Injury caused by light or moderate turbulence not actionable under Warsaw Convention

Law Reporter, Jun 2002

Injury caused by light or moderate turbulence not actionable under Warsaw Convention.

Magan v. Lufthansa German Airlines, 181 F. Supp. 2d 396 (S.D.N.Y 2002).

A U.S. district court held that injuries caused by "light or moderate" turbulence, as defined in safety materials issued by the Federal Aviation Administration (FAA), are not actionable under the Warsaw Convention, 49 U.S.C. (sec)40105..

Here, an airline passenger was returning from the lavatory during a flight when the plane encountered turbulence, causing him to bump his head on the cabin ceiling. He sued the airline, claiming his injury was caused by an "accident" as defined in the Warsaw Convention. Defendant moved for summary judgment.

The court observed that the cardinal purpose of the Warsaw Convention is to achieve uniformity of rules governing claims arising from international air transportation. It is important for courts to use clear and workable rules when it is reasonable to do so, as such rules serve this goal of uniformity, the court said. Accordingly, the court adopted a turbulence classification system that was developed by the FAA.

According to the FAA, passengers experiencing "light" turbulence may feel a slight strain against seat belts or shoulder straps and unsecured objects may be displaced, but little or no difficulty is encountered in walking. During "moderate" turbulence, passengers feel definite strains against seat belts or shoulder straps, unsecured objects are dislodged and food service and walking are difficult. "Severe" turbulence causes large, abrupt changes in altitude and may cause the airplane to be momentarily out of control. Passengers in a plane subjected to severe turbulence are forced violently against seat belts or shoulder straps. Unsecured objects are tossed about. Food service and walking are impossible. Finally, an airplane that encounters "extreme" turbulence is violently tossed about and is practically impossible to control. These categories are based on objectively ascertainable criteria, the court noted.

Light or moderate turbulence, the court reasoned, is part of the usual and expected operation of the aircraft, and should not be considered an accident under the convention. Therefore, a passenger suing over an injury caused by turbulence must establish that the turbulence was severe or extreme as defined by the FAA.

In this case, the record shows that the turbulence in question was light or moderate. Plaintiff said it was "difficult" to walk from the lavatory to his seat, but not impossible. Such difficulty is a hallmark of moderate turbulence, as defined by the FAA. Furthermore, as seated passengers would have been forced violently against seat belts and unsecured objects would have been tossed about if the plane had encountered severe turbulence, the lack of any report of such occurrences is strong evidence that the turbulence was of a low magnitude. The captain of the airplane made no mention at his deposition of the plane being out of his control at any time, something that would be quite memorable had it actually occurred. Thus, the injury was not caused by an accident as defined in the Warsaw Convention, the court concluded.

Accordingly, the court granted summary judgment.