Schnader Harrison Segal & Lewis LLP

A recent decision from the District of Oregon disposes of cross-motions for summary judgment addressing two requirements for air carrier liability under the Montreal Convention of 1999: “accident” and “bodily injury.” Under the Convention, air carriers are “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.” Art. 17(1).

Tharp v. Delta Air Lines, Inc., 2021 U.S. Dist. LEXIS 145014 (D. Or. Aug. 3, 2021), involved a flight from L.A. to Portland. The Convention applied because the flight was part of Tharp’s itinerary from Mexico to the United States, two Convention signatory nations.

Tharp, a female passenger, sat in a window seat on the left side of the airplane. A male passenger occupied the aisle seat, and Tharp and the man had an empty middle seat between them. During the flight, the male passenger struck up a conversation and repeatedly pointed things out to Tharp. In so doing, he touched her right arm dozens of times and occasionally brushed the back of his left hand against her right breast.

While Tharp left her seat and discussed her discomfort with one or more flight attendants, she voluntarily returned to the same seat despite there being other open seats on the airplane. There was no evidence that any Delta employee saw the man inappropriately touch Tharp, and Tharp had no
bruising or lacerations. Nonetheless, in a declaration, Tharp claimed the man had slapped her arm, which was painful and caused skin redness that lasted several hours. Tharp found the physical contacts “to be frightening, offensive, uncomfortable, and physically painful.”

Judge Karin J. Immergut ruled that “no rational trier of fact could find that Plaintiff sustained a ‘bodily injury’ within the meaning of the Montreal Convention” and, therefore, denied the plaintiff’s motion and granted the airline’s. She observed that, to establish a “bodily injury,” a plaintiff must prove “an objective and identifiable injury to the body.” Plaintiff’s assertions that the slaps were painful and caused skin redness were insufficient, qualifying at most as the “mere scintilla” of evidence that will not sustain a case.

Because the court found no evidence of “bodily injury,” it was unnecessary to decide whether there had been an “accident.”

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