First Circuit Reverses District Court and Finds Question of Fact on Montreal Convention Accident Determination

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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. Ms. Moore’s expert referenced standards, including a European standard (voluntary, not required) for air stairs, stating that all steps should have the same riser height and none should exceed 10.24”.

Based on the foregoing, and notwithstanding the evidence that the set-up of the mobile air stairs for this flight comported with industry practice, the Court found that the “accident” inquiry was a question of fact to be determined at trial. This author is somewhat troubled by the Court’s opinion, in that it is difficult to understand how “a reasonable passenger with ordinary experience in commercial air travel” could be surprised by the height of the final step if all airlines set up stairs in the same manner (with a higher final step), which was not rebutted by Ms. Moore. The reference to the European standard, while perhaps nice on paper, is a red herring since it is difficult to imagine (m)any passengers reading those standards before traveling. Unfortunately, the Court’s decision leaves airlines in a difficult position, as setting up air stairs in the “usual” manner now might be deemed “unexpected” so as to support liability under the Montreal Convention. Presumably, that now is a battle for a different day.

Moore v. British Airways PLC, 2022 U.S. App. LEXIS 11692 (1st Cir. Apr. 29, 2022).

1 The district court’s opinion was discussed in the Spring 2021 edition of Aviation Happenings: “Massachusetts Federal Court Finds No Montreal Convention Accident.”

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