Wallace v. Korean Air

• Decision Date: 01 December 1999
• Docket Number: Docket No. 99-7597
• Citation: 214 F.3d 293
• Parties: (2nd Cir. 2000) BRANDI WALLACE, Plaintiff-Appellant, v. KOREAN AIR, Defendant-Appellee. August Term 1999 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 293

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

BRANDI WALLACE, Plaintiff-Appellant, v. KOREAN AIR, Defendant-Appellee.

Docket No. 99-7597

August Term 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: December 1, 1999

Decided: June 06, 2000

Brandi Wallace appeals from an order of the United States District Court for the Southern District of New York (Patterson, J.), granting Korean Air Lines Co., Ltd. summary judgment.

VACATED and REMANDED.

FRANK H. GRANITO, III, Speiser, Krause, Nolan & Granito, New York, New York (Frank H. Granito, Jr. and John J. Halloran, Jr. on the brief), for Plaintiff Appellant.

ANDREW J. HARAKAS, Biedermann, Hoenig, Massamillo & Ruff, P.C., New York, New York, for Defendant-Appellee.

Before: McLAUGHLIN, POOLER, SACK, Circuit Judges.

Judge Pooler concurs by separate opinion.

McLAUGHLIN, Circuit Judge:

Plaintiff Brandi Wallace was sexually assaulted while on a Korean Air Lines Co., Ltd. ("KAL") international flight. Her attacker was a fellow passenger. She sued KAL to recover for the assault under the Warsaw Convention,¹ which makes air carriers liable for passenger injuries caused by an "accident." Warsaw Convention Art. 17. The United States District Court for the Southern District of New York (Patterson, J.) dismissed the suit, concluding that the sexual assault was not "a risk characteristic of air travel," and therefore was not an "accident" for purposes of the Convention. Wallace v. Korean Air, No. 98 Civ. 1039, 1999 WL 187213, at *4-5 (S.D.N.Y. Apr. 6, 1999). Because we disagree with that conclusion, we vacate and remand.

BACKGROUND

The facts are undisputed. On the evening of August 17, 1997, Brandi Wallace boarded KAL flight 61 in Seoul, Korea, destination Los Angeles, California. It being the middle of summer, Ms. Wallace wore a T-shirt and jean shorts with a belt. Initially, the flight passed uneventfully. Ms. Wallace was seated in a window seat in economy class, and fell asleep shortly after finishing her in-flight meal.

Two male passengers sat between Ms. Wallace's window seat and the aisle of the airliner's cabin. Seated closest to Ms. Wallace was Mr. Kwang Yong Park. Before she fell asleep, Ms. Wallace had neither spoken to Mr. Park, nor given him the slightest indication that familiarity would be welcome. Nevertheless, about three hours into the flight, Ms. Wallace awoke in the darkened plane to find that Mr. Park had unbuckled her belt, unzipped and unbuttoned her jean shorts, and placed his hands into her underpants to fondle her. Ms. Wallace woke with a start and immediately turned her body toward the window causing Mr. Park to withdraw his hands. When Mr. Park resumed his unwelcome amours, however, Ms. Wallace recovered from her shock and hit him hard. She then climbed out of her chair and jumped over the sleeping man in the aisle seat to make her escape.

At the back of the plane, Ms. Wallace found a flight attendant and complained about the assault. The attendant reassigned her to another seat. When the plane arrived in Los Angeles, Ms. Wallace told airport police about the incident, and they arrested Mr. Park. He subsequently pled guilty in the United States District Court for the Central District of California to the crime of engaging in unwelcome sexual conduct with another person in violation of 18 U.S.C. § 2244(b).

In February 1998, Wallace brought this action against KAL in the United States District Court for the Southern District of New York (Patterson, J.), alleging that KAL was liable for Park's sexual assault under the Warsaw Convention, which applies to "all international transportation of persons, baggage, or goods performed by aircraft for hire." Warsaw Convention Art. 1(1).² As modified by the Montreal Agreement,³ the Warsaw Convention makes airlines liable (up to a $75,000 limit per passenger) "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking" from an international air flight. Warsaw Convention Art. 17 (emphasis added); see Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 92-93 (2d Cir. 1998).

Following discovery, Wallace moved for summary judgment on her Warsaw Convention claim. The district court denied the motion and dismissed that claim. Relying on its reading of Air France v. Saks, 470 U.S. 392 (1985), the district court reasoned that because the sexual assault was not "a risk characteristic of air travel," it therefore did not constitute an "accident" for purposes of the Warsaw Convention. See Wallace, 1999 WL 187213, at *4-5. Wallace now appeals.

DISCUSSION

The proper interpretation of the Warsaw Convention is an issue of law, which we review de novo. See Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 167 (2d Cir. 1997).

I

A brief history of the evolution of the liability regime fostered by the Warsaw Convention will help to elucidate the issue on this appeal. The Convention was drafted at two international conferences, the first in Paris in 1925, and the second in Warsaw in 1929. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 246 (1984); see generally Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1467 69 (11th Cir. 1989) (reviewing history), rev'd on other grounds, 499 U.S. 530 (1991); Saks v. Air France, 724 F.2d 1383, 1385 (9th Cir. 1984) (same) rev'd on other grounds 470 U.S. 392 (1985). The United States became a signatory in 1934. See 78 Cong. Rec. 11,582 (1934); Trans World, 466 U.S. at 246-47.

The Convention had two goals: to establish uniform rules for international air travel and to limit potential carrier liability for passenger injuries so as not to frighten away potential investors from the fledgling air industry. See Floyd, 872 F.2d at 1467 (citing Andreas F. Lowenfeld and Allan I. Mendelsohn, The United States and The Warsaw Convention, 80 Harv. L. Rev. 497, 498 99 (1967) (other citations omitted)); Saks, 724 F.2d at 1385. To achieve these goals, the Convention capped the airlines' potential liability to each passenger at 125,000 gold french francs, or approximately $8,300. See Warsaw Convention Art. 22; Floyd, 872 F.2d at 1467. At the same time, however, the Convention made the airlines subject to Article 17, which provides in its entirety:

The carrier shall be 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 operations of embarking or disembarking.

Article 17 created what the courts have characterized as a "presumption" that air carriers are liable for passenger injuries. In re Air Crash Disaster at Warsaw, Poland, on March 14, 1980, 705 F.2d 85, 87 (2d Cir. 1983); see Floyd. 872 F.2d at 1467 (same). There was a counterweight to the presumption: carriers could avoid Article 17 liability altogether by establishing the so-called "due care" defense provided by Article 20(1). See Warsaw Convention Art. 20(1) ("The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.").

From the beginning, the United States was hostile to the "stringent" limitations on liability imposed by the Convention. Day v. Trans World Airlines, Inc., 528 F.2d 31, 36 (2d Cir. 1975). In particular, the $8,300 liability cap was regarded as too stingy. See Day, 528 F.2d at 36. In November 1965, the United States announced its intention to withdraw from the Warsaw system if an international agreement could not be reached to raise the limits on liability. See 31 Fed. Reg. 7302 (1966); Day, 528 F.2d at 36. This notice of denunciation led to intense negotiations which ultimately culminated in the Montreal Agreement of 1966. Through that Agreement, the air carriers agreed to raise the limit of liability to $75,000 for flights originating, terminating, or having a stopping point in the United States. See Floyd, 872 F.2d at 1468 (citing Lowenfeld & Mendelsohn, 80 Harv. L. Rev. at 602). In addition, the carriers agreed to eliminate the "due care" defense they had enjoyed under Article 20. See id.

The rationale for the new regime was straightforward. In exchange for the cap on liability at the new level of $75,000, the air carriers consented to a system under which they assumed "virtual strict liability" for death or injury to passengers. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1485 (D.C. Cir. 1991). As Lowenfeld and Mendelsohn, who represented the United States at Montreal, explained, this arrangement made sense because: "[i]n terms of distribution of risk, the carrier would seem, in nearly every case, to be in the best position to . . . spread the risk most economically" regardless of fault. 80 Harv. L. Rev. at 599-600. In sum, a fundamental reason for the abandonment of the fault-based "due care" defense available under the Warsaw Convention was to guarantee to passengers the prospect of quicker and less expensive settlements. See id. at 600.

II

The essential predicate of carrier liability is the occurrence of an "accident" contemplated by Article 17 of the Convention. The issue presented here is whether Park's sexual molestation of Ms. Wallace constituted such an "accident." We hold that it did.

A. Saks

Although the Convention itself does not define an "accident," the Supreme Court addressed the meaning of that term in Air France v. Saks, 470 U.S. 392 (1985). There, Valerie Saks sued an airline because she became deaf as a result of changes in air pressure during a flight. After extensive discovery established that the aircraft's pressurization system had operated in the usual manner, the district court dismissed the case, holding that Saks could not recover under the Convention without evidence of some malfunction in the aircraft's operation. See Sa...