Airline passenger injured while boarding inter-terminal bus: Who’s liable?

0

In this week’s article we examine the case of Brannen v. British Airways PLC and Viking River Cruises, Inc., No. 1:17-cv-00714 (M.D. Pa. 2017) wherein the Court noted that “Brannen’s allegations stem from an incident that took place on November 1, 2015 at Heathrow Airport in the United Kingdom. Brannen and his wife were traveling from Newark International Airport in Newark, New Jersey to Marseilles, France on a British Airways flight as part of a European cruise vacation arranged through VRC (Viking River Cruises, Inc.) And they stopped at Heathrow Airport before boarding a connecting British Airways flight to Marseilles. While Brannen was boarding an inter-terminal bus to travel from one terminal of the Heathrow Airport to another for his connecting flight, he suffered an injury to his shin, which resulted in cellulitis and an infection in his left leg”. The motions of both defendants to dismiss the complaint are granted.

Terror Targets Update

Kabul, Afghanistan

In Mashal & Sukhanyar, ‘It’s a Massacre’: Taliban Bomb in Ambulance Kills 95 in Kabul, nytimes (1/27/2018) it was noted that “A bomb placed in an ambulance set off a huge explosion on a busy Kabul street on Saturday, killing at least 95 people and injuring at least 158 others, Afghan officials said. The Taliban claimed responsibility for the attack, which came days after a 15-hour-siege by the militants at the Intercontinental Hotel in Kabul left 22 dead, including 14 foreigners”.

In Mashal & Abed, Attack Near Kabul Military Academy Kills 11 Afghan Soldiers, nytimes (1/28/2028) it was noted that “Militants attacked an army unit near Afghanistan’s main military university early Monday, killing at least 11 Afghan soldiers and wounding 16 others in what has been an intense period of violence in Kabul, the capital”.

In Fisher, Why Attack Afghan Civilians? Creating Chaos Rewards Taliban, nytimes (1/28/2018) it was noted that “They were hardly the first Taliban attacks in the capital. Still there was something particularly alarming in their scale and implication about the pair of episodes, just a week apart, that rocked Afghanistan: a hotel siege that killed 22, then a car bomb, loaded into an ambulance that killed 103. But the question of why-why target bystanders, and in such numbers-is perhaps best answered not by peering into the minds of the attackers but by examining the structure of a war that increasingly pulls its participants towards the senseless…A war engineered for Chaos”.

Blowing Up The Eiffel Tower?

In Callimachi, Cell Behind Barcelona Attack May Have Had Sights on Eiffel Tower, nytimes (1/24/2018) it was noted that “In the weeks before they carried out an attack in the Spanish city of Barcelona last summer, a cell of jihadists inspired by the Islamic State traveled repeatedly to France, where they bought a camera and recorded footage of the Eiffel Tower. That video, as well as the stunning quantity of precursor chemicals used to make explosives where were recovered from the safe house they used, has led experts to conclude that the terrorists were plotting something much larger and catastrophic. The materials they left behind suggest that their plan involved packing vans with explosives and attacking targets not just in Spain, where the group killed 16 people and injured 140 others in August, but also possibly in France…’Considering the lethal resources assembled by the terrorists and their lethal intent, the death toll could have reached hundreds had they not accidentally blown up their bomb factory’”.

Volcano In Japan Erupts

In Ramzy, Japan Volcano Eruption Kills Soldier and Injures Skiers at Resort, nytimes (1/23/2018) it was noted that “A volcano erupted Tuesday in Japan, killing one soldier who was training nearby and injuring more than a dozen people, including several at ski resort, officials said. The eruption of Mount Kusatsu-Shirane triggered avalanches and launched debris that smashed a gondola and hit people on ski slopes…Ten people were hit by rocks at the ski resort, injuring five seriously…The volcano is about 100 miles northwest of Tokyo in Gumma Prefecture”.

Free Trip To London As Stowaway

In Caron, No Passport or Ticket: How a Woman Evaded Airport Security and Flew to London, nytimes (1/22/2018) it was noted that “With neither a ticket nor a passport, Marilyn Hartman slipped into Chicago O’Hare International Airport last week, sneaked onto a British Airways flight and traveled to London, where she was apprehended by customers officials…How did she do it? By hiding in plain sight”.

Your Ticket Has Been Canceled

In Astor, She Boarded a Plane to See Her Dying Mother. Then Her Ticket Was Canceled, nytimes (1/26/2018) it was noted that “In a hospital in Minnesota, Carrol Amrich’s mother was dying. In Pueblo, Colo., a thousand miles away, Ms. Amrich was frantically trying to get there in time to say goodbye. Holding a United Airlines ticket purchased for her by her landlord, she probably would have. But minutes before departure, already buckled into her seat, she was ordered to leave the plane. The gate agent told her that her reservation had been canceled. Traveler Help Desk, the online agency that sold the ticket, had rescinded it because the landlord made a change directly through United-even though United had assured the landlord that it was not a problem to do so. Unable to fly, Ms. Amrich drove through the night, not stopping even to use the bathroom…She was still driving when her cellphone rang again. Her mother was dead”.

Afghan Airline, Anyone?

In Mashal & Abed, Grounded and Gutted, Main Afghan Airline Struggles After Taliban Attack, nytimes (1/26/2918) it was noted that “Its pilots land in cities terrorized by the Taliban, the tarmacs within easy reach of rocket fire. Its decrepit aircraft have crashed, been blacklisted by the American military for smuggling opium and refused entry to Europe for safety deficiencies. One plane was chased down the runway by thugs of a strongman late for the flight, furious it had left without him. Yet the airline, Kam Air-an Afghan phenomenon through and through-is largely the only way to fly in Afghanistan. It operates 90 percent of domestic flights, stitching together a nation too big and dangerous to cross by road”.

China: Bring Toilet Paper, Please

In Peterson, How to Travel (and Around) China, From VPNs to T.P., nytimes (1/30/2018) it was noted that “China is one of the world’s most exciting and rewarding places to visit, but can be intimidating even to experienced travelers, who might struggle with communications and lack of familiarity with rules and customs. Here’s a handful of practical tips to help make sure your trip to the world’s most populous country is smooth sailing… (Topics include Easier Visas, Cashlessness, Ride Sharing, With a Hiccup, Phone Hacks, Staying Safe, Getting Online, Virtual PrivateNetworks, Navigation, Other Apps). Finally, T.P. You’ll notice plenty of well-maintained public restrooms in China, but they’re not always stocked with toilet paper. You would be wise to carry a small stash with you. This applies to napkins in restaurants as well”.

Applebee’s Mandatory Surcharge

In Applebee’s customers suing chain for illegal ‘mandatory surcharge’, Reuters (1/27/2018) it was noted that “Many restaurants now require minimum tips, but…U.S. District Judge Paul Oetken said Applebee’s customers may pursue claims that the operator of some 35 of the chain’s restaurants in the New York City area unfairly surprised them after they ate by not letting them tip what they wanted. The plaintiffs…complained after computer tablets used to pay their bills at two Applebee’s near Times Square instructed them to ‘enter a higher amount’ when they tried to tip less than 18 percent and 15 percent, respectively. They called this an illegal ‘mandatory surcharge’ and sued on behalf of Applebee’s diners nationwide and in New York”.

Travel By Motorcycle Sidecar

In Vora, Five Motorcycle Sidecar Tours With Views You’ll Never Get on a Bus, nytimes (1/23/2018) it was noted that “Sightseeing tours in motorcycle sidecars are taking off around the world. Riding in the three-wheeled vehicles with a driver who’s your local guide is a unique and fun way for travelers to explore a destination. In can be an attention-getting way to explore a city, too. Reme Di Nino, a founder of the Paris sidecar tour company Retro Tour Paris, said that spectators often snap pictures of the sidecars during excursions”. Other sidecar tour operators include Brightside Tours (Barcelona), AndBeyond (Cape Town), Beijing Sideways (Beijing) and Royal Mansour (Marrakesh).

$24 Million Refrigerators?

In Stevens, Air Force One Needs 2 New Refrigerators. Together, They Cost $24 Million, nytimes (1/27/2018) it was noted that “Homeowners, take comfort: Even the appliances on Air Force One break down. More than a quarter-century after they were installed, two of the refrigerators on the president’s plane need to be upgraded, and these specially designed ‘chillers’ aren’t cheap. The Boeing Company was awarded a nearly $24 million contract in December to engineer the refrigerators for Air Force One, the Defense Department said”.

Elephants Afraid Of Bees

In Weintraub, Elephants Are Very Scared of Bees. That Could Save Their Lives., nytimes (1/26/2018) it was noted that “Elephants are afraid of bees. Let that sink in for a second. The largest animal on land is so terrified of a tiny insect that it will flap its ears, stir up dust and make noises when it hears the buzz of a beehive…The threat of bees is so intensely felt by elephants that conservationists are using it to help prevent the kinds of conflict that put the behemoths at risk. The endangered animals have sometimes been shot by farmers trying to save their crops from elephants foraging at night for late-night snacks, or by poachers allowed access to help guard the fields. Now there’s a weapon-and a mutually beneficial one-in the arsenal…By stringing beehives every 20 meters-alternating with fake beehives-a team of researchers in Africa have shown that they can keep 80 percent of elephants away from farmland”.

Gone With The Wynn

In Goldstein, Hsu & Vogel, Stephen Wynn, Casino Mogul, Accused of Decades of Sexual Misconduct, nytimes (1/26/2018) it was noted that “Stephen Wynn’s perch at the top of the casino industry was badly shaken on Friday following the disclosure of allegations that he engaged in a long pattern of sexual misconduct with employees of his casinos. A detailed investigative report in The Wall Street Journal portrayed Mr. Wynn, a billionaire casino magnate and prominent political donor, as a man who frequently demanded naked massages from female employees, sometimes pressuring them for sex and to masturbate him. The newspaper said that the activity had gone on for decades and that some female employees had complained to supervisors about Wynn’s behavior”.

Subway Value Capture Taxes?

In Barron, The Subway Is Next Door. Should New Yorkers Pay Extra for That?, nytimes (1/29/2018) it was noted that “Today, with the subway in precipitous decline and the city enjoying an economic boom, some policymakers think the time has come for the subway to profit from the financial benefits it provides, including the considerable contribution to property values…The notion that property owners should pay extra for their proximity to the subway is called ‘value capture’ and has long been debated in urban planning circles. Now Gov. Andrew M. Cuomo, a Democrat, has made value capture a prominent part of his plan to salvage the subway system by proposing to give the Metropolitan Transportation Authority the power to designate ‘transit improvement subdistricts’ and impose taxes”. Stay tuned.

The Traveling Frog

In Kan & Ramzy, China Embraces a Game About a Traveling Frog, nytimes (1/26/2018) it was noted that “A few short weeks after its release, a Japanese mobile game featuring a traveling frog has become a hit in China. Why, exactly, is a bit hard to explain. The game is called Tabi Kaeru or Travel Frog. It was created by Hit-Point, the Japanese company that released the popular game Neko Atsume, or Kitty Collector, in 2014. It is played like this: A Frog sits in its stone hut, eating and reading, while you collect clover from the front yard. The clover is used to buy food, which the frog takes on a journey. Once the frog leaves on the trip, it’s unclear how long it will be gone…When it returns, it provides snapshots and mementos of its journey”.

Catamaran Sinks Near Kiribati Islands

In Graham, Kiribati Ferry Search Expands After 7 Are Found Alive, nytimes (1/29/2018) it was noted that “Searchers examined an expanding zone of the Pacific Ocean around the islands of Kiribati on Monday in hopes of finding more survivors of a ferry sinking after rescuers found seven passengers alive on an aluminum dinghy following more than a week at sea. The 56-foot wooden catamaran that vanished on Jan. 18 was believed to have been carrying at least 50 other passengers. On Friday, the New Zealand authorities were first alerted by the government of Kiribati-which is about halfway between Hawaii and Australia-that the vessel had vanished after leaving for what was supposed to be a two-day, 150-mile voyage”.

Pakistan ‘Killer Mountain’ Rescue

In Ahmad, Climber Rescued on Pakistan’s ‘Killer Mountain’, but Another Is in Peril, nytimes (1/28/2018) it was noted that “An elite climbing team rescued a French mountain climber on Sunday from the treacherous Himalayan peak known as ‘Killer Mountain’ in Pakistan’s northeast, but her Polish climbing partner remains in perils after efforts to reach him were at least temporarily abandoned”.

Sharing Economy: Some Negative Consequences

In Bellafante, What the Sharing Economy Really Delivers: Entitlement, nytimes (1/26/2018) it was noted that “In so many ways the virtue capitalists who have built the sharing economy on the premise that they are making the world a more just and equitable place, as they generate billions of dollars for themselves, have simply delivered more of the status quo. A report, soon to be released from McGill University’s School of Urban Planning, shows just who is and who is not benefitting from the income streams produced by Airbnb. Titled ‘The High Cost of Short-Term Rentals in New York City’, the study is one of several that have examined the impact of Airbnb on affordable housing in various cities over the years. Looking at date covering the period from September 2014 to August last year, it highlights just how unevenly revenue us distributed among the hosts in New York City. Last year the top 10 percent of hosts earned 48 percent of all revenue. This amounted to $318 million. The bottom 80 percent earned just 32 percent or $209 million…The study lands at a moment, though, when a Chelsea landlord has just been hit with a lawsuit by the city for turning a four-story walk-up building into an illegal hotel, using Airbnb, and taking rent-stabilized apartments away from tenants…And in New York, as the debate about congestion pricing has intensified, it has become very clear that the proliferation of ride-hailing apps has, in fact, caused a great deal more traffic. Midtown speeds have slowed to an average of 4.7 miles an hour from 6.5 miles per hour five years ago”.

Used Gold Toilet, Anyone?

In Stevens, Museum Told White House: No Van Gogh, but Here’s a Gold Toilet, nytimes (1/25/2018) it was noted that “Officials at the Solomon R. Guggenheim Museum were tight-lipped on Thursday night about an unusual email exchange in which its chief curator is said to have rebuffed a White House request for a Vincent van Gogh painting and offered a gold toilet instead…Citing a Sept. 15 email that (The Washington Post) said it obtained, the newspaper reported that Ms. Spector (curator) had turned down the White House’s request to borrow van Gogh’s ‘Landscape With Snow’ which officials had hoped they could use to decorate President and Melania Trump’s living quarters. As an alternative, The Post said Ms. Spector offered up what one might call a ‘participatory sculpture’: a fully functional, solid gold 18-karat-gold copy of a Kohler toilet entitled ‘America’ that more than 100,000 people had already used in a museum restroom. ‘It is, of course, extremely valuable and somewhat fragile, but we would provide all the instructions for its installation and care’, The Post quoted Ms. Spector as writing in the email to the White House curator’s office”.

Creative Cities Network

In Glusac, With or Without U.S. Funding, Unesco Celebrates American Cities, nytimes (1/26/2018) it was noted that Unesco has a website entitled Creative Cities Network and “In November, Kansas City, San Antonio and Seattle joined a class of 64 inducted into the program which evaluates applicants in seven different creative fields, including crafts and folk art, design, film, gastronomy, literature, media arts and music. The network which now includes 180 cities from 72 countries, aims to encourage members to share best practices ‘to promote creative industries, strengthen participation in cultural life and integrate culture into sustainable urban policies’, according to a statement announcing the new members”.

Travel Law Case Of The Week

In the Brannen case the Court noted that after arriving at Heathrow Airport “Brannen and his wife allegedly disembarked from terminal 5…and proceeded to terminal 3 ‘to embark on their scheduled flight to Marseilles, France. Subsequently, ‘[a]t terminal 3, a British Airways agent (advised) that their British Airways connecting flight was cancelled’ and the airline agent ‘instead arranged for’ (alternate British Airways flights to Brussels, Belgium and then to Marseilles and) instructed Mr. And Mrs. Brannen immediately to ravel from terminal 3 to terminal 4, using the airport’s inter-terminal transfer bus system…When the inter-terminal bus arrived ‘[a]t the transfer bus stop at terminal 3, the bus stopped too far from the curb’ and [p]assengers began boarding by stepping directly from the curb onto the bus, which required a long step’. Brannen ‘an elderly man with arthritis in his right foot’ uses a cane to assist in walking and ‘was using his cane when he tried to board the bus’…he ‘stepped forward with his good, left foot, but the foot slipped off the bus as he tried to board, causing him to hit his shin on the bus ledge…”. After being advised that the substituted flight was also canceled and plaintiff and his wife would be provided with a flight the next morning, they returned to their hotel whereat “Brannen ‘discovered a large bruise and hematoma on his left shin’”. After participating in the cruise, the plaintiff returned home and his primary care physician “‘diagnosed cellulitis and a serious infection in the injured left leg’”.

The Complaint

“Brannen’s two-count complaint sets forth strict liability claims against VRC and British Airways under the Montreal Convention. The bases for Brannen’s claims under the Montreal Convention are that VRC ‘was a contracting carrier under Articles 39 and 40 of the Montreal Convention’, British Airways ‘was an actual carrier, and/or was a contracting carrier, under Articles 39 and 40 of the Montreal Convention’ and that ‘[t]he accident that caused Mr. Brannen’s injury took place in the course of the operations of his disembarking from British Airways flight 188…[and] embarking on Brussel Airlines flight 2096’”.

Motion To Dismiss

Both British Airways and VRC moved to dismiss plaintiff’s claim under the Montreal Convention because “Brannen’s injuries did not occur ‘during the operations of Embarking, disembarking or on board an international flight’…The Court will first address whether Brannen was engaged in embarking or disembarking from the aircraft when he was injured and, thus, whether Brannen is able to state a claim under the Montreal Convention”.

The Montreal Convention

“The Montreal Convention is an international agreement that, inter alia, amended portions of the Warsaw Convention and allows for the imposition of strict liability on air carriers whose passengers suffer injuries in connection with international flights…Article 17 provides that a carrier ‘shall be liable for damage sustained in the event of…[a] bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking (citing Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 154 (3d Cir. 1977)).

Three Part Analysis

“In Evangelinos…the Third Circuit recognized a three-part analysis for examining whether a passenger’s injuries were incurred while embarking or disembarking from an aircraft for purpose of imposing liability under Article 17. The Evangelinos plaintiffs were injured during a terror attack at an airport in Athens, Greece, while in the process of boarding a New York-bound flight. Applying (the) three-part test…the court concluded that (1) consideration of the location of the accident, (2) the activity in which the passengers were engaged at the time of the injury and (3) the defendant’s control over the passengers rendered summary judgment in favor of the airline carrier improper. The Third Circuit reasoned that ‘at the time of the attack, the plaintiffs had completed virtually all the activities required as a prerequisite to boarding and were standing in line at the departure gate ready to proceed to the aircraft. The plaintiffs’ injuries were sustained while they were acting at the explicit direction of [the airline] and while they were performing the final act required as a prerequisite to boarding busses employed by [the airline] to take the Evangelinos family to the aircraft’. Moreover, the court concluded that the location of the incident and the level of control exercised by the airline over the passengers could warrant liability, as the passengers ‘were congregated in a specific geographical area designated by [the airline] and were identifiable as a group associated with Flight 881 and the airline assumed control over the group of passengers when it announced the group and directed the passengers ‘to stand near the departure gate’”.

Location Of The Incident

“The Court agrees with Defendants that it is clear from the allegations in the complaint that Brannen was not in the course of embarking or disembarking from an aircraft as is required to subject Defendants to Article 17 liability. Rather as stated in the complaint. Brannen was ‘[a]t the transfer bus stop at terminal 3 [when] the bus stopped too far from the curb’ and he was injured while attempting to board the bus. Unlike the plaintiffs in Evangelinos, who ‘had completed virtually all activities required as a prerequisite to boarding and were standing (in) line at the departure gate ready to proceed to the aircraft’…in this case the complaint’s allegations reveal that Brannen was not in line waiting to board the aircraft when he sustained the injury to his leg. Rather, his injury occurred before he arrived at terminal 4 and obtained his boarding pass…[T]he Court finds that the location of the injury weighs in favor of granting Defendants’ motions to dismiss”.

Control By Defendants

“The court finds Brannen’s position that he was acting under the control of the airline for the purposes of Article 17 unavailing, as Brannen’s case is distinguishable from Evangelinos. There the defendant-airline had possessed the requisite amount of control over the plaintiffs because the airline had announced the flight, formed a group of passengers and directed them ‘as a group to stand near the departure gate’ and ‘caused them to congregate in an area and formation directly and solely related to embarkation on [the flight]. Here, Brannen’s complaint alleges only that a British Airways employee ‘instructed [Plaintiffs] immediately to gravel from terminal 3 to terminal 4, using the airport’s inter-terminal transfer bus system, to get their boarding passes’ and that Brannen and his wife ‘followed the British Airways’ agent’s instruction. For the immediate purpose of embarking on [the flight]…at the point at which the injury occurred, Brannen was not within the ambit of British Airways; control so as to trigger the imposition of liability under Article 17″.

Activity At Time Of Injury

“As to the third factor…the activity in which Brannen was engaged-being transported on an inter-terminal shuttle bus-is insufficient to warrant the application of Article 17. (In Evangelinos) ‘for all practical purposes, ‘the operations of embarking’ had begun. In this case the complaint alleges only that Brannen was on his way to obtain his boarding pass to proceed to the connecting flight when he was injured. Comparing the facts alleged in Brannen’s complaint to those in Evangelinos, Brannen’s activities are simply too attenuated to the process of embarking on a flight”.

Conclusion

“Based upon the foregoing, the Court will grant Defendants’ motions to dismiss Brannen’s complaint in their entirety”.

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 nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.