Opinio Juris

The plaintiffs in this case allege they were injured as a result of an accident that occurred on an up escalator as they exited an area the parties describe as a “bus depot,” located one level below Main Concourse E at the airport, when Mrs. Ferguson, Mrs. Deleveaux's eighty-eight-year-old mother, apparently fell backward onto both Ms. Bowe and Mrs. Deleveaux, resulting in all three suffering personal injuries. The complaint alleges the defendants were negligent by failing to fulfill a request for wheelchair assistance made for Mrs. Ferguson, which caused the plaintiffs to fend for themselves and hence, the escalator accident.

The record reflects the accident in this case occurred on July 29, 2001. Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson had just arrived in Miami on an American Eagle commuter aircraft from Nassau. The aircraft arrived at a freestanding building, separate from the main concourse. In accordance with practice for aircraft arriving at that location, Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson departed the aircraft and boarded an American Airlines bus for the short trip to the main terminal. The bus brought them to the bus depot. Although it appears from the record the bus depot is served by two escalators and an elevator, at best the record is murky concerning ingress, egress, and the extent to which the general passenger populace on the concourses is free to enter the depot area….

The preemptive effect of the Convention on local law extends no further than the Convention's own substantive scope. In this regard, it is clear from the text of the Convention it applies only to a “carrier.” Warsaw Convention, art. 17. In addition, the Convention applies only to injuries occurring either on board an aircraft or “in the course of any operations of embarking or disembarking.” Warsaw Convention, art. 17. These requirements constitute the initial inquiries we must make to determine whether the Convention is applicable to the claims being made and those we must consider here….

The Warsaw Convention also does not define or elucidate upon the phrase “operations of embarking or disembarking.” See Warsaw Convention, art. 17. However, it is clear the term does not automatically exclude events transpiring, as is the case here, within an airline terminal building. Rather than impose location-based or other rigid criteria to delimit these periods of liability under the Warsaw Convention, courts employ a three-prong test or guide to determine whether a passenger is entitled to seek the benefits of the Convention by considering: (1) the passenger's activity at the time of the accident; (2) the passenger's whereabouts at the time of the accident; and (3) the amount of control being exercised by the carrier at the time of the injury. In addition, when considering these factors, these same courts have made clear that no single factor is dispositive. Instead, “the three factors form a ‘single, unitary [analytical] base.'"