Eleventh Circuit Affirms Dismissal of Injury Claim in Airline Bumping Case

HIGHLIGHTS:

• The Eleventh Circuit has held that an airline's bumping of a passenger is not an Article 17 accident, particularly as "it is systematic, widely practiced, and widely known" and "[t]here is nothing accidental about it."
• While tolling of a cause of action is not permitted in a Montreal Convention case, the ruling in Campbell v. Air Jamaica, Ltd. determined that a plaintiff's amended pleading may "relate back" to a timely filed original complaint.

The ruling by the U.S. Court of Appeals for the Eleventh Circuit in Campbell v. Air Jamaica, Ltd.¹ is a favorable one for the aviation industry. The court confirmed that non-economic damages, including emotional distress and physical injury damages, are not recoverable in an Article 19 delay case and that an Article 17 injury claim cannot arise from "bumping" a passenger.

Background

In Campbell, a pro se plaintiff sued the airline for damages stemming from the airline's bumping of the plaintiff from a flight from Kingston, Jamaica, to Fort Lauderdale, Florida, which allegedly caused him to suffer a heart attack. The plaintiff claimed that, following his check-in and arrival at the boarding gate, the airline denied him boarding, rescheduled him on a flight departing the next day and charged him a $150 change fee. The plaintiff also claimed he was denied hotel accommodations and was forced to sleep outside the terminal building in adverse weather conditions, causing him to fall ill. Upon arriving in Fort Lauderdale, he allegedly collapsed and suffered a heart attack.

Procedural History

In this case, the plaintiff's initial pleading alleged that the airline was negligent in bumping him from the flight, abandoning him without a place to stay and charging him a change fee to fly the next day. His amended complaint sought damages under Articles 19 and 17 of the Montreal Convention for his delay and personal injuries. The airline moved to dismiss the amended pleading on grounds that, inter alia, the plaintiff failed to state a claim under the Montreal Convention and that any such claims were time-barred by Article 35.²

The district court dismissed the claims with prejudice, finding that the plaintiff sought purely non-recoverable damages for delay and that his claims premised on bumping do not constitute an Article 17 "accident," i.e., an unexpected or unusual event or happening that is external to the passenger. The lower court did not decide whether the plaintiff's claims were time-barred by the two-year limitations period proscribed by Article 35.³

The Eleventh Circuit vacated the dismissal of the plaintiff's Article 19 claim for economic damages but affirmed the dismissal, with prejudice, of the plaintiff's delay claims seeking non-economic damages and his personal injury claims arising from the bumping. The court also applied the relation back rule to hold that the plaintiff's amended complaint was timely under Article 35 of the Convention.

Economic Damages Recoverable Under Article 19

Applying the more liberal pleading standard afforded to pro se plaintiffs, the Eleventh Circuit reversed the district court's Article 19 ruling and concluded that the plaintiff adequately stated a claim for economic damages. Specifically, the circuit court ruled that the plaintiff was entitled to seek the $150 change fee that the airline charged him to rebook his flight.

The Eleventh Circuit also determined that the plaintiff did not state a claim for inconvenience damages under Article 19. While acknowledging that "[c]ourts have disagreed about whether and to what degree inconvenience damages may be recovered under Article 19,"⁴ the court nevertheless found that the plaintiff failed to adequately plead­­ a cognizable inconvenience injury. It held that even under the more liberal pro se pleading standard, claims of "physical illness and mental anxiety" were insufficient to state a claim for inconvenience under Article 19.⁵

Bumping Is Not an Article 17 Accident

The Eleventh Circuit further determined that allegations based on the airline's bumping of the plaintiff to a later flight do not amount to an Article 17 accident. The court noted that "[r]are is the passenger unacquainted with the ubiquity of air travel delays." Though bumping may be unpleasant, the court reasoned that "it is systematic, widely practiced, and widely known" and "[t]here is nothing accidental about it." This reasoning stands despite the plaintiff's allegations that the carrier violated its own bumping practices by, for example, issuing him a boarding pass and seat assignment. The court considered this fact irrelevant as it did not aggravate his injuries or cause his damages. Importantly, the Eleventh Circuit found no other cases where bumping was determined to be an accident under either the Montreal or Warsaw Convention. Instead, other courts have treated bumping as a delay or contractual non-performance claim.

Additionally, the court determined that the plaintiff's claim of abandonment – ­­which occurred at the ticket counter after the plaintiff was denied boarding – did not occur during the course of embarking and thus fell outside the scope of the treaty.⁶ First, the plaintiff "was not engaged in an activity characteristic of boarding when he was refused overnight accommodations." Second, "the location of the alleged abandonment was considerably removed from the point of boarding." And third, the plaintiff was not under the control of the carrier when he requested hotel accommodations. Accordingly, the court determined, the plaintiff failed to state an Article 17 claim for relief.

"Relation Back" Rule Applies

The Eleventh Circuit also rejected the airline's argument that the plaintiff's action was untimely because he filed his amended pleading after the two-year period proscribed by Article 35 of the Montreal Convention. There is no question that the plaintiff's initial complaint was timely, and the court found that the Montreal Convention allows for the application of Federal Rule of Civil Procedure 15(c), which permits an amended pleading to "relate back" to the date a complaint was filed where the amendment "asserts a claim or defense that arises out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original pleading."⁷

In reaching this conclusion, the Eleventh Circuit first examined the text of the treaty, which provides that "[t]he method of calculating the period shall be determined by the law of the court having taken jurisdiction." Finding the text sufficiently ambiguous, the court then considered the drafting history of this provision. It concluded that the drafting history suggests that the delegates sought to avoid application of tolling rules that could suspend the limitation period, but did not oppose relation back to the filing date of the initial pleading.

Notes

¹ __ F.3d __, 2014 WL 3060747, at * 2 (11th Cir. July 8, 2014). The plaintiff also named Caribbean Airlines as a defendant but failed to allege any substantive claims against it.

² Article 35 acts as a conditions precedent to suit and requires the claimant to bring an action within two years from the date of arrival at the destination, or when the aircraft ought to have arrived, or the date on which the carriage was stopped.

³ The district court, however, indicated that it was inclined to reject the limitations argument because it would be "patently unfair" to bar the plaintiff's suit when the initial complaint was timely filed.

⁴ Cf. Vumbaca v. Terminal One Grp. Ass'n L.P., 859 F. Supp. 2d 343, 367 (E.D.N.Y. 2012) with Daniel v. Virgin Atlantic Airways, Ltd., 59 F. Supp. 2d 986 (N.D Cal. 1998).

⁵ The parties agreed that Article 19 does not contemplate compensation for emotion loss or physical injury.

⁶ Factors relevant to deciding whether a claim falls within the scope of Article 17 are: (1) the passenger's activity at the time of the accident; (2) the passenger's location at the time of the accident; and (3) the control exercised by the carrier at the time of the injury. Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1260 (11th Cir. 2002).

⁷ Fed. R. Civ. P. 15(c)(1)(B). Here, the court found that the relation back rule was satisfied because the original pleading alleged the same essential facts that formed the basis for claims pled in the amended complaint.