Mental Distress for Airline Lawyers: The Sixth Circuit's Decision in

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

n Doe v. Etihad Airways, P.J.S.C., the U.S. Court of

Appeals for the Sixth Circuit radically altered the

scope of an air carrier’s liability under the Mon-

treal Convention, the international treaty controlling

an air carrier’s liability to passengers for damage to

persons or property during international ight.

Prior to Etihad, courts almost universally held that

a passenger who suffers bodily injury as a result of

an accident is entitled to physical damages, but is

only eligible for emotional damages to the extent any

such damages are attributable to the bodily injury

sustained. The Sixth Circuit in Etihad, however, con-

cluded that passengers may be able to recover for

emotional damages that are completely divorced

from any bodily injury sustained. In doing so, Etihad

departs from nearly a century of jurisprudence on this

issue, both domestically and internationally (given

the Montreal Convention’s interpretation by courts in

foreign signatory jurisdictions). As discussed below,

Etihad signicantly increases air carriers’ potential

liability for claims in the Sixth Circuit, and sets a dan-

gerous precedent for litigating cases in other circuits

that have not directly decided the scope and limits of

compensable injuries under the Montreal Convention.

The Case of Jane Doe

In Etihad, the plaintiff, Jane Doe, was returning from

Abu Dhabi to Chicago aboard a ight operated by

Etihad Airways (Etihad). After reaching inside the

seatback pocket in front of her, she pricked her n-

ger on a hypodermic needle that was hidden in the

pocket, drawing blood. Doe was given a Band-Aid for

her nger and was tested multiple times for possible

exposure to disease, all of which came back negative.

Doe sued Etihad, claiming damages both for the phys-

ical injury (the needle prick) and for “mental distress”

owing to her possible exposure to various diseases.

Her husband, John Doe, claimed loss of consortium.

Article 17(1) of the Montreal Convention provides

that an air carrier “is liable for damages sustained in

case of death or bodily injury of a passenger upon

condition only that the accident which caused the

death or injury took place on board the aircraft or in

the course of any of the operations of embarking or

disembarking.”

The district court granted summary

judgment in favor of Etihad, holding that Doe’s emo-

tional distress was not caused by the bodily injury

sustained—i.e., the physical wound itself. Instead, the

district court concluded that the emotional distress

damage was caused by the needle and separate from

the physical injury, and therefore was not compensa-

ble under Article 17(1).

The Sixth Circuit reversed the district court’s order,

holding that under Article 17(1) of the Montreal Conven-

tion, emotional or mental damages are recoverable “so

long as they are traceable to the accident, regardless of

whether they are caused directly by the bodily injury.”

The court held that because Doe’s alleged mental dis-

tress arose from the accident itself (i.e., pricking her

nger on the needle), she could recover for emotional

distress damages, even if the mental distress was unre-

lated to the nominal physical injury she received.

Why Does This Matter?

The Sixth Circuit’s decision in Etihad represents a radi-

cal expansion of air carriers’ potential liability under the

Montreal Convention. Under Article 17 of the Warsaw

Convention, the predecessor to the Montreal Conven-

tion, a carrier is “liable for damage sustained in the event

of the death or wounding of a passenger or any other

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 opera-

tions of embarking or disembarking.”

Under the Warsaw

Convention, an air carrier’s liability for emotional dam-

ages was limited to damages resulting from a bodily

injury, and a passenger could not recover for emotional

damages unconnected with the actual injury.

As a classic example of this liability limitation,

assume a crash landing (an accident) occurs. In the

process, a passenger pinches his nger in the tray table

of his seat, but is otherwise unharmed. The passen-

ger then sues the carrier both for his physical injury

(the pinched nger) and emotional distress, claim-

ing the crash landing has led to a fear of ying. Under

the Warsaw Convention, and even after adoption of

the Montreal Convention, nearly every district, circuit,

Mental Distress for Airline

Lawyers: The Sixth Circuit’s

Decision in Doe v. Etihad

By DavidM. Krueger

DavidM. Krueger (dkrueger@beneschlaw.com) is a partner of

the Benesch law rm, based in Cleveland, Ohio, in the rm’s

Transportation & Logistics and Litigation groups. He represents

businesses in commercial and consumer disputes, aviation, and

class action litigation, and is also a private pilot.

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

and foreign court would reach the same conclusion:

the passenger could recover damages (if any) for his

pinched nger and any emotional damages resulting

from his pinched nger.

But the passenger could not

recover emotional damages for the new supposed fear

of ight, which was the result of the crash landing and

unconnected to the bodily injury.

Under Etihad, however, the Sixth Circuit held that

the air carrier would be liable for emotional damages

unconnected with the bodily injury, even using the

“pinched nger” example to prove its point.

Implications for Airline Accident Litigation

The rst implication is obvious: there will be more

lawsuits against, and increased potential liability for,

air carriers. Post-Etihad, any passenger may state a

claim for any type of emotional distress resulting from

an accident, so long as there is some nominal type of

bodily injury (even just a pinched nger). Article 17

does not permit recovery of purely psychic injuries,

and requires that there be some bodily injury.

The

Sixth Circuit attempted to leave intact Article 17(1)’s

requirement that there be some type of bodily injury

before unrelated emotional damages are compen-

sable. But even if an accident does not result in any

real injury, future litigants are likely to raise specious

claims of pinched ngers, being sore, or other types

of nominal injuries as a means to satisfy the “bodily

injury” requirement and seek broader emotional dam-

ages arising from the accident.

Second, and relatedly, plaintiffs’ attorneys will

undoubtedly rely on Etihad to try and expand the

scope of potential damages, as Etihad opens the door

for “tag-along” claims of emotional damages com-

pletely unrelated to the bodily injury. This not only

increases potential exposure for air carriers, but may

also undermine carriers’ efforts to contest suspect

claims of emotional damages based on alleged condi-

tions that may have existed before the accident giving

rise to the claim.

Returning to the “pinched nger” example, Etihad

apparently endorses the conclusion that emotional

damages for fear of ying are compensable even if

completely independent of the accident and accompa-

nying bodily injury. It is conservatively estimated that

over 20 million Americans have a preexisting fear of

ying.

Absent medical evidence to the contrary, air

carriers are put in a difcult position to rebut a plain-

tiff’s claim that an accident caused his or her nascent

fear or anxiety of ying. Indeed, even if a plaintiff

admits to having a preexisting fear of ying, aggrava-

tion of a preexisting condition may be compensable

under Article 17.

This will create new challenges in

determining how, and to what extent, purely psychic

injuries may have been aggravated—given that these

claimed injuries are completely divorced from the

actual bodily injury the passenger incurred.

Under Etihad, claimed psychic injuries may not

even need to be as specic as fear of ying, and

would ostensibly make broad and generic claims

of general anxiety compensable under Article 17.

Imagine that a passenger has anxiety as a result of

turbulence. While unfortunate, such anxiety is not

compensable under Article 17. Under Etihad, how-

ever, if the passenger bumps his or her knee during

the turbulence, that anxiety is compensable. This

seems contrary to the Montreal Convention’s funda-

mental proposition that, in exchange for strict liability,

air carriers would be provided with uniformity and

predictability for resolving claims of damage. Given

the generally low bar to establish a claim of “bodily

injury” (discussed below), “[s]uch a construction would

improperly encourage artful pleading and would

therefore ‘scarcely advance the predictability that

adherence to the treaty has achieved worldwide.’”

Air carriers defending claims subject to the Mon-

treal Convention must be prepared to address Etihad.

While the Sixth Circuit claimed to have applied a

“plain meaning” interpretation of Article 17(1), and

attempted to distinguish nearly 20 years of precedent

under the Montreal Convention, there are compelling

grounds upon which the reasoning in Etihad can be

criticized, and why other courts should not adopt its

reasoning. Most notably, the court’s decision hinges

on its interpretation of the phrase “in case of” as used

in Article 17(1), which the court concludes “is condi-

tional, not causal.”

The court uses the common expression “in case of

emergency” as a parallel to its interpretation of Article

17(1), concluding that “[t]o say in case of X, do Y is to

say ‘if X happens, then do Y’—none of which means

that there is a causal relationship between X and Y.”

But in using this “plain meaning” example, the court

ignores the obvious importance of context. Extending

the court’s example, assume two separate buildings,

Building A and Building B, have re alarms that say

“pull in case of emergency.” If an emergency occurs in

Building B that poses no threat of harm to Building

A, should a person in Building A who becomes aware

of the emergency pull the re alarm? The Sixth Circuit

would apparently conclude “yes,” because the instruc-

tion “pull in case of emergency” is purely conditional;

under the court’s reasoning, the mere fact that there

is an emergency in Building B satises the condition

to pull the alarm in Building A. Most people, however,

would reasonably conclude that a person in Building

A should not pull a re alarm unless the emergency is

in, or relates to, Building A.

Even if the instruction “pull in case of emergency”

may not impart a causal requirement per se, most

would construe an implicit requirement of relevance

or connection, such as “pull in case of emergency

relating to Building A.” In the context of Article 17(1),

an air carrier’s liability “for damages sustained in case

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

of death or bodily injury” is therefore reasonably con-

strued—as it has been for decades—as imposing

liability for damages relating to the death or bodily

injury itself, and not the mere “conditional” event.

Implications for Sexual Assault and Harassment

Claims

Another implication of Etihad is its potential impact

on claims involving alleged sexual assault of passen-

gers. There has been a sharp increase in the reported

incidents of sexual assault of passengers in the past

several years,

raising the issue of whether an air car-

rier may be liable under the Montreal Convention if

one passenger sexually assaults another. In order to

assess the implications of Etihad on sexual assault

claims, it is necessary to discuss whether and under

what circumstances sexual assault constitutes an “acci-

dent” within the meaning of Article 17 of the Montreal

Convention.

In order for an air carrier to be held liable for any

type of bodily injury under Article 17, there must rst

be an “accident” which caused the injury, and which

“took place on board the aircraft or in the course of

any of the operations of embarking or disembarking.”

The U.S. Supreme Court has dened “accident” under

Article 17 of the Warsaw Convention as “an unex-

pected or unusual event or happening that is external

to the passenger.”

This denition has likewise been

applied to Article 17 of the Montreal Convention.

Before even getting to the issue of sexual assault,

whether nonsexual assault is an “accident” has been

disputed under both the Warsaw and Montreal Conven-

tions, with the results usually turning on the particular

facts of the case. For example, in Ginsberg v. American

Airlines, the Southern District of New York held that an

altercation between a passenger and a ight attendant

was not unexpected or “external” when the passenger

“willfully disregarded [the ight attendant’s] instructions

and moved the cart with the knowledge that an alterca-

tion could occur.”

Conversely, when an alleged assault

is not the result of any particular conduct of a plaintiff, it

is generally hard to dispute that such an altercation is an

unexpected or unusual event external to the passenger.

In this respect, sexual assault, by its very nature, is an

unexpected event that occurs external to the passenger,

and thus seemingly would constitute an “accident” within

the province of Article 17 of the Montreal Convention.

In discussing the term “accident” in Air France v.

Saks, the U.S. Supreme Court noted that Article 17 was

designed to encompass liability “for injuries proxi-

mately caused by the risks inherent in air travel,” even

if the incident is otherwise unexpected and external

to the passenger.

At rst glance, it would seem dif-

cult to conclude that assault, and particularly sexual

assault, would be an inherent risk of air travel.

To this end, almost all decisions addressing

assault—sexual or otherwise—rely on the Second

Circuit’s decision in Wallace v. Korean Air.

In Wal-

lace, the Second Circuit held that a passenger’s sexual

assault of another passenger constituted an “accident”

under Article 17. In making this determination, the

Second Circuit did not decide the issue of whether

sexual assault was an inherent risk of air travel, as

expressly noted by the concurring opinion.

Instead,

the Second Circuit latched onto the particular facts of

the case, essentially concluding that the assault may

have been made possible by a lack of supervision by

the ight crew.

The merits of the decision in Wallace and the

uncertainty as to whether an “accident” under Article

17 excludes risks that are not inherent to air travel is

beyond the scope of this article. As a practical mat-

ter, nearly all courts that have subsequently addressed

the issue of assault have essentially treated Wallace

as de facto rejecting the inherent risk of travel limita-

tion.

Given the U.S. Supreme Court’s instruction that

the term accident “should be exibly applied after

assessment of all the circumstances surrounding a pas-

senger’s injuries,”

it seems likely that future courts

would similarly follow these decisions in concluding

that sexual assault constitutes an accident.

Finally, even if an assault constitutes an accident,

as discussed above, the passenger must still incur

“bodily injury” in order to recover under Article 17. In

physical assaults, this requirement is often easily sat-

ised. In cases of sexual harassment unaccompanied

by physical contact, no liability is sustained as even

Etihad recognizes that some bodily injury is a neces-

sary precondition under Article 17. But the standard

for “bodily injury” is low and generally satised by a

showing of even a slight physical injury such as bruis-

ing.

Thus—and without diminishing the gravity of

the offense

—a plaintiff could easily allege that even

slight or passing physical touching caused a bodily

injury, opening up a panoply of emotional damages

claims under Etihad that did not necessarily result

from the actual physical injury itself.

Conclusion

After the Sixth Circuit issued its decision, Etihad

led a petition for an en banc rehearing, which was

denied.

Etihad then led a petition for a writ of cer-

tiorari with the U.S. Supreme Court, which also was

denied.

Given the conict Etihad creates with other

circuits, the decision warrants review. Yet, the U.S.

Supreme Court has not accepted any case relating to

Article 17 in nearly 15 years, and has only accepted a

few cases during the entire history of both the Mon-

treal and Warsaw Conventions.

Absent review by the U.S. Supreme Court, whether

other federal courts of appeal will follow the Sixth

Circuit remains to be seen. While the Etihad deci-

sion is still relatively recent, no court has followed

or otherwise adopted its reasoning to date. Instead,

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

post-Etihad, courts that have addressed Article 17 of

the Montreal Convention have continued to follow

cases limiting damages to those that are the result of

the bodily injury itself, noting that Article 17 of the

Montreal Convention was drafted with the intent of

being consistent with the jurisprudence developed

under the Warsaw Convention.

At a minimum, Etihad makes courts within the

Sixth Circuit a much more attractive venue for future

lawsuits. This poses a particular risk to foreign air car-

riers, which may be sued in any judicial district in

which they conduct business. Thus, foreign carriers

that conduct any ights or business within the Sixth

Circuit (Michigan, Ohio, Kentucky, and Tennessee) are

more likely to be sued in this jurisdiction, even if the

claim arose elsewhere.

Endnotes

1. 870 F.3d 406 (6th Cir. 2017).

2. Convention for the Unication of Certain Rules for

International Carriage by Air art. 17(1), May28, 1999, 2242

U.N.T.S. 309 [hereinafter Montreal Convention].

3. Etihad, 870 F.3d at 433.

4. Convention for the Unication of Certain Rules Relat-

ing to International Carriage by Air art. 17, Oct.12, 1929,

137 L.N.T.S. 11, reprinted in 49 U.S.C. §40105 note [herein-

after Warsaw Convention]. While only the French text of the

Warsaw Convention is authoritative, the U.S. Supreme Court

has adopted this English translation of Article 17, which

was the ofcial translation when ratied by the U.S. Senate

in 1934. Olympic Airways v. Husain, 540 U.S. 644, 649 n.4

(2004) (citing 49 Stat. 3000, 3014 (1934)).

5. See Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 368 (2d

Cir. 2004) (holding that under Article 17 of the Warsaw Con-

vention, air carriers are not liable “for mental injuries that

accompany, but are not caused by, bodily injuries” (empha-

sis added)).

6. See, e.g., id.; Jacob v. Korean Air Lines, 606 F. App’x 478,

482 (11th Cir. 2015) (per curiam); Jack v. Trans World Airlines,

854 F. Supp. 654, 663–68 (N.D. Cal. 1994); accord Plourde c.

Service aérien F.B.O. inc., 2007 QCCA 739, para. 29 (Can.).

7. 870 F.3d at 427.

8. E. Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991) (“We

conclude that an air carrier cannot be held liable under

Article 17 when an accident has not caused a passenger to

suffer death, physical injury, or physical manifestation of

injury.”).

9. See Lydia DePillis, Lots of Americans Fear Flying.

But Not Because of Plane Crashes,

Wash. Post (Dec.31,

2014), https://www.washingtonpost.com/news/storyline/

wp/2014/12/31/lots-of-americans-fear-ying-but-not-

because-of-plane-crashes; Rick Seaney, Fear of Flying?

Some Good Things to Know,

aBC NeWs (Oct.7, 2013),

http://abcnews.go.com/Travel/fear-ying-good-things/

story?id=20471481.

10. See Olympic Airways v. Husain, 540 U.S. 644 (2004)

(holding that an “accident” occurred within Article 17 of the

Warsaw Convention when an unexpected refusal to assist a

passenger resulted in the aggravation of the passenger’s pre-

existing medical condition).

11. Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 387 (2d Cir.

2004) (quoting El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng,

525 U.S. 155, 171 (1999) (rejecting an interpretation of Arti-

cle 17 that would have encouraged artful pleading)).

12. Etihad, 870 F.3d at 413.

13. Id.

14. See, e.g., Rene Marsh & Juana Summers, Women

Detail Sexual Assaults and Harassment on Commer-

cial Flights,

CNN Pol. (Dec.28, 2017), https://www.cnn.

com/2017/12/27/politics/women-sexual-assaults-harassment-

commercial-ights/index.html (reporting that “FBI

investigations into midair sexual assaults have increased by

66% from scal year 2014 to 2017”).

15. Air France v. Saks, 470 U.S. 392, 405 (1985).

16. See, e.g., Etihad, 870 F.3d at 432.

17. No. 09 Civ. 3226, 2010 U.S. Dist. LEXIS 107688, at *11

(S.D.N.Y. Sept.27, 2010); see also Levy v. Am. Airlines, No.

90 Civ. 7005, 1993 U.S. Dist. LEXIS 7842 (S.D.N.Y. June9,

1993) (concluding that no “accident” occurred where a pas-

senger was allegedly assaulted by federal agents during

the ight because their “conduct was in response to [the

plaintiff’s] actions and was completely independent of the

operation of the ight”).

18. See Matveychuk v. Deutsche Lufthansa, AG, No.

08-CV-3108, 2010 U.S. Dist. LEXIS 92450, at *7 n.4 (E.D.N.Y.

Sept.7, 2010).

19. Saks, 470 U.S. at 396.

20. 214 F.3d 293 (2d Cir. 2000).

21. Id. at 300 (Pooler, J., concurring).

22. See, e.g., Lahey v. Singapore Airlines, Ltd., 115 F. Supp.

2d 464, 467 (S.D.N.Y. 2000) (holding that passenger-on-pas-

senger assault constitutes an accident, and “the actions of

the crew are not relevant to the determination of whether

the assault was an ‘accident’ because it is clear that noth-

ing in the term ‘accident’ suggests a requirement of culpable

conduct on the part of the airline crew”); Matveychuk, 2010

U.S. Dist. LEXIS 92450, at *7 n.4 (stating that Wallace stands

for the proposition that a “passenger’s sexual assault of a

fellow passenger was an ‘accident’ under Article 17”). But

see O’Grady v. British Airways, 134 F. Supp. 2d 407 (E.D.

Pa. 2001) (holding that an assault committed upon a seated

plaintiff by a fellow passenger does not automatically qual-

ify as an accident as a matter of law).

23. Saks, 470 U.S. at 405.

24. Ligeti v. British Airways PLC, No. 00 Civ. 2936, 2001

U.S. Dist. LEXIS 15996, at *10–11 (S.D.N.Y. Oct.5, 2001)

(holding that inammation and slight bruising constitutes

“bodily injury”).

25. Article 17 the Montreal Convention only governs lia-

bility of the air carrier, not that of the actual tortfeasor.

26. Doe v. Etihad Airways, P.J.S.C., No. 16-1042 (6th Cir.

Oct.6, 2017).

27. Etihad Airways, P.J.S.C. v. Doe, No. 17-977 (U.S.

Apr.16, 2018).

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

28. See Olympic Airways v. Husain, 540 U.S. 644 (2004)

(holding that an “accident” occurred within Article 17 of the

Warsaw Convention when an unexpected refusal to assist a

passenger resulted in the aggravation of the passenger’s pre-

existing medical condition); El Al Isr. Airlines, Ltd. v. Tsui

Yuan Tseng, 525 U.S. 155 (1999) (holding that the plaintiff

was barred from pursuing a tort action against the air car-

rier under the Warsaw Convention); Zicherman v. Korean Air

Lines Co., 516 U.S. 217 (1996) (“We conclude that Articles 17

and 24(2) of the Warsaw Convention permit compensation

only for legally cognizable harm, but leave the specica-

tion of what harm is legally cognizable to the domestic law

applicable under the forum’s choice-of-law rules.”); E. Air-

lines v. Floyd, 499 U.S. 530 (1991) (“We conclude that an

air carrier cannot be held liable under Article 17 when an

accident has not caused a passenger to suffer death, physi-

cal injury, or physical manifestation of injury.”); Saks, 470

U.S. 392 (dening the term “accident” under Article 17).

29. See Ojide v. Air France, No. 17-cv-3224, 2017 U.S. Dist.

LEXIS 162419, at *6 (S.D.N.Y. Oct.2, 2017) (quoting Ehrlich

for the proposition that mental injuries that are not caused

by bodily injuries are not compensable under Article 17 of

the Montreal Convention); Yang v. Air China Ltd., No. 14

C 6482, 2017 U.S. Dist. LEXIS 158507, at *29 n.7 (N.D. Ill.

Sept.27, 2017) (noting that “the drafters of Article 17 of the

Montreal Convention ‘expected that this provision will be

construed consistently with the precedent developed under

the Warsaw Convention and its related instruments’” (citing

Montreal Convention, art. 17 cmt. 1)).