Tharp v. Delta Air Lines, Inc.
3:20-cv-00258
| D. Or. | Aug 3, 2021Background
- Plaintiff Vanessa Tharp, traveling on an international itinerary, was on Delta Flight 748 from LAX to PDX and moved to an open window Comfort Plus seat next to Robert Gray.
- Gray repeatedly reached across the empty middle seat, touched Plaintiff’s right arm many times, and allegedly touched her right breast on three occasions; Plaintiff described the contacts during the flight as "taps" or "touched."
- Plaintiff spoke with flight attendants in the rear of the plane; they offered options (seat change, moving Gray, meeting law enforcement), which Plaintiff declined, and she returned to her seat before landing.
- Plaintiff did not seek medical treatment, did not report visible injuries (no known bruising, cuts, or bleeding), and submitted a declaration claiming transient redness/irritation and painful "slaps" to her arm.
- Plaintiff sued Delta under Article 17 of the Montreal Convention asserting strict liability for "death or bodily injury" from an on-board assault; both parties filed cross-motions for summary judgment.
- The district court held there was no genuine dispute that Plaintiff did not suffer an objective, identifiable "bodily injury" under Article 17, granted Delta’s motion, denied Plaintiff’s, and dismissed the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the in-flight assault qualifies as an "accident" under the Montreal Convention | Montreal should be read independently and broadly; ambiguities resolved for passenger | Apply Warsaw/Montreal precedent (Saks/Floyd) to define "accident" narrowly | Court declined to decide because claim fails on bodily injury; noted Ninth Circuit treats Warsaw precedent as persuasive for Montreal |
| Whether Plaintiff suffered "bodily injury" under Article 17 | Any physical pain or discomfort suffices; Etihad supports recovery for non‑lasting physical harm | "Bodily injury" requires an objective, identifiable physical injury; purely psychic or de minimis contacts insufficient | No reasonable juror could find an objective bodily injury here (no medical treatment, no bruising, only transient redness asserted); summary judgment for Delta |
Key Cases Cited
- Air France v. Saks, 470 U.S. 392 (definition of "accident" under Warsaw precedent)
- Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (interpreting "bodily injury" narrowly under Article 17)
- El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (Article 17 excludes solely psychic or psychosomatic injuries)
- Narayanan v. British Airways, 747 F.3d 1125 (9th Cir.) (courts may rely on Warsaw precedent when Montreal provisions are substantially the same)
- Doe v. United Air Lines, Inc., 73 Cal. Rptr. 3d 541 (Cal. Ct. App.) (sexual assault without objective physical injury insufficient under Article 17)
- Etihad Airways PJSC v. Florez, 870 F.3d 406 (6th Cir.) (distinguished here — bodily injury was stipulated; court considered emotional‑distress recovery)
- Phifer v. Icelandair, 652 F.3d 1222 (9th Cir.) (applying Saks in Montreal Convention context)