Blansett v Continental Airlines, Inc. 379 F.3d 177 (5th Circuit 2004)
United States Court of Appeals for the Fifth Circuit
Facts
As per Circuit Judge Smith, paragraphs 9 to 11 (pages 178 to 179):
9 On June 18, 2001 plaintiff Michael “Shawn” Blansett traveled from Houston, Texas, to London, England on a flight operated by Continental Airlines, Inc. (“Continental”). During flight, he suffered an episode of deep vein thrombosis (“DVT”), resulting in a cerebral stroke that left him permanently debilitated. DVT involves the clotting of blood in the extremities and creates a threat of death or disability if a clot migrates to the lungs or other vital organs.
10 The likelihood of a DVT injury is heightened by the pressurized conditions aboard an airliner, especially during long flights, though experts believe that passengers may undertake precautionary measures to reduce the risk. Many international carriers have added DVT warnings to their battery of pre-flight instructions to passengers, though at the time of Blansett’s flight, Continental had not. Federal regulations do not require that air carriers issue any such warnings, though at the time of Blansett’s flight, the International Air Transport Association, a trade association, had recommended that airlines implement a long schedule of instructions to passengers on the risks of DVT.
11 Blansett and his close relations sued Continental, alleging that it was liable for Blansett’s injury under article 17 of the Warsaw Convention, to which the United States is a signatory. Under article 17, an airline is responsible for injuries to passengers on an international flight where the injury results from an “accident.”
Issue(s)
Was Continental’s failure to provide DVT warnings and instructions, which was at odds with industry standards and recommendations, an “accident” under the Convention?
Discussion
See as follows from paragraph 26 (pages 181 to 182):
26 As we have said, the Supreme Court has held that some kinds of inaction can constitute an “accident.” In Husain, specific refusals to render requested aid constituted an “unexpected or unusual event.” We take note also of the Court’s mention of the example proffered by the district judge a quo in another case, in which he speculated that it would be an “unusual and unexpected event” if an air crew decided not to divert a flight to save the life of a passenger who suddenly became ill. Husain, 124 S.Ct. at 1229 (citing McCaskey v. Cont’l Airlines, Inc., 159 F.Supp.2d 562, 574 (S.D.Tex.2001)). In Husain and the McCaskey hypothetical, unusual circumstances existed to elevate the willing inaction of airline personnel from mere inertia — from a non-event — to an event both “unexpected and unusual.”
27 No such circumstances were thrust on the flight crew in the present case, and their compliance with the regular policy of their airline was hardly unexpected. Rather, the Blansetts allege that the “unexpected” nature of the alleged event arose not from the choices of the flight attendants, but from the Continental policymakers who decided not to mandate DVT warnings on Continental flights.
28 The Blansetts reason that though this decision occurred at a time and place distant from Blansett’s flight, article 17 is to be “applied flexibly” after “assessment of all the circumstances surrounding a passenger’s injuries…. ” See Saks, 470 U.S. at 405, 105 S.Ct. 1338. It is appropriate to consider the deliberate perpetuation of company-wide policies as potential “events” within the context of the individual flights in which they are given effect. We may accordingly compare the instructions given on Continental flights with those customarily given within the airline industry generally, in gauging whether Continental’s deliberate choice was “unusual and unexpected.”
29 Again, we assume, for purposes of this appeal, that a failure to warn of DVT is a departure from “an industry standard of care.” But, we will not depart from the demonstrated will of the Supreme Court by creating a per se rule that any departure from an industry standard of care must be an “accident.” In Husain, 124 S.Ct. at 1280, the Court again emphasized that the appropriate test for article 17’s application under every set of relevant facts is whether there was an “unexpected or unusual event.” Some departures from an “industry standard” might be qualifying accidents under Article 17, and some may not.
30 Continental’s failure to warn of DVT was not an “unusual or unexpected event” and not a qualifying “accident.” Though many international carriers in 2001 included DVT warnings, it is undisputed that many did not. Moreover, Continental’s battery of warnings was in accord with the policies of the Federal Aviation Administration (“FAA”), which prescribes what warnings airlines should issue to passengers.
Useful for
Accident requires unexpected or unusual event that is external to the passenger
Failure to warn by itself is not an accident under the Convention
Inaction or omission may constitute an accident
Passenger's own internal reaction to normal and expected operation of aircraft not an accident
Treaty provisions considered
Legislation considered
None identified.Key subjects or concepts
Accident/Appeals history
No relevant appeals or appeal history identified for this case.Other case information
Lawyers or counsel before the United States Court of Appeals for the Fifth Circuit:No counsel or legal team identified for this case.
Additional case references or citations:
See also Docket No. 03-40545.
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