Dismissal not appropriate in case alleging failure to warn of deep-vein thrombosis is an "accident under the Warsaw Convention

Law Reporter, Dec 2003

Miller v. Continental Airlines, Inc., __ F. Supp. 2d __, No. C-02-1693 VRW, C-02-2997 VRW, 2003 WL 21557678 (N.D. Cal. July 1, 2003).

A U.S. district court held that dismissal was not appropriate where plaintiffs who suffered deep-vein thrombosis (DVT) on international flights alleged that failure to warn passengers of the risk of DVT constitutes an "accident" under the Warsaw Convention, 49 U.S.C. § 40105.

Here, Miller and Dobler developed DVT shortly after traveling on flights between Paris and San Francisco. They sued the airlines that operated the flights, alleging, among other claims, that failure to warn customers of the risk of DVT on long flights and to instruct them in how to avoid the condition constitutes an "accident" within the meaning of the Warsaw Convention. Defendants moved to dismiss plaintiffs' action on the ground that the allegations had "no factual basis."

Denying the motion in part, the court noted that in a motion to dismiss, the court must assume all facts pled to be true, and view them in the light most favorable to plaintiffs. Here, plaintiffs have alleged that it was customary for airlines to warn passengers of the risk of DVT on long flights and to inform them of steps they may take to avoid it. Thus, plaintiffs have raised a triable issue as to whether the airlines' failures to give these warnings were "unexpected or unusual events or happenings," under the Warsaw Convention's definition of an accident. Whether there is adequate factual basis for this assertion is more properly addressed in a motion for summary judgment at trial, the court said. Determining whether an incident is an "accident" within the meaning of the Warsaw Convention is a "fact intensive inquiry," and thus not an appropriate evaluation to make on a motion to dismiss, the court said.

Plaintiffs' Counsel

*Michael S. Danko,

*Gary L. Simms, and

* Frank C. Liuzzi, all of San Mateo, Cal.