Warsaw convention covers injuries of passenger stuck by hypodermic needle

Law Reporter, Dec 1998

Waxman v. C.LS. Mexicana De Aviacion, SA. De C.V., _ F. Supp. 2d___No. 97 Civ. 7299 (DLC), 1998 WL 400448 (S.D.N.Y. July 14,1998).

A U.S. district court held an incident in which a passenger was stuck by a hypodermic needle was an "accident" under the Warsaw Convention.

Here, a passenger was stuck in the leg by a hypodermic needle protruding from the fabric of the seat in front of him. He sued the airline, alleging defendant had failed to remove the needle during pre-flight cleaning. Defendant moved for partial summary judgment, seeking a declaration that the Warsaw Convention's liability limits applied.

Granting defendant's motion, the court noted that an "accident" under the Convention is an unexpected or unusual event external to a passenger. However, the Convention does not apply to certain injuries arising out of an airline's normal procedures and operations.

The court cited Fishman v. Delta Air Lines, Inc., 132 F.3d 138 (2d Cir. 1998), 41 ATLA L. Rep. 87 (Apr. 1998), which held that an injury resulting from an airline's routine operating procedures can constitute an accident if the procedures are carried out in an unreasonable manner. There, the Second Circuit found that although application of a hot compress may have been a routine measure by flight attendants for relieving a child's earache, the measure was carried out in a way-spilling scalding water on the child-that was not expected or usual.

Here, the court found defendant's failure to remove the hypodermic needle was an unusual, unexpected departure from ordinary cleaning procedures. Thus, it was an accident under the Convention.

[ Comment. See also Gotz v. Delta Air Lines, Inc., - F. Supp. 2d -, No. Civ. A. 96-12365, 1998 WL 397053 (D. Mass. July 10, 1998). There, a passenger suffered injuries when, while placing his bag in an overhead compartment, he hyperextended his arms to avoid an aisle seat passenger who had stood up. Finding the incident was not an accident under the Convention, the court noted the aisle seat passenger's movement was not an unusual or unexpected event, nor was it related to the operation of the aircraft or under the airline's control.]