United States District Court, District of Columbia
April 15, 2002
GAYLE HARPER BRUNK, PLAINTIFF,
BRITISH AIRWAYS PLC, DEFENDANT.
The opinion of the court was delivered by: Henry H. Kennedy, Jr., United States District Judge
MEMORANDUM OPINION AND ORDER
By this action plaintiff, Gayle Harper Brunk, seeks to recover for
personal injuries she sustained when she fell while on board a British
Airways flight from London to Virginia. Before the court is the motion of
defendant, British Airways, for summary judgment. Upon consideration of
the motion and the opposition thereto, the court concludes that the
motion must be denied.
I. FACTUAL BACKGROUND
The following facts are either undisputed or portrayed in the light
most favorable to Brunk. On April 19, 1998, Brunk, then 46 years old,
along with her son Jordan, boarded British Airways Flight 223 bound from
London's Heathrow Airport to Dulles International Airport in Virginia.
Brunk occupied a middle seat in row 44 at the rear of the aircraft. Her
son sat in the aisle seat. After consuming an in-flight meal midway
through the flight, Brunk left her seat and went to the lavatory. While
in the lavatory, Brunk felt some turbulence which caused the flight "to
[get] quite rough." Pl.'s Opp. to Mot. for Summ. J., Ex. D, at 30. Upon
returning from the lavatory, she attempted to step past her son in order
to get back into her seat. At the very moment that Brunk was maneuvering
back into her seat, the plane suddenly was hit by a jolt of turbulence,
lifting Brunk off her feet and causing her to fall to the floor of the
As a result of the fall, Brunk immediately felt great pain in her knee
and was unable to walk. A doctor's examination later revealed that she
tore ligaments in her knee necessitating surgery to repair.
Because Brunk sustained her injuries on board an international
commercial flight, her claim is governed by the Warsaw Convention.*fn1
El Al Airlines, Ltd v. Tseng, 525 U.S. 155, 176 (1999). Recovery, "[i]f
not allowed under the Convention, is not available at all." Id. at 161.
Under Article 17 of the Convention, British Airways is liable for Brunk's
injuries if those injuries were caused by an "accident."*fn2 Relying on
cases that have addressed
whether a plaintiff can recover for injuries
sustained on an airplane due to turbulence,*fn3 British Airways asserts
that it is entitled to judgment as a matter of law because the turbulence
which Brunk claims caused her injury was not sufficiently severe to
constitute an "accident" within the meaning of Article 17. British
Airways' position cannot be sustained.
The Supreme Court defined the term "accident" for purposes of the
Warsaw Convention as "an unexpected or unusual event or happening that is
external to the passenger." Air France v. Saks, 470 U.S. 392, 405
(1985). If, however, the injury "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 406. Recognizing
that the question of whether an event is unusual or unexpected is
necessarily fact-specific, the Court noted that the "definition [of
accident] should be flexibly applied after assessment of all the
circumstances surrounding a passenger's injuries." Id. at 405. The Court
also observed that the term "accident," had been defined "broadly enough"
by lower courts to include various types of injuries. See id. at 405.
Lower courts have since read this language to mean that "accident" should
be broadly construed, see, e.g., Husain v. Olympic Airways,
116 F. Supp.2d 1121, 1131 (N.D.Cal. 2000); Carey v. United Airlines,
Inc., 77 F. Supp.2d 1165, 1170 (D.Or. 1999), and have determined that an
objective test is to be employed when determining whether an event is
unexpected or unusual. See Husain, 116 F. Supp.2d at 1130.
Viewed in a light most favorable to Brunk, as this court is required to
do at this stage of the litigation,*fn4 the evidence shows that Brunk
sustained an injury caused by a jolt of turbulence substantial enough to
cause her to leave her feet and to fall to the floor of the airplane with
such an impact that the ligaments in her knee were torn. The turbulence
induced a sensation likened to that resulting from the "dip . . . on a
roller coaster,"*fn5 Pl.'s Opp. to Mot. for Summ. J., Ex. F, at 10,
and, in addition to causing Brunk to fall, dislodged several of the
passengers' food trays and caused them to spill off their tray table
and onto the floor. Applying the teaching of Saks and elementary
summary-judgment principles, it is apparent that British Airways' motion
for summary judgment must be denied. A reasonable juror could find that
Brunk's injury was caused by an "unusual or unexpected event," a
precipitous drop of the airplane during moderate to severe turbulence, and
not by her own internal reaction to the usual, normal, and expected
operation of an aircraft.*fn6
The cases upon which British Airways rely do not prescribe a different
result. Its reliance on Quinn v. Canadian Airlines Int'l Ltd., No.
35558/91U, 1994 Ont. C.J. LEXIS 1681 (Ont. Ct. May 30, 1994), aff'd 1997
Ont. C.A. LEXIS 267 (Apr. 30, 1997) [hereinafter Quinn], is particularly
misplaced. In Quinn, the plaintiff was a 72 year old grandmother with an
advanced case of osteoporosis, a condition that the plaintiff's doctor
testified can result in the type of injury the plaintiff sustained,
crushed vertebrae, "almost spontaneously." Quinn, supra, at 37. At the
time of the turbulence that she alleges caused her injury, the plaintiff
was seated and her "seat belt was securely fastened." The turbulence
itself was described as "really rough," "markedly worse than anything
[the plaintiff] had ever experienced in the air," and "felt as though the
plane had dropped and stopped with a bump" like it "hit the ground." Id.
at 24-25. After weighing the evidence presented at the trial, Judge
Sutherland determined that the defendant was entitled to judgment.
In arriving at his verdict, Judge Sutherland made two penultimate
findings. First, observing that "[a]ir turbulence itself is not
unexpected or unusual" and that "[u]p to some level of severity it is a
commonplace of air travel," he determined that the turbulence to which
the plaintiff attributed her injuries, which he characterized as less
than severe, "did not amount to an `accident' within the meaning of Art.
17 of the Warsaw Convention as the term accident is defined in [Air
France] . . ." Id. at 60. Second, Judge Sutherland determined that, "[t]o
the extent that the plaintiff was injured or may have been injured on the
flight, the major contributing cause of her injuries was the extremely
osteoporotic condition of the bones of her spine."Id. at 60-61 (emphasis
A plain reading of Quinn demonstrates that it offers no support for
British Airways' position that, as a matter of law, the turbulence that
caused Brunk's injury was not of sufficient severity to qualify as an
"unexpected or unusual event." The facts of Quinn and this case are
obviously very different and, more importantly, the standard to be
applied at this stage of the litigation is different from the standard
applied by the court in Quinn.
Magan v. Lufthansa German Airlines, 181 F. Supp.2d 396 (S.D.N.Y.
2002), is a little closer to the mark but ultimately provides little
support for British Airways' position. While Magan is a summary-judgment
case, the degree of turbulence that caused the injury to the plaintiff in
that case was considerably less severe than a reasonable juror could find
occurred here. The Magan court determined the severity of the turbulence
that caused the injury to the plaintiff on the basis of the following
In his deposition, Mr. Magan stated that after he left
the lavatory, he `moved as swiftly as [he] could and
as safely as [he] could up the aisle using the backs
of the passenger seats to negotiate [his] way.' At
that time, `the entire aircraft was seated, including
the flight attendants.' He elaborated by saying, `I am
not claiming at all that the aircraft pitched and
hurled me into the obstruction at row 5. But what
happened is I hit my head on the [center tank].'
Finally, in his answers to the defendant's
interrogatories, the plaintiff states that `the
aircraft was shaking sufficiently so as to make it
difficult to stand.' The plaintiff has offered no
evidence of any other passenger complaints or injuries
or any unsecured objects moving about the cabin.
Magan, 181 F. Supp.2d at 403 (internal citations omitted).
As with Quinn, the facts of this case are easily distinguished from
those in Magan. In Magan, the light or moderate turbulence caused the
6'4" plaintiff to bump his head on the aircraft's center tank.
Here, the plane made a sharp dip, indicating that the plane may have
experienced a sudden change in altitude, lifted Brunk off her feet, and
caused her to fall to the floor of the aircraft with an impact sufficient
to tear ligaments in her knee. In Magan, there was no evidence that any
unsecured objects moved about the cabin. Here, food trays fell off their
tray tables and onto the floor.
Rather than seriously arguing that the
facts of Quinn and Magan are similar to the facts of this case, British
Airways appropriates these courts' pronouncements in explanation of their
decisions in an effort to move the legal goal posts for international air
passengers who seek to recover for injuries allegedly caused by air
turbulence.*fn8 Thus, British Airways doubtless
would like this court to
hold, as did the court in Magan, that "where a passenger sustains an
injury that is caused by turbulence, the turbulence will not constitute
an `accident' within the meaning of Article 17 of the Warsaw Convention
unless she can establish that the turbulence was `severe' or `extreme,'
as defined by the FAA." Magan, 181 F. Supp.2d at 402. This court shall
not do so for two reasons.
First, the Magan court's rationale for its rule is not persuasive. In
arriving at its rule, the Magan court first makes an observation with
which no one could disagree, that turbulence "is a difficult concept to
quantify." The second step of its syllogism is to find significance in
the Supreme Court's statement in Tseng v. El Al Israel Airlines, Ltd.,
525 U.S. 155 (1999), that "`the cardinal purpose'"of the Warsaw
Convention is to `achiev[e] uniformity of rules governing claims arising
from international air transportation." Magan, 181 F. Supp.2d at 401.
Finally, in supposed service of the Convention's cardinal purpose, Magan
determined that it would be "wise to lay down clear and workable rules
when it is reasonable to do so, as such rules serve [the] goal of
uniformity." Id. This syllogism is spurious because its premise is
Tseng is the leading Supreme Court decision on the preemptive scope of
the Warsaw Convention. The plaintiff in Tseng alleged that she suffered
psychosomatic injuries due to an invasive security search prior to
boarding an international flight. Tseng, 525 U.S. at 160. Because her
injuries did not constitute a "bodily injury" and did not result from an
"accident" as required under Article 17, the plaintiff acknowledged that
she could not recover under the Convention and instead sought to recover
under New York tort law. See id. at 160-61. The Court found that the
plaintiff's state tort claims were preempted under the Convention, even
though the Convention barred her from recovery, and she was thus left
without a cause of action. See id. at 176.
The Court rested its holding not on the nature of the claims being
brought, but on the importance of uniformity in the treaty's liability
scheme. As the Court explained, "Before [the Convention], injured
passengers could file suits for damages, subject only to the limitations
of the forum's laws . . . This exposure inhibited the growth of the
then-fledgling international airline industry." Id. at 170. Given this
background and the Convention's "textual emphasis on uniformity," the
Court found itself "hard put to conclude that the Warsaw delegates meant
to subject air carriers to the distinct, nonuniform liability rules of
the individual signatory nations." Id. at 157. It is apparent then that
the "uniformity" to which the Supreme Court refers in Tseng is not
uniformity of rules that govern claims brought under Article 17 of the
Convention — the plaintiff in Tseng made no such claim — but
rather the desire of the signatory nations to have a uniform rule, the
Warsaw Convention, that would govern the liability of international air
carriers. Such a scheme would serve the then-fledgling international
airline industry better than one that would subject international
carriers to each signatories' laws. It is relevant to note as well that
the "uniformity" to which the Court in Tseng refers was not the goal so
much "as a means to balance the need to expand international air service
and the need to compensate injured passengers." Gibbs v. American
Airlines, Inc., ___ F. Supp.2d ___, 2002 WL 370384 at *4 (D.D.C. Mar. 8,
2002) (emphasis added).
Aside from the Magan court's misreading of Tseng, this court shall not
adopt its bright line approach because to do so would require the court
to ignore the limits of its office. Lawmaking is something that is not
within the proper province of this, or any other, court, no matter how
laudable the goal. Moreover, in addition to reflecting an erroneous view
of the proper limits of the judicial office, a trial court that crafts a
rule for decision because it "will serve the goal of uniformity," engages
in an exercise in futility. Because no other court is bound to follow the
rule, the "uniformity" which is actually achieved does not extend beyond
the judge that crafts it. Rather than engaging in such an exercise, this
court shall apply the settled law.
The summary judgment record must be assessed in the light most
favorable to Brunk and she must be given the benefit of all reasonable
inferences that can be drawn from the evidence that comprises that
record. When these elementary principles are applied to the
summary-judgment record, it is apparent that a reasonable juror could
conclude that plaintiff's injury was caused by an accident, i.e., an
unexpected or unusual event or happening that is external to the
Consequently, it is this ___ day of April, 2002, hereby
ORDERED that defendant's motion for summary judgment is DENIED.