Warsaw Convention does not bar state tort action for settlements made after passenger left plane

Law Reporter, May 2001

AVIATION

Turturro v. Continental Airlines, Inc., 128 F. Supp. 2d 170 (S.D.N.Y. 2001).

A U.S. district court held that an airline may be liable under state tort law for statements made by its employees ofter a passenger had disembarked, where those statements led to the passenger's involuntary confinement.

Here, an airline passenger who had lost her anti-anxiety medication asked to disembark an airplane bound for Costa Rica that was still at the departure gate. She caused a disturbance and was eventually allowed to leave the plane. The passenger and a flight attendant walked across a boarding bridge and passed through at least one gate into a waiting area of the airport terminal, where they were met by airline employees, medical personnel, and police employed by the local port authority. She was transported against her will to a psychiatric emergency room, where she was held for several hours.

The passenger sued the airline, among others, for her emotional distress and loss of liberty. The airline moved for summary judgment. The court observed that lawsuits arising from injuries suffered during international air travel are governed by the Warsaw Convention, 49 U.S.C. 40105. The treaty also covers events that occur during "operations of embarking and disembarking," the court said. Since the convention requires a plaintiff to allege "bodily injury" rather than merely mental anguish, plaintiff is barred from suing for any incidents that took place aboard the plane or during the act of disembarking, the court found.

In construing the phrase "operations of embarking and disembarking," the court noted, the Second Circuit has adopted a three-part test that examines (1) the location of the plaintiff when the accident occurred, (2) the activity in which the plaintiff was engaged, and (3) under whose direction the plaintiff was acting.

Here, crucial acts related to plaintiffs confinement took place after she disembarked, the court found. Alleged conversations between airline agents and the police led to plaintiff's involuntary conveyance to the psychiatric emergency room. These conversations, which form the basis for several of plaintiffs causes of action, happened after she had been placed under the control of the police and a medical team. These communications transpired in a waiting area of the terminal, rather than in a restricted area used only for the exiting of a particular airplane. Defendants spoke not about the deplaning process but rather about plaintiff's behavior and symptoms.

The relevant factors of location, activity, and control all confirm that plaintiff had fily disembarked before airline employees could have conspired with the police to have her detained in a mental hospital, the court held. Consequently, the Warsaw Convention does not apply, and plaintiff may proceed with her causes of action under state law, the court concluded.

Plaintiff's Counsel

Paul A. Shneyer, New York, MY.