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Passenger-on-passenger violence during a flight is not automatically an “accident” for which the victim can receive compensation from the airline, federal judge Robert F. Kelly ruled, refusing plaintiff Kathleen O’Grady’s request for a new trial in her unsuccessful personal-injury action against British Airways. During an April 1999 flight from Philadelphia to London, O’Grady was involved in a verbal and physical altercation with the male passenger in the aisle seat next to her. The argument began when O’Grady interrupted the male passenger’s sleep in order to exit her seat. It escalated when O’Grady returned to her seat. Although O’Grady relocated to the seat behind the irate passenger, the conflict continued, with the male passenger striking O’Grady with a newspaper and punching her several times on the top of the head. The flight attendant eventually relocated the male passenger to the rear of the plane, upgraded O’Grady to first class and contacted police at the London airport. After landing, O’Grady declined to press charges in the assault because she was concerned she would miss her connecting flight to Dublin. In February 2000, she filed suit in the Philadelphia Court of Common Pleas against the airline for the assault. The suit was removed to federal court in accordance with the terms of the Warsaw Convention, which govern personal-injury suits arising from international flights. After a two-day trial, the jury returned in favor of British Airways, represented by Peter G. Erdely of Rawle & Henderson. O’Grady appealed, charging that the jury instructions did not correctly define an “accident” under the Warsaw Convention and that the issue was one for the court, not the jury. As “a matter of law,” O’Grady’s counsel Peter J. Staunton of Fine & Staud argued, the assault was an “accident.” But Kelly disagreed, writing, “An assault by a passenger upon a fellow passenger is not, as a matter of law, an accident under the Warsaw Convention.” The trial court had instructed the jury that “For the purposes of the Warsaw Convention an ‘accident’ is defined as an unexpected or unusual event or happening that is external to the passenger … . Not every act — not every incident or occurrence during a flight is an accident within the meaning of the Convention … “ The instruction, Judge Kelly found, was based on the definition of “accident” set forth by the U.S. Supreme Court in the 1985 case Air France v. Saks — “liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger.” The Warsaw Convention did not define the term. The 2nd Circuit found in the 2000 case Wallace v. Korean Air that a sexual assault during an international flight was an “accident” under the Warsaw Convention. And relying on that precedent, a New York federal court found in Lahey v. Singapore Airlines that an assault stemming from a passenger’s desire to recline her chair was also an “accident.” But “those cases do not lend support to the proposition that this court was required to instruct the jury that an accident under the Warsaw Convention includes, as a matter of law, an assault committed upon a seated plaintiff by a fellow airline passenger,” Kelly said. In Wallace, Kelly said, the 2nd Circuit stated “we have no occasion to decide whether all co-passenger torts are necessarily accidents for the purposes of the Convention.” Kelly cited a 1978 3rd Circuit decision, DeMarines v. KLM Royal Dutch Airlines, upholding a District Court jury charge defining an “accident” as “an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. If the event on board an airplane is an ordinary, expected and usual occurrence, then it can not be termed an accident.” The 3rd Circuit found that the court’s “definition of accident … properly presented the jury with the correct legal standard for determining the occurrence of an accident.” Kelly also found that the terms of the Warsaw Convention, as interpreted by the U.S. Supreme Court in Saks, provide that the issue of whether a plaintiff’s injuries were the result of an “accident” be decided by the trier of fact. O’Grady had argued that the issue should be decided by the court.

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