The accidental tourist.

The accidental tourist.

The accidental tourist.

Oral argument from the court.
Nov. 12 2003 6:37 PM

The Accidental Tourist

If secondhand smoke kills, is the airline to blame? The Supreme Court deliberates.

When I was 3, my brother fed me a rather large quantity of Windex. Being a bonehead, I lapped it up. Later, as I was having my stomach pumped, he got off without punishment, cleverly claiming it was "an accident." The Supreme Court hears argument today on whether it might have actually been smarter for him to have announced he did it on purpose.

Olympic Airways v. Husain is all about what "accident" means and what happens if that accident happened simply because nothing happened, even if, as a result of the nonaccident, someone actually dies. In January 1988, Dr. Abid Hanson was traveling with his family on an Olympic Airways flight from Cairo to Athens to New York. Severely asthmatic, but unaware that there was smoking on international flights, Hanson was given a seat only three rows up from the airplane's smoking section. His wife asked the flight attendant to move him up in the cabin, and the flight attendant told her to sit down. Later, his wife repeated the request, and the flight attendant told her the flight was full (a lie). Then the smoking and socializing started behind them, the cabin filled with smoke, Dr. Hanson began to suffer, and his wife again asked that he be moved forward. The flight attendant refused again, saying he was free to ask some other passenger to swap seats. 

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.


Dr. Hanson collapsed as he walked to the front of the plane, trying to get some air, and despite epinephrine injections, CPR, and other measures performed by another physician traveling in his party, he died shortly thereafter. Hanson's wife sued the airline under the treaty that governs international flights—Article 17 of the Warsaw Convention. Article 17 provides that airlines are liable for death or injuries, resulting from an "accident." Damages are limited under the convention to $75,000, unless the accident was the result of the airline's "willful misconduct." The question for the courts was whether Dr. Hanson's death was an "accident" as contemplated under the convention. It's worth adding that as a result of earlier Supreme Court rulings on this issue, plaintiffs who can't recover under the Warsaw Convention are also foreclosed from recovering under state negligence laws.

The district court decided the flight attendant's refusal to move Hanson was an "accident" under the convention, awarding his wife $1.4 million, and (surprise!) the 9th Circuit Court of Appeals affirmed. The Supreme Court agreed to hear the case, sans Justice Stephen Breyer, as his brother heard it at the district court level.

At issue, of course, is the definition of the word "accident." If it seems a rather thin subject for an hour of debate, then that would explain the long deathly silences this morning. The basic question for the court is whether—according to the test laid out in a 1985 case, Air France v. Saks—what happened to Hanson was "an unexpected or unusual event" that is "external" to the passenger. In Saks, the court held that an ear injury caused by normal changes in cabin pressure didn't qualify as an accident.

The problem here, of course, is that Hanson didn't die as a result of an "accident," as we'd colloquially use that word. He died because his flight attendant was a bitch. Sadly, his wife can't recover for that under the Warsaw Convention. The issue, therefore, is whether we can mash these facts to fit the definition of "accident," so she can recover for something. Andrew J. Harakas represents Olympic Airlines, and he contends that the issue for this case is "What was the injury-producing-event?" Justice David Souter seems to agree with the 9th Circuit that the unexpected and unusual event was the refusal of the flight attendant to move Hanson to a "smoke-free zone." Harakas argues that Hanson was technically in a nonsmoking seat already—a non-smoking seat, says Souter, that happened to be "in a zone of smoke."


Souter and Harakas tangle over whether the flight attendant's action needed to be an act or omission to count as an "event." Harakas seems to believe that since she didn't move Hanson, she couldn't have done anything wrong. He tells Justice Sandra Day O'Connor that there is some relevance to the fact that Hanson didn't interact directly with the stewardess but left it to his wife to do so. (That he was too busy being about to die seems relevant to me, but I am a nitpicker.)

Souter repeats that what was "accidental" was the "unexpectedness" of the flight attendant's refusal to accommodate a sick passenger. Harakas says Souter is conflating common-law negligence with the accident standard in the Warsaw Convention.

Chief Justice William H. Rehnquist asks whether there were other seats available in Economy Class. "Yes," replies Harakas, there were 11 free seats, but some were in the smoking section.

"Supposing," offers Justice John Paul Stevens, "without asking the stewardess, he got into seat 7 or 8 in front, and she asked him to return to his seat?" That would also not be an accident, says Harakas. Stevens asks how there could be no accident if the stewardess had sent him back to his seat near the smoking section? Because, says Mr. Smarty Pants, "that was his normal seat." Moreover, the fact that there was smoke near the smoking section was also normal. Therefore, no accident.


Even Justice Anthony Kennedy is baffled by this analysis, stating that had Hanson been moved, the death would not have occurred, so there "has to be an accident." Harakas disagrees. (This is why they pay him.) He says, look at the precise events causing the injury. There are none. Thus, no accident.

The Chief Justice asks what exactly caused Hanson's death, then.

"Exposure to secondhand smoke," says Harakas. But, he adds, was exposure to ambient secondhand smoke unexpected? No. Thus, no accident. This case is like Groundhog Day, except in every single version the plaintiff dies and the airline doesn't give a crap.

Ginsburg asks what other treaty partners have held in similar cases, and Harakas concedes that in Australian and British courts this has qualified as an "accident." Justice Antonin Scalia snaps back, "That's dicta. We wouldn't give dispositive effect to our own dicta, much less a court of appeals in England." He says "court of appeals in England" like he'd say "Judge Judy Sheindlin."


Harakas then offers a hypo in which Hanson makes no request to move, then dies. No accident there, right? So the mere fact that he asked to move "doesn't change the event."

H. Bartow Farr III represents Hanson's widow, and as he starts to speak, Scalia hijacks him with a hypo in which a man "hurls himself into the sea, intending to commit suicide," while nearby there is a dock with 30 people, each with a life preserver at his feet, all of whom refuse to throw a life preserver to the drowning guy. "I don't know," he adds. "Maybe they're 30 libertarians." Scalia says even though that result would be "unexpected," no one would call it an "accident." Farr tries to distinguish between the "colloquial" use of the word accident and the legal. He says it would be an "accident" if the flight attendant slapped someone in the face or threw hot coffee on them.

No, says Scalia, "If the flight attendant spills coffee, that's an accident."

Farr says that even if the flight attendant was "purposefully throwing coffee," it would still be an accident under Article 17 since that is the "gateway" to get to the willful misconduct claim. It seems, then, the only way to recover for the intentional hateful behavior of your stewardess under the Warsaw Convention is by characterizing it as "accidental."


Ever wonder why people hate lawyers?

Rehnquist asks what industry practice and Olympic Airlines' policy regarding moving passengers' seats is (since the claim here is that the stewardess' action was "unexpected" as it violated routine policy). Farr replies that the general practice is to accommodate people who ask to move. Really? My general airline experience is that the industry practice is to avoid eye contact and look aggrieved.

Rehnquist wonders whether the stewardess throwing hot coffee at passengers could therefore be defended with the claim that "our stewardesses do it all the time."

Farr says that if you follow Olympic's definition of accident, the Warsaw Convention would have a "hole in it" whenever there had been, as there was here, "willful misconduct."

Barbara McDowell has 10 minutes to argue for the Solicitor General's office and she also defines accident as something "unusual or unexpected." She says that "accident" cannot be confined to hijackings and plane crashes, however. She distinguishes Scalia's lazy libertarian hypo by pointing out that unlike random people on docks, airline employees have special duties to help passengers. She and Kennedy battle over whether this isn't just importing common-law negligence onto the Warsaw Convention, but she insists it's not.

Scalia then contends that the stewardess' failure to move Hanson's seat was an omission. "There were three requests to be moved," says McDowell. Scalia says, "I take it back. There were three omissions." No accident.

Harakas offers a 3-minute rebuttal in which he argues that the Warsaw Convention was "reluctant to make the airlines liable for accidents arising out of the state of health of passengers." Sometimes, he says, that means passengers are left with no remedy. And for those passengers with pre-existing conditions, it means that you are always, always screwed. I'll say sorry for your trouble in advance—since the airlines never will.