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A disabled airline passenger who claims that his motorized wheelchair was damaged during a flight and later malfunctioned, causing him to crash into a wall, has the right to sue the airline under the Warsaw Convention but cannot pursue a state law negligence claim, a federal judge has ruled. In Dillon v. United Airlines Inc., Judge Bruce W. Kauffman of the U.S. District Court for the Eastern District of Pennsylvania found that while the plaintiff was injured long after getting off the plane, the alleged “accident” he was suing over — the damage to his wheelchair — actually occurred during the flight. As a result, Kauffman ruled that Joseph F. Dillon III can pursue a personal injury claim under the Warsaw Convention. Kauffman also found that Dillon can sue over the damage to the wheelchair even though he didn’t file written notice within three days because he claims that airline employees told him he could wait until he returned home to do so. But since the convention governs Dillon’s case, Kauffman found that his state law claims are pre-empted. In May 1998, checking in for a United Airlines flight, Dillon checked his wheelchair as baggage and flew from Philadelphia to Milan, Italy. When he retrieved the wheelchair, Dillon claims, it was damaged, with cracks and broken wires. The next day, while using it, he claims, the brakes failed, causing him injuries when he crashed into a wall. Dillon claims that he notified the airline in Italy about the damaged wheelchair and that he was advised to make his claim upon return to the United States. Back in Philadelphia, he claims, he was told that it wasn’t necessary to file a written report. In August 2000, Dillon filed suit against UA in the Philadelphia Court of Common Pleas, asserting common law negligence claims. UA removed the case to U.S. District Court and moved for dismissal, arguing that the Warsaw Convention governs the suit and that Dillon has no claim because the accident did not occur “on board the aircraft or in the course of operations of embarking or disembarking.” But Kauffman found that the U.S. Supreme Court has held that the “injury” need not have occurred on board and that judges should focus on the “accident.” “Because it is the accident, rather than the injury, that must occur on board the flight or in the course of embarking or disembarking, a plaintiff’s location at the time of an injury caused by the accident is irrelevant,” Kauffman wrote. Although Dillon’s injuries occurred after he left the plane, Kauffman found that the “accident” was the damage to his wheelchair, which allegedly occurred on board. As a result, Kauffman found that Dillon has a valid claim for personal injuries under Article 17 of the convention. And under Article 18, Kauffman said, Dillon has a claim for damage to his wheelchair. Ordinarily, to pursue an Article 18 claim, the passenger must give written notice to the carrier within three days from the date of receipt of the checked baggage. But Kauffman found that Dillon qualifies for the fraud exception to the time limit because he claimed he was misinformed about his rights and responsibilities by UA. “A reasonable jury could determine that defendants’ alleged representations, if in fact made, significantly decreased the likelihood that plaintiff would give written notice during the brief period allowed,” Kauffman wrote.

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