Moore v. British Airways PLCMoore v. British Airways PLC
MEMORANDUM AND ORDER REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT (Dkt. Nos. 33, 37)
December 28, 2020
MASTROIANNI, U.S.D.J.
I. INTRODUCTION
Plaintiff Jennifer Moore was traveling as a passenger on a British Airways flight when she suffered an injury while disembarking from the airplane. Plaintiff filed a claim against Defendant British Airways for damages under the Montreal Convention (Count One) and for negligence (Count Two). Defendant has moved for summary judgment on all claims. (Dkt. No. 33.) With her opposition, Plaintiff late-filed a cross-motion for partial summary judgment that the incident at issue was an “accident” under the Montreal Convention. (Dkt. No. 37.) The court heard arguments on the motions on December 2, 2020. For the reasons discussed, the court will grant
II. BACKGROUND
On September 14 and 15, 2018, Plaintiff was traveling as a passenger on British Airways Flight 202 from Boston, Massachusetts to London, England as part of round-trip transportation. Upon arrival at London Heathrow Airport, due to a broken jet bridge, the passengers disembarked by portable stairs. British Airways and other air carriers commonly use a mobile staircase to disembark passengers when a jet bridge is unavailable. (Def.‘s Statement of Material Facts (DSMF) 3–4, Dkt. No. 36; Pl.‘s Counter-Statement of Material Facts (PSMF) ¶¶ 3–4, Dkt. No. 38.) A crew member was stationed at the top of the staircase and advised passengers to watch their step. (DSMF 5; PSMF 5.) With two pieces of hand baggage, Plaintiff proceeded down the more than 20 steps of the stairs, without incident, before reaching the last step. The last step was a bigger height than the previous steps, which Plaintiff was not expecting, causing her to lose her balance, fall, and injure her ankles. Her travel companion, Tammy Burnett, who had stepped down before Plaintiff had also been caught off guard by the last step and had tried to warn Plaintiff. No British Airway employees were assisting passengers at the last step, and no warning was given about the height difference of the last step.
After Plaintiff fell, a British Airways safety officer arrived at the scene and observed that the stairs were correctly positioned with a good grip on them. (Pitt Dep. Tr. (Ex. I) 8:20–25, Dkt. No. 34-9.) He testified that, by walking up and down the stairs, he observed the last step was “deeper than the other steps” and “noticeably slightly different.” (Id. 16:1–17, 20:10–23.) The cabin service director of the flight testified that everything had been serviceable and nothing abnormal with respect to the mobile staircase. (Hinnigan Dep. Tr. (Ex. K) 12:16–13:3, Dkt. No. 34–11.) Plaintiff and her travel companion, Ms. Burnett, testified no precipitation, liquids, or garbage was on the staircase. (DSMF ¶¶ 12–13; PSMF ¶¶ 12–13.) Nor were passengers pushing or jostling each other while Plaintiff descended the staircase. (DSMF ¶ 14; PSMF ¶ 14.) A formal inspection of the staircase revealed that it was working as intended. (DSMF ¶ 19.) Although Plaintiff attempts to dispute this, she does not provide evidentiary support. (PSMF ¶ 19 (citing Moore Dep. Tr. (Ex. B), Dkt. No. 38-2; Phillips Expert Report (Ex. G), Dkt. No. 39-7).) Her deposition testimony and her expert‘s report do not provide any support for the contention that the staircase, including the larger difference in the last step, was not working as intended. Plaintiff‘s position more accurately is that the design or operation of the staircase, as intended, was defective.
According to Plaintiff, the last step was 13 inches from the step to the ground and all other steps were 7.4 inches in height. Plaintiff points to the report of her expert, Chad Phillips, which explains that the British Standard 5395-1:2000 states the maximum rise people can be expected to negotiate safely is 8.7 inches. (Phillips Expert Report (Ex. G) 8, Dkt. No. 38-7.) Phillips testified the British Standard 5395 is voluntary guidance that British Airways is not required to follow. (Phillips Dep. Tr. (Ex. R) 56:21–57:13, Dkt. No. 40-3.) He also testified the guidance is for steps or stairs that are connected to a building, and not the mobile stairs at issue. (Id. 58:22–59:14.) And he explained he relied on the British Standard 5395 to support his opinions regarding the dangers of the physical attributes of the stairs at issue, and not as operational requirements. (Id. 59:3–14; Phillips Dep. Tr. (Ex. M) 68:2–10, Dkt. No.
III. SUMMARY JUDGMENT STANDARD
To succeed on a motion for summary judgment “the moving party must show that there is an absence of evidence to support the nonmoving party‘s position.” Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). The “evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. (internal quotation marks omitted). Summary judgment is appropriate when “there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.”
IV. DISCUSSION
A. Legal Standard
“The Montreal Convention is a multilateral treaty, to which the United States and the United Kingdom are signatories, which governs international travel and limits liability for carriers” such as British Airways. Dagi v. Delta Airlines, Inc., 961 F.3d 22, 27 (1st Cir. 2020) (internal footnotes omitted). Article 17(1) of the Convention, the relevant provision in this case, states that a “carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
“If the Convention applies (and local law is thereby preempted), the next question is whether the carrier is liable under the Convention.” Acevedo-Reinoso, 449 F.3d at 12. For liability under Article 17(1), the injury must have been sustained during an “accident.” Id.; Dagi, 961 F.3d at 28. The First Circuit has held that to allege an “accident,” (1) the claim must allege an occurrence which “arises from some inappropriate or unintended happenstance in the operation of the aircraft or airline” and, additionally, (2) a carrier‘s Article 17 liability is triggered only when “a passenger‘s injury is caused by an unexpected or unusual event or happening that is external to the passenger.”3
Dagi, 961 F.3d at 28 (quoting Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir. 1998); Air France v. Saks, 470 U.S. 392, 405 (1985), and citing Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99, 103 (2d Cir. 1997), rev‘d on other grounds, 525 U.S. 155 (1999)). The Supreme Court has held that whether a passenger‘s injury is caused by an unexpected or unusual event or happening that is external to the passenger, so as to constitute an accident, is to be “flexibly” considered “after assessment of all the circumstances surrounding a passenger‘s injuries.” Saks, 470 U.S. at 405. Courts have interpreted this inquiry to be an objective one, not a subjective inquiry based on the plaintiff‘s personal expectations.4
B. Analysis
As an initial matter, Plaintiff‘s state law claim for negligence is preempted. There is no dispute that the incident in question occurred in the course of disembarking. Therefore, the Convention is the sole avenue for relief for Plaintiff. Plaintiff‘s counsel acknowledged as much at the hearing. Count II does not survive the summary judgment stage.
With respect to Plaintiff‘s claim under the Montreal Convention, Plaintiff has not offered evidence to support her contention that the use of a mobile staircase to disembark is an unexpected event. Although Plaintiff testified she does not remember ever using stairs to disembark from a plane, the inquiry is not about her personal, subjective expectations. See Gotz, 12 F. Supp. 2d at 202; Craig v. Compagnie Nationale Air France, No. 93-55263, 1994 WL 711916 (9th Cir. Dec. 21, 1994). Defendant, on the other hand, has provided evidence that using mobile staircase to disembark passengers is a routine operation in the industry, which Plaintiff has not disputed. (DSMF ¶¶ 3–4; PSMF ¶¶ 3–4.)
Next, there appears to be very little factual dispute regarding the conditions of the mobile staircase that was used to disembark passengers including Plaintiff. The stairs were functioning normally, positioned as intended, not wet, unobstructed, and with good grip. Passengers were not pushing or jostling down the stairs. The last step, down to the ground, was a noticeably larger height than any of the other steps. The issue is whether the use of a staircase with such height difference in the last step is an “inappropriate or unintended happenstance in the operation of the aircraft” and “an unexpected or unusual event or happening that is external to the passenger.” Dagi, 961 F.3d at 28. Plaintiff has not pointed to any evidence that shows the staircase was operating in an unintended or inappropriate manner. All of the direct examinations of the staircase by Defendant‘s employees and indirect examination by way of photographs by Plaintiff‘s expert failed to find anything amiss with the operation of the staircase. Nor has Plaintiff provided evidence that the height of the last step was unusual for mobile staircases. Although her expert referenced various standards and their recommendations, they are voluntary and for non-portable
Plaintiff tries to compensate for her evidentiary deficiency by citing Cuartas v. American Airlines, Inc., No. 1:10-cv-00390-LJM-TAB, 2012 WL 845543 (S.D. Ind. Mar. 12, 2012). But that decision is highly case-specific and certainly does not stand for the proposition that, as a matter of law, the use of a mobile staircase with a large last step to disembark constitutes an “accident” under the Montreal Convention, as Plaintiff suggests. In Cuartas, the record included facts different from those in this case: the defendant‘s policy required an announcement when stairs would be used; that policy may not have been followed; the stairs were wet and lacked traction strips; and some evidence in the record suggested jetways, not stairs, being the standard method of disembarking. Cuartas, 2012 WL 845543, at *3–*4.
Plaintiff‘s reliance on Ugaz v. American Airlines, Inc., 576 F. Supp. 2d 1354 (S.D. Fla. 2008) also fails. In Ugaz, the Southern District of Florida court held that “there [was] simply no evidence whatsoever than an inoperable escalator [was] an ‘unusual or expected event’ sufficient to constitute an ‘accident.’ . . . [T]here were no foreign substances on the stairs, jostling passengers or other direct outside influence that caused the Plaintiff‘s fall apart from her own decision to climb an acknowledged inoperable escalator. In Gezzi and McCarthy, both of which deal with stairs, an outside force at least allegedly caused the plaintiffs’ respective falls.”6 Id. at 1366. The court does not see how Ugaz in turn means that the incident in this case (lacking any pushing or foreign substances) was an accident. Plaintiff argues it is because she had no choice (in contrast to the Ugaz plaintiff) but to disembark using a single defective staircase. But this argument returns to the question of whether the at-issue staircase and its last step, although characterized by Plaintiff as defective, was in fact objectively an “inappropriate or unintended happenstance in the operation of the aircraft” and “an unexpected or unusual event or happening that is external to the passenger.” Again, the court finds that Plaintiff has not presented evidence to support her contention that such was the case. At the hearing, Plaintiff‘s counsel argued that Defendant had not presented any evidence showing that the step height was normal. But it is Plaintiff, as the party bearing the ultimate burden of proof, who must “present definite, competent evidence to rebut the motion” once Defendant showed an absence of evidence to support Plaintiff‘s case. Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).
For the reasons set forth above, Defendant‘s motion for summary judgment (Dkt. No. 33) is GRANTED and Plaintiff‘s cross-motion for partial summary judgment is DENIED (Dkt. No. 37). The clerk is directed to enter judgment for Defendant, and the case may now be closed.
It is So Ordered.
/s/ Mark G. Mastroianni
MARK G. MASTROIANNI
United States District Judge
Notes
1 “Q. And when you say “whole pictures” - -
A. The entire air stair. But from the looks of the pictures, the stabilizers are deployed, the stairs are in an elevated position and that‘s really what I can determine from these photographs.
Q. Is there anything that you can point to in Exhibit 5 that shows that BA should have set up the stairs differently?
A. Is there a way to zoom in here?
Q. Yes.
A. Okay. As far as I can see, no. The only thing I would say is the one picture doesn‘t even appear to show an air stair. It shows a passenger boarding bridge.” (Id.)