Damages for mental distress are recoverable under the Montreal Convention if they result from an accident that caused a bodily injury, a US court has ruled, rejecting arguments that compensation for emotional anguish may only be claimed where it is triggered by the physical injury itself.

In a decision that one lawyer described as a landmark departure from previous case law, the US Court of Appeals for the Sixth Circuit ruled on 30 August that Etihad Airways was liable for damages incurred by a passenger who pricked her finger on a hypodermic needle hidden in a seat pocket on a flight from Abu Dhabi to Chicago.

The plaintiff, Jane Doe, claimed damages for physical injury as well as emotional distress linked to fears she may have contracted HIV or hepatitis.

In its decision, the court rejected arguments that compensation for emotional anguish may only be claimed where it is triggered by the physical injury itself. Instead, it ruled that the Gulf-based carrier was liable for the plaintiff’s mental or emotional damages, “so long as they are traceable to the accident, regardless of whether they are caused directly by the bodily injury”.

The case follows an earlier decision by the US District Court for the Eastern District of Michigan, which granted partial summary judgment in favour of Etihad Airways after striking out the plaintiff’s claims for mental anguish, ruling that damages for such harm could only succeed under the Montreal Convention when directly caused by physical harm.

“It is not the physical needle prick itself that caused [the] plaintiff’s distress, but the possibility that she may have been exposed to an infectious disease,” the lower court ruled. “Because the plaintiffs’ mental injuries were caused by the ‘accident’ itself and not the ‘bodily injuries’ sustained in the accident, there could be no recovery under the Convention.”

The sixth circuit reversed that decision, ruling that the lower court misinterpreted article 17(1) of the Montreal Convention, which assigns liability to a carrier where damages are sustained “in case of death or bodily injury of a passenger” following an accident on board an aircraft.

Judge Boggs said the lower court wrongly accepted Etihad’s interpretation of the text agreeing that “in case of” meant “caused by”, which added an additional evidentiary burden inconsistent with the language of the Montreal Convention.

“The district court erred both in reading the additional ‘caused by’ requirement into the treaty and in concluding that Doe’s bodily injury didn’t cause her emotional and mental injuries,” Judge Boggs said.

“Clearly, the plain meaning of ‘in case of’ is conditional, not causal... To adopt Etihad’s reading of the Montreal Convention would distort the treaty’s text and would frustrate rather than serve its purpose.”

‘Bad facts making bad law’

A source, who spoke on the condition of anonymity due to a client relationship, said the decision is a “landmark departure from a previously well-settled rule” under the Warsaw Convention.

“These however are unique factual circumstances. I don’t expect the decision to encourage a steady stream of these types of claims. It is only the second time this issue has arisen in this context in 15 years,” the source said.

It remains to be seen whether Eithad Airways will appeal against the decision to the US Supreme Court. Lawyers for the carrier declined to comment when contacted by GTDT Aviation Law News.

Kenneth Quinn at Baker McKenzie in Washington, DC, said the decision represents an unfortunate and unwise departure from past precedent under the Montreal Convention, which requires bodily injury for compensation.

“This decision is an unfortunate case of bad facts making bad law,” he said. “The decision could invite spurious claims for mental anguish, which airlines would be wise to strongly defend and attempt to limit this case to its bizarre facts.”

The court evidently didn't think much of the carrier's response, Quinn said, suggesting that Eithad Airways should have provided swift, apologetic and comprehensive medical attention, with appropriate compensation, which would probably have avoided the claim.

John Maggio at Condon & Forsyth in New York said the decision could lead to creative pleadings and increased litigation to resolve potentially meritless claims, which previously might have been dismissed at an early stage.

“Although it is a new way of reading article 17 – and it appears to be an incorrect one – the impact on cases will depend on how courts interpret this decision,” he said.

“What this decision will likely encourage is creative pleadings by plaintiffs’ lawyers to find a bodily injury so that they can sue for emotional injuries... The biggest potential of liability exposure would be from events such as turbulence, hard landings and crashes when passengers survive.”

‘An absurd interpretation’

Judge Boggs said Etihad’s interpretation may seem “absurd”, but he reasoned that it was rooted in a decision interpreting the Warsaw Convention by the US Court of Appeals for the Second Circuit in Ehrlich v American Airlines, which assigned liability to carriers only where mental injuries were caused by physical injuries.

“Etihad asks us to adopt the Second Circuit’s Warsaw Convention decision in Ehrlich to decide the Montreal Convention case before us. But the Montreal Convention is a new treaty that we interpret as a matter of first impression,” Judge Boggs said.

“Adopting Ehrlich would mean requiring Doe and other Montreal Convention plaintiffs to prove causation in a way that burdens the injured passenger far more than the text requires. That would be an anomalous result.”

The appellate court conducted a thorough examination of US case law and decisions in other jurisdictions interpreting article 17(1) of the Montreal Convention, but found no rulings to support a contradictory conclusion.

“Here, the accident was the needle pricking Doe’s finger. The accident happened on board Etihad’s aircraft. And the accident caused bodily injury, as Etihad has conceded. Etihad is therefore liable for Doe’s damage sustained, which includes both her physical injury and the mental anguish that she is able to prove that she sustained,” the court said.

“Assuming that, on remand, Doe is able to prove fear of contagion or other mental anguish, Etihad is liable for damages arising from that anguish regardless of whether the anguish was directly caused by the physical hole in Doe’s finger or by the fact that Doe was pricked by a needle.”

Although article 17(1) of the Montreal Convention does not state explicitly what connection must exist between the required bodily injury and mental anguish, the court said the text was sufficiently clear to reject Etihad Airway’s interpretation of that language.

The appellate court confirmed that a passenger cannot recover damages for mental anguish if there is no requisite accident or if that accident does not cause a bodily injury, but suggested that the text of the treaty does not necessarily require a single accident to cause both the required bodily injury and the claimed mental anguish.

The case has now been remanded back to the lower court, which must decide if the damages are recoverable under Michigan law.

Marc Moller at Kreindler & Kreindler in New York said the court’s decision leaves unresolved the question of recovery for mental anguish or psychological harm where they are unaccompanied by an obvious physical injury.

“Just as the Montreal Convention of 1999 was enacted in the context of a mature industry no longer needing the protection of limited liability, so too science has evolved to recognise that mental anguish and PTSD may signify a neurological brain injury,” she said.

“We are therefore likely to see more airline liability cases in which the only injury observed is PTSD with, arguably, a resulting mild traumatic brain injury.”

Counsel to the plaintiff

Driggers Schultz & Herbst

Partner Mark Kelley Schwartz in Troy, Michigan

Counsel to Etihad Airways

Clyde & Co

Partner Andrew J Harakas in New York assisted by associate Daniel Correll