In U.S. litigation plaintiffs often seek to recover damages arising from both physical and mental injuries. In actions governed by the Warsaw or Montreal Convention, nearly every federal court that has considered the issue has held that damages arising from mental or emotional injuries are not recoverable unless they “flow from bodily injuries.”1 In other words, it has not been sufficient for a mental injury to have resulted from the same accident that caused the physical injury; rather, the physical injury must have caused the mental injury.
The United States Court of Appeals for the Sixth Circuit has now issued a lengthy decision at odds with this longstanding rule, holding that a carrier may be liable for emotional or mental damages “so long as they are traceable to the accident, regardless of whether they are caused directly by the bodily injury.”2
In Doe v. Etihad Airways, plaintiff was traveling as a passenger on an international flight. Toward the end of the flight, she reached into the seatback pocket and was unexpectedly pricked by a hypodermic needle that had been left inside, causing her to sustain some bleeding. Plaintiff and her husband commenced an action against the air carrier for damages arising from: 1) the physical injury of being struck by the needle; and 2) plaintiff’s mental distress from the possibility that she might have been exposed to various diseases. The District Court dismissed plaintiffs’ claims for mental injuries because they were not caused by the bodily injury she sustained; in other words, her fear of contracting a disease could not survive as a separate claim because it was not caused by the bodily injury (i.e. the small wound to in her finger). Rather, the court considered the mental distress to be a separate injury that was caused by the event of having been pricked with a needle.3
The Sixth Circuit reversed the District Court’s decision, reasoning that Article 17 of the Montreal Convention does not require a causal connection between the physical injury and the mental injury. The court based its reasoning on the language of Article 17, which requires that damages of any kind are recoverable when they are “sustained in case of death or bodily injury” that was caused by an accident.4 The court held that the plain meaning of term “in case of” means simply “in the event of” or at the same time.5 For this reason, the meaning of “‘in case of’ is conditional, not causal.”
Therefore, according to the Sixth Circuit, the plain language of Article 17 requires only that the passenger sustain a compensable physical injury to recover damages for mental injuries – “regardless of whether that anguish was caused directly by her bodily injury or more generally by the accident that caused the injury.”6 The court created the below flow chart to illustrate the availability of mental damages under the Montreal Convention:
The court recognized that its holding was contrary to Ehrlich v. American Airlines, the widely accepted Second Circuit decision holding that the Warsaw Convention – whose relevant language is almost indistinguishable from Article 17(1) of the Montreal Convention – requires a plaintiff to show that a mental injury was caused by a physical injury to recover damages for the mental injury. However, the Sixth Circuit reasoned that the Ehrlich court (as well as the other courts that have similarly held) added a causation requirement that the original text of the Warsaw Convention did not require, and did so to further the purpose of the Warsaw Convention to “limit the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry.”7 The court reviewed the drafting history of the Warsaw and Montreal Convention and opined that whereas the Warsaw Convention was a “restrictive, pro-airline industry regime,” the Montreal Convention is a “treaty that favors passengers rather than airlines.” Accordingly, unlike the many courts that have held that case law developed under the Warsaw Convention should apply to cases interpreting similar provisions of the Montreal Convention, the Sixth Circuit expressly declined to do so here.
By permitting recovery of damages for mental injuries that do not flow from physical injuries, this decision alters the evaluation routinely employed by courts when determining the validity of plaintiffs’ claims for mental injuries sustained during international transportation. For instance, in the event of a crash landing, a passenger could recover damages for mental anguish or emotional distress as long as the passenger also sustained any type of bodily injury as the result of the crash. Unlike nearly every other court to consider such an example, the Sixth Circuit has held that this result would be “fully consistent” with the Montreal Convention.
If followed by other courts, this decision has the potential to expand the circumstances in which a passenger may recover damages for emotional injuries sustained as the result of an accident and may make it more difficult for air carriers to dismiss meritless claims for mental anguish at an early stage.
1 See, e.g., Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 374-375 (2d Cir. 2004).
2 Doe v. Etihad Airways, No. 16-1042, 2017 WL 3723233, at *21 (6th Cir. Aug. 30, 2017) (emphases in original).
3 See id. (citing Doe v. Etihad Airways, — F.3d —, No. 13-14358, 2015 WL 5936326, at *2). Plaintiff was prescribed anti-viral drugs for the month after the incident and was tested for communicable diseases three times during the year following the incident, each time with a negative result.
4 See Doe, 2017 WL 3723233, at *4 (quoting Montreal Convention, art. 17(1)).
5 See Doe, 2017 WL 3723233, at *4 (citing the Oxford English Dictionary).
6 See id. at *8.
7 See id. at *7.
8 See id. at *12 (internal quotations and citations omitted).
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