On April 29, 2022, the United States Court of Appeals for the First Circuit held that when determining whether an accident that occurred on a commercial flight was unexpected or unforeseen, the inquiry should focus on the expectations of “the average reasonable traveler.”[i]

 On September 14, 2018, Jennifer Moore (“Ms. Moore”) arrived in London from Boston on British Airways PLC.  Since the jet bridge normally used to disembark passengers was inoperable, a mobile staircase was utilized.  As she reached the last step, Ms. Moore lost her balance and fell.  She later argued that the last step was significantly further down than she expected, which was corroborated by the evidence presented at trial by Ms. Moore’s expert, who testified that while the height of each step on the staircase was 7.4 inches, the size of the last step was 13 inches.[ii]

Since this case concerned airline liability, it was governed by the Montreal Convention, formally the Convention for the Unification of Certain Rules for International Carriage by Air.  The Montreal Convention was designed to replace the Warsaw Convention by formulating a more amiable standard for passengers and incorporating broader language into discussions of passenger injuries.[iii]  The convention stipulates that an airline is liable for the damages sustained by a passenger if “the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”[iv]  However, the plaintiff does not need to demonstrate that the airline was negligent, but merely that there was an accident “which proximately caused a passenger’s death or injury.”[v]  In the present case, there was no dispute as to the fact that Ms. Moore was disembarking from the plane when the accident occurred. Instead, the issue was premised on whether the events that transpired were an “accident.”[vi]

 Although the Montreal Convention does not define what constitutes an accident, the Supreme Court held in Air France v. Saks that an accident under the Warsaw Convention, the precursor to the Montreal Convention, is “an unexpected or unusual event or happening that is external to the passenger.”[vii]  While the First Circuit agreed with the lower court that the event may not have been unusual given that no evidence was presented at trial to suggest that the design of the staircase in question was “atypical of other mobile suitcases used to disembark passengers,” it emphasized that under the terms of the Supreme Court in Saks, an accident can still occur even if it was not unusual, so long as it was unexpected.[viii]  The court stated that the question of whether an occurrence was unexpected should be evaluated from the “perspective of a reasonable passenger with ordinary experience in commercial air travel,” and argued that this inquiry is consistent with the text of the Montreal Convention, the decisions of American and foreign courts, and the objects and purposes of the Montreal Convention.

 An objective “reasonableness” standard is consistent with cases in the United States and worldwide.  The First Circuit highlights how such an approach has been utilized in cases concerning passengers injuring other passengers, passengers being injured by falling luggage, and passengers being subject to traumatizing security inspections.[ix] Moreover, the First Circuit emphasized how its application of an objective “reasonableness” standard is proper in light of the Montreal Convention, given that “an inquiring court should, when possible, construe the terms of a treaty in light of the treaty’s ‘objects and purposes.’”[x]  The Montreal Convention states that all signatories recognize “the importance of ensuring [the] protection of the interests of consumers in international carriage by air,” an approach that is supported by analyses of the treaty, which have described it as “favor[ing] passengers rather than airlines.”[xi]

In light of these interpretations, it is evident that the First Circuit’s assessment is in strict accordance with the Montreal Convention’s mission “of achieving an equitable balance of interests” between airlines and passengers.[xii] Faulting a passenger for an unforeseen accident, regardless of whether the airline acted negligently or not, would contravene the entire purpose of the Montreal Convention.  Such an approach would result in the passenger bearing the costs of their injuries, even though “such incidents are within the reasonable anticipation of airlines and thus more easily built into their actuarial calculus.”[xiii]  Therefore, airlines are to be held liable under the Montreal Conventions when an accident occurs that a “reasonable passenger with ordinary experience in commercial air travel, standing in the plaintiff’s shoes, would not expect to happen.”[xiv]

 Applying the aforementioned standard, the First Circuit examined four facts to support its interpretation of an “accident” under the terms of the Montreal Convention: (1) all the steps on the staircase before the final step were uniform in height; (2) the plaintiff’s travel companion testified that she was “surprised” that the last step was not at the location she expected it to be; (3) passengers were not informed of the final step’s height discrepancy; and (4) a reasonable jury could infer from the testimony of the plaintiff’s expert that use of the staircase was unexpected.[xv]  With these facts, the First Circuit concluded that it was improper for summary judgment to have been granted in favor of British Airways PLC.  The Court remanded the case for a jury to determine whether the injuries suffered by Ms. Moore resulted from an accident following the Court’s understanding of the Montreal Convention.

However, the First Circuit acknowledged a potential circuit split with the Fifth Circuit Court of Appeals, given the latter court’s holding in Blansett v. Continental Airlines, Inc.[xvi]  Rather than analyzing the facts regarding an unexpected accident under the Montreal Convention from the lens of an ordinary, reasonable passenger, the court in Blansett examined the general practices of the aviation industry concerning the accident to determine whether it was unexpected.[xvii]  In Blansett, a passenger filed suit against Continental Airlines after having “suffered an episode of deep vein thrombosis (“DVT”), resulting in a cerebral stroke that left him permanently debilitated.”[xviii]  The Fifth Circuit ultimately held that Continental Airlines could not be held liable for the injuries suffered by the passenger, although the airline did not provide DVT warnings, given that, although such notices were provided by many airlines, “it is undisputed that many did not.”[xix]  Therefore, since Continental Airlines’ failure to warn was “neither unexpected nor unusual,” and was not a warning required by the Federal Aviation Administration, “no jury may be permitted to find that Continental’s failure to warn of DVT constituted an ‘accident’ under article 17.”[xx]

The Fifth Circuit’s holding is notable because if the First Circuit had applied its analysis, the outcome would undoubtedly have favored the airline.  Here, two facts must be highlighted.  First, in Moore, it was established that no airline employees were at the bottom of the staircase, nor were any passengers warned of the final step’s height discrepancy.  Second, Ms. Moore’s expert testified that the staircase “did not conf[o]rm to industry standards.”[xxi] Unfortunately, neither of these two factors would suffice to meet the heightened standard announced by the Fifth Circuit.  The fact that no warning had been issued by the airline would not give rise to a lawsuit under the Montreal Convention unless the airline was found to violate federal regulations, none of which were highlighted by the court in Moore.  Moreover, even if the staircase constituted a departure from the industry standard, the court in Blansett stressed that “some departures from an ‘industry standard’ might be qualifying accidents under Article 17, and some may not.”[xxii] Therefore, since there are no governmental regulations mandating warnings on staircases nor are such warnings standard practice in the vast majority of airlines, the injuries suffered by Ms. Moore would not be considered unexpected or unusual, and would therefore not qualify as an accident under the Montreal Convention.

 Nevertheless, if either Moore or Blansett were to reach the Supreme Court, it would be in the best interest of all parties for the Court to adopt the standard outlined by the First Circuit.  Firstly, this standard allows for a bright-line rule when analyzing what constitutes an accident under the Montreal Convention.  Courts will only have to focus on whether an ordinary, reasonable traveler found the incident unexpected.  This avoids analyzing the existence of federal regulations or the implementation of specific standards across the entire airline industry.  Simply because the federal government does not require an airline to enact a certain measure should not provide it with the opportunity to place hundreds of passengers at risk with every flight.  Most importantly, the First Circuit’s approach is consistent with the mission of the Montreal Convention–to level the playing field between airlines and passengers with respect to negligence actions.

[i] See Moore v. British Airways PLC, 32 F.4th 110, 123 (1st Cir. 2022); see also Bernie Pazanowski, British Airways Must Face Suit by Filer Who Fell Leaving Plane, Bloomberg Law (May 2, 2022, 10:43 am),

https://news.bloomberglaw.com/us-law-week/british-airways-must-face-suit-by-flier-who-fell-leaving-plane.

[ii] See Moore, 32 F.4th at 112-13.

[iii] See McKay Cunningham, The Montreal Convention: Can Passengers Finally Recover for Mental Injuries?, 41 Vanderbilt L. Rev. 1043, 1069-70 (2008).

[iv] See Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention) art. 17(1), May 28, 1999, S. Treaty Doc. No. 106-45 (1999).

[v] See Moore, 32 F.4th at 115.

[vi] See id. at 112.

[vii] See Air France v. Saks, 470 U.S. 392, 405 (1985).

[viii] See Moore, 32 F.4th at 116 (citing Moore v. British Airways PLC, 511 F. Supp. 3d 1, 6-7 (D. Mass. 2020)).

[ix] See id. at 119.

[x] See id. (Quoting Monasky v. Taglieri, 140 S. Ct. 718, 728 (2020)).

[xi] See Moore, 32 F.4th at 120 (quoting Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 b.4, 372 (2d Cir. 2004)); see also Montreal Convention, May 28, 1999, S. Treaty Doc. No. 106-45 (1999).

[xii] See id.

[xiii] See Moore, 32. F.4th at 120.

[xiv] See id. at 121.

[xv] See id.

[xvi] See id. at 123 n. 7 (acknowledging a potential circuit split given the Fifth Circuit’s holding in Blansett v. Continental Airlines, Inc., 379 F.3d 177 (5th Cir. 2004)).

[xvii] See Pazanowski, supra note 1.

[xviii] Blansett, 379 F.3d at 178.

[xix] See id. at 182.

[xx] See id.

[xxi] See Moore, 32 F.4th at 113.

[xxii] See Blansett, 379 F.3d at 182.