It has been almost three years now since the Sixth Circuit surprised the aviation legal industry by holding in Doe v. Etihad Airways that Article 17 of the Montreal Convention permits recovery for emotional injury as long as there is an accompanying physical injury, even where the emotional injury is not caused directly by the physical injury. The industry concern in the aftermath of that decision has waned somewhat over the past few years, but the Central District of California's decision in Leung v. China Southern Airlines serves as a reminder to proceed with caution so as to avoid a second potentially adverse decision that could tumble the dominoes the decision in Doe to date has not.
William Leung, a severely disabled man, and his father Jim Leung, with whom he was traveling, asserted a claim for bodily and emotional injuries allegedly sustained as a result of mistreatment by a wheelchair attendant at Los Angeles International Airport. The Leungs, who were traveling from Los Angeles to Ho Chi Min City, Vietnam via Guangzhou, People's Republic of China, specifically alleged that the wheelchair attendant assigned with transporting William to the boarding gate:
- "demanded that Plaintiff William Leung speak to her, yelling, 'Can't you talk?,'" when they arrived at the security checkpoint;
- ordered William to get up and walk through the checkpoint, eventually shaking the wheelchair and then pulling it backwards, causing William to fall to the floor and twist his ankle;
- disappeared for forty-five minutes after William walked through the security checkpoint before finally returning to take him the rest of the way to the boarding gate;
- ordered William to walk onto the plane after arriving at the gate, again pulling the wheelchair backwards so that William fell to the floor and twisted his ankle again; and
- left plaintiffs at the gate without a wheelchair.
Plaintiffs further alleged that "the wheelchair attendant's actions 'caused severe emotional distress to both plaintiffs' and, while on the airplane, Plaintiff William Leung suffered a series of seizures, lost control of his bowel, vomited, and trembled uncontrollably." China Southern Airlines moved for summary judgment, arguing that the state law claims were preempted by the Montreal Convention, and that neither plaintiff had sustained a bodily injury supporting recovery under the Montreal Convention.
The district court dismissed the state law claims as preempted, but held that there was a question of fact as to whether Plaintiff William Leung had sustained a bodily injury – specifically referencing the claims that he twisted his ankle. In light of the decision in Doe v Etihad, it is good that the Court did not address specifically whether and under what circumstances plaintiffs could recover for their allegedly far more significant emotional injuries. The action subsequently settled, so we need not worry in this case about any subsequent adverse decision from these potentially compelling allegations of emotional injury.
In light of the issues raised by the parties in the briefing on the motion for summary judgment, China Southern Airlines may have been fortunate that the district court's decision was vague with regard to the recoverability of emotional injuries not caused directly by any bodily injury. While China Southern's opening memorandum of law seeking to strike the emotional injury claims made no mention of any alleged bodily injury, plaintiffs in opposition pointed out there was in fact an allegation of bodily injury, and relied upon Doe for their claims that the bodily injury alleged was sufficient to permit recovery for the serious emotional injuries regardless of the relationship between the emotional injuries and that bodily injury. In reply, China Southern focused exclusively on whether the evidence of bodily injury was sufficient to raise a question of fact, and did not address the question addressed by the court in Doe – whether damages may be recovered for emotional injury that is unrelated to any bodily injury.
The district court's decision in Leung should raise the caution flag for airlines and their insurers in cases with potentially compelling evidence of emotional injury, as was alleged here. While most in the industry feel strongly that the Sixth Circuit's decision in Doe is contrary to the text and drafting history of the Warsaw and Montreal Conventions, it is extremely important that this issue be taken very seriously in briefing before other courts so as to avoid another court ruling that could give the Doe court's holding real traction. After all, many feel just as strongly that removal of a Montreal Convention action from state court to federal court is proper, yet the opposing minority view that seemingly started with just the district courts in California has proliferated over the years to a significant number of jurisdictions that hold removal to be improper. Leung v. China Southern Airlines, 2019 U.S. Dist. LEXIS 222665 (C.D. Cal. Oct. 17, 2019).
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