Psychic Injuries Under Warsaw, Montreal Conventions
By: Megan Wolfe Benett, Steven R. Pounian
- Rulings courts have made in cases involving plaintiffs seeking recovery for psychic injury and mental anguish could be interpreted as contradictory.
- The treaties which govern aviation law — the Warsaw and Montreal Conventions — contain no substantive law on the issue of damages, instead allowing courts to defer to domestic law to define them.
- American courts often deny damages for purely psychic injuries to protect against spurious claims and avoid the difficulties involved in proving such damages.
- While several cases resulted in dismissal of mental anguish claims, other cases have resulted in recovery for mental anguish but only when the psychic damages are the direct result of the physical injuries.
- However, in wrongful death cases, courts and juries routinely award damages for pre-death pain and suffering and conscious fear of imminent death, and no court has ruled that pre-death emotional injuries cannot be recovered under the Montreal or Warsaw Conventions.
(Reprinted from the New York Law Journal)
Consider two scenarios. In the first scenario, on an international flight, due to the airline’s improper maintenance, the aircraft’s engines suddenly fail and the plane pitches down toward the ground. Just before impact, the pilots are able to restart the engines and land the aircraft safely. In the second scenario, the aircraft’s engines fail, due to the same negligence, but the pilots can’t restart them. The aircraft crashes and all passengers are killed.
In the first scenario, the passengers file suit, seeking recovery for the emotional injuries sustained during the time that they believed — reasonably but, as it turns out, incorrectly — they were about to die. In the second scenario, the survivors of the passengers killed when the plane crashed file suit, claiming damages for the conscious pre-death fright, pain and suffering experienced during the time that the passengers believed-reasonably and correctly-they were about to die. According to the case law, under the Warsaw Convention and the Montreal Convention, the plaintiffs in the first scenario cannot recover. But can those in the second? And if so, why is a reasonable fear of death during an aviation disaster compensable only if the passenger actually dies?
While the U.S. Supreme Court has held that, under the Warsaw and Montreal Conventions, psychic injuries unaccompanied by physical injury or death are not compensable in a personal injury claim, it has left unanswered the question of whether those same injuries, when followed by the passenger’s death, are recoverable.1 As one federal district court has noted, “scores of state law decisions uphold conscious pain and suffering awards in air crashes and other traumatic situations.”2 And indeed, some lower courts have permitted such recovery. Whether the Supreme Court would, however, agree with those courts upholding awards for pre-death fright, pain and suffering, is hardly certain.
The Warsaw and Montreal Conventions govern the liability of airlines to passengers on international transportation.3 The treaties themselves contain no substantive law on the issue of damages, functioning instead (pursuant to Article 29 of the Montreal Convention, which corresponds to the Warsaw Convention’s Article 24) as a “pass-through” that authorizes courts to apply domestic law to specify what harms are cognizable and by whom.4 Under Article 17 of the treaties, if there has been an accident resulting in a passenger’s injury, the carrier is liable and the damages are to be determined pursuant to domestic law. Article 29’s deference to local damages laws does not, however, necessarily mean that an airline is liable under Article 17 for damages due to emotional injuries.
In Eastern Airlines v. Floyd,5 the Supreme Court held that a psychic injury alone would not sustain a damage award. Floyd arose out of an incident during an Eastern Airlines flight from Miami to the Bahamas. Shortly after take-off, one of the aircraft’s engines failed and the plane turned around to return and land in Miami.6 After turning around, both of the remaining two engines also failed.7 At that point, the crew informed the passengers the aircraft would be ditched in the ocean as the plane rapidly lost altitude, and the passengers began to prepare for the crash.8 After a period of flight without any engine power, the crew was able to restart one engine, under whose sole power the aircraft continued and landed in Miami.9
The Floyd plaintiffs brought an action against Eastern Airlines to recover damages for intentional infliction of emotional distress, acknowledging that they suffered no physical injuries from the temporary power outage. The district court dismissed those claims, holding that “mental anguish alone” was not compensable under Article 17.10 The official text of Article 17, which, in the Warsaw Convention, was exclusively in French, provides that an international air carrier is responsible for “dommage survenu en cas de mort, de blessure ou de toute autre lésion corporelle” arising out of an accident.11
The case reached the Supreme Court, which affirmed the dismissal of the mental anguish claims, stating that “an air carrier cannot be held liable under Article 17 when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury.”12 In reaching that conclusion, the Supreme Court relied primarily on its interpretation of the phrase “lésion corporelle,” French being the only official language of the Warsaw Convention.
After consulting sources from French dictionaries to French legislative history to French legal treatises, the Supreme Court concluded that “[t]ranslating lésion corporelle as bodily injury” was consistent with French jurisprudence, the treaty negotiations and post-treaty conduct by the Warsaw signatories. (The Montreal Convention adopted French and English as official versions of the treaty, with the now corresponding English phrase “bodily injury.”) The Court added, however, that it “express[ed] no view as to whether passengers can recover for mental injuries that are accompanied by physical manifestation of injury.”13
The existence of one of the three Floyd elements — death, physical injury or physical manifestation of injury — has subsequently been interpreted as a prerequisite to liability under Article 17 for psychic harms resulting from an accident. And some subsequent courts have attributed to Floyd the logic that only those mental injuries related to or flowing from a physical injury are compensable. Thus, the U.S. Court of Appeals for the Eighth Circuit, in Lloyd v. American Airlines Inc., allowed recovery for mental injuries “only to the extent the distress is caused by the physical injuries sustained.”14
In Lloyd, Anna Lloyd, a young woman who survived the runway crash of American Airlines in Little Rock, Arkansas, presented evidence that, during the crash, her leg was punctured and scraped by bolts from the airplane, and that she suffered traumatic quadriceps tendinitis and smoke inhalation.15 Her psychiatric expert also testified to Ms. Lloyd’s post-traumatic stress disorder caused by the crash. At the close of evidence, the defendant unsuccessfully moved to strike Ms. Lloyd’s claims for mental injuries and the jury returned a verdict of $6.5 million on the plaintiff’s behalf.
On appeal, the Eighth Circuit, relying on Floyd, ruled that “mental injuries must proximately flow from physical injuries caused by the accident” and ordered that the plaintiff could “recover only emotional damages which flow from the injuries to her legs and the smoke inhalation,” which it ruled did not extend to her post-traumatic stress disorder.16
The U.S. Court of Appeals for the Second Circuit adopted the same rule in Ehrlich v. American Airlines Inc., in which a couple that were involved in a runway overshoot sued the carrier for both physical and mental injuries.17 Because the Ehrlichs’ mental injuries caused by the accident (fear, anxiety and sleep disruption) did not “flow from” the physical harm they suffered (knee, neck, back, shoulder and hip injuries), they were not allowed to recover for the psychological damage the accident caused them.
But does this requirement for some physical harm from which psychic injuries “flow” make sense in the context of the emotional trauma experienced during an airplane crash that results in a passenger’s death? In wrongful death cases, courts and juries routinely award damages for pre-death pain and suffering and conscious fear of imminent death, and no court has ruled that pre-death emotional injuries cannot be recovered under the Montreal or Warsaw Conventions. In In re Inflight Explosion on Trans World Airlines Inc., in which a passenger was blown out of the aircraft when a terrorist bomb placed under his seat exploded, the trial court affirmed an award of $85,000 for the five to ten seconds after the blast that the passenger was aware of what was happening to him.18
The court noted that, under Floyd, mental injuries connected to physical harm were covered under Article 17.19 The court hearing the claims arising out of the 1994 airplane crash near Roselawn, Indiana, reached a similar conclusion. There, the court considered whether plaintiffs could recover for pre-impact fear in an air crash disaster that killed all persons aboard the aircraft. Explaining that “the key causal link is between the accident and the damage sustained,”20 and as the fright and mental anguish the passengers experienced were directly related to the accident — though not following from a physical injury — the Roselawn court allowed the plaintiffs to recover for the passengers’ pre-impact fear.
If the rule as it stands now is that a passenger who suffers mental injuries can recover for those injuries only if they are accompanied by some physical injury or physical manifestation of injury, why should plaintiffs be able to recover damages for the fear, pain and suffering their loved ones experienced in the seconds or minutes before death?
One way to justify such awards is to consider the gatekeeper role that the requirement for physical injury or manifestation of physical injury plays. American courts often deny damages for purely psychic injuries. This reluctance has been justified as a means to, among other things, protect against spurious claims and to avoid the difficulties involved in proving such damages.21 In a wrongful death case, the general skepticism concerning the emotional injuries the victim may have suffered is answered by the factual outcome. No doubt, the person about to die feared her fate. The sequence of the events, with mental injuries “flowing from” a physical harm, does not matter when allowing recovery for pre-death psychic harm. It is the death itself that is the guarantee of the authenticity of the emotional damages and the fact that the death follows the mental trauma (or even is unrelated to the mental trauma) should not be relevant.
But while some of the underlying concerns that have justified the disallowance of recovery for mental injuries unaccompanied by physical harm do not apply in a wrongful death case, the contradiction remains. That is, in a case like Floyd in which the passengers all expect to die but survive, they cannot recover for that fear, whereas, in a case like Roselawn in which the passengers all expect to and do die, their survivors can. While surely anyone would, given the choice, opt to forego compensation for emotional damages in order to survive a plane crash, perhaps it should not be for the courts to offer such metaphysical trade-offs.
Milt Sincoff, a partner and counsel to our firm for over fifty years, died on September 7th. Mr. Sincoff was a compassionate and tireless advocate for tort plaintiffs and a mentor to several generations of lawyers. He was perhaps most famous for proving willful misconduct and thereby winning full damages recoveries for the families of passengers killed in the shootdown of Korean Airlines Flight 007.
Mr. Sincoff was a trailblazer whose innate sense of justice often led him to battle inertia and the status quo-battles that he usually won. Throughout his career, Milt used his energy and remarkable skills to push the envelope for tort victims and clear legal pathways that others will continue to follow for years to come.
Steven R. Pounian is a partner at Kreindler & Kreindler, and Megan Wolfe Benett is an associate at the firm.
- See Eastern Airlines Inc. v. Floyd, 499 U.S. 530, 552-53 (1991).
- In re Inflight Explosion on Trans World Airlines Inc. Aircraft Approaching Athens, Greece on April 2, 1986, 778 F.Supp. 625, 631 (EDNY 1991), citing In re Air Crash Disaster at Sioux City, Iowa on July 19, 1989, 760 F.Supp. 1283, 1287 (N.D. Ill. 1991) (permitting claims for damages for pre-death pain and suffering to proceed).
- Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, ICAO Doc. 8740, reprinted in S. Treaty Doc. No. 106-45, 1999 WL33292734 (2000).
- Zicherman v. Korean Air Lines Co., 516 U.S. 217, 225 (1996).
- 499 U.S. 530.
- 629 F.Supp. 307, 309 (S.D.Fla. 1986).
- Id., 314.
- Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934); see also Floyd, 499 U.S. at 535.
- Id., 552.
- Lloyd v. American Airlines Inc., 291 F.3d 503, 509 (8th Cir. 2002).
- Id., 507.
- Id., 511.
- 360 F.3d 366 (2004).
- 778 F.Supp. 625, 626-27 (EDNY1991), rev'd on other grounds, 975 F.2d 35 (2d Cir.1992)
- Id., 637.
- 954 F.Supp. 175, 178-79 (N.D. Ill.1997).
- See, e.g., Restatement (Second) of Torts §436A; Maloney v. Conroy, 208 Conn. 392, 397-98 (1988) ("Because the etiology of emotional disturbance is usually not as readily apparent as that of a broken bone following an automobile accident, courts have been concerned...that recognition of a cause of action for such an injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims, many of which may be imagined or falsified, and that liability may be imposed for highly remote consequences of a negligent act....")