United States Court of Appeals For the First Circuit
No. 21-1037
JENNIFER MOORE,
Plaintiff, Appellant,
v.
BRITISH AIRWAYS PLC, a foreign corporation,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Kayatta, Selya, and Howard, Circuit Judges.
Kevin Chrisanthopoulos for appellant. Marissa N. Lefland, with whom Anthony U. Battista, Samantha M. Holloway, and Condon & Forsyth LLP were on brief, for appellee.
April 29, 2022 SELYA, Circuit Judge. We have noted before that "words
are like chameleons; they frequently have different shades of
meaning depending upon the circumstances." United States v.
Romain, 393 F.3d 63, 74 (1st Cir. 2004). This appeal turns on
just such an exercise in exegesis — the meaning of the word
"accident," as that word is used in Article 17(1) of the Montreal
Convention, formally known as the Convention for the Unification
of Certain Rules for International Carriage by Air, May 28, 1999,
S. Treaty Doc. No. 106-45 (2000), 2242 U.N.T.S. 350.
This case has its genesis in an airline passenger's fall
while disembarking from an aircraft by means of a mobile staircase,
the last step of which was appreciably more precipitous than the
earlier ones. The principal question on appeal is whether the use
of such a staircase, under the circumstances, was an event that
may constitute an "accident" within the meaning of the Montreal
Convention. Concluding, as we do, that a jury could supportably
find that the event was unexpected and that the passenger's
injuries resulted from such an accident, we vacate the district
court's entry of summary judgment for the airline, affirm its
denial of the passenger's motion for partial summary judgment, and
remand for further proceedings.
I
We briefly rehearse the relevant facts (which are
largely undisputed) and the travel of the case. On September 14,
- 2 - 2018, the plaintiff, Jennifer Moore, flew from Boston to London
aboard a Boeing 777 airliner operated by the defendant, British
Airways PLC. The red-eye flight touched down at London's Heathrow
Airport at around 9:00 a.m. on September 15. While taxiing to the
gate, the flight crew learned that the jet bridge ordinarily used
to disembark passengers was inoperable. Consequently, deplaning
passengers would need to use a mobile staircase (an apparatus
commonly used at Heathrow and other airports of comparable scale
and scope).
After the aircraft was parked at the gate, the ground
crew secured the mobile staircase against the fuselage. The
passengers — including the plaintiff and her travel companion,
Tammy Burnett — then began to disembark. By all accounts, the
disembarkation process was calm and orderly. The passengers
proceeded down the staircase in single file without any noticeable
jostling or other untoward behavior. The stairs were clean — free
of debris and other foreign substances — and the weather was clear.
Ms. Burnett preceded the plaintiff down the mobile
staircase. As Ms. Burnett testified in her deposition, she "was
surprised at the last step being a little further than a normal
cadence of a staircase" and, thus, "the bottom step didn't arrive
when I thought it would." She nonetheless kept her balance and
then "turned around to tell [the plaintiff] to watch her step,"
only to discover that the plaintiff had taken a tumble. In
- 3 - describing her fall, the plaintiff testified that when she reached
the last step "it was further down than I was expecting," which
"thr[ew] off my balance and both of my ankles turned and I went
down."
There were no British Airways employees at the bottom of
the stairs and no one warned the passengers about the height of
the final step. After the plaintiff fell — and in accordance with
British Airways' internal policy — the mobile staircase was taken
out of service and inspected for defects. The inspection confirmed
that the stairs were in their normal operating condition, free of
defects and working as intended at the time of the incident. The
inspection also confirmed that the distance from the bottom step
to the ground was "noticeably slightly different" than the distance
between the steps themselves.
The plaintiff's expert, Chad Phillips, prepared a report
estimating from photographs that the riser height of each step on
the mobile staircase was 7.4 inches, whereas the riser height of
the bottom step (the distance between that step and the ground)
was 13 inches. In his opinion, "this excessive riser [height]
difference exposed [the plaintiff] to a misstep hazard and caused
her to take an air step resulting in her injuries." An "air step,"
he explained, occurs by stepping "onto an unexpected depression or
step down."
- 4 - Phillips further opined that the mobile staircase was
used in a manner that did not conform to industry standards. In
this regard, he referred to British Standard 5395-1:2000, which
states that "[t]he maximum rise that people can be expected to
negotiate safely is 220mm," or 8.7 inches. He also referred to
European Standard EN 12312-1:2001+A1:2009, entitled "Aircraft
Ground Support Equipment - Specific Requirements - Part 1:
Passenger Stairs," which provides that "[a]ll steps of a stair
flight shall be designed with the same riser height" and that the
distance from the ground to the tread surface of the bottom step
"shall not exceed 260mm," or 10.24 inches.
The plaintiff sustained severe injuries as a result of
her fall. Accordingly, she sued British Airways under the Montreal
Convention for damages in an unspecified amount (her complaint
contained no specific ad damnum, but sought recovery "in excess of
the jurisdictional limits of [the district court]"). She alleged,
in substance, that the injuries sustained in her fall resulted
from an accident within the meaning of Article 17(1) of the
Montreal Convention.1
1 Her complaint also contained a common law claim for negligence. The district court dismissed this claim as preempted by the Montreal Convention, see Moore v. British Airways PLC, 511 F. Supp. 3d 1, 6 (D. Mass. 2020), and the plaintiff has not appealed that ruling. Thus, we make no further mention of this claim.
- 5 - After pretrial discovery had run its course, British
Airways moved for summary judgment. See Fed. R. Civ. P. 56(a).
It argued that, as a matter of law, the plaintiff's injuries did
not result from an accident within the meaning of the Montreal
Convention. The plaintiff opposed the motion and cross-moved for
partial summary judgment on the issue of whether her injuries
stemmed from such an accident. Following a hearing, the district
court granted British Airways' motion for summary judgment and
denied the plaintiff's cross-motion. See Moore v. British Airways
PLC, 511 F. Supp. 3d 1, 2-3, 7 (D. Mass. 2020). In so ruling, the
court determined that the plaintiff's injuries were not the result
of an accident within the meaning of the Montreal Convention. See
id. at 6-7. This timely appeal ensued.
II
It is by now apodictic that orders granting summary
judgment engender de novo review. See Finamore v. Miglionico, 15
F.4th 52, 58 (1st Cir. 2021). In conducting this tamisage, we
assess "the record and all reasonable inferences therefrom in the
light most hospitable to the summary judgment loser" (here, the
plaintiff). Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d
178, 184 (1st Cir. 1999). Summary judgment is appropriate only
when the record, so viewed, "reflects no genuine issue as to any
material fact" and the movant demonstrates an entitlement to
- 6 - judgment as a matter of law. Morelli v. Webster, 552 F.3d 12, 18
(1st Cir. 2009); see Fed. R. Civ. P. 56(a).
If the nonmovant bears the ultimate burden of proof on
a given issue, "she cannot rely on an absence of competent
evidence" alone to show that the issue is trialworthy. McCarthy
v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). Instead,
she "must present definite, competent evidence sufficient to
establish the elements of [her] claim in order to survive a motion
for summary judgment." Alston v. Int'l Ass'n of Firefighters,
Local 950, 998 F.3d 11, 24 (1st Cir. 2021) (internal quotation
omitted) (quoting Pina v. Children's Place, 740 F.3d 785, 795-96
(1st Cir. 2014)).
A
The Montreal Convention is a multilateral treaty
governing the liability of air carriers for certain injuries and
damages that occur during international air carriage. See Dagi v.
Delta Airlines, Inc., 961 F.3d 22, 27 (1st Cir. 2020). The United
States and the United Kingdom are among the signatories to the
Convention. See id.
The Montreal Convention establishes a two-tiered
liability regime for passenger injuries caused by an accident.
The carrier is strictly liable for damages up to 128,821 Special
Drawing Rights, an amount determined by the International Monetary
Fund that is approximately $175,000. See Montreal Convention,
- 7 - arts. 21(1), 23; Inflation Adjustments to Liability Limits
Governed by the Montreal Convention Effective December 28, 2019,
85 Fed. Reg. 3104, 3105 (Jan. 17, 2020); International Monetary
Fund, SDR Valuation, https://www.imf.org/external/np/fin/data/rm
s_sdrv.aspx (last visited April 28, 2022). For damages over that
ceiling, a carrier can avoid liability if it can prove that "such
damage was not due to the negligence or other wrongful act or
omission of the carrier" or that "such damage was solely due to
the negligence or other wrongful act or omission of a third party."
Montreal Convention, art. 21(2). What is more, the carrier may
reduce or eliminate its liability for all damages to the extent it
"proves that the damage was caused or contributed to by the
negligence or other wrongful act or omission of the person claiming
compensation." Id., art. 20.
The Montreal Convention has preemptive force with
respect to passenger injuries suffered either on board an aircraft
or during embarkation or disembarkation. Recovery for such a
claim, "if not allowed under the Convention, is not available at
all" under a nation's local laws. El Al Israel Airlines, Ltd. v.
Tseng, 525 U.S. 155, 161 (1999) (interpreting Warsaw Convention);
see Dagi, 961 F.3d at 24, 27-28 (same for Montreal Convention).
The case at hand turns on Article 17(1) of the
Convention, which provides in full: "The carrier is liable for
damage sustained in case of death or bodily injury of a passenger
- 8 - 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." To recover under
this provision, the plaintiff must show that an "accident"
occurred, which proximately caused a passenger's death or injury
(either physical or having a physical manifestation) and which
took place either on board the aircraft or while embarking or
disembarking. See Acevedo-Reinoso v. Iberia Líneas Aéreas de
España S.A., 449 F.3d 7, 12 (1st Cir. 2006).2 The plaintiff is
not required to show that her injuries resulted from any negligence
on the air carrier's part.
Here, only the first element of the required showing —
the existence of an "accident" — is at issue. The Montreal
Convention does not define the word "accident," but it is used in
Article 17(1) as a term of art. In deciphering its meaning, the
primary decryption tool available to us is the Supreme Court's
opinion in Air France v. Saks, 470 U.S. 392 (1985). There, the
Although Acevedo-Reinoso and the case law on which it relied 2
interpreted the Warsaw Convention of 1929 — which has now been superseded by the Montreal Convention — we have explained that a court may "rely on case law arising from the Warsaw Convention in interpreting the Montreal Convention when the provisions of the two Conventions are essentially the same." Dagi, 961 F.3d at 27 n.4. Because Article 17(1) of the Montreal Convention is essentially the same as its Warsaw Convention counterpart, see id. at 27-28 (relying on case law interpreting Article 17 of the Warsaw Convention in construing Article 17(1) of the Montreal Convention), we treat relevant Warsaw Convention case law as authoritative here.
- 9 - Court defined an "accident," for purposes of Article 17 of the
Warsaw Convention (the predecessor of the Montreal Convention), as
"an unexpected or unusual event or happening that is external to
the passenger." Id. at 405. Conversely, an injury that "results
from the passenger's own internal reaction to the usual, normal,
and expected operation of the aircraft" is not "caused by an
accident" within the meaning of the Warsaw Convention. Id. at
406. Mindful of the ambiguities lurking in this formulation, the
Saks Court appended two practical directions. First, it stressed
that "[t]his definition should be flexibly applied after
assessment of all the circumstances surrounding a passenger's
injuries." Id. at 405. Second, it cautioned that "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." Id.3
In Dagi, the occurrence of an "accident" was not disputed. 3
See 961 F.3d at 28. Nevertheless, we said that "[t]o allege an 'accident,' the claim must allege an occurrence which 'arises from some inappropriate or unintended happenstance in the operation of the aircraft or airline.'" Id. (quoting Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir. 1998)). The court below read this dictum as if it imposed an "additional[]" test beyond the Saks formulation. Moore, 511 F. Supp. 3d at 5-6 & n.3. We reject this reading and disavow any intention of altering the Saks formulation. Dagi is best read as furnishing examples of occurrences that come within the Saks formulation. The same is true of Fishman, 132 F.3d at 143 (quoted in Dagi).
- 10 - B
The plaintiff posits that her injuries were caused by an
accident because it was unexpected that she would have to disembark
from the aircraft on a mobile staircase in which the bottom step
was 13 inches from the ground, even though the first twenty-odd
steps each had a riser height of 7.4 inches and no warning was
given about the bottom step's greater height.4 There is no dispute
that deploying such a staircase was an event that was external to
the passenger, as required by Saks. The parties' only quarrel,
therefore, is whether disembarking on a staircase constructed in
this way should be considered "unexpected or unusual" under the
circumstances.
The district court granted British Airways' motion for
summary judgment because the plaintiff offered no "evidence that
the height of the last step was unusual for mobile staircases" or
that this design was "atypical from other mobile staircases used
to disembark passengers." Moore, 511 F. Supp. 3d at 6-7. At oral
argument in this court, the plaintiff's counsel agreed that no
such evidence has been identified. Consequently, summary judgment
would be appropriate if the inquiry stopped there. But it does
not.
The plaintiff does not argue that the event constituting 4
the "accident" was either the fall itself or the jet bridge's malfunction. Accordingly, we deem any such arguments waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 11 - The Saks formulation simply does not confine the inquiry
to whether the event was unusual; it also requires the court to
ask whether the event was unexpected. Words often shadow-dance
with each other, and "unusual" and "unexpected" are, admittedly,
somewhat overlapping categories. But only somewhat. For example,
a solar eclipse is likely to be an unusual event — but if it is
widely forecast by astronomers across the globe, it is likely to
be expected.
Giving the constituent terms of the Saks formulation
their "ordinary" meanings, Olympic Airways v. Husain, 540 U.S.
644, 655 (2004), we cannot say that these categories are entirely
congruent. The ordinary meaning of "unexpected" is "[c]oming
without warning; unforeseen." American Heritage Dictionary 1950
(3d ed. 1992). The Supreme Court has accentuated this established
meaning of unexpected by glossing the Saks definition of accident
as "an unforeseen event." Zicherman v. Korean Air Lines Co., 516
U.S. 217, 223 (1996). In contrast, "unusual" means "[n]ot usual,
common, or ordinary." American Heritage Dictionary, supra, at
1960. There is obvious daylight between the definitions of these
two terms.
The court below failed to analyze whether the event that
caused the plaintiff's injuries was unexpected or, synonymously,
unforeseen. Exercising de novo review, see Finamore, 15 F.4th at
58, we turn to that question.
- 12 - In mounting this inquiry, the problem of perspective
looms large: what is or is not expected often lies in the eye of
the beholder. An occurrence long foreseen by one person may
blindside another. Or — framed in the context of the Montreal
Convention — what an airline expects to happen in the course of a
flight may not perfectly match a passenger's expectations. The
Saks formulation tells us that an unexpected event, external to
the passenger, is an accident — but it says nothing about the
relevant coign of vantage, leaving open the question: "unexpected
by whom?"
The parties suggest different ways in which to fill this
void. The plaintiff submits that the appropriate lens through
which to ascertain whether a given event is expected belongs to
the hypothetical "average traveler." British Airways, in
contrast, submits that the proper perspective is that of the
airline industry. According to British Airways, the height
difference of the staircase's bottom step cannot be a ground for
finding the existence of an "accident" under Article 17(1) for the
simple reason that such a difference is "normal and routine" across
the industry.
We conclude that whether an event is unexpected under
the Saks definition of "accident" should be judged from the
perspective of a reasonable passenger with ordinary experience in
commercial air travel. This conclusion derives from three sources:
- 13 - the text of the Montreal Convention, its elucidation by both
American and foreign courts, and its objects and purposes. We
explain briefly.
The Montreal Convention is a treaty. "The
interpretation of a treaty, like the interpretation of a statute,
begins with its text." Medellin v. Texas, 552 U.S. 491, 506
(2008). The Supreme Court has made pellucid that the word
"accident," as used in Article 17 of the Warsaw Convention — the
lineal ancestor of Article 17 of the Montreal Convention — is broad
enough to encompass intentional acts. See Olympic Airways, 540
U.S. at 651 & n.7. When used in that sense, referring to an event
"happening wholly or partly through human agency," an accident is
"an event which under the circumstances is unusual and unexpected
by the person to whom it happens." Id. at 651 n.6 (quoting Black's
Law Dictionary 15 (6th ed. 1990) (emphasis supplied)). This
definition recognizes that even an intentional act may be an
accident from the point of view of a victim who did not anticipate
its occurrence. In much the same vein, the plain meaning of the
word "accident" in Article 17(1) of the Montreal Convention
suggests a focus on the perspective of the passenger, not the
airline.
- 14 - 2
In interpreting Article 17 of the Warsaw Convention, the
Saks Court relied in part on "the weight of precedent in foreign
and American courts." 470 U.S. at 400. We too do so.5 The trend
of this jurisprudence runs in favor of assessing whether an event
is unexpected from the standpoint of an ordinary, reasonable
passenger in the plaintiff's position.
In the lead opinion for the House of Lords in Deep Vein
Thrombosis and Air Travel Group Litigation — a Warsaw Convention
case — Lord Scott wrote that courts must examine whether the event
was "'unintended and unexpected' from the viewpoint of the victim
of the accident" because "[i]t is the injured passenger who must
suffer the 'accident' and it is from his perspective that the
quality of the happening must be considered." [2005] UKHL 72,
5 Although reliance on the opinions of foreign tribunals may be controversial in other settings, see, e.g., Roper v. Simmons, 543 U.S. 551, 622-28 (2005) (Scalia, J., dissenting) (rejecting resort to "the views of foreigners" and "alien law" when interpreting American law); Foster v. Florida, 537 U.S. 990, 990 n.* (2002) (Thomas, J., concurring) ("[T]his Court's Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans."), it is common ground that such opinions are instructive in interpreting treaties, see, e.g., GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1646 (2020); Olympic Airways, 540 U.S. at 660 (Scalia, J., dissenting) ("We can, and should, look to decisions of other signatories when we interpret treaty provisions."). Thus, the Saks Court concluded that "[i]n determining precisely what causes can be considered accidents, we find the opinions of our sister signatories to be entitled to considerable weight." 470 U.S. at 404 (internal quotation omitted).
- 15 - [2006] 1 AC (HL) 495, 504, ¶ 14 (appeal taken from Eng.). American
courts have expressed similar views. See, e.g., Campbell v. Air
Jamaica Ltd., 760 F.3d 1165, 1173 (11th Cir. 2014) (stating that
the "Article 17 analysis . . . measures only whether the event was
unusual from the viewpoint of the passenger, not the carrier").
We hasten to add a cautionary note. Lord Scott's opinion
— if read literally — could be taken as privileging the passenger's
subjective expectations, no matter how idiosyncratic. Such a
reading, however, has been roundly rejected. By and large, courts
have been unwilling to adopt a subjective test. See Gotz v. Delta
Airlines, Inc., 12 F. Supp. 2d 199, 202 (D. Mass. 1998) (stating
that Saks requires an objective inquiry and "plaintiff's
subjective expectations" do not control); see also Craig v.
Compagnie Nationale Air France, 45 F.3d 435, 1994 WL 711916, at *3
(9th Cir. 1994) (unpublished table decision) (holding that
plaintiff's "belief is not controlling" with respect to whether
event was expected); Tseng v. El Al Israel Airlines, Ltd., 122
F.3d 99, 103 (2d Cir. 1997) (same), rev'd on other grounds, 525
U.S. 155 (1999). Thus, the court below reasoned — and neither
party disputes — that the relevant inquiry is "an objective one,
not a subjective inquiry based on the plaintiff's personal
expectations." Moore, 511 F. Supp. 3d at 5.
The Court of Justice for the European Union (CJEU) also
has rejected any reading of "accident" that is "based on the
- 16 - perspective of each passenger." Case C-70/20, YL v. Altenrhein
Luftfahrt GmbH, ECLI:EU:C:2021:379, ¶ 35 (May 12, 2021).6 The
court explained that a subjective "interpretation could lead to a
paradoxical result if the same event were classified as
'unforeseen' and, therefore, as an 'accident' for certain
passengers, but not for others." Id. Moreover, a purely
subjective approach "could extend [the concept of 'accident'] in
an unreasonable manner to the detriment of air carriers." Id. ¶
36. The CJEU found this second consideration especially
significant given the Montreal Convention's preamble, which
declares that an object of the treaty is "[achieving an] equitable
balance of interests." Id. (quoting Montreal Convention, pmbl.).
We agree with these courts, domestic and foreign, that
an individual passenger's subjective beliefs do not inform the
question of whether an event is unexpected and, thus, may be found
to be an accident. The appropriate inquiry is an objective one.
In conducting that inquiry, there is no principled basis
for giving primacy to the perspective of either the air carrier or
the airline industry as a whole. Few, if any, cases take such an
6We note that — unlike the courts of many jurisdictions — the CJEU has adopted a definition of "accident" under Article 17(1) that differs somewhat from the Saks definition: "an unforeseen, harmful and involuntary event." YL, ECLI:EU:C:2021:379, ¶ 20 (internal quotation omitted). This case does not require us to explore the effect, if any, of the discrepancy between this definition and the Saks definition.
- 17 - approach.7 Instead, courts typically toe the line drawn by the
Supreme Court of Victoria (Australia), which indicates that "what
is . . . 'unexpected' . . . should be ascertained from the
viewpoint of an ordinary, reasonable passenger." Qantas Ltd. v.
Povey, [2003] VSCA 227, ¶ 22, 2003 WL 23000692 (Dec. 23, 2003)
(Ormiston, J.A.), aff'd, [2005] HCA 33.
Many other courts have elected to analyze whether an
event is expected through the prism of an "ordinary" or
"reasonable" passenger. E.g., Garcia Ramos v. Transmeridian
Airlines, Inc., 385 F. Supp. 2d 137, 141 (D.P.R. 2005) ("[A]
reasonable passenger would not expect a fellow passenger to fall
on top of him."); Maxwell v. Aer Lingus Ltd., 122 F. Supp. 2d 210,
211 (D. Mass. 2000) ("While a reasonable passenger would expect
some shifting of the contents of an overhead bin, . . . she would
not expect . . . to be struck on the head by a falling object when
the bin above her seat is opened by a fellow passenger."); Fulop
v. Malev Hungarian Airlines, 175 F. Supp. 2d 651, 665 (S.D.N.Y.
2001) (inquiring into what "the ordinary traveler reasonably would
7 One outlier may be Blansett v. Continental Airlines, Inc., in which the Fifth Circuit held that failure to warn of the risk of developing deep vein thrombosis syndrome could not be an accident under Article 17 because the airline's "policy [of not requiring such warnings] was far from unique" among international carriers at the time "and was fully in accord with the expectations of the [Federal Aviation Administration]." 379 F.3d 177, 182 (5th Cir. 2004). To the extent — if at all — that Blansett spurns a passenger-focused perspective as to whether an event is unexpected, we reject its reasoning.
- 18 - expect"). In a case involving an allegedly traumatizing security
inspection at an airport, for example, the Second Circuit held
that "[w]hether [the passenger] expected to be subjected to a
security search is not a relevant consideration because she
reasonably should have been aware that she might be." Tseng, 122
F.3d at 103. We follow this trend and hold that the inquiry into
whether an event is "expected" should be conducted from the
perspective of the ordinary, reasonable passenger.
An inquiring court should, when possible, construe the
terms of a treaty in light of the treaty's "objects and purposes."
Monasky v. Taglieri, 140 S. Ct. 719, 728 (2020) (quoting Abbott v.
Abbott, 560 U.S. 1, 20 (2010)); see Eastern Airlines, Inc. v.
Floyd, 499 U.S. 530, 546 (1991) (reading Article 17 of the Warsaw
Convention in line with the treaty's "purpose"); Vienna Convention
on the Law of Treaties, opened for signature May 23, 1969, 1155
U.N.T.S. 331, art. 31(1) ("A treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object
and purpose."). The "primary purpose" of the Warsaw Convention
was "limiting the liability of air carriers in order to foster the
growth of the fledgling commercial aviation industry." Floyd, 499
U.S. at 546. As commercial air travel matured, the Warsaw
Convention's solicitude toward airlines at the expense of
- 19 - travelers became problematic. A course correction was due and, in
1999, the Montreal Convention was drafted to supplant the Warsaw
Convention. In 2003, the Montreal Convention was ratified by the
United States and entered into force internationally. See Ehrlich
v. Am. Airlines, Inc., 360 F.3d 366, 371 n.4, 372 (2d Cir. 2004).
The Montreal Convention does not mince words: it
declares its purpose, in part, as "ensuring protection of the
interests of consumers in international carriage by air" and
recognizes "the need for equitable compensation based on the
principle of restitution." Montreal Convention, pmbl. Scholars
aptly "have described the Montreal Convention as a treaty that
favors passengers rather than airlines," Ehrlich, 360 F.3d at 371
n.4, and have read its preamble as "acknowledging the previous
imbalance of interests and staking out where the priority lies,"
Bin Cheng, A New Era in the Law of International Carriage by Air:
From Warsaw (1929) to Montreal (1999), 53 Int'l & Compar. L.Q.
833, 844 (2004). Even so, the Montreal Convention is not one-
sided. The driving forces behind it explicitly strive to attain
"an equitable balance of interests." Montreal Convention, pmbl.;
see George N. Tompkins, Jr., Liability Rules Applicable to
International Air Transportation as Developed by the Courts in the
United States 34 (2010) (concluding that the Montreal Convention
"approach is a shift away from the approach of the 1929 Warsaw
Convention, which primarily favored airlines, to a treaty which
- 20 - shows increased concern for and recognition of the rights of
passengers . . ., while still protecting airlines from crippling
liability"). When all is said and done, however, the rights and
interests of passengers cannot lightly be brushed aside. Given
the Convention's intent to strike an equitable balance that better
protects consumers, it would be incongruous if recovery were
impossible for injuries suffered due to events that an ordinary,
reasonable passenger would not expect to happen.
We add, moreover, that fixing the inquiry on the
passenger's objectively reasonable expectations is consistent with
the specific purpose of holding air carriers liable (to a point)
for injuries caused by accidents, whether or not they acted
negligently. As a matter of efficient "'distribution of risk, the
carrier would seem, in nearly every case, to be in the best
position to . . . spread the risk most economically' regardless of
fault." Wallace v. Korean Air, 214 F.3d 293, 297 (2d Cir. 2000)
(omission in original) (quoting Andreas F. Lowenfeld & Allan I.
Mendelsohn, The United States and The Warsaw Convention, 80 Harv.
L. Rev. 497, 599-600 (1967)); see Magan v. Lufthansa German
Airlines, 339 F.3d 158, 162 n.3 (2nd Cir. 2003). In light of this
consideration, it would be perverse to force injured plaintiffs to
bear the cost of accidents unforeseeable to reasonable passengers
with ordinary experience in commercial air travel, especially when
- 21 - such incidents are within the reasonable anticipation of airlines
and thus more easily built into their actuarial calculus.
The short of it is that the Montreal Convention's text,
its construction by the majority of domestic and foreign courts,
and its objects and purposes all converge on the conclusion that
a passenger's objectively reasonable expectations should control.
We hold, therefore, that under the Saks definition of "accident"
applicable to Article 17(1) of the Montreal Convention, an event
is unexpected when a reasonable passenger with ordinary experience
in commercial air travel, standing in the plaintiff's shoes, would
not expect that event to happen.8
C
What remains is for us to apply the discerned standard
to the facts of the case at hand. We do so "flexibly" and "after
assessment of all the circumstances surrounding a passenger's
injuries." Saks, 470 U.S. at 405. If the evidence is conflicting,
"it is for the trier of fact to decide whether an
'accident' . . . caused the passenger's injury." Id. We conclude
We need not — and do not — decide today whether a passenger's 8
subjective expectations might be relevant under Article 17(1) in the case of a passenger with exceptional experience in and knowledge about commercial air travel, such that she actually foresaw an event that would have been unexpected by an ordinary passenger. By the same token, we do not decide whether or how the objective inquiry should take account of passengers with special cognitive facilities (such as children).
- 22 - that the record presents sufficient evidence for a reasonable jury
to find that the plaintiff's injuries were caused by an "accident"
within the meaning of Article 17(1).
The combined force of four facts supports (but does not
compel) the inference that an ordinary, reasonable passenger in
the plaintiff's position would not have expected to disembark on
a staircase in which the bottom step had such a yawning riser
height. First, all of the steps on the staircase before the bottom
step were of a uniform height — a height several inches less than
that of the bottom step. The plaintiff's expert asserted that
someone descending a staircase "tend[s] to develop a specific gait
and expectation that the stairs are uniform." That "expectation"
evolves into a "stepping pattern" as the staircase progresses and
"an unexpected difference in stair dimensions" can interrupt the
pattern, causing a fall. Relatedly, the expert opined that the
plaintiff fell because she took an "air step," which he described
as occurring due to "an unexpected depression or step down." A
jury could find this analysis convincing.
Second, the plaintiff's travel companion, Ms. Burnett,
testified that she was "surprised" because "the bottom step didn't
arrive when [she] thought it would." A jury could appropriately
take Ms. Burnett as a proxy for the ordinary passenger, whose
expectations were, under the circumstances, objectively
- 23 - reasonable. And such a jury could credit her testimony that the
height of the bottom step was unexpected.
Third, a jury could find that the passengers were not
warned of the bottom step's elevated riser height. On this point,
British Airways does not deny the absence of any specific warnings
but insists that it was under no obligation to give any such
warnings. Even assuming (without deciding) that no such obligation
existed, the absence of an obligation does not take British Airways
very far. Cf. Phifer v. Icelandair, 652 F.3d 1222, 1224 (9th Cir.
2011) ("Although [Federal Aviation Administration] requirements
may be relevant to the . . . 'accident' analysis, they are not
dispositive of it."). The issue is not whether British Airways
deviated from the appropriate standard of care but, rather, whether
an ordinary, reasonable passenger disembarking from the aircraft
would have expected to traverse a staircase in which the bottom
step had a riser height significantly greater than the earlier
steps. A jury could find that the absence of any warning calling
attention to that height differential was relevant to a passenger's
expectations of what lay ahead.
Fourth, the standards cited by the plaintiff's expert
could supply a reasonable jury with grounds for an inference that
using such a staircase was unexpected. Those standards variously
state that "[t]he maximum rise that people can be expected to
negotiate safely is 220mm," or 8.7 inches; that "[a]ll steps of a
- 24 - stair flight shall be designed with the same riser height"; and
that the distance from the ground to the tread surface of the
bottom step "shall not exceed 260mm," or 10.24 inches.
British Airways contends, and the district court agreed,
that these standards are irrelevant because they are "voluntary."
Moore, 511 F. Supp. 3d at 6. But even voluntary standards may be
evidence of what an ordinary, reasonable passenger might expect to
encounter.
British Airways also contends that these standards are
not probative because they do not apply to mobile staircases of
the kind at issue here. This contention lands closer to the mark,
but it cannot settle the matter on summary judgment. At the
summary judgment stage, the facts must be taken in the light most
congenial to the plaintiff. See Houlton Citizens' Coal., 175 F.3d
at 184.
Whether the standards relied on by the plaintiff's
expert provide guidance for mobile staircases is, at a minimum, a
disputed question of fact. Although British Standard 5395-1:2000,
by its terms, "does not apply to steps or stairs which are not
connected to a building," the expert explained in his deposition
that the section of that standard referring to "the negotiation of
stairs" higher than 8.7 inches applies equally to all types of
stairs. Specifically, the expert stated that "I don't believe
there's any difference between negotiating stairs that are on
- 25 - wheels or negotiating stairs attached to a building." A jury,
accepting this expert opinion, could reasonably find the disputed
standard applicable here. And in all events, the other standard,
"Aircraft Ground Support Equipment - Specific Requirements - Part
1: Passenger Stairs," appears to apply squarely to the type of
stairs involved in this incident.
Of course, the evidence is not exclusively on the
plaintiff's side. For instance, it is undisputed that mobile
staircases of the kind employed here are commonly used in the
airline industry. The flight crew's first officer described the
use of such mobile staircases to disembark passengers from an
aircraft, without contradiction, as "incredibly normal" and "very
frequent." Similarly, the director of the cabin crew described
the use of such mobile staircases — again, without contradiction
— as "quite an acceptable way to disembark the aircraft." Even
the plaintiff acknowledged that she had seen mobile staircases
used at airports in the past and that she herself had used such a
staircase to board a flight on at least one occasion (though never
to disembark).
From these and other pieces of evidence, a jury may be
persuaded that an ordinary, reasonable passenger would share the
perceptions of the flight crew and, accordingly, that nothing about
the use of this staircase could be said to be unexpected. Saks
teaches, though, that "where there is contradictory evidence, it
- 26 - is for the trier of fact to decide whether an 'accident' as
[defined in Saks] caused the passenger's injury." Saks, 470 U.S.
at 405. This is such a case. See Sensat v. Sw. Airlines Co., 363
F. Supp. 3d 815, 823 (E.D. Mich. 2019) (holding that "the gap in
an airstairs tread reasonably could be found to
be . . . 'unexpected' to a passenger who was not warned of its
presence and had no reason to anticipate or spot the hazard");
Garrett v. Emirates, No. 14-02717, 2018 WL 1316976, at *1, 8 (E.D.
Cal. Mar. 14, 2018) (finding trialworthy question of fact as to
whether "accident" occurred where, in part, mobile staircase
"contained a landing partway down that was approximately twice the
size of the stairs and the landing did not contain any warnings to
differentiate it from the other stairs" and airline did not "warn
passengers they would be deplaning via a non-uniform stairway that
contained a landing"); Singhal v. British Airways Plc, [2007] 10
WLUK 552, ¶¶ 4, 38, 2008 WL 4820370 (Oct. 11, 2007) (Wandsworth
County Ct.) (Eng.) (finding "accident" where plaintiff fell due to
"unexpected and unforeseen six inch step" from aircraft door to
jetway and no warnings of this change in level were provided).
The case upon which British Airways relies to counter
this conclusion, see Barclay v. British Airways plc, [2008] EWCA
(Civ) 1419, [2010] QB 187, 2008 WL 5240582 (Eng.), does not assist
its cause. There, the England and Wales Court of Appeal held that
the passenger's injuries were not caused by an "accident" under
- 27 - Article 17(1) when the plaintiff's foot "slipped" on "a narrow
plastic strip running under the seats and covering . . . the seat
fix tracking." Id. ¶¶ 4-5, 36. Whether the presence of such a
plastic strip was expected — as it might well have been — says
nothing about whether disembarking on the staircase that British
Airways compelled the plaintiff to use was expected. And at any
rate, the court's inquiry in Barclay focused on whether the slip
itself may qualify as the "event" constituting the "accident" under
Article 17(1), id. ¶¶ 30, 34-35, a question not presented in this
appeal.
III
There is one loose end. The plaintiff also appeals the
district court's denial of her (untimely) motion for partial
summary judgment. As we have explained, however, the record
reveals "contradictory evidence" as to whether an accident took
place, which precludes summary judgment for either party on the
Montreal Convention claim. Saks, 470 U.S. at 405.
The plaintiff seeks to forestall this fate by pointing
to certain paragraphs in her statement of material facts, which
she argues should have been deemed admitted because British Airways
allegedly failed to contest them. See D. Mass. R. 56.1. This
argument leads nowhere. Even assuming that those paragraphs should
have been deemed admitted, the outcome is the same. Those
paragraphs do little more than recapitulate the plaintiff's
- 28 - general narrative and certain conclusions of her expert. Nothing
in the plaintiff's statement of facts conclusively establishes
that there was an accident within the meaning of the Montreal
Convention. We therefore uphold the district court's denial of
the plaintiff's cross-motion for partial summary judgment.
IV
We need go no further. On this scumbled record, it is
for a jury to decide whether the plaintiff's injuries resulted
from an accident within the meaning of the Montreal Convention.
It follows that the district court erred in granting summary
judgment in favor of British Airways. Consequently, we vacate
that judgment. For essentially the same reason, we affirm the
district court's denial of the plaintiff's motion for partial
summary judgment. And in the end, we remand for further
proceedings consistent with this opinion. Two-thirds costs shall
be taxed in favor of the plaintiff.
Affirmed in part, vacated in part, and remanded.
- 29 -