First Circuit Reverses District Court And Finds Question Of Fact On Montreal Convention Accident Determination

• Published date: 01 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Aviation, Trials & Appeals & Compensation
• Law Firm: Schnader Harrison Segal & Lewis LLP
• Author: Mr Barry Alexander

Jennifer Moore commenced litigation against British Airways to recover for injuries sustained as she was disembarking a British Airways flight from Boston, Massachusetts to London, England on September 14, 2018, using a mobile staircase. Ms. Moore alleged that she fell because the last step of the mobile staircase was "appreciably more precipitous than the earlier ones" (according to Ms. Moore's expert, each of the steps was 7" in height, while the final one was 13.4"). The district court granted British Airways' motion for summary judgment that no Montreal Convention "accident" had occurred, and the First Circuit reversed that finding on appeal. The First Circuit affirmed the district court's denial of Ms. Moore's motion for partial summary judgment.

This author previously wrote that the district court's decision was "unremarkable based on the facts."¹

Apparently, the First Circuit felt otherwise. The Court accepted British Airways' evidence that the height of the final stair was not "unusual" in light of industry-wide practices. Ultimately, however, it focused on the "unexpected" portion of the "unusual or unexpected" definition of "accident" set forth by the Supreme Court in Air France v. Saks, 470 U.S. 392 (1985). Of import, the Court held "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."

In finding a question of fact as to whether the height of the final stair constituted an "accident," the Court focused on four facts:

1. All of the steps prior to the last one had a uniform, lesser height;
2. The passenger prior to Ms. Moore also had difficulty navigating the final step, though she did not fall or get injured;
3. Passengers were not warned of the difference in height with the final step; and
4. Moore's expert referenced standards, including a European standard...