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If you fly regularly, you have encountered the great syntax mystery of air travel: why do flight attendants demand that we "stow all electronics in the off position," instead of telling us to "turn off" or "power down" our gadgets? It's like asking someone to "instruct me in the ways of thy Douglas" instead of "teach me how to Dougie." And it's weird.
While debating this question, you may have also wondered if the airlines have similar obligations. Do they ever have to stow their electronic devices, (namely the wee television monitors that lower from the overhead bins), in the "off position" to ensure passenger safety? And if their electronic devices hurt a passenger, is it considered an airline "accident" under the Montreal Convention? (You're a lawyer - you think about these things.)
Elin Phifer collapsed after striking her head on a lowered overhead television monitor while boarding an Icelandair flight. She sued the airline under the Montreal Convention, claiming that her injuries resulted from an “accident” that occurred while she was boarding the plane. The district court dismissed the case upon Icelandair’s motion for summary judgment because Icelandair’s conduct did not violate Federal Aviation Administration (FAA) requirements.
The Ninth Circuit Court of Appeals clarified on Tuesday that Phifer did not have to prove that the airline violated an FAA standard to establish that there was an “accident” under Article 17 of the Montreal Convention. In reversing the lower court’s decision and remanding the case, the circuit noted that “although FAA requirements may be relevant to the district court’s ‘accident’ analysis, they are not dispositive of it.” A plaintiff may have an uphill battle if she cannot show an FAA violation in her accident claim, but it’s not a reason for a court to toss the case.
While determining if Icelandair has tort liability for the television monitor incident, perhaps the parties can explore additional airline mysteries, like why your Kindle compromises flight safety during take-off, but your seatmate’s copy of Confessions of a Shopaholic doesn’t.
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