Moore v. British Airways PLC

• Decision Date: 29 April 2022
• Docket Number: 21-1037
• Citation: 32 F.4th 110
• Parties: Jennifer MOORE, Plaintiff, Appellant, v. BRITISH AIRWAYS PLC, a foreign corporation, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

32 F.4th 110

Jennifer MOORE, Plaintiff, Appellant,

v.BRITISH AIRWAYS PLC, a foreign corporation, Defendant, Appellee.

No. 21-1037

United States Court of Appeals, First Circuit.

April 29, 2022

Kevin Chrisanthopoulos for appellant.

Marissa N. Lefland, with whom Anthony U. Battista, Samantha M. Holloway, and Condon & Forsyth LLP were on brief, for appellee.

Before Kayatta, Selya, and Howard, Circuit Judges.

SELYA, Circuit Judge.

We have noted before that "words are like chameleons; they frequently have different shades of meaning depending upon the circumstances." United States v. Romain, 393 F.3d 63, 74 (1st Cir. 2004). This appeal turns on just such an exercise in exegesis — the meaning of the word "accident," as that word is used in Article 17(1) of the Montreal Convention, formally known as the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (2000), 2242 U.N.T.S. 350.

This case has its genesis in an airline passenger's fall while disembarking from an aircraft by means of a mobile staircase, the last step of which was appreciably more precipitous than the earlier ones. The principal question on appeal is whether the use of such a staircase, under the circumstances, was an event that may constitute an "accident" within the meaning of the Montreal Convention. Concluding, as we do, that a jury could supportably find that the event was unexpected and that the passenger's injuries resulted from such an accident, we vacate the district court's entry of summary judgment for the airline, affirm its denial of the passenger's motion for partial summary judgment, and remand for further proceedings.

I

We briefly rehearse the relevant facts (which are largely undisputed) and the travel of the case. On September 14, 2018, the plaintiff, Jennifer Moore, flew from Boston to London aboard a Boeing 777 airliner operated by the defendant, British Airways PLC. The red-eye flight touched down at London's Heathrow Airport at around 9:00 a.m. on September 15. While taxiing to the gate, the flight crew learned that the jet bridge ordinarily used to disembark passengers was inoperable. Consequently, deplaning passengers would need to use a mobile staircase (an apparatus commonly used at Heathrow and other airports of comparable scale and scope).

After the aircraft was parked at the gate, the ground crew secured the mobile staircase against the fuselage. The passengers — including the plaintiff and her travel companion, Tammy Burnett — then began to disembark. By all accounts, the disembarkation process was calm and orderly. The passengers proceeded down the staircase in single file without any noticeable jostling or other untoward behavior. The stairs were clean — free of debris and other foreign substances — and the weather was clear.

Ms. Burnett preceded the plaintiff down the mobile staircase. As Ms. Burnett testified in her deposition, she "was surprised at the last step being a little further than a normal cadence of a staircase" and, thus, "the bottom step didn't arrive when I thought it would." She nonetheless kept her balance and then "turned around to tell [the plaintiff] to watch her step," only to discover that the plaintiff had taken a tumble. In describing her fall, the plaintiff testified that when she reached the last step "it was further down than I was expecting," which "thr[ew] off my balance and both of my ankles turned and I went down."

There were no British Airways employees at the bottom of the stairs and no one warned the passengers about the height of the final step. After the plaintiff fell — and in accordance with British Airways' internal policy — the mobile staircase was taken out of service and inspected for defects. The inspection confirmed that the stairs were in their normal operating condition, free of defects and working as intended at the time of the incident. The inspection also confirmed that the distance from the bottom step to the ground was "noticeably slightly different" than the distance between the steps themselves.

The plaintiff's expert, Chad Phillips, prepared a report estimating from photographs that the riser height of each step on the mobile staircase was 7.4 inches, whereas the riser height of the bottom step (the distance between that step and the ground) was 13 inches. In his opinion, "this excessive riser [height] difference exposed [the plaintiff] to a misstep hazard and caused her to take an air step resulting in her injuries." An "air step," he explained, occurs by stepping "onto an unexpected depression or step down."

Phillips further opined that the mobile staircase was used in a manner that did not conform to industry standards. In this regard, he referred to British Standard 5395-1:2000, which states that "[t]he maximum rise that people can be expected to negotiate safely is 220mm," or 8.7 inches. He also referred to European Standard EN 12312-1:2001+A1:2009, entitled "Aircraft Ground Support Equipment - Specific Requirements - Part 1: Passenger Stairs," which provides that "[a]ll steps of a stair flight shall be designed with the same riser height" and that the distance from the ground to the tread surface of the bottom step "shall not exceed 260mm," or 10.24 inches.

The plaintiff sustained severe injuries as a result of her fall. Accordingly, she sued British Airways under the Montreal Convention for damages in an unspecified amount (her complaint contained no specific ad damnum, but sought recovery "in excess of the jurisdictional limits of [the district court]"). She alleged, in substance, that the injuries sustained in her fall resulted from an accident within the meaning of Article 17(1) of the Montreal Convention. ¹

After pretrial discovery had run its course, British Airways moved for summary judgment. See Fed. R. Civ. P. 56(a). It argued that, as a matter of law, the plaintiff's injuries did not result from an accident within the meaning of the Montreal Convention. The plaintiff opposed the motion and cross-moved for partial summary judgment on the issue of whether her injuries stemmed from such an accident. Following a hearing, the district court granted British Airways' motion for summary judgment and denied the plaintiff's cross-motion. See Moore v. British Airways PLC, 511 F. Supp. 3d 1, 2-3, 7 (D. Mass. 2020). In so ruling, the court determined that the plaintiff's injuries were not the result of an accident within the meaning of the Montreal Convention. See id. at 6-7. This timely appeal ensued.

II

It is by now apodictic that orders granting summary judgment engender de novo review. See Finamore v. Miglionico, 15 F.4th 52, 58 (1st Cir. 2021). In conducting this tamisage, we assess "the record and all reasonable inferences therefrom in the light most hospitable to the summary judgment loser" (here, the plaintiff). Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). Summary judgment is appropriate only when the record, so viewed, "reflects no genuine issue as to any material fact" and the movant demonstrates an entitlement to judgment as a matter of law. Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009) ; see Fed. R. Civ. P. 56(a).

If the nonmovant bears the ultimate burden of proof on a given issue, "she cannot rely on an absence of competent evidence" alone to show that the issue is trialworthy. McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). Instead, she "must present definite, competent evidence sufficient to establish the elements of [her] claim in order to survive a motion for summary judgment." Alston v. Int'l Ass'n of Firefighters, Local 950, 998 F.3d 11, 24 (1st Cir. 2021) (internal quotation omitted) (quoting Pina v. Children's Place, 740 F.3d 785, 795-96 (1st Cir. 2014) ).

A

The Montreal Convention is a multilateral treaty governing the liability of air carriers for certain injuries and damages that occur during international air carriage. See Dagi v. Delta Airlines, Inc., 961 F.3d 22, 27 (1st Cir. 2020). The United States and the United Kingdom are among the signatories to the Convention. See id.

The Montreal Convention establishes a two-tiered liability regime for passenger injuries caused by an accident. The carrier is strictly liable for damages up to 128,821 Special Drawing Rights, an amount determined by the International Monetary Fund that is approximately $175,000. See Montreal Convention, arts. 21(1), 23; Inflation Adjustments to Liability Limits Governed by the Montreal Convention Effective December 28, 2019, 85 Fed. Reg. 3104, 3105 (Jan. 17, 2020) ; International Monetary Fund, SDR Valuation, https://www.imf.org/external/np/fin/data/rms_sdrv.aspx (last visited April 28, 2022). For damages over that ceiling, a carrier can avoid liability if it can prove that "such damage was not due to the negligence or other wrongful act or omission of the carrier" or that "such damage was solely due to the negligence or other wrongful act or omission of a third party." Montreal Convention, art. 21(2). What is more, the carrier may reduce or eliminate its liability for all damages to the extent it "proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation." Id., art. 20.

The Montreal Convention has preemptive force with respect to passenger injuries suffered either on board an aircraft or during embarkation or disembarkation. Recovery for such a claim, "if not allowed under the Convention, is not available at all" under a nation's local laws. El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (interpreting Warsaw Convention); see Dagi, 961 F.3d at 24, 27-28 (same for Montreal Convention).

The case at hand turns on Article 17(1) of the Convention, which provides in full: "The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or...