March 30, 2015

No Article 17 Accident in Passenger Slip-and-Fall

Holland & Knight Aviation Law Blog
Judy R. Nemsick

In Vanderwall v. United Airlines, Inc., __ F. Supp. 3d __, 2015 WL 309094 (S.D. Fla. Jan. 26, 2015), a federal district court in Florida granted summary judgment to the airline dismissing personal injury claims by a passenger who slipped on a piece of translucent plastic wrap in the aisle during a flight from Houston to London. The dispute focused on whether plaintiff could establish an Article 17 accident under the Montreal Convention.

Recognizing that not every incident on an aircraft constitutes an accident, the court examined whether plaintiff's injuries were caused by an unexpected or unusual event. The airline relied on other Article 17 cases granting summary judgment dismissal where a passenger tripped on shoes located on the floor between two seats (Craig v. Compagnie Nationale Air France, 45 F.3d 435 (9th Cir. 1994)) and where a passenger slipped on a plastic bag on the cabin floor beneath a seat. See Rafailov v. El Al Israel Airlines, Ltd., 2008 WL 2047610 (S.D.N.Y. May 13, 2008). In those instances, the courts concluded that no accident had occurred.

Plaintiff distinguished these cases, contending that debris found between rows or under a seat is different from debris left mid-flight in the aisle. Plaintiffs also presented evidence that the flight attendants were required to remove from the aisles any debris that poses a safety hazard. Regardless of these distinctions, the court found that plaintiff’s own version of the facts and circumstances that precipitated her fall were not unexpected or unusual. It was undisputed that many passengers brought items on board the aircraft; that the airlines provided products to passengers that could result in plastic trash ending up on the floor and in the aisle; flights attendants were responsible for ensuring the aisles were free of safety hazards; and while no precise policy was in place, it was standard practice by the airline to have flight attendants tidy the aisle 30 minutes before landing. Additionally, flight attendants were required to walk the aisles every 15 minutes on nighttime flights; however, they were not required to remove every scrap of paper or trash.

Plaintiff notably did not notice any debris in the aisle on her two-row walk to the lavatory, which could not have taken more than 10 minutes. Thus, even if the flight attendants had taken their scheduled walks, they might not have encountered the piece of trash nor, in any event, were they required to pick it up. Plaintiff further presented no evidence that the cabin was excessively untidy. As held by the court: "[T]he facts presented here establish that it is not unusual or unexpected for there to be a single item of trash on the aisle of an aircraft while in flight -- at the very least not during the purported fifteen minute intervals in between the usual nighttime flight attendant walks through the aisles. The presence of the trash in question was not unusual or unexpected."

The holding provides persuasive arguments for future Article 17 accident cases analyzing whether the internal condition of the aircraft is unexpected or unusual. Critical to achieving summary judgment in these often fact-specific cases is establishing a favorable set of undisputed facts that incorporate plaintiff’s version of events.

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