On December 2, 2015, the United States Court of Appeals for the Fifth Circuit affirmed the summary judgment dismissal of an elderly wheelchair passenger’s lawsuit against Korean Airlines, finding that her fall down escalator stairs after she was not placed in a wheelchair was not an “accident” under Article 17 of the Warsaw Convention.1
Passenger Tinh Thi Nguyen flew from Vietnam to Dallas, Texas, with a layover in Korea. Nguyen was 76 years old at the time, and traveling alone. She speaks and understands Vietnamese, but is otherwise illiterate.
Shortly before landing in Dallas, Nguyen attempted to inquire about her wheelchair reservation with a flight attendant. The flight attendant could not understand Nguyen because she did not speak Vietnamese. Nguyen made no further attempt to communicate with anyone about her wheelchair reservation.
Per Korean Airlines’ policies, wheelchair passengers deplane last, and are so instructed shortly before landing. The wheelchair announcement on Nguyen’s flight was made in Korean and English because the flight departed Korea and landed in the United States. Nguyen was not given the wheelchair instruction in Vietnamese.
Nguyen deplaned with the non-wheelchair passengers. As she exited the aircraft, she walked past a row of available wheelchairs and attendants but made no attempt to secure one. She proceeded on her own towards customs, but fell down escalator stairs sustaining serious injuries.
Nguyen made three arguments in support of her claim that her fall was the result of an Article 17 accident. First, she argued that Korean Airlines’ failure to place a designated wheelchair passenger in a wheelchair was an “accident,” akin to the airline’s “unexpected or unusual” refusal to accommodate a passenger request in Olympic Airways v. Husain.2 The Court rejected Nguyen’s argument because, unlike Husain, Korean Airlines did not refuse Nguyen’s request. It had available wheelchairs and attendants in the jet bridge when Nguyen exited the aircraft.
Nguyen next argued that Korean Airlines’ failure to take reasonable steps to communicate with her once it was discovered that she did not speak Korean or English was an accident. The Court rejected this argument as well, finding no evidence of a policy or industry standard requiring airlines to accommodate the language of every passenger on a flight. The Court specifically noted the “implausibility” of Nguyen’s “personalized instruction” argument given that the wheelchair list alone contained passengers from seven different nations.
Nguyen’s final argument was that it was “unexpected or unusual” for Korean Airlines not to attempt to track her down when it was discovered that she was not paired with a wheelchair, as some witnesses had testified was Korean Airlines’ normal practice. Noting that passengers were free to cancel or disregard the wheelchair service and that a typical flight would have one or two such disregards, the Court concluded that it would not have been “unexpected or unusual” for Korean Airlines to refrain from tracking down Nguyen “to provide her with the same empty wheelchair she just walked past.”
This decision is a good example of a plaintiff’s inability to establish an Article 17 accident simply by identifying, in hindsight, steps the airline could have taken to avert injury. It is also an example of how a passenger’s contributory conduct can be detrimental to his or her Convention claim.
1 — F.3d — , 2015 WL 7783806 (5th Cir. 2015).
2 540 U.S. 644 (2004).