Passenger does good deed closing overhead bin and fractures shoulder: Is airline liable?

Passenger does good deed closing overhead bin and fractures shoulder: Is airline liable?

Passenger does good deed closing overhead bin and fractures shoulder: Is airline liable?

In this week’s article, we examine the case of Lynn v. United Airlines, Inc., Case No. 15-cv-7041 (N.D. Ill. October 2, 2017) in which “Plaintiff Melissa Lynn was a passenger on United Airline Flight 906, traveling from Frankfurt, Germany to Chicago O’Hare International Airport. Plaintiff was seated in an aisle seat in the economy section. As flight 906 approached O’Hare in its final descent, an overhead luggage bin across the aisle from Plaintiff ‘popped open’. Plaintiff saw a mother with a small child in her lap seated below the open overhead bin. Plaintiff waited, but when none of the flight crew came to close the bin she unfastened her seatbelt and stood up to close the bin. As she reached out to close the overhead bin, the plane landed, wrenching her outstretched right arm and fracturing her shoulder…Plaintiff seeks recovery under Article 17(1) of the Montreal Convention, which makes air carriers liable for any ‘accident’ causing the bodily injury of a passenger on an aircraft…Defendant moved for summary judgment on the grounds that Plaintiff’s injuries were not the result of an ‘accident’ within the meaning of the Montreal Convention” which the court denied.

Terror Targets Update


In Walsh & Youseff, Militants Kill 305 at Sufi Mosque in Egypt’s Deadliest Terrorist Attacked, (11/24/2017) it was noted that “Militants detonated a bomb inside a crowded mosque in the Sinai Peninsula on Friday and then sprayed gunfire on panicked worshipers as they fled, killing at least 305 people and wounding at least 128 others. Officials called it the deadliest terrorist attack in Egypt’s modern history. The scale and ruthlessness of the assault, in an area racked by an Islamist insurgency, sent shock waves across the nation-not just for the number of deaths but also for the choice of target. Attacks on mosques are rare in Egypt, where the Islamic State has targeted Coptic Christian churches and pilgrims but avoided Muslim places of worship”

London, England

In Castle & Freytas-Tamura, Oxford Circus Station in London Reopens After Panicked Evacuation, nytimes (11/25/2017) it was noted that “A report of gunfire led to the panicked evacuation of one of London’s most crowded subway stations late Friday afternoon, but the scare proved short lived, a testament perhaps to nerves frayed by a year in which London has been targeted by several terrorist groups”.


In Bangladesh arrests militant suspect in US blogger killing, travelwirenews (11/19/2017) it was noted that “Bangladesh police said on Sunday that had arrested a suspected leader of an Islamist group wanted in connection with the death in 2015 (of) a US blogger critical of religious extremism. Deputy police commissioner…said the man, identified as Majammel Hossain, 25, head of the intelligence wing of the al Qaeda-inspired militant group Ansar Ullah Bangla Team, was suspected of taking part in the killing of writer Avijit Roy”.


In ‘Mounting evidence’ of Myanmar genocide: watchdog, travelwirenews (11/15/2017) it was noted that Watchdog report details ‘ethnic cleansing’ of Rohingya by security forces…Washington: Myanmar security forces slit the throats of Muslim Rohingya and burned victims alive, watchdogs said in a report…the United States Holocaust Memorial Museum and Southeast Asia-based Fortify Rights documents ‘widespread and systematic attacks’…The 30-page report entitled ‘They tried to kill us all’ is based on more than 200 interviews with survivors…Evidence gathered…demonstrates that ‘Myanmar state security forces and civilian perpetrators committed crimes against humanity and ethnic cleansing’”.

Las Vegas, Nevada

In Chokshi, More Than 450 Las Vegas Shooting Victims Sue Over Attack, (11/21/2017) it was noted that “Hundreds of victims of the October mass shooting in Las Vegas are suing over the attack, arguing that the owners of the hotel the gunmen used to stage the assaults and the organizers of the festival he targeted failed to adequately protect them. In five lawsuits filed on Monday, lawyers representing more than 450 victims of the ordeal sued MGM Resorts International, which owns the Mandalay Bay hotel and the festival venue, as well as Live Nations Entertainment, the concert promoter. They also sued the estate of the gunman, Stephen Paddock, whose attack ended with 58 concertgoers dead and about 500 more wounded”.

Spain’s Attorney General Dies Suddenly

In Minder, Spain’s Attorney General, Leading Catalan Prosecution, Falls Ill and Dies, nytimes (11/19/2017) it was noted that “Mr. Maza, 66, died in a Buenos Aires hospital, shortly after saying he felt unwell. His death was confirmed by Spain’s justice minister, Rafael Catala, and attributed to a kidney infection. The sudden death of Mr. Maza deprives Spain of its top prosecutor as Prime Minister Mariano Rajoy is working to halt a secessionist movement in Catalonia and to get Spain’s judiciary to prosecute separatist leaders for illegally declaring the region’s independence”.

Catalonia Vote Again, Please

In Minder, In Barcelona, Rajoy Calls for Record Turnout to Defeat Secessionism, nytimes (11/12/2017) it was noted that “On his first visit to Catalonia since taking control of the restive region in Spain, Prime Minister Mariano Rajoy on Sunday urged Catalans to vote in next month’s elections to defeat the independence movement and return the region to ‘normality’. Mr. Rajoy, addressing Catalan supporters of his conservative Popular Party, rejected criticism of the jailing of separatist politicians, a day after hundreds of thousands of pro-independence demonstrators marched in Barcelona, the Catalan capital, to demand their release”.

Fire In Beijing

In Buckley, Fire Kills at Least 19 in Beijing Apartment Building, nytimes (11/19/2017) it was noted that “A blaze roared through an apartment building on the blue-collar edge of Beijing, killing at least 19 people, many of whom were apparently migrant workers from the Chinese countryside who were trapped in acrid smoke, official and local residents said on Sunday”.

Uber Latest Hacking Scandal

In Novak, Why Uber’s hacking scandal is worse than all the others, (11/22/2017) it was noted that “The latest bit of corruption dogging Uber came to light Tuesday as the company admitted that it hid the fact that hackers gained access to 57 million user accounts. To make matters worse, Uber also now says it paid hackers $100,000 to delete the data and keep the breach quiet, and did not report the incident. In so doing, Uber moves from the lofty ranks of admirable disruptor to just another company doing what looks like a poor job or protecting its data and definitely doing a terrible job of keeping its customers, investors and the public properly informed and prepared”.

Uber’s “Bug Bounty”

In Isaac, Benner & Frenkel, Uber Hid 2016 Breach, Paying Hackers to Delete Stolen Data, nytimes (11/212017) it was noted that “The two hackers stole data about the company’s riders and drivers-including phone numbers, email addresses and names-from a third-party server and then approached Uber and demanded $100,000 to delete their copy of the data…Uber acquiesced to the demands and then went further. The company tracked down the hackers and pushed them to sign nondisclosure agreements…To further conceal the damage, Uber executives also made it appear as if the payout had been part of a ‘bug bounty’-a common practice among technology companies in which they pay hackers to attack their software to test for soft spots”.

Uber Riders Allege Assaults

In Bhuiyan, Uber is facing class action lawsuit from U.S. riders alleging assault, recorde (11/14/2017) it was noted that “Uber has yet another lawsuit on its hands. In a new complaint seeking class action status, two women-who are maintaining anonymity-are asking a court to force the $69 billion ride-hail company to change many of its driver screening and other practices on behalf of all U.S. riders who were ‘subject to rape, sexual assault and gender-motivated violence or harassment by their Uber driver in the last four years’. In addition to compensation for the alleged rapes that these women suffered, the women are asking a judge to order an injunction against Uber that forces the company to, among other things, implement stricter background checks on its drivers. The women say they were assaulted by their drivers, and claim the ride-hail company has engaged in unlawful and ‘fraudulent’ conduct that misled them into believing their drivers would safely transport them”.

Shame On Uber

In Dickerson, Deflating Uber’s ‘Puffery’ Defense On Safety Claims, law360 (11/20/2017) it was noted that “Shame on Uber for promising ‘safety’ to induce consumers to use its transportation services instead of the impliedly less safe transportation services provided by taxis and, then, when challenged by their competitors on the grounds of falsity and deception, disavowing its promises as mere ‘puffery’. An important and ongoing dispute between Uber Technologies Inc. And taxi companies in California, Texas and New York is whether and to what extent Uber’s advertising and promotional use of such words as ‘safe’ or ‘safety’ (and numerous variations thereon) are false, misleading and deceptive and violate Section 43(a) of the Lanham Act, 15 USC Section 1125(a) and state consumer protection statutes, or whether such terms are ‘puffery’ and nonactionable”.

Please Don’t Sit Next To “Bill”

In Astor, Dangerous Psychiatric Patient Escaped From Hawaii and Flew to California, nytimes (11/16/2017) it was noted that “a man who called himself Bill walked out of his home in Kaneohe, Hawaii and took a cab to the airport. He chartered a flight from Oahu to Maui, then flew from Maui to San Jose, Calif….The journey was uneventful. But there was a problem. ‘Bill’ was actually an alias used by Randall Saito, whom prosecutors described as a pathological predator. Home was the Hawaii State Hospital, a psychiatric facility where Mr. Saito, 59, had been held for more than 35 years after being acquitted of murder by reason of insanity. He should not have been able to leave the hospital grounds unaccompanied, much less book a plane ticket online, clear airport security and fly 2,300 miles across the Pacific Ocean”, Indeed.

Eel Pie, Anyone?

In Hakim, Tasting Victorian London, One Eel at a Time, nytimes (11/14/2017) it was noted that “A better father would not force his kids to eat eels. I’m not talking about delicate bits sometimes buried harmlessly in sushi rolls. I mean the hunks of sea snake served under clear jelly at M. Manze, one of the last surviving eel houses in London…Eels used to be a staple of the city’s diet. Back in the Victorian era, they were swimming so plentifully in the Thames that they became a poor man’s hearty meal. Food stalls hawking eel pies thrived, and an island on the river known as the dish, and later famous as a 1960s rock venue, came to be called Eel Pie Island”. Enjoy

Airbnb Lashes Out At Marriott

In Bosa, Airbnb lashes out at Marriott as clash between Silicon Valley and the hotel industry intensifies, (1120/2017) it was noted that “On Monday, Airbnb’s head of public policy Josh Meltzer sent a letter of MarriottMAR CEO Arne Sorenson, asking him to explain to Americans ‘your industry’s habit of taking billions of dollars from taxpayers to subsidize the construction and operation of your hotels’…The clash of the Silicon Valley technology disruptor and the old, slow-moving industry has been raging for years and only intensifies as Airbnb gets bigger and more influential”.

Are Airbnb & Hotels Really Competitors?

In Dickerson, Airbnb and U.S. Hotels: Unfair Competition?, newyorklawjournal (10/26/2017) it was noted that “The hotel industry in the United States is of the view that Airbnb competes for the same customer (vacation and business travelers) and does so unfairly. ‘Airbnb is operating a lodging industry, but is not playing by the same rules, Troy Flanagan, the American Hotel and Lodging Association’s vice president of state and local government affairs said…The main prongs of the association’s plan is to constrain Airbnb include lobbying politicians and state attorneys general to reduce the number of Airbnb hosts…’ [Benner ‘Inside the Hotel Industry’s Plan to combat Airbnb, nytimes (4/16/2017)]…To analyze the charge of unfair competition we need to determine whether and to what extent U.S. hotels and Airbnb are actually competitors. After all, U.S. hotels are quasi-public institutions regulated by common-law based statutory duties, while Airbnb is an internet app and its hosts are home or condo owners and apartment dwellers renting out a spare room. A comparison of the common law duties and regulatory obligations of hotels with the absence of similar obligations imposed on Airbnb and its hosts is instructive”.

Turkey’s “Democratic Deterioration”

In EU cuts Turkey funding after ‘democratic deterioration’, travelwirenews (11/19/2017) it was noted that “The European Union will cut funds allocated to Turkey due to the ‘deteriorating situation in relation to democracy, rule of law and human rights’ there, according to 2018 EU budget. The bloc will shrink the so-called ‘pre-ascension funds’ for Turkey by 105m euros ($124) and suspend an additional 70m euros next year, the budget, which was released on Saturday, showed”.

Saving Stranded Whales

Latest eTN Podcast

In Caron, A Race to Save 10 Stranded Whales, (11/13/2017) it was noted that “Rescuers in Indonesia worked late into Monday night to rescue a pod of sperm whales that had become stranded in the shallow waters of an island near the northwest tip of Sumatra in Acch Province. The 10 whales were spotted Monday morning, according to Whale Stranding Indonesia, a maritime mammal conservation organization based in Jakarta, Indonesia”.

Want A Dream Job?

In ‘Dream job’ posting in Cancun pays US$60,000 for sleeping in luxurious resorts, travelwirenews (11/11/2017) it was noted that “Calling all influencers. A Cancun website has created a dream job posting that involves staying at luxurious resorts, swimming with whales and sipping cocktails on the beach to help promote the area. has launched what they’re calling a search for their next ‘CEO’-Cancun Experience Officer-who will be tasked with generating videos, social media and blog posts for the website”. Enjoy

The ‘Fifth Season’ In Pakistan

In Zahra-Malik, In Lahore, Pakistan, Smog Has Become a ‘Fifth Season’, nytimes (11/10/2017) it was noted that “For nearly two weeks, Lahore, Pakistan’s second largest city, has been one huge airport smokers’ lounge. But Abid Omar’s jaw still dropped on Wednesday, when he checked the air-quality monitor he had installed to track the city’s appalling pollution. It said that levels of the dangerous particulates known as PM2.5, small enough to penetrate deep into the lungs and enter the bloodstream, had reached 1,077 micrograms per cubic meter-more than 30 times what Pakistan’s government considers the safe limit”.

India’s Killer Smog

In Hospitals fill up in Delhi as ‘killer’ smog continue, travelwirenews (11/12/2017) it was noted that “Prashant Saxena, head of pulmonology and critical care at New Delhi’s posh Max hospital in South Delhi’s Saket, is a busy man. ‘The smog is a silent killer. In the years to come, the severe effects of this polluted air in our bodies will reveal its deadly effects’…He says there is a 20 to 25 percent increase in emergency patients and another 25 percent increase in the number of outpatients visiting him daily since a thick blanket of smog enveloped New Delhi last week”.

Old-School Record Players, Please

In Vora, Eschewing High-Tech Hotel Amenities in Favor of Old-School Record Players, nytimes (11/21/2017) it was noted that “Mr. Newman isn’t the only guest at the Goodland (in Goleta, California) to think so. According to Drew Parker, the hotel’s director of sales and marketing, the record players in each of the 158 rooms are a big hit-as is the hotel lobby’s Vinyl Record Shop, stocked with another 250 vinyls which guests are welcome to borrow during their stay…While many properties today emphasize their technology related innovations, at some hotels, old-school record players, with impressive collections to go with them are taking center stage”.

New York Subways Overloaded

In Dwyer, In the Best of Times, the Worst of Rides, nytimes (11/1/2017) it was noted that “Over the last two years, riders have been leaving the New York subways in a slow but steady decline never before seen during an era when population and jobs have surged in the city,, (11/16/2017) it was noted “Rich Gilberto, an accountant in the film industry, had a two-hour ride to Lower Manhattan from the north Bronx on Oct. 29, 2015. It was another maddening journey of 20 miles that took twice as ,long as it should have…That day, it turned out, the New York subways set a modern record b carrying 6,222,6769 passengers-double the ridership of the busiest days of the 1980s and early 1990s. As the city’s booming prosperity continued into 2016 and 2017 transit officials naturally expects more riders to arrive. The opposite happened”.

Hello, Subway Passengers!

In Wolfe, New York Today: Subway Announcements Get a Human Touch, nytimes (11/13.2017) it was noted that “Travel on the subway today and you may hear singing, snoring, panhandling and ‘showtime’ music, but you’ll no longer hear the phrase ‘ladies and gentlemen’. At least, not from you conductor. The (MTA) is replacing the phrase ‘ladies and gentlemen’ in announcements with gender-neutral words in an effort to be more inclusive. Instead you’ll likely hear, ‘Good morning, everyone’ or ‘Hello, passengers’. It’s just one of the changes to the conductors’ script that started earlier this month”.

Quest For “Seven Summits” Ends

In Prominent Russian daredevil base jumper dies in Nepal, travelwirenews (11/12/2017) it was noted that “Russian extreme sportsman Valery Rozov died in Nepal while jumping from Ama Dablam, a 6,812-meter-high mountain in the Everest region Saturday. Rozov’s body has still not been recovered…The daredevil sportsman was pursuing a quest of the ‘Seven Summits’, which involved jumping from the highest peaks of all seven continents. Rozov held the world record for the highest base jump in a wing-suit, leaping the Changtse peak in the Everest region from a height of 7,720 meters”.

French Ferry Catches Fire

In French ferry catches fire, makes emergency stop in Mallorca, travelwirenews (11/12/2017) it was noted that “Spanish authorities said a fire broke out on a ferry in the Mediterranean Sea after it left the French port of Marseille, forcing it to make an emergency stop on the Spanish island of Mallorca. Emergency services on Mallorca said three ferry passengers were taken to a hospital and another 28 people were treated on site for smoke inhalation and minor injuries”.

Watch Out For Argentine Drones, Please

In Drone strikes passenger Boeing descending over theme park in Argentina, travelwirenews (11/12/2017) it was noted that “In a chilling incident in Argentina, a drone hit a passenger plane on approach as it was flying over Tierra Santa religious theme park in Buenos Aires…While the Boeing landed safely, the captain of the aircraft notified the tower that a major incident was averted, after the drone struck below the window on the commander’s side of the aircraft. ‘Had it [drone] hit the engine it would have failed the engine’, the pilot is quoted as saying by La Capital. He also noted that ‘three weeks ago, in the same place, we crossed a drone within five meters’”.

Airlines & Third-Party Travel Sites

In Hobica, Why Airlines Continue to Eschew Third-Party Travel Sites, airfarewatchdog (10/27/2017) it was noted that “Over the last 20 years or so, airlines have experimented with many ways to lure consumers away from online travel agencies (OTAs) and toward their own websites. The most effective strategy so far: prevent OTAs (and apps such as Hopper) from displaying their prices. Southwest has long prevented third-party sites and apps from selling its fares, which is why you’ll never see Southwest on Google Flights or Priceline. Delta Air Lines over the last few years has withdrawn permission to display its fares on about 30 sites and apps such as Hipmunk, Fare Compare and Hopper. And now jetBlue has removed permission for a dozen mostly small OTAs (most notably Vayama) to sell its fares…There are several reasons why airlines are divorcing from third-party sites, but there are still some good reasons why consumers should consider OTAs anyway”.

Travel Law Case Of The Week

In the Lynn case the Court noted that “When Plaintiff stood to close the overhead bin, the plane had begun its final descent and the fasten seatbelt sign was on. Prior to descent, the flight crew had instructed passengers to remain seated with their seatbelts fastened for the remainder of the flight; the crew then strapped themselves into their jump seats, pursuant to Federal Aviation Administration (FAA) regulations. Plaintiff knew that the plane was in its final descent, the fasten seatbelt sign was on and that it was unsafe to move around the cabin. Plaintiff did not alert any crew member or the mother below the open bin before standing up, though one crew member later acknowledged that he saw that the bin was open. Flight crew are required to check that overhead bins are securely closed before the plane begins its final descent. When Plaintiff disembarked, her arm was ‘not usable’. After visiting an urgent care clinic, Plaintiff was diagnosed with a fracture in her shoulder and inflammation. Continued paid led Plaintiff to have shoulder surgery…and a disk replacement in her cervical spine”.

Was There An “Accident”?

“In its motion for summary judgment, Defendant raises a single issue: Did Plaintiff’s injury result from an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention, as that term has been interpreted by the Supreme Court? Under Article 17, an accident has occurred where ‘a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger’ (citing Air France v. Saks, 470 U.S. 392 (1985)). That ‘event or happening’ need not be one sole event, however, because ‘any injury is the product of a chain of causes’ and thus the plaintiff ‘need only prove that ‘some link in the chain was an unusual or unexplained event external to the passenger’” (citing Olympic Airways v. Husain, 540 U.S. 644 (2004)). Applying this definition ‘flexibly’…this Court finds that a jury could reasonably determine that Plaintiff’s injury constituted an ‘accident’ under Article 17(1)”.

A Recent Example Of An “Accident”

In Callahan v. United Airlines, Inc., Case No. CIV-16-680-M (W.D. Okla. 2017) the Court found that an “accident” was sufficiently pled. “[T]he court finds that plaintiffs’ allegation…that ‘[a]s the United Airline flight landed in Houston, Texas for a connecting flight, the airplane’s landing gear abruptly and unexpectedly struck the runway with such force as to cause plaintiff…to sustain severe injuries to her spine’ is sufficient to show an ‘accident’ that caused plaintiff… bodily injury that took place on the plane”.

Unexpected & Unusual Event

“’Under the requisite standard, a reasonable jury could find here that when the overhead bin (which should have been secured) actually popped upon during an otherwise ordinary descent, it constituted a ‘link’ in the causal chain that was ‘unusual or unexpected’ under the Saks test. Certainly, the record contains genuine material issues as to how ‘unexpected’ it is for an overhead bin to pop open. For example, one flight attendant noted that overhead bins ‘sometimes open up in turbulence’ or when a bin is improperly closed…the record also leaves open questions as to how ‘unusual’ it is that none of the flight crew got up to close the bin. Which FAA regulations permit them to do based upon their assessment of ‘situationally dependent’ safety factors. That failure to intervene could also constitute (alone or in combination with other factors) an unusual event, particularly where one crew member saw that the bin had opened. Clearly, an air carrier’s failure to act may constitute an ‘accident’ within the meaning of Article 17(1)…Given this record, a jury could well conclude that an overhead bin popping open-and remaining open-was ‘unusual or unexpected’”.

The Causal Chain

“Defendant also claims that it cannot be liable under Article 17(1) because Plaintiff’s voluntary decision to leave her seat severed any causal chain involving Defendant’s aircraft or crew. In other word, Defendant argues that it cannot be the proximate cause of Plaintiff’s injuries because he intervening actions broke the chain of causation under the ordinary principals of tort…The Seventh Circuit has not yet addressed the issue (of proximate cause)…Here, Plaintiff’s decision to stand may well have cut off Defendant’s responsibility for her injury, but this issue remains a question for the jury to decide where, as a matter of law, the open bin may have been a contributing cause within the chain of events”.


“In fact, flight crews must inspect and ensure that all overhead bins are closed before final descent…and overhead bins pop open if they are not properly secured or if they experience ‘mechanical issues’…a jury could reasonably determine that both Lynn’s actions and her injury were a direct and proximate result of some negligence or malfunction attributable to Defendant”.

tom dickerson

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at For additional travel law news and developments, especially, in the member states of the EU see

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