway and Marissa N. Lefland, of Condon & Forsyth, New York; Owen P. McGowan and Christopher J. Greeley, of McGowan Associates, Norwell (defense)

A passenger who fell from portable stairs while disembarking an airplane could not hold the airline accountable for her injuries, a U.S. District Court judge has determined.

Plaintiff Jennifer Moore sought to recover damages from defendant British Airways under the Montreal Convention, the international agreement that governs compensation for injuries to air travelers.

The plaintiff claimed that the last step of the staircase was unexpectedly higher than the previous steps, causing her to trip and injure her ankles.

In moving for summary judgment, British Airways argued that the plaintiff’s injury was not caused by an “unexpected or unusual event” that is “external to the passenger” and thus did not constitute an “accident” as required for liability under Article 17(1) of the Convention.

Judge Mark G. Mastroianni agreed.

“Although Plaintiff testified she does not remember ever using stairs to disembark from a plane, the inquiry is not about her personal, subjective expectations,” Mastroianni wrote, adding that the plaintiff provided no evidence to show the staircase was operating in an unintended or inappropriate manner.

“Defendant, on the other hand, has provided evidence that using mobile staircase[s] to disembark passengers is a routine operation in the industry, which Plaintiff has not disputed,” Mastroianni continued, granting British Airways’ motion.

The judge also found that the plaintiff’s state law negligence claim against the airline was preempted by the Montreal Convention, which was the sole avenue for relief under the circumstances.

The nine-page decision is Moore v. British Airways PLC, Lawyers Weekly No. 02-469-20.

‘Immaterial’ expectations

The case confirms that an individual’s personal expectations are immaterial to the question of whether an accident occurs under the Montreal Convention, said the defendant’s attorney, Anthony U. Battista of New York. 

“An adverse ruling would not have been in line with prior [U.S.] Supreme Court precedent, which looked to the circumstances surrounding the accident and whether they’re unusual or unexpected in the context of the aircraft’s operation,” he said.

Battista added that the issue of whether the alleged danger posed by the staircase constituted an “unexpected event” was not a question for the jury as mobile staircases are used as a matter of course in the industry and this particular staircase was only a few months old and in perfect operating condition.

“All other staircases used throughout the industry have the same issue [of the last step being a greater height than the others] because they’re mobile staircases and have to be able to traverse the airport ramp,” he said.

Plaintiff’s counsel, Kevin Chrisanthopoulos of Westfield, said his client intends to appeal the ruling.

“The decision failed to take into account a number of facts and expert testimony … establishing that the significant height difference in the last step was indeed an ‘unexpected event,’” he said. “In particular, expert testimony was offered establishing the height difference was unsafe and deviated from industry standards. A deviation from industry standards certainly would not be considered ‘usual, normal and expected.’”

“Expert testimony was offered establishing the height difference was unsafe and deviated from industry standards. A deviation from industry standards certainly would not be considered ‘usual, normal and expected.’”

Christopher F. Earley, a Boston attorney who represents injury victims, said he thought the judge interpreted the term “accident” under the language of the Montreal Convention rather narrowly.

“The court focused on whether or not an ‘external’ factor caused the plaintiff’s injury rather than her own independent conduct,” he said. “Therefore, unless counsel can find a discernible ‘external’ cause of a plaintiff’s injury upon an aircraft, any claims brought under the Montreal Convention will likely fail per the reasoning of the court.”

Boston trial attorney Eric J. Parker, who has handled aviation-related tort cases for more than 30 years, said conventions like the Montreal Convention and its precursor, the Warsaw Convention, “in a word, suck.”

“The unfortunate reality is that these conventions have very restrictive language, and they preempt state law,” he said. “Anyone doing plaintiffs’ work long enough knows that when there’s a highly restrictive federal statute in place or, in this case, a convention preempting state law, you’ll find yourself with limited options and very restrictive rules regarding the ability to recover.”

That means that when conventions come into play, practitioners need to be careful at the intake stage as to whether they can actually do anything for the client, Parker continued. “It looks to me like this lawyer did everything he could think of to help his client, but his hands were tied.”

Treacherous stairs?

On September 15, 2018, Moore arrived at London Heathrow Airport on a British Airways flight from Boston.

The airline used a mobile staircase for passengers to exit the plane because the jet bridge was broken. Apparently that is a common practice among air carriers when a jet bridge is not available.

A crew member stationed at the top of the staircase apparently told passengers to watch their step.

Carrying two pieces of hand baggage, the plaintiff proceeded down more than 20 steps before reaching the last step, which was of greater height than the previous steps.

Not expecting the change in height, the plaintiff lost her balance, fell and injured her ankles.

The plaintiff’s travel companion was also apparently caught off guard by the last step, but caught herself and tried to warn the plaintiff. Additionally, the airline had no personnel assisting passengers at the last step and gave no specific warning about the height difference at that step.

According to a British Airways safety officer who arrived at the scene after the plaintiff’s fall, the stairs were correctly positioned with good grips on them.

Meanwhile, neither the plaintiff nor her companion alleged that any precipitation, liquids or garbage was on the staircase.

In 2019, the plaintiff filed suit against the airline in U.S. District Court, asserting a state law negligence claim and a claim for damages under the Montreal Convention.

According to the plaintiff, the mobile staircase was unreasonably dangerous at 13 inches in height, considering that the other steps were only 7.4 inches in height and that, according to her expert, British safety standards consider the maximum rise people can navigate safely to be 8.7 inches.

“The unfortunate reality is that these conventions have very restrictive language, and they preempt state law.”

The expert also testified, however, that the standard in question was merely voluntary guidance and applied to steps connected to a building, not to the mobile stairs at issue.

British Airways moved for summary judgment, arguing that the Montreal Convention preempted the plaintiff’s state law claim and that the plaintiff’s injuries were not compensable because her fall did not constitute an “accident” within the meaning of the convention.

Not ‘unexpected’

Addressing the defendant’s motion, Mastroianni found that the plaintiff’s state law negligence claim indeed was preempted.

“There is no dispute that the incident in question occurred in the course of disembarking,” he said. “Therefore, the Convention is the sole avenue for relief.”

With respect to her claim under the Montreal Convention, the judge said the plaintiff offered no evidence to support her contention that the use of a mobile staircase to disembark constituted an “unexpected event” — a necessity for showing there was a compensable accident.

First, Mastroianni said, while Moore said she did not remember ever using stairs to disembark a plane, her subjective expectations were irrelevant to the inquiry.

The more relevant question was whether the use of mobile staircases to unload passengers from planes was a “routine operation in the industry,” an issue the plaintiff had not disputed, the judge said.

Additionally, Mastroianni continued, there was no dispute as to the conditions of the staircase on that particular day, and the plaintiff provided no evidence that the staircase was operating in an inappropriate manner.

“The stairs were functioning normally, positioned as intended, not wet, unobstructed, and with good grip,” he observed. “Passengers were not pushing or jostling down the stairs.”

And while the last step may have been a noticeably greater height than the others, the plaintiff provided no evidence that that was unusual for mobile staircases, he said.

Because the plaintiff did not sufficiently allege her injury constituted an “accident” as defined by the Convention, Mastroianni concluded, summary judgment should be granted.  

Original article can be found here:  https://masslawyersweekly.com

Negligence – Montreal Convention – Mobile staircase

U.S. District Court

By: Mass. Lawyers Weekly Staff

January 4, 2021

Where a passenger who suffered an injury while disembarking from an airplane has filed a claim against the defendant airline for damages under the Montreal Convention, the defendant should be granted summary judgment because the plaintiff has not offered evidence to support her contention that the use of a mobile staircase to disembark was an unexpected event.

“Plaintiff Jennifer Moore was traveling as a passenger on a British Airways flight when she suffered an injury while disembarking from the airplane. Plaintiff filed a claim against Defendant British Airways for damages under the Montreal Convention (Count One) and for negligence (Count Two). Defendant has moved for summary judgment on all claims. … With her opposition, Plaintiff late-filed a cross-motion for partial summary judgment that the incident at issue was an ‘accident’ under the Montreal Convention. …

“On September 14 and 15, 2018, Plaintiff was traveling as a passenger on British Airways Flight 202 from Boston, Massachusetts to London, England as part of round-trip transportation. Upon arrival at London Heathrow Airport, due to a broken jet bridge, the passengers disembarked by portable stairs. … The last step was a bigger height than the previous steps, which Plaintiff was not expecting, causing her to lose her balance, fall, and injure her ankles. …

“… Article 17(1) of the Convention, the relevant provision in this case, states that a ‘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.’ …

“… For liability under Article 17(1), the injury must have been sustained during an ‘accident.’ … The First Circuit has held that to allege an ‘accident,’ (1) the claim must allege an occurrence which ‘arises from some inappropriate or unintended happenstance in the operation of the aircraft or airline’ and, additionally, (2) a carrier’s Article 17 liability is triggered only when ‘a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger.’ …

“As an initial matter, Plaintiff’s state law claim for negligence is preempted. There is no dispute that the incident in question occurred in the course of disembarking. Therefore, the Convention is the sole avenue for relief for Plaintiff. Plaintiff’s counsel acknowledged as much at the hearing. Count II does not survive the summary judgment stage.

“With respect to Plaintiff’s claim under the Montreal Convention, Plaintiff has not offered evidence to support her contention that the use of a mobile staircase to disembark is an unexpected event. Although Plaintiff testified she does not remember ever using stairs to disembark from a plane, the inquiry is not about her personal, subjective expectations. … Defendant, on the other hand, has provided evidence that using mobile staircase to disembark passengers is a routine operation in the industry, which Plaintiff has not disputed. …

“Next, there appears to be very little factual dispute regarding the conditions of the mobile staircase that was used to disembark passengers including Plaintiff. The stairs were functioning normally, positioned as intended, not wet, unobstructed, and with good grip. Passengers were not pushing or jostling down the stairs. The last step, down to the ground, was a noticeably larger height than any of the other steps. The issue is whether the use of a staircase with such height difference in the last step is an ‘inappropriate or unintended happenstance in the operation of the aircraft’ and ‘an unexpected or unusual event or happening that is external to the passenger.’ … Plaintiff has not pointed to any evidence that shows the staircase was operating in an unintended or inappropriate manner. All of the direct examinations of the staircase by Defendant’s employees and indirect examination by way of photographs by Plaintiff’s expert failed to find anything amiss with the operation of the staircase. Nor has Plaintiff provided evidence that the height of the last step was unusual for mobile staircases. Although her expert referenced various standards and their recommendations, they are voluntary and for non-portable stairs. Furthermore, Plaintiff has not shown how those standards make the last step’s height of the at-issue staircase atypical from other mobile staircases used to disembark passengers.”

Moore v. British Airways PLC (Lawyers Weekly No. 02-469-20) (9 pages) (Mastroianni, J.) (Civil Action No. 19-30007-MGM) (Dec. 28, 2020).