United States Supreme Court Affirms Death of Asthmatic Passenger Who Was Seated Near Smoking Section was an Accident for Article 17 Purposes

Introduction

The 9th U.S. Circuit Court of Appeals won Supreme Court affirmance for its $1.4 million judgment against Olympic Airways. Olympic Airways v. Husain, et al, 540 U.S. __ (February 24, 2004). Justice Clarence Thomas wrote for the 6-2 majority in finding that a flight attendant's refusal to assist a passenger qualified as an accident under the Warsaw Convention.

Summary of Case

Dr. Abid Hanson died from exposure to secondhand smoke on an Olympic Airways flight from Athens, Greece to New York City. Hanson had requested a non-smoking seat and was seated three rows in front of the smoking section, which was not partitioned. Hanson and his wife, Mrs. Husain, repeatedly asked a flight attendant to move them- to no avail. Breathing with difficulty, Hanson walked toward the front of the cabin to get some fresh air, collapsed and could not be revived.

Article 17 of the Warsaw Convention establishes that an air carrier is liable for the death of a passenger caused by an “accident”. The California district court found that the flight attendant’s repeated refusal to move Hanson to another seat fell under the definition of an accident, as an unexpected or unusual event external to the passenger. The district court ruled that the “accident” was not Hanson’s own internal reaction to the smoke, but rather the flight attendant’s refusal to move him. The court of appeals affirmed.

The United States Supreme Court granted certiorari to answer the question of whether the flight attendant’s refusal to move Hanson qualified as an accident under Article 17, despite the fact that Hanson’s death was caused by his internal reactions to a normal condition in the aircraft cabin.

The airline argued that it should not be held responsible for a passenger's reaction to normal conditions on an airplane. Olympic cited past rulings that airlines had no legal duty to aid passengers who suffered from pre-existing conditions.

Justice Clarence Thomas ruled that the conduct at issue constituted an "accident" under the Convention and that the airline could be held liable because of its unusual and unexpected refusal to assist a passenger. The airline's statement that the flight attendant's failure to reseat Hanson was not injury-producing "is nothing more than a bald assertion,'' Thomas wrote.

Justices Antonin Scalia and Sandra Day O'Connor dissented on the ground that the majority’s decision differed with those of other nations and that the courts should strive for uniform interpretation. Commentary. This decision has noteworthy implications in the realm of other “internal reactions” like Deep Vein Thrombosis (“DVT”). If we accept that DVT is a normal reaction to the immobility associated with flight, query, will failure to warn of the risks of DVT or issue appropriate or customary warning now rise to the level of “accident”? This would not be the first such ruling (see Update No. 7, available on our web site). Although this would be an extension of the Husain decision, we can reasonably expect Husain to be argued in the DVT context.

Link to Decision: http://www.supremecourtus.gov/opinions/03pdf/02-1348.pdf