Blansett v. Continental Airlines, Inc., CIV.A. G-02-061.

• Decision Date: 18 November 2002
• Docket Number: No. CIV.A. G-02-061.,CIV.A. G-02-061.
• Citation: 237 F.Supp.2d 747
• Parties: Michael "Shawn" BLANSETT and Modesta N. Blansett, Individually and as Next Friends of Mckenna Blansett and Blake Blansett, Minors Plaintiffs, v. CONTINENTAL AIRLINES, INC. Defendant.
• Court: U.S. District Court — Southern District of Texas

237 F.Supp.2d 747

Michael "Shawn" BLANSETT and Modesta N. Blansett, Individually and as Next Friends of Mckenna Blansett and Blake Blansett, Minors Plaintiffs, v. CONTINENTAL AIRLINES, INC. Defendant.

No. CIV.A. G-02-061.

United States District Court, S.D. Texas, Galveston Division.

November 18, 2002.

A. Craig Eiland, Attorney at Law, Houston, TX, for plaintiff.

Barclay A. Manley, Fulbright & Jaworski, Houston, TX, for Defendant.

ORDER DENYING DEFENDANT CONTINENTAL AIRLINES, INC.'S MOTION TO DISMISS PLAINTIFFS' CLAIMS BASED ON FAILURE TO WARN AND ORDERING PLAINTIFFS TO RESPOND TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON CLAIMS BASED ON FAILURE TO WARN

KENT, District Judge.

Plaintiffs Michael "Shawn" Blansett and Modesta Blansett (collectively "the Blansetts") bring this lawsuit against Defendant Continental Airlines, Inc. ("Continental") seeking to recover damages under the Warsaw Convention¹ for injuries allegedly sustained by Shawn Blansett while riding as a passenger aboard a Continental Airlines flight from Houston, Texas to London, England on June 18, 2001. Specifically, Plaintiffs aver that Shawn Blansett suffered a debilitating cerebral stroke approximately one hour before arriving in London that was ostensibly caused by a blood clot that formed during the lengthy flight, a phenomenon typically referred to as "Deep Venous Thrombosis Syndrome" or "Economy Class Syndrome." Plaintiffs further allege that Continental never warned or advised Shawn Blansett of the likelihood of developing a blood clot in the lower extremities, nor allowed an onboard physician to examine or treat Shawn Blansett after he became visibly ill, nor consulted with any third-party medical advice service regarding Shawn Blansett's condition, nor relayed critical information to the London ambulance and hospital personnel that eventually treated Shawn Blansett. As a result of this stroke, Plaintiffs claim that 36-year-old Shawn Blansett, who was once an able-bodied husband, father, and corporate executive earning a six-figure salary, is now bound to a wheelchair, unable to walk or talk normally, or even take care of his own basic needs. On the basis of these events, Plaintiffs filed suit in this Court on January 25, 2002.

On July 19, 2002, Continental filed a Motion for Judgment as a Matter of Law on Plaintiffs' Claims Based on Failure to Warn.² Continental's Motion asks this Court to dismiss the Blansetts' failure-towarn claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or to grant partial summary judgment against the Blansetts on these claims. On October 15, 2002, the Blansetts filed Plaintiffs' First Amended Complaint, revising somewhat their failure-to-warn claims.³ Also on October 15, 2002, the Blansetts timely responded to Continental's Motion for Judgment as a Matter of Law on Plaintiffs' Claims Based on Failure to Warn. Continental requested and was granted leave to file a Reply to Plaintiffs' Response. Continental filed its Reply on October 18, 2002. For the reasons articulated below, Continental's Motion to Dismiss Plaintiffs' Claims Based on Failure to Warn is DENIED, and Plaintiffs are ORDERED to respond within fifteen (15) days of this Order to Continental's alternative Motion for Partial Summary Judgment on Plaintiffs' Claims Based on Failure to Warn.

I.

A. Motion to Dismiss Under Rule 12(b)(6)

A party is entitled to dismissal under Fed.R.Civ.P. 12(b)(6) when an opposing party fails to state a claim upon which relief may be granted. When considering a 12(b)(6) motion, the Court accepts as true all well-pleaded allegations in the complaint, and views them in a light most favorable to the plaintiff. See Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir. 1993). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993). Unlike a motion for summary judgment, a motion to dismiss should be granted only when it appears without a doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Home Capital Collateral, Inc. v. FDIC, 96 F.3d 760, 764 (5th Cir.1996).

As this Court has already held, the Warsaw Convention, "an international treaty governing `all international transportation of persons, baggage, or goods performed by aircraft for hire,'" provides the exclusive cause of action and remedy for the Blansetts' claims against Continental. See Blansett v. Continental Airlines, Inc., 203 F.Supp.2d 736, 744 (S.D.Tex. 2002) (Kent, J.) (quoting El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 162, 119 S.Ct. 662, 668, 142 L.Ed.2d 576 (1999)). In order to prevail on a claim under the Warsaw Convention, a plaintiff must prove that (1) an "accident" (2) "took place on board the aircraft or in the course of operations of embarking or disembarking," (3) which "caused" (4) an "injury." McCaskey v. Continental Airlines, Inc., 159 F.Supp.2d 562, 569 (S.D.Tex.2001) (Kent, J.) (citing Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535-36, 111 S.Ct. 1489, 1494, 113 L.Ed.2d 569 (1991)). In the Motion now before the Court, Continental seeks dismissal of the Blansetts' claim that an accident occurred when Continental failed to warn passengers on the transatlantic flight of the risk of developing Deep Venous Thrombosis ("DVT").

The essential predicate of carrier liability under the Warsaw Convention is the occurrence of an "accident." McCaskey, 159 F.Supp.2d at 570 (citing Wallace v. Korean Air, 214 F.3d 293, 297 (2d Cir. 2000), cert. denied, 531 U.S. 1144, 121 S.Ct. 1079, 148 L.Ed.2d 955 (2001). For purposes of the Warsaw Convention, an accident is defined as "an unusual or unexpected event or happening that is external to the passenger." Air France v. Saks, 470 U.S. 392, 405, 105 S.Ct. 1338, 1345, 84 L.Ed.2d 289 (1985). Although the Supreme Court instructed that this definition should be "flexibly applied after assessment of all the circumstances surrounding a passenger's injuries," it cautioned that when an injury "indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident...." Id. at 405-06, 105 S.Ct. at 1345; see, e.g., Abramson v. Japan Airlines Co., 739 F.2d 130, 133 (3d Cir.1984) (sitting in an airline seat during a normal flight which aggravated the passenger's hiatal hernia is not an "accident"); Scherer v. Pan American World Airways, Inc., 54 A.D.2d 636, 387 N.Y.S.2d 580, 581 (1976) (sitting in an airline seat during a normal flight which aggravated the passenger's thrombophlebitis is not an "accident") (both cited with approval in Saks, 470 U.S. at 405, 105 S.Ct. at 1345).

Guided by Saks, many courts have attempted to draw the line between what is an accident and what is not. Finding the appropriate line has become even more critical since the Supreme Court held that the Warsaw Convention provides the exclusive remedy for injuries within its scope. See Tseng, 525 U.S. at 176, 119 S.Ct. at 675. Thus, if a passenger is injured on a flight that falls under the Warsaw Convention, and a court holds that the injury was not caused by an "accident," the passenger cannot recover. See id.

Continental argues that sitting in an airplane during a normal flight, which causes a passenger to develop DVT, cannot be an accident. Cf. Abramson, 739 F.2d at 133 (sitting in an airline seat during a normal flight which aggravated the passenger's hiatal hernia is not an accident); Margrave v. British Airways, 643 F.Supp. 510, 511 (S.D.N.Y.1986) (sitting in an airline seat for a prolonged period of time which caused the passenger's back injury is not an accident, but the bomb threat which caused the prolonged sitting is an accident); Scherer, 387 N.Y.S.2d at 581 (sitting in an airline seat during a normal flight which aggravated the passenger's thrombophlebitis is not an accident). This Court is willing to accept for the sake of argument that these cases show that sitting in an aircraft during a normal flight is not an accident. Thus, injuries sustained merely from sitting during a normal flight are not compensable under the Warsaw Convention.

From the conclusion that merely sitting does not constitute an accident, Continental extrapolates that failing to warn of the risk associated with merely sitting cannot be an accident either. The Court respectfully disagrees. The Blansetts allege that Continental violated a "custom, rule, and/or procedure among international long-haul carriers [by failing] to warn, advise and/or take adequate precautions to inform passengers of the risk of DVT." Pls.' First Am. Compl. at ¶ 20. Many courts have recognized that failing to carry out routine procedures in the usual way can constitute an accident under the Warsaw Convention. See, e.g., Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir.1998) (applying a hot compress to relieve ear pain, which is a routine procedure, can be an accident if the water is excessively hot); Fulop v. Malev Hungarian Airlines, 175 F.Supp.2d 651, 669 (S.D.N.Y.2001) (failing to divert an airplane when a passenger has a heart attack can be an accident if it "contravenes the airline's established customs, rules or procedures"); Husain v. Olympic Airways, 116 F.Supp.2d 1121, 1134-35 (N.D.Cal. 2000) (failing to allow an asthmatic passenger to move away from cigarette smoke, in contravention of industry standards and airline policies, is an accident). Thus, the Blansetts argue that even if merely sitting does not constitute an accident, failing to warn of the dangers of merely sitting can constitute an accident if the failure violates "accepted procedures and rules."⁴ See Husain, 116 F.Supp.2d at 1134.

In response, Continental argues that it did not have a duty to warn...