Massachusetts Federal Court Finds No Montreal Convention Accident

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Schnader Harrison Segal & Lewis LLPJennifer Moore commenced litigation against British Airways to recover for injuries sustained when she fell while disembarking an aircraft using a portable staircase. The only basis for her claim was that the height of the bottom step was significantly greater than that of the other steps. To be clear, she did not argue that the steps were set up improperly, that there was anything wrong with the footing on one of the steps, or that any other condition (e.g., rain or lighting issues) contributed to her fall; only that she did not realize that the bottom step was taller than the rest, and fell as a result.

British Airways filed a motion for summary judgment seeking dismissal of the action upon close of discovery. After quickly disposing of the negligence cause of action as preempted by the Montreal Convention, the Court also dismissed the Convention cause of action on the basis that Moore had not
alleged facts sufficient to support the finding of a Montreal Convention “accident.” In a nut shell, because the steps were set up properly and there was no evidence that they were defective (Moore’s expert pointed to British regulations “explain[ing] that the maximum rise people can be expected to negotiate safely is 8.7 inches,” significantly less than the 13 inch height of the bottom step of the portable staircase, but he admitted that those standards are voluntary and inapplicable to portable staircases), there was no basis upon which to find anything unusual or unexpected (i.e., a Montreal Convention “accident”). As a reminder, the unusual or unexpected standard is an objective one, so it was of no moment that the height of the last step was subjectively unexpected by Moore.

While the holding of the Court is unremarkable based on the facts, it is somewhat interesting that the Court refused to apply the two-prong standard for finding an “accident” applied by some courts in the First Circuit. That standard requires not only that there be an unusual or unexpected event external to the passenger, but also that “this event [be] a malfunction or abnormality in the aircraft’s operation.” While the Court noted that the standards are similar, many believe that the two-prong standard is somewhat more onerous to meet, so this part of the Court’s opinion could play a role in other cases. Also of note, there was no discussion of First Circuit decisions holding that the accident inquiry turns on whether “airline personnel play a causal role” in the event causing injury, which perhaps is the most onerous standard for passengers to meet.

Ultimately, the Court’s decision in this case may be of limited use in other cases (as least from a defense perspective), as nearly all cases involving a trip and fall on a jet bridge or mobile air stairs involve allegations of improper set-up, improper lighting, lack of tread, wet conditions, etc. It nevertheless is a victory for the industry, which always is a welcomed sight. Moore v. British Airways PLC, 2020 WL 7699694 (D. Mass. Dec. 28, 2020).

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