Husain v. Olympic Airways
| Decision Date | 12 December 2002 |
| Docket Number | No. 00-14509.,00-14509. |
| Parties | Rubina HUSAIN, individually and as personal representative of the estate of; Abid M. Hanson, M.D.; Hannah Husain; Sarah Husain; Isaac Husain, by and through their Guardian ad Litem, Rubina Husain, Plaintiffs-Appellees, v. OLYMPIC AIRWAYS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Susie Injijian, Sterns and Walker, Oakland, CA, for the plaintiff-appellee.
Andrew J. Harakas, Condon and Forsyth, New York, NY, for the defendant-appellant.
Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding D.C. No. CV-99-01400-CRB.
Before REINHARDT and FISHER, Circuit Judges, and MOLLOY, District Judge.*
I. Introduction
After a non-jury trial, the district court determined that Dr. Abid M. Hanson's death on Olympic Airways ("Olympic") Flight 417 was caused by an accident as defined by Article 17 of the Warsaw Convention. The trial judge also found the accident resulted from willful misconduct by Olympic's employees. The district court awarded $1,400,000 in damages. Olympic appeals the determinations of the district court and the award of damages. We hold that the district court's findings are not clearly erroneous and we AFFIRM.
II. Factual and Procedural Background
On January 4, 1998, 52 year-old Dr. Abid M. Hanson died while a passenger on Olympic Flight 417 between Athens, Greece and New York City. His death occurred after he suffered complications when he was exposed to ambient secondhand smoke while seated in the airplane's non-smoking section three rows in front of the smoking section. The plane had clearly demarcated sections for seating, one for smokers and one for non-smokers, though no partition separated the two. Dr. Hanson's wife, Rubina Husain, had asked Olympic's employees on multiple occasions with increasing urgency to move Dr. Hanson to another seat away from the smoking section. She explained the critical reasons Dr. Hanson had to move and made her concerns known about the consequences of leaving him exposed to the offensive smoke. Ms. Husain's requests were ignored, primarily by flight attendant Maria Leptourgou. Dr. Hanson died from a severe asthma attack caused by the smoke exposure.
Plaintiffs filed suit in California Superior Court for Alameda County on December 24, 1998. Olympic removed the action to the United States District Court for the Northern District of California on March 23, 1999. On February 25, 2000, Olympic moved for summary judgment claiming Dr. Hanson's death was not caused by an accident as defined by Article 17 of the Warsaw Convention.1 The district court denied the motion for summary judgment without a written opinion on March 24, 2000. A three-day bench trial was held May 30 through June 1, 2000. After the parties presented evidence, the district court asked for post-trial briefs and agreed to hear closing arguments on July 20, 2000. Findings of fact and conclusions of law were entered on August 8, 2000 finding Ms. Leptourgou's failure to move Dr. Hanson to a new seat was an accident under Article 17 of the Warsaw Convention and proximately caused his death. The trial judge found Ms. Leptourgou's refusal to help Dr. Hanson constituted willful misconduct under Article 25 of the Warsaw Convention.
The district court awarded Plaintiffs $1,400,000, but reduced the award by 50% due to Dr. Hanson's comparative negligence. On October 2, 2000, the district court issued amended findings of fact and conclusions of law. Supplemental findings of fact and conclusions of law were issued on November 28, 2000 awarding Plaintiffs an additional $700,000 in non-pecuniary damages. Final judgment was entered on November 28, 2000. Olympic timely appealed.
For more than 20 years before his death on January 4, 1998, Dr. Hanson had been sensitive to secondhand smoke and tried to avoid smoke-filled areas. He suffered from asthma for which he did not receive regular treatment. However, he regularly carried and used a Proventil/Albuterol inhaler to aid his breathing. The frequency of Dr. Hanson's use of the inhaler increased as he aged.
Dr. Hanson was also allergic to many foods, including grapes, yeast and tomatoes. The extent of his allergies is unclear; however, Dr. Hanson often ate tomato-based foods without suffering a reaction.
Before his death, Dr. Hanson had suffered two medical emergencies that may have been caused by asthma or food allergies. In December 1996, Dr. Hanson and his wife were at a smoky restaurant in Las Vegas, Nevada for approximately ten minutes. Before returning to their hotel room, Dr. Hanson and his wife shared a piece of quiche and some cheese pizza. Shortly after returning to the hotel room Dr. Hanson began having breathing difficulties, to the extent that Ms. Husain called paramedics and had to perform CPR. The paramedics gave Dr. Hanson a shot of epinepherine and transported him to the hospital where he remained overnight.
The cause of the Las Vegas attack is unclear. However, at trial, experts for both parties agreed that the episode was likely caused by food-related allergies. Following the Las Vegas attack, Dr. Hanson began carrying an emergency kit containing epinepherine.
During the summer of 1997, Dr. Hanson suffered another attack after dining at the home of friends in California. After he returned from a post-dinner walk, Ms. Husain noticed Dr. Hanson was having a difficult time breathing and called paramedics. The paramedics gave Dr. Hanson oxygen and observed him for a short period of time. Dr. Hanson was not taken to the hospital, nor was any epinepherine administered. The cause of the breathing difficulties is unknown.
In December 1997, Dr. Hanson, Ms. Husain and their family flew from San Francisco to Athens and Cairo for vacation. The trip involved a stop in New York. Dr. Hanson learned for the first time at the airport in New York that Olympic allowed smoking on international flights. Dr. Hanson and his family asked to be seated in the non-smoking section and their request was honored. On the flights to Athens and Cairo, the family was seated in non-smoking seats away from the smoking section and were not exposed to ambient smoke. Dr. Hanson did not suffer from breathing problems during the trip.
On January 4, 1998, Dr. Hanson and his family began the return trip from Cairo to the United State via Athens. The family arrived at the Cairo airport early to ensure they obtained non-smoking seats. Ms. Husain showed the check-in agent a letter from Dr. Hanson's brother, who was also a doctor, indicating that Dr. Hanson had asthma. The family was seated in the non-smoking section on the flight from Cairo to Athens and Dr. Hanson did not experience any breathing problems.
During a three to four hour layover in Athens, Dr. Hanson began having problems breathing. The waiting area was very smoky and Dr. Hanson was forced to use his inhaler. An attempt to move to the slightly less smoky first-class lounge was thwarted by airport officials.
Upon boarding Olympic Airways Flight 417 from Athens to New York, Dr. Hanson and his family discovered that they were seated in non-smoking seats, but only three rows ahead of the smoking section which was not partitioned off.3 Immediately after finding their seats, Ms. Husain approached flight attendant Maria Leptourgou, informed her that Dr. Hanson could not be near the smoking section, and asked Ms. Leptourgou to move him. Ms. Leptourgou responded by telling Ms. Husain to "have a seat."4
After all of the passengers were seated, but before take-off, Ms. Husain once again approached Ms. Leptourgou and adamantly asked that she move Dr. Hanson to another seat, explaining that he was allergic to smoke. Ms. Leptourgou refused, stating that she was "too busy" and the flight was "totally full." Husain, 116 F.Supp.2d at 1125.
Immediately after take-off, passengers in the smoking section were allowed to begin smoking. From that point forward, people in the smoking section were smoking continuously, including people seated in rows 51 through 56 and people in other rows who moved back to the smoking section to smoke and socialize. The smoke began to envelope Dr. Hanson and his family. After Dr. Hanson indicated that the smoke was bothering him, Ms. Husain approached Ms. Leptourgou and, for the third time on the airplane, told her that she needed to move Dr. Hanson for health reasons. Ms. Leptourgou again refused stating that the plane was full. She did tell Ms. Husain that she and Dr. Hanson could ask other passengers to switch seats, but they would not be assisted by the flight crew. Despite one last plea for help by Ms. Husain, Ms. Leptourgou refused to help Dr. Hanson find another seat.5
The amount of smoke floating around row 48 only increased as the flight progressed, especially after a meal was served. While Dr. Hanson ordered a meal, he did not eat much, and shared his meal with his daughter and another passenger. After the meal, Dr. Hanson's breathing problems worsened. He had emptied one inhaler and asked Ms. Husain to get another one. After telling his daughter that the smoke was bothering him, he walked to the front of the cabin to get some fresh air.
Ms. Husain followed Dr. Hanson to an area between rows 19 and 20 where he had stopped and was leaning against a chair. The doctor asked for his epinepherine kit, which Ms. Husain retrieved and then administered a shot. She then went to notify Dr. Umesh Sabharwal, an allergist and family friend who was traveling with Dr. Hanson and his family.
Dr. Sabharwal helped Dr. Hanson to the floor, administered another shot of epinepherine, and then began performing CPR. Dr. Hanson's pulse was barely detectable and his lower airway was obstructed, though...
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