Passenger who was assaulted during an international flight may recover damages under Warsaw Convention
Passenger who was assaulted during an international flight may recover damages under Warsaw Convention.
Wallace v. Korean Air Lines Co., 214 F. 3d 293 (2d Cir. 2000).
The Second Circuit Court of Appeals held that an airplane passenger who was sexually assaulted during an international airline flight can recover damages because the attack was an “accident” within the meaning of the Warsaw Convention, 49 U.S.C. 40105.
Here, Wallace boarded a flight from Seoul, South Korea, to Los Angeles. She fell asleep during the flight but awoke in the darkened cabin to find that a male passenger had unbuckled her belt, unzipped and unbuttoned her pants, and placed his hands in her underpants to fondle her. She turned away, but the unwanted advances continued and forced her to flee.
Wallace filed suit against the airline, alleging liability for the assault under Article 17 of the Warsaw Convention, which makes airlines responsible for harm resulting from an “accident” that occurs during an international flight. The trial court found for defendant, reasoning that because the sexual assault was not a risk characteristic of air travel, it therefore did not constitute an “accident” under the convention.
Vacating the trial court’s judgment, the appeals court declined to decide whether all co-passenger torts could be considered accidents within the meaning of the convention. The court found that the sexual assault on plaintiff during the flight qualified as an accident even under the more narrow analysis of asking whether the risk was characteristic of air travel.
When she took her seat in economy class, the court observed, she was cramped into a confined space beside two men she did not know, one of whom turned out to be a sexual predator. The lights were turned down and the predator was left unsupervised. It must have taken the attacker some time to open her clothing and squeeze his hands into her underpants, the court noted, yet not a single flight attendant noticed that anything out of the ordinary was occurring. When she woke up, she could not get away immediately but had to endure another advance before clambering out into the aisle. For these reasons, the court concluded, the airline can be held liable for the harm plaintiff endured during the flight.
Accordingly, the court remanded.
Plaintiff’s Counsel
-Frank H. Granito III,
John J. Halloran Jr., New York, N.Y.
Copyright Association of Trial Lawyers of America Oct 2000
Provided by ProQuest Information and Learning Company. All rights Reserved
