Montreal Convention Allows for the Recovery of Emotional Damages When There Is Also a Bodily Injury

Jane Doe and her 11-year-old daughter were flying from Abu Dhabi to Chicago. The knob that holds the seatback tray upright had broken and the tray in front of Doe was down the entire journey. Doe’s daughter found the knob on the ground and gave it to her mother who put it in the seatback pocket. In preparation for landing, the crew member told Doe to put her tray table up. Doe reached into the seatback pocket to show the crew member the piece that had broken off. When she reached in she was pricked by a hypodermic needle that was in the pocket, which drew blood.

Doe brought suit against Etihad Airways, and claimed damages for her physical injury and her “mental distress, shock, mortification, sickness and illness, outrage and embarrassment from natural sequela of possible exposure to” various diseases. Her husband claimed loss of consortium. After a series of testing over the course of a year, it was determined that Doe had not contracted any diseases from the needle prick, but Doe claimed she refrained from sexual activity with her husband for a year until the results were conclusive.

In Doe v. Etihad Airways, P.J.S.C., the Sixth Circuit held that the district court erred in agreeing with Etihad that Doe’s mental-anguish damages were not recoverable under Article 17(1) of the Montreal Convention. No. 16-1042, 2017 U.S. App. LEXIS 16614 (6th Cir. Aug. 30, 2017). The Court acknowledged the previous decision from the Second Circuit Court of Appeals which held that American Airlines was not liable for “mental injuries that were not caused by physical injuries.” Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 368 (2d Cir. 2004) (emphasis added). However the Court distinguished the Second Circuit case by finding that it was a “Warsaw Convention decision” and that the “Montreal Convention is a new treaty that we interpret as a matter of first impression.”

The Montreal Convention of 1999, an international treaty under which the claims arose, imposes strict liability (up to a monetary cap) upon Etihad. The text of Article 17(1) is below and the language the Sixth Circuit focused on is in bold.

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that 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.

Etihad argued that “damage sustained in case of . . . bodily injury” meant only “damage caused by bodily injury,” and thus did not include Doe’s fear of contagion and other emotional-distress and mental-anguish damages—damages that Etihad claimed were caused not by Doe’s bodily injury (the small hole in her finger) but by the nature of the instrumentality of that injury (the needle). The Sixth Circuit disagreed. The Sixth Circuit proposed that the following diagram illustrates the airline’s understanding of the language from the Convention.

The Sixth Circuit held “in case of” doesn’t mean “caused by.” Rather, the Court looked to the Oxford English Dictionary and held that the plain meaning of “in case of” is “if there is” or “in the event of” or “during a case in which there is.” After analyzing the plain meaning of the text and conducting a historical inquiry, the Court held that a “carrier is then liable for damage sustained, which we interpret to include emotional or mental damages, so long as they are traceable to the accident, regardless of whether they are caused directly by the bodily injury.” The following diagram is the Court’s illustration of what damages are recoverable under Article 17(1) according to their textual interpretation.

This decision leaves in place the idea that emotional and mental damages ALONE, without a bodily injury, are not compensable. But the decision clearly opens a door that will allow courts to find that even minor bodily injuries will suffice (bruise) to trigger a plaintiff’s recovery for their mental anguish.

MRJ clerk Cora Allen contributed to this post.