Mansour v. British Airways PLC

• Court: District Court, W.D. Washington
• Decided: April 13, 2020
• Docket: 2:18-cv-01757
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT FOR THE 6 WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 ) ABDUL MANSOUR and JULIA ) 9 MANSOUR, husband and wife, ) CASE NO. 2:18-cv-01757-BJR ) 10 Plaintiffs, ) ORDER GRANTING PLAINTIFFS’ ) MOTION FOR PARTIAL SUMMARY 11 v. ) JUDGMENT ) 12 BRITISH AIRWAYS PLC, a foreign ) Corporation; HUNTLEIGH USA ) 13 CORPORATION, ) ) 14 Defendants. ) ) 15

16 I. INTRODUCTION 17 This matter comes before the Court on a motion by Plaintiffs Abdul and Julia Mansour 18 seeking partial summary judgment on liability against Defendants British Airways, PLC (“British 19 Airways”) and Huntleigh USA Corporation (“Huntleigh”).1 Dkt. No. 34. The case involves 20 21 Plaintiffs’ claim that British Airways along with Huntleigh, its subcontractor responsible for 22 23

24 1 Plaintiffs request oral argument. Dkt. No. 34 at 1. The Court finds that oral argument is unnecessary and will 25 proceed on the papers. 1 providing services to passengers with disabilities, failed to safely board Mr. Mansour, who uses a 1 wheelchair, onto his British Airways flight from Seattle to London. Defendants oppose summary 2 3 judgment. Dkt. No. 35. Having reviewed the Motion, the opposition thereto, the record of the 4 case, and the relevant legal authorities, the Court will grant Plaintiffs’ Motion. The reasoning for 5 the Court’s decision follows. 6 II. BACKGROUND 7 Mr. Mansour was rendered tetraplegic after a childhood accident in Beirut, Lebanon. On 8 January 10, 2018, he and his wife were booked to travel from Seattle-Tacoma International Airport 9 to London aboard a British Airways flight. Dkt. No. 1 at ¶¶ 3.2–3.4. 10 11 Prior to the flight’s departure, Mr. Mansour maneuvered his personal electric wheelchair 12 to the end of the Jetway where he awaited assistance to board the aircraft. Id. at ¶ 3.5. Three 13 Huntleigh employees, including Lenny Tala and Abdinasir Fahiye, transferred Mr. Mansour from 14 his personal wheelchair to a special wheelchair designed to be narrow enough to travel down the 15 aisles of an aircraft. Dkt. No. 34 at 3. The employees then strapped Mr. Mansour into this chair. 16 Id. 17 Mr. Tala and Mr. Fahiye then attempted to lift Mr. Mansour from the end of the Jetway 18 19 into the aircraft. Id. In the process of doing so, the wheelchair became unbalanced and tipped 20 over, dropping with Mr. Mansour in it. Id. at 4. Mr. Mansour alleges that as a result he sustained 21 “serious bodily injury” including loss of consciousness and a laceration to his head that required 22 the attention of Ms. Mansour, a trained nurse, during the flight and additional medical attention 23 after his arrival. Dkt. No. 1 at ¶ 3.6. According to Plaintiffs, this incident left Mr. Mansour with 24 lasting physical injury, emotional distress, and loss of income and Ms. Mansour with emotional 25 2 distress. Dkt. No. 1 at ¶¶ 6.3–6.4; see also Dkt. No. 34-2 at ¶¶ 10–14 (Declaration of Abdul 1 Mansour describing persistent pain and injury since the incident).2 2 3 On December 7, 2018, Plaintiffs filed the current suit, alleging two causes of action, 4 including claims under (1) the Convention for the Unification of Certain Rules for International 5 Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S. 350 (commonly referred 6 to as the “Montreal Convention”), id. at ¶¶ 4.1–4.5, and (2) the Air Carrier Access Act, 49 U.S.C. 7 § 41705, id. at ¶¶ 5.1–5.8. Plaintiffs move for partial summary judgment on Defendants’ liability 8 under the Montreal Convention. 9 III. LEGAL STANDARD 10 11 Federal Rule of Civil Procedure 56 states that “[t]he court shall grant summary judgment 12 if the movant shows that there is no genuine dispute as to any material fact and the movant is 13 entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Under this standard, a dispute is 14 genuine where “the evidence is such that a reasonable jury could return a verdict for the nonmoving 15 party” and a fact is material if it might “affect the outcome of the suit under the governing law.” 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Karasek v. Regents of the 17 Univ. of California, 948 F.3d 1150, 1161 (9th Cir. 2020). 18 19 The moving party bears the initial burden of demonstrating the absence of a genuine issue 20 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmovant will 21 bear the burden of proof at trial, the movant “need only point out ‘that there is an absence of 22

24 2 Additionally, Mr. Mansour claims that Defendants failed to inform him of his right to pursue an enforcement action and failed to properly investigate the incident as required by the Air Carrier Access Act, 49 U.S.C. § 41705. 25 Id. at ¶ 3.7. 3 evidence to support the nonmoving party’s case’” to meet their initial burden. Olivier v. Baca, 1 913 F.3d 852, 857 (9th Cir. 2019) (quoting Celotex, 477 U.S. at 325). Where the movant meets 2 3 this burden, to avoid summary judgment the nonmovant must “set forth specific facts showing that 4 there is a genuine issue of fact for trial in order to defeat the motion.” Macareno v. Thomas, 378 5 F. Supp. 3d 933, 940 (W.D. Wash. 2019) (citing Anderson, 477 U.S. at 250). 6 In considering a motion for summary judgment, the Court “views the evidence and draws 7 inferences in the light most favorable to the non-moving party.” Providence Health & Servs. v. 8 Certain Underwriters at Lloyd’s London, No. 18-cv-495, 2020 WL 816044, at *4 (W.D. Wash. 9 Feb. 19, 2020) (citing Anderson, 477 U.S. at 255). At the same time, the Court need not “ignore 10 11 undisputed evidence produced by the movant.” L. F. v. Lake Washington Sch. Dist. #414, 947 12 F.3d 621, 625 (9th Cir. 2020) (citing Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 13 249 F.3d 1132, 1136 (9th Cir. 2001)). Nor may a summary judgment motion be defeated by 14 “relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 15 1040, 1045 (9th Cir. 1989); see also Kramer v. Safeco Ins. Co. of Oregon, No. 19-cv-5365, 2019 16 WL 6896690, at *4 (W.D. Wash. Dec. 18, 2019) (“[c]onclusory, non-specific statements in 17 18 affidavits are not sufficient, and ‘missing facts’ will not be ‘presumed’”) (quoting Lujan v. 19 National Wildlife Federation, 497 U.S. 871, 888–89 (1990)). 20 IV. DISCUSSION 21 The Montreal Convention governs “‘all international carriage of persons, baggage or cargo 22 performed by aircraft for reward,’ [and] provides the exclusive remedy for international passengers 23 seeking damages against airline carriers.” Narayanan v. British Airways, 747 F.3d 1125, 1127 24 (9th Cir. 2014) (quoting Montreal Convention at art. 1(1)); see also Lee v. Korean Air Lines Co., 25 4 No. 18-cv-1242, 2019 WL 77433, at *1 (W.D. Wash. Jan. 2, 2019); Heinemann v. United Cont’l 1 Airlines, No. 11-cv-00002, 2011 WL 2144603, at *3–*4 (W.D. Wash. May 31, 2011). 2 3 Article 17 of the Convention provides that the “carrier is liable for damages sustained in 4 case of . . . bodily injury” so long as “the accident which caused the . . . injury took place on board 5 the aircraft or in the course of any of the operations of embarking or disembarking.” Montreal 6 Convention at art. 17(1). The parties stipulate that Mr. Mansour’s injury was an “accident” that 7 occurred during embarkation. Dkt. No. 35 at 4. Furthermore, Article 41 of the Convention 8 provides that “acts . . . of the actual carrier and of its servants and agents acting within the scope 9 of their employment shall . . . be deemed to be also those of the contracting carrier.” Id. at art. 10 11 41(1). Thus, British Airways and Huntleigh are mutually liable for the alleged incident. 12 Article 21 is the compensation provision of the Convention. That Article provides a two- 13 tiered system which allows a carrier to cap its liability if it can prove it was not negligent. First, 14 Article 21(1) establishes a minimum liability of 100,000 Special Drawing Rights (“SDRs”)3 by 15 providing that a carrier “shall not be able to exclude or limit its liability” for damages less than 16 100,000 SDRs. Montreal Convention at art. 21(1). Article 21(2), however, provides that a carrier 17 18 will not be liable for damages in excess of 100,000 SDRs if “the carrier proves that” a claimant’s 19 injury was “not due to the negligence or other wrongful act or omission of the carrier or its servants 20 or agents.” Montreal Convention at art. 21(2); see also Smith v. Am. Airlines, Inc., No. 09-cv- 21

23 3 A “Special Drawing Right” is an “international reserve asset created by the International Monetary Fund (“IMF”) that can be exchanged for the currencies of IMF members.” Armstrong v. Hawaiian Airlines, Inc., 416 F. Supp. 3d 24 1030, 1040 (D. Haw. 2019) (citing INTERNATIONAL MONETARY FUND, Special Drawing Right (SDR) Factsheet, https://www.imf.org/en/About/Factsheets/Sheets/2016/08/01/14/51/Special-Drawing-Right-SDR (last visited April 25 9, 2020)). 5 02903, 2009 WL 3072449, at *2 (N.D. Cal. Sept. 22, 2009) (citing Kruger v. United Air Lines, 1 Inc., 481 F.Supp.2d 1005, 1008 (N.D.Cal.2007)). Thus, Article 17(1) creates a form of strict 2 3 liability against carriers, but Article 21 permits a carrier to limit its liability to 100,000 SDRs if it 4 can prove it was not negligent. See Lee v. Air Canada, 228 F. Supp. 3d 302, 311–14 (S.D.N.Y. 5 2017). Defendants do not contest their liability for the 100,000 SDR damages pursuant to Articles 6 17 and 21(1). However, they argue that they were not negligent and, therefore, their liabilities 7 should be capped at the 100,000 SDRs. The burden of proving their non-negligence is on 8 Defendants. Montreal Convention at art. 21(2). 9 The Court looks to Washington law for the standard of negligence. See Lee, 228 F. Supp. 10 11 3d at 312 (applying New York law for negligence claim under the Montreal Convention). Under 12 Washington law, to establish their non-negligence, Defendants must prove they did not have a 13 duty, they did not breach that duty, there was no resulting injury, or there was no proximate 14 causation. Ranger Ins. Co. v. Pierce Cty., 192 P.3d 886, 889 (Wash 2008). Defendants do not 15 dispute that they owed Mr. Mansour a duty, his injury, or the causation of that injury. See Dkt. 16 No. 35 at 5. Instead, Defendants argue a lack of breach based on their fulfillment of a common 17 18 carrier’s duty to its passenger. Id. at 5–6. 19 Plaintiffs have presented sufficient evidence to fulfill their initial burden of demonstrating 20 Defendants’ breach of their duty to Mr. and Ms. Mansour. As they highlight, the testimony of 21 Huntleigh’s own employees indicates the employees simply lost control of the aisle chair while 22 lifting it. See Dkt. No. 34-1 at 17–18 (Incident Report of Lenny Tala stating “while we lift him 23 [Mr. Fahiye] was using one hand to lift the chair cause his other hand was lifting the passengers 24 leg so that’s he loose control cause when [Mr. Fahiye] was lifting the chair wasn’t balance”) 25 6 (quoted verbatim); id. at 25 (Statement of Abdinasir Fahiye providing “after I took few steps back 1 during that time, we lost the balance of the passenger and he fell”) (quoted verbatim); see also Dkt. 2 3 No. 38 at 3–4 (Declaration of Abdinasir Fahiye stating “I do not know what happened that caused 4 the aisle chair to become unbalanced and Mr. Mansour to fall” and that “[d]uring this very brief 5 time that the aisle chair was in the air, just a few seconds, the aisle wheelchair and Mr. Mansour 6 started to wobble. I do not know why it started to wobble. We then lost balance of the chair, and 7 Mr. Mansour fell to his left.”). 8 Defendants, in turn, rely on two pieces of evidence to establish that they were not negligent. 9 See Dkt. No. 35 at 6–7. First, Defendants point to the Declaration of Mr. Fahiye in which he attests 10 11 that he “felt confident that Mr. Mansour could be safely transported onto the aircraft.” Dkt. No. 12 35 at 6 (citing Dkt. No. 38 at 2 (“I felt that I was strong enough to safely perform this service”); 13 id. at 3). Such conclusory statements, however, fail to create an issue of fact. See Kramer, 2019 14 WL 6896690, at *4. Furthermore, as quoted above, this testimony actually serves as evidence of 15 negligence as even Mr. Fahiye in his Declaration admits that he and Mr. Tala lost control of the 16 wheelchair mid-lift causing Mr. Mansour to fall to the ground. Dkt. No. 38 at 4. 17 18 Second, Defendants point to their employees’ compliance with Huntleigh’s internal policy 19 on assisted wheelchair boarding. While such “[i]nternal directives, department policies, and the 20 like may provide evidence of the standard of care,” they do not establish that it is an acceptable 21 practice for employees to lose control of a wheelchair they are boarding so that the chair and its 22 occupant are dropped. Joyce v. State, Dep’t of Corr., 119 P.3d 825, 834 (Wash. 2005). It is 23 patently obvious that where employees lose control of a wheelchair they are lifting to such an 24 extent that its occupant is dropped and injured, the employees’ performance does not conform to 25 7 an acceptable standard of care. Nor could any reasonable jury find otherwise. 1 The Court finds that Defendants have failed to adduce sufficient evidence upon which a 2 3 reasonable jury could find that Defendants were not negligent. 4 V. CONCLUSION 5 For the foregoing reasons, the Court hereby GRANTS Plaintiff’s Motion for Partial 6 Summary Judgment as to Defendants’ liability to the full extent available under Article 21 of the 7 Montreal Convention. 8

9 DATED this 13th day of April, 2020. 10 11 _______________________________ 12 BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 8