Blansett, et al v. Cntntl Airlines Inc

United States Court of Appeals
Fifth Circuit
F I L E D
July 21, 2004
Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-40545
_______________
MICHAEL SHAWN BLANSETT;
MODESTA N. BLANSETT,
AND AS NEXT FRIEND OF MCKENNA BLANSETT, AS NEXT FRIEND OF BLAKE BLANSETT,
INDIVIDUALLY, AND MINORS,
Plaintiffs-Appellees-
Cross-Appellants,
VERSUS
CONTINENTAL AIRLINES, INC.,
Defendant-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________

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Before SMITH and DENNIS, Circuit Judges,
and LYNN,* District Judge.
JERRY E. SMITH, Circuit Judge:
I.
On June 18, 2001 plaintiff Michael
“Shawn” Blansett traveled from Houston,
Texas, to London, England on a flight
operated by Continental Airlines, Inc.
(“Continental”). During flight, he suffered an
episode of deep vein thrombosis (“DVT”),
resulting in a cerebral stroke that left him
permanently debilitated. DVT involves the
clotting of blood in the extremities and creates
a threat of death or disability if a clot migrates
to the lungs or other vital organs.
The likelihood of a DVT injury is
heightened by the pressurized conditions
aboard an airliner, especially during long
flights, though experts believe that passengers
may undertake precautionary measures to
reduce the risk. Many international carriers
have added DVT warnings to their battery of
pre-flight instructions to passengers, though at
the time of Blansett’s flight, Continental had
not. Federal regulations do not require that air
carriers issue any such warnings, though at the
time of Blansett’s flight, the International Air
Transport Association, a trade association, had
recommended that airlines implement a long
schedule of instructions to passengers on the
risks of DVT.
Blansett and his close relations sued
Continental, alleging that it was liable for
Blansett’s injury under article 17 of the
Warsaw Convention, to which the United
States is a signatory. Under article 17, an
airline is responsible for injuries to passengers
on an international flight where the injury
results from an “accident.” The district court
denied Continental’s motion to dismiss under
FED. R. CIV. P. 12(b)(6), concluding that if
Continental’s failure to provide DVT warnings
and instructions was an “unreasonable de-
viation from industry standards,” it would be
an “accident” under the Convention. We now
consider Continental’s interlocutory appeal,
pursuant to 28 U.S.C. § 1292(b), on the issue
of article 17’s proper meaning and application.
We review a rule 12(b)(6) ruling de novo.
See, e.g., Lowery v. Texas A&M Univ. Sys.,
117 F.3d 242, 246 (5th Cir. 1997). We
assume the truth of all pleaded facts and
review purely legal issues de novo.
Concluding that Continental’s failure to
provide DVT warnings and instructions could
not have constituted an “accident” under
article 17, we reverse and remand.
II.
Article 17 imposes liability on an air carrier
for a passenger’s death or bodily injury in con-
nection with an international flight. It provides
in relevant part:
The carrier shall be liable for damage
sustained in the event of the death or
wounding of a passenger or any other bod-
ily injury suffered by a passenger, if the
accident which caused the damage so sus-
tained took place on board the aircraft or in
the course of any of the operations of
embarking or disembarking.
49 Stat. 3000, 1934 WL 29042.
The pertinent question, as we have said, is
whether Continental’s failure to provide warn- * District Judge of the Northern District of
Texas, sitting by designation.

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ings and instructions concerning DVT could
have constituted a covered “accident” under
article 17. Because the Convention was
written in French and against the background
of French law, the Supreme Court has looked
to French law to interpret the meaning of
“accident” in article 17. Air France v. Saks,
470 U.S. 392, 400 (1985). In French law,
“accident” is usually given to mean a
“fortuitous, unexpected, unusual, or
unintended event.” Id. The Court noted,
accordingly, that an accident under article 17
is an “unexpected or unusual event. . . .” Id.
The Convention speaks of an “accident
which caused” an injury rather than an
accident that is an injury. Id. at 398.
Accordingly, a qualifying “unusual or
unexpected event” must be distinct from “the
passenger’s own internal reaction to the usual,
normal, and expected operation of the
aircraft.” Id. at 405, 406. For instance, where
normal pressurization of the aircraft hull
caused hearing damages to an unusually
sensitive passenger, the occurrence of the
injury was not an “accident,” however unusual
or unexpected. Id. An “unusual or
unexpected event” that qualifies under article
17 must be part of the “chain of causes”
leading to an injury. Id. at 406. So, it need
not account wholly for the injury but must
have been a significant part of the cause.
In Husain v. Olympic Airways, 124 S. Ct.
1221, 1227-30 (2004), the Court concluded
that, under some circumstances, an “accident”
may constitute an omission or refusal to act.
In Husain, a passenger with an allergy to
smoke asked to be reseated when smoke from
another section of the plane impinged his seat
in a nominally smoke-free area. The crew re-
fused three times to reseat him, even though
other seats were available, and as a result of
the smoke, he suffered an allergic reaction and
died. The Court held that the airline’s refusals
constituted a qualifying “unusual or unexpect-
ed event” under article 17. Id. at 1230.
III.
The situation in the instant case differs
markedly from that in Husain. Here, no re-
quest was made of the airline; the flight staff
was entirely passive. The Supreme Court not-
ed that facts similar to those here are at least
distinguishable from those in Husain. Justice
Scalia’s dissent, id. at 1230, 1231 (Scalia, J.,
dissenting), pointed to decisions in several for-
eign jurisdictions concluding that a failure to
warn and instruct of DVT risks is not an
“event” under article 17. The Court stated
that the failure to give warning in the foreign
Warsaw Convention cases involving DVT, as
distinguished from a specific refusal to lend re-
quested aid in Husain, was enough to prevent
conflict between them. Id. at 1229 n.9.
That is to say, the Court specifically left
open the question now before us, even as it
supplied the general rules for the detection of
qualifying “accidents” under article 17. In this
case, as the Court did in Husain, we consider
whether certain omissions may constitute an
“accident” under article 17.
The district court held, “An airline’s
violation of an industry standard of care,
alone, can be an ‘unusual or unexpected event
or happening that is external to the passenger,’
. . . and thus an ‘accident.’” Blansett v. Cont’l
Airlines, Inc., 246 F. Supp. 2d 596, 601 (S.D.
Tex. 2002). Accordingly, the court would
have left it to the jury to determine whether
Continental’s failure to provide the suggested
DVT warnings was an “unexpected and
unreasonable departure from routine industry
procedure,” and thus necessarily an accident

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under the Convention. Id. at 602. In so
holding, the court wished to compel airlines to
“keep up with reasonable and practical
industry practices.” Id. at 601.
In allowing a finding of an “unreasonable”
departure from “airline standards” to establish
an unusual and unexpected event, the district
court’s approach resembles that of the Ninth
Circuit, which held, in its iteration of Husain
that preceded the Supreme Court’s review,
that “[t]he failure to act in the face of a
known, serious risk satisfies the meaning of
‘accident’ within Article 17 so long as
reasonable alternatives exist that would
substantially minimize the risk and
implementing these alternatives would not
interfere with the normal, expected operation
of the airplane.” Husain v. Olympic Airways,
316 F.3d 829, 837 (9th Cir. 2002) (emphasis
added), aff’d, 124 S. Ct. 1221 (2004).2 The
latter part of this formulation echoes for-
mulations of the law of negligence in torts.
Although the Supreme Court ultimately
affirmed that Olympic Airways’ refusal to aid
the plaintiff was an “accident,” the Court
declined to base its analysis on language of
reasonableness or unreasonableness.
Likewise, we reject the district court’s use
of an “unreasonable departure” approach here.
Inasmuch as the court called for the con-
sideration whether Continental’s conduct was
an accident merely because it was
“unreasonable,” it was in error.
The Blansetts accept that the district
court’s choice of language was inapt, but they
argue nonetheless that they can demonstrate
that Continental’s failure to give DVT
warnings was an “unusual and unexpected
event” merely because it was departure from
standard practice within the airline industry.
For purposes of this appeal, we assume the
truth of the Blansetts’ allegation that
Continental’s failure to provide DVT warnings
as part of its battery of pre-flight instructions
is a departure from an “industry standard.”
As we have said, the Supreme Court has
held that some kinds of inaction can constitute
an “accident.” In Husain, specific refusals to
render requested aid constituted an “unexpect-
ed or unusual event.” We take note also of the
Court’s mention of the example proffered by
the district judge a quo in another case, in
which he speculated that it would be an
“unusual and unexpected event” if an air crew
decided not to divert a flight to save the life of
a passenger who suddenly became ill. Husain,
124 S. Ct. at 1229 (citing McCaskey v. Cont’l
Airlines, Inc., 159 F. Supp. 2d 562, 574
(S.D. Tex. 2001)). In Husain3 and the
McCaskey hypothetical, unusual circumstances
2 See also Fulop v. Malev Hungarian Airlines,
175 F. Supp. 2d 651, 665 (S.D.N.Y. 2001) (“Any
major deviation from a standard articulated in rec-
ognized practices and procedures represents the
exceptional case—the unusual or unexpected hap-
pening.”)
3 As the United Kingdom Court of Appeals ob-
served with respect to Husain,
[t]he refusal of the flight attendant to move Dr.
Hanson cannot properly be considered mere in-
ertia, or a non-event. It was a refusal to pro-
vide an alternative seat which formed part of a
more complex incident, whereby Dr. Hanson
was exposed to smoke in circumstances that
can properly be described as unusual and unex-
pected.” Deep Vein Thrombosis & Air Travel
Litig., 2003 WL 21353471, ¶ 50 (emphasis
added); see also Qantas Ltd. v. Povey, [2003]
VSCA 227, ¶ 17, 2003 WL 23000692, ¶ 17
(Dec. 23, 2003).

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existed to elevate the willing inaction of airline
personnel from mere inertia SSfrom a non-
eventSSto an event both “unexpected and
unusual.”4
No such circumstances were thrust on the
flight crew in the present case, and their com-
pliance with the regular policy of their airline
was hardly unexpected. Rather, the Blansetts
allege that the “unexpected” nature of the al-
leged event arose not from the choices of the
flight attendants, but from the Continental pol-
icymakers who decided not to mandate DVT
warnings on Continental flights.
The Blansetts reason that though this
decision occurred at a time and place distant
from Blansett’s flight, article 17 is to be
“applied flexibly” after “assessment of all the
circumstances surrounding a passenger’s
injuries . . . .” See Saks, 470 U.S. at 405. It is
appropriate to consider the deliberate per-
petuation of company-wide policies as
potential “events” within the context of the
individual flights in which they are given
effect. We may accordingly compare the
instructions given on Continental flights with
those customarily given within the airline
industry generally, in gauging whether
Continental’s deliberate choice was “unusual
and unexpected.”
Again, we assume, for purposes of this ap-
peal, that a failure to warn of DVT is a de-
parture from “an industry standard of care.”5
But, we will not depart from the demonstrated
will of the Supreme Court by creating a per se
rule that any departure from an industry
standard of care must be an “accident.” In
Husain, 124 S. Ct. at 1230, the Court again
emphasized that the appropriate test for article
17’s application under every set of relevant
facts is whether t here was an “unexpected or
unusual event.” Some departures from an “in-
dustry standard” might be qualifying accidents
under Article 17, and some may not.
Continental’s failure to warn of DVT was
not an “unusual or unexpected event” and not
a qualifying “accident.” Though many
international carriers in 2001 included DVT
warnings, it is undisputed that many did not.
Moreover, Continental’s battery of warnings
was in accord with the policies of the Federal
Aviation Administration (“FAA”), which pre-
scribes what warnings airlines should issue to
passengers.
In Witty v Delta Air Lines, Inc., 366 F.3d
380 (5th Cir. 2004), we held that the warnings
reasonably required to be made by an airline
are those enumerated by the FAA, and no oth-
ers.6 We noted that the balance of warnings
4 Judge Dennis disagrees with the mere iner-
tia/inertia plus unusual circumstances dichotomy
drawn by the majority because: (1) it is not nec-
essary to the resolution of this case, (2) the Su-
preme Court left the issue open in Husain, and
(3) the potential ramifications of distinguishing
between different types of inaction are not clear.
5 As the district court noted, he relied on the
testimony of an expert witness, Farrol Kahn, who
was of the opinion that failure to provide DVT
warnings departed from industry custom. McCas-
key, 246 F. Supp. 2d at 601. Kahn noted that at
the time of Blansett’s injury, five of the ten most-
traveled international airlines provided information
and instructions to passengers about DVT. Id. at
602.
6 “[F]ederal regulations do not require warnings
to passengers about the risks of DVT or methods
for preventing this condition.” Witty, 366 F.3d at
385. Therefore, we concluded that in a negligence

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required by the government is the product of
its careful judgment. For example, “Any
warning that passengers should not stay in
their seats, but should instead move about to
prevent DVT, would necessarily conflict with
any federal determination that, all things con-
sidered, passengers are safer in their seats.”
Id. at 385. We noted also that the courts’ re-
quirement of other warnings would dilute the
impact of warnings that are required by the
FAA.
Though Witty does not decide this case, be-
cause its lesson directly applies only to
negligence causes of action, it is nonetheless
instructive. It was not an unexpected or
unusual decision for Continental merely to
cleave to the exclusive list of warnings
required of it by the agency that has regulatory
jurisdiction over its flights.
Ultimately, no jury may be permitted to find
that Continental’s failure to warn of DVT
constituted an “accident” under article 17.
Continental’s policy was far from unique in
2001 and was fully in accord with the expecta-
tions of the FAA. Its procedures were neither
unexpected nor unusual.
The order appealed from is REVERSED,
and this matter is REMANDED.
action, an airline “cannot be held liable for failing
to provide warnings or instructions.” Id.

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