Airline passenger forcibly stuffed into her seat breaks leg

Airline passenger forcibly stuffed into her seat breaks leg



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In this week’s article, we examine the case of Dordieski v. Austrian Airlines, AG, 2016 U.S. Dist. LEXIS 112090 (N.D. Ind. 2016) in which Mary Dordieski alleges that she suffered a horrible injury at the hands of agents of Austrian Airlines when they broke her leg by forcible stuffing into an airplane seat when the leg was rigid and unbendable due to spina bifida. Ms. Dordieski lives in Crown Point, Indiana. Austrian Airlines is incorporated in Austria and conducts substantial and continuous business within the United States, including in Indiana and Illinois. The injury occurred in Canada. The airline has moved to dismiss the action on forum non conveniens grounds…I am not persuaded that Austrian Airlines has met its high burden in attempting to overcome Mary’s forum selection under the doctrine of forum non conveniens”.

Terror Targets Update

London, England

In Erlanger, Terrorist Attacks in the Heart of London Hit a Nation Still Reeling, nytimes.icm (6/3/2017) it was noted that “Another night of terrorism unfolded in Britain on Saturday with two attacks that killed six civilians in the center of the capital, London police said. At least one of the dead was killed when a van careened onto the sidewalk along London Bridge, mowing down pedestrians. The London Ambulance Service said it had brought 48 injured to five hospitals. The police said they killed three attackers, which they believed to be the total number of assailants”.

Manila, Philippines

In Paddock & Villamor, After 37 Die in Attack at Manila Resort, Questions Mount, nytimes.com (6/2/2017) it was noted that “The first victims, identified as 22 guests and 13 employees of Resorts World Manila, appeared to have died of smoke inhalation…though autopsies had not yet been conducted. The fire was started in the early hours of Friday morning, when a man carrying an assault rifle and a two-liter soda bottle filled with gasoline fired shots at a television and set gambling tables ablaze, sending patrons and workers into a panic. Some fled through the exits, and others jumped from second-floor balconies. But others hid in restrooms and gambling rooms where they were overcome by smoke…The Islamic State claimed responsibility”.

Thailand

In 18 suspects in car-bombing of Big C, travelwirenews.com (5/11/2017) it was noted that “Pattani police chief…shows a picture of Pattani native Makorseng Maae, a prime suspect in Tuesday’s bombing of the Big C Supercentre in Muang Pattani district”.

Kabul, Afghanistan

In Mashal, Abed & Sukhanyar, Deadly Bombing in Kabul Is One of the Afghan War’s Worst Strikes, nytimes.com (5/31/2017) it was noted that “A truck bomb devastated a central area of Kabul near the presidential palace…In one moment more than 80 lives ended, hundreds of people were wounded and many more were traumatized”.

Qatif, Saudi Arabia

In Car bomb hits predominantly Shia city in Saudi Arabia, travelwirenews.com (6/1/2017) it was noted that “A car bomb has exploded in the predominantly Shia city of Qatif in Saudi Arabia’s Eastern Province…two people were killed in the bombing that happened near Qatif’s Sheikh Hussein al-Omran Masque”.

Times Square, New York City

In “I wanted to kill them”, Times Square crash driver tells police, travelwirenews.com (5/19/2017) it was noted that “The man accused of driving into pedestrians in Times Square, killing an 18-year-old woman and injuring 22 others, wanted ‘to kill them’ and police should have shot him, according to prosecutors”.

Mogadishu, Somalia

In Car bomb explosion kills 6 people in Mogadishu, wounding nearly dozen, travelwirenews.com (5/8/2017) it was noted that “The deadly incident occurred in central part of the capital on Monday, when an explosive-laden car exploded next to an Italian café, across from the Immigration Directorate…The huge blast also left 10 people wounded, police added”.

Paris, France

In Paris police evacuate & sweep Europe’s busiest train station, travelwire.com (5/8/2017) it was noted that “Police in the French capital have evacuated passengers from Paris’ Gare du Nord train station, and sealed off the area in search of what some reports described as ‘dangerous’ suspects…The nature of the threat remains unclear”.

In France limits rights & freedom, curbs peaceful protest under guise of battling terrorism-Amnesty, travelwiremews.com (5/31/2017) it was noted that “France has deployed anti-terrorist measures within a state of emergency to curb peaceful protests, Amnesty International says. It adds that emergency laws were used not to protect civilians after the 2015 Paris attacks, but to restrict their human rights”.

Berlin, Germany

In Germany, prosecutors probe officers over Berlin terrorist attacker ‘cover-up’ inquiry, travelwiremews.com (5/30/2017) it was noted that “Investigators have raided officers’ homes and offices amid an ongoing inquiry into document forgery in the case of Berlin terrorist Anis Amri. It is alleged that Amri’s criminal history was downplayed to justify inaction prior to the assault…Amri…rammed a lorry into a crowd at Merlkin Christmas market in December, killing 12 people”.

Paris Climate Accord

In Tabuchi & Fountain, Bucking Trump, These Cities, States and Companies Commit to Paris Accord, nytimes.com (6/1/2017) it was noted “Representatives of American cities, states and companies are preparing to submit a plan to the United Nations pledging to meet the United States’ greenhouse gas emissions targets under the Paris climate accord, despite President Trump’s decision to withdraw from the agreement. The unnamed group-which, so far, includes 30 mayors, three governors, more than 80 university presidents and more than 100 businesses-is negotiating with the United Nations to have its submission accepted alongside contributions to the Paris climate deal by other nations”.

Goodbye Ice Shelf, We Will Miss You

In A huge ice crack in Antarctica grew 11 miles in 6 days, and a giant iceberg is coming, travelwirenews.com (6/1/2017) it was noted that “On the same day that President Donald Trump is making his big announcement on whether to keep the U.S. in the Paris Agreement on climate change…A crack that has been spreading across the Larsen C Ice Shelf in the Antarctic Peninsula accelerated its progress in late May and is about to break off a Delaware-sized iceberg…The rift which is 1,500 feet wide in places, grew by 11 miles between May 25 and May 31…bringing the front edge of the crack to within 8 miles of the sea”.

Travel Ban Update

In Liptak, The Supreme Court’s Options in the Travel Ban Case, nytimes.com (6/2/2017) it was noted that “the fight over President Trump’s travel ban reached the Supreme Court late Thursday night, in the form of three urgent requests from the Justice Department…The Justice Department filed a petition seeking review of a decision by the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., that blocked the Trump administration’s proposed limits on travel from six mostly Muslin countries. The government asked the justices to act a little faster than usual, urging them to decide whether to hear the case before they leave for the summer break. But that would still defer arguments to the fall, with a decision to follow”.

Ebola Outbreak

In Freytas-Tamura, Ebola Outbreak Is Declared in Congo, With at Least 3 Dead, nytimes.com (5/12/2017) it was noted that “An Ebola outbreak has been declared in northern Democratic Republic of Congo and has killed at least three people in the past three weeks, World Health Organization said of Friday…The outbreak is not linked to previous Ebola flare-up in Congo, nor the one that tore through West Africa in 2014, killing more than 11,000 people…That outback was significant because it reached major cities and began in a part of Africa that had never seen Ebola before”.

Want Measles, Go To Stockholm

In Stockholm clinic probed for discouraging vaccination, says measles is good for child’s development. Travelwirenews.com (5/10/2017) it was noted that “A children’s clinic in Stockholm is being investigated after giving parents dubious information about vaccines and advising homeopathy, leaving their young patients at risk of developing potentially life-threatening diseases, local media report. The Allvis clinic in the Sodermain district, which practices alternative medicine, allegedly advised parents to wait before vaccinating their child against measles, mumps and rubella, claiming that having the diseases can help along their child’s development”.

No Hitchhiking Toads, Please

In Australia warns travelers to not bring hitchhiking toads, travelwiremews.com (5/11/2017) it was noted that “Australian quarantine authorities have urged travelers through Asia to avoid bringing in hitchhiking amphibians after a passenger arrived at an airport with a dead Indonesian toad in his shoe…toads from Thailand and Indonesia were found recently at three Australian airports”.

San Diego’s Hotel Tax Challenged

In Judge hands hoteliers preliminary victory in tourism tax case, travelwirenews.com (5/5/2017) it was noted that “A lawsuit seeking to overturn San Diego’s 2 percent tourism levy on hotel guests is likely to be dismissed based on a tentative ruling issued Thursday by a Superior Court judge. The class=action complaint, one of several lawsuits that have challenged a hotelier-approved levy to fund tourism marketing, not only sought to bar the city from continuing to levy the fee but also asked for the repayment of funds paid by hotel companies over a more than 3 ½ period. Superior Court Judge Richard Strauss ruled in favor of the city and its Tourism Marketing District, sustaining all objections to the lawsuit”.

Pets At Hotels

In Clarke, Pets on the Premises? It’s a Hotel Perk, nytimes.com (5/25/2017) it was noted that “When booking a room, it may not occur to travelers to ask whether a hotel has pets. Yet interaction with animals can improve mental health, and has been shown to ease depression. Some hotels are luring customers with mascots, and not just dogs, but also birds, cats, tortoises and even donkeys”.

Travel Law Case Of The Week

As noted by the Court “Dordieski is an adult who suffers from spina bifida as a result of which her right leg is deformed and has always outstretched and rigid since birth. Mary is confined to a wheelchair and incapable of any self-support. Mary’s mother and care giver Svetlana purchased airline tickets for herself and Mary for an Austrian Airlines flight leaving Chicago, Illinois and bound for Vienna with a final destination of Skopje, Macedonia. To accommodate Mary’s disability, Svetlana purchased two tickets in the bulkhead section of the plane-a section that provides more space for passengers”.

Emergency Landing

“Mary and Svetlana boarded the flight without incident. But on the way to Austria, the airplane encountered mechanical difficulties and made an emergency landing in Toronto, Canada. The passengers were transported to a Toronto hotel and asked to return to the airport the following day to complete the trip”.

Stuffed Into A Seat

“For the new flight leaving Toronto, Austrian Airlines did not assign Mary and Svetlana the same seats in the bulkhead section. Instead, the airline issued them boarding passes for regular seats that did not accommodate Mary’s disability. This posed a problem given Mary’s condition. Svetlana protested that Mary could not be seated in the newly assigned seat given the deformity of her leg. Mary claims that, despite her protests, the airline’s employees or agent forced Mary’s outstretched leg into the inadequate space, causing it to break”.

Montreal Convention

“It is undisputed that Mary’s claims for damages are governed by the…Montreal Convention. It is also undisputed that Article 33 of the Convention governs where plaintiffs can bring claims. The Montreal Convention states that an action for damages ‘must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination’…Paragraph 2 of Article 33 also identifies a fifth jurisdiction, applicable only for passenger death or injury claims, permitting an action to be brought ‘in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air’. It is this matter provision that authorizes Dordieski to bring her claim in this court because she lives here in the Northern District of Indiana”.

Inconvenient Forum

“Austrian Airlines moves to dismiss Mary’s complaint based on forum non conveniens. The doctrine…applies equally to claims under the Montreal Convention brought in U.S. courts as it does to cases brought in the U.S. courts under U.S. laws….Dismissal under forum non conveniens is appropriate if: (1) there is an adequate alternative forum in which the case can be tried, and (2) the relevant private and public interests favor dismissal…Austrian Airlines argues that Canada is adequate alternative forum and that the private and public interests favor dismissal”.

Adequate Alternative Forum

“The Seventh Circuit breaks down an adequate alternative forum into a ‘two-part inquiry: availability and adequacy’…Availability is when ‘all parties are amenable to process and are within the forum’s jurisdiction’…Adequacy requires that a forum provide the plaintiff with a ‘fair hearing to obtain some remedy for the alleged wrong’”.

Was A New Ticket Issued?

“Austrian Airlines argues that Canada has jurisdiction…because Austrian Airlines created a contract with the Dordieskis in Canada when it ‘issued [Mary] a new boarding pass for a new and different flight than the flight she was originally on’. The airline contends that the boarding pass was a ‘contract of carriage’ under the Montreal Convention. Mary takes the position that the new boarding pass did not create a new contract, but merely represented a modification of the original contract. I think Mary has the better of the argument”.

The Contract Of Carriage

“The contract between Mary (or Svetlana, of which Mary was the third-party beneficiary) and Austrian Airlines was for carriage from Chicago to Vienna, The means by which the contract was effectuated had to be altered when the emergency stop in Toronto was required. But Mary was not issued a new ticket. She did not pay for a new flight. Svetlana bought the original tickets while she was in the United States, from a travel agent in New Jersey. This means that the contract for the original ticket from Chicago to Austria occurred in the United States. The flight from Canada to Vienna was merely a fulfillment of the parties’ contract for the original ticket, rather than a new and separate contract. The unforeseen stopover in Canada, occasioned by circumstances beyond Svetlana’s and Mary’s control and not of their choosing, did not result in a new contract”.

Conclusion

“The airline’s argument that a new contract was made in Toronto is unpersuasive…Without such a new contract, Canada is not a forum with jurisdiction over Dordieski’s claim. In that event, it is not an available or adequate forum for purposes of non conveniens analysis”…I am not persuaded that Austrian Airlines has met its high burden of attempting to overcome Mary’s forum selection under the doctrine of forum non conveniens”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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