Emotional Harm Damages For Personal Injury Claims Under The Montreal Convention
Posted by: Marty Fulgueira Elfenbein
When an aircraft full of passengers during an international flight encounters an unexpected event, such as severe turbulence, an emergency evacuation, or a crash landing, the injuries may run the gamut. Some passengers may sustain no physical injuries at all while others may sustain severe physical injuries. The question then becomes: what damages can these passengers recover?
The Convention for the Unification for Certain Rules for International Carriage by Air, commonly known as the Montreal Convention, will govern any claims for bodily injury as long as the international travel was between two countries that are signatories to this international treaty. The purpose of this Convention is to create uniformity around the world in the compensation of passengers for claims arising out of international air travel.
Given the variety of claims that may arise in an incident on board an aircraft, American jurisprudence has interpreted the Montreal Convention, and its predecessor treaty the Warsaw Convention, to contain certain threshold requirements for the recovery of damages. For example, in Eastern Airlines v. Floyd, 499 U.S. 530 (1991), the United States Supreme Court determined that passengers who do not sustain a bodily injury in the accident cannot recover any damages whatsoever. This means that any passengers who are involved in a frightening event on an aircraft, such as a crash landing, but walk away from the aircraft uninjured can receive no compensation whatsoever. This is true even though the passenger has a claim for emotional harm, such as anxiety or post-traumatic stress disorder (PTSD).
In Floyd, the United States Supreme Court left a critical question unanswered – if a passenger sustains a bodily injury, can they recover damages for emotional harm? Federal courts across the United States have considered this issue. In the often-cited opinion of Jack v. TWA, 854 F. Supp. 654 (N.D. Cal. 1994), a district court in California held that a plaintiff may only recover damages for emotional harm under the Warsaw Convention if caused by bodily injury. In reaching this conclusion, the district court rejected an approach that would allow a party to recover for emotional harm as long as the party sustained a bodily injury because this approach would lead to great inequities among passengers. Using such an approach, if one passenger was scratched on the way down the evacuation slide, that passenger would be entitled to damages for emotional harm; yet, the passenger who suffered the same traumatic crash landing but did not sustain a scratch would recover nothing under the Convention. For this reason, the court required a causal connection between the bodily injury and the emotional harm. This latter approach would lead to recoveries that are more predictable and reasonable.
Several courts interpreting the Warsaw Convention and the current Montreal Convention have since followed the analysis and rationale of Jack v. TWA in requiring a causal connection between the emotional harm and the physical injury. Only one published decision has taken an opposite view - In re Aircrash Disaster Near Roselawn, Indiana on Oct. 13, 1994, 954 F. Supp. 175 (N.D. Ill. 1997). In this decision, the district court held that passengers who sustained a physical injury during the accident could recover for pre-impact terror regardless of whether the emotional injury was causally related to the bodily injury. This decision remains the minority view and has been criticized by several courts.
From a practical standpoint, the requirement of a causal connection means that a passenger must demonstrate that the emotional harm he or she sustained was caused by the physical injury. For example, a passenger who breaks a leg will experience pain caused by this injury. There is no doubt that the Montreal Convention allows a recovery for these damages as they are directly linked to the physical injury. On the other hand, a passenger may suffer from PTSD or an anxiety disorder as a result of the fright of the accident itself. This passenger’s PTSD may manifest itself in the way of sleepless nights, intrusive memories of the accident, or panic while riding in airplanes or cars. When the terror or fright of the incident itself causes these symptoms, the majority view is that these emotional harm damages are not recoverable. Although it may seem unfair to deny a passenger recovery for these types of emotional harm damages, the rationale for doing so is that damages under the Montreal Convention should be uniform for all passengers. During a severe turbulence event, all passengers will have experienced the same terror during the event that can lead to PTSD; however, the majority of the passengers will not sustain a bodily injury and will not be entitled to recover any damages at all under the Convention. It would be inequitable for those few passengers who sustained a bodily injury, no matter how small, to recover emotional harm damages for the terror of the turbulence when the other passengers are not entitled to any recovery for this same traumatic experience.
The true question is then – what emotional harm damages have a causal connection to a physical injury? This will be a case-specific inquiry depending upon the facts of each case and the bodily injuries the passengers sustained in the incident. One example in which a passenger will likely satisfy the causal connection criteria involves severe scarring to the face. If a passenger sustained a severe laceration to the face that has led to scarring or a deformation and the passenger suffers from emotional harm relating to an altered physical appearance, that passenger’s emotional harm will likely be recoverable. Another example could involve a passenger who lost a limb in an airplane incident and the passenger suffers severe depression as a result of the loss of the limb. This form of emotional harm damage will likely satisfy the threshold requirement for recovery. However, many other forms of emotional harm damages will fall into a grey area. It will be up to juries to decide whether the passenger has presented sufficient evidence of a causal connection to permit recovery of emotional harm damages.