On August 27, 1983, Hawley was a passenger on Northwest's
nonstop flight from Chicago's O'Hare Airport to Kimpo Airport
in Seoul, Korea. Hawley suffered a severe heart attack during
the flight. Hawley immediately lapsed into unconsciousness. He
never regained consciousness. Hawley died shortly thereafter.
Fischer originally filed her claim in the Circuit Court of
Cook County, Illinois. The suit was later removed to this
The guidelines used in considering a motion to dismiss a
complaint for failure to state a claim are well defined. On a
motion to dismiss, a complaint must be construed in the light
most favorable to the plaintiff, the allegations thereof being
taken as true. Mathers Fund, Inc. v. Colwell, 564 F.2d 780, 783
(7th Cir. 1977). A complaint should not be dismissed unless it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim that would entitle him to the
requested relief. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct.
1079, 1081, 31 L.Ed.2d 263 (1972).
COUNTS II AND III
Northwest moves to dismiss Fischer's claim for failure to
state a claim upon which relief can be granted. Northwest
argues that Hawley's heart attack was not proximately caused by
an "accident" and is therefore not compensable under Article 17
of the Warsaw Convention. Fischer contends Hawley's death was
caused by an accident as defined by the Warsaw Convention.
Article 17 of the Warsaw Convention makes air carriers liable
for injuries sustained by a passenger "if the accident which
caused the damage . . . took place on board the aircraft or in
the course of any of the operations of embarking or
disembarking." 49 U.S.C.A. § 1502 note. Northwest is liable to
Fischer under the terms of the Warsaw Convention only if
Fischer can prove that an "accident" was the cause of Hawley's
In Air France v. Saks, ___ U.S. ___, 105 S.Ct. 1338, 84
L.Ed.2d 289 (1985), the Supreme Court defined the term
accident. The court held that 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 Air France court reasoned that an
accident does not cause an injury when an injury indisputably
results from a passenger's own internal reaction to the usual,
normal, and expected operation of the aircraft.
In the instant case, Hawley's heart attack and subsequent
death were not the result of any unusual or unexpected external
event connected with the flight. Hawley's ill health was an
internal disability and was not the result of an unusual or
unexpected occurrence connected with the flight. Hawley's
injury does not fall within the scope of injuries contemplated
by the Warsaw Convention. Therefore, no accident caused
Hawley's injury and Northwest is not liable under the Warsaw
Fischer's second argument asserts that the airline's refusal
to aid Hawley after his heart attack was the "accident" that
caused the injury. This Court disagrees. The United States
Court of Appeals for the Third Circuit rejected this argument
in Abramson v. Japan Airlines, Co., Ltd., 739 F.2d 130 (3d Cir.
1984). The Abramson court held that a hernia injury not caused
by any external events was internal to the passenger and not an
accident under Article 17 of the Warsaw Convention. The court
also held that the airline's refusal to aid the passenger after
he suffered the hernia attack was not an accident. The Third
Circuit found that the failure to aid the stricken passengers
was not an occurrence tantamount to other occurrences treated
as "accidents" under the Convention. Id. at 132-133.
Finally, Fischer argues that her complaint should not be
dismissed in its entirety. Fischer claims Count I of the
complaint alleges a cause of action for negligence independent
of the Warsaw Convention claim. Moreover, Fischer argues that
Count I states a claim upon which relief can be granted. This
Fischer's complaint clearly sets forth a negligence action
alleging Northwest breached its common law duty to exercise
reasonable care to its passengers. This Court must treat all
well-pleaded facts as true. Under the pleaded facts, a fact
finder could find that it was unreasonable for Northwest not to
land its airplane at the nearest available airport. In
addition, a jury could find that the airplane lacked sufficient
medical equipment. Finally, a fact finder could find that
Northwest unreasonably failed to contact its ground personnel
to obtain medical assistance. Consequently, Northwest's motion
to dismiss Count I is denied.
Northwest's motion to dismiss Count I is denied because
Fischer properly pleaded a negligence action. Counts II and III
of Fischer's complaint are dismissed for failure to allege
facts sufficient to establish that an "accident" caused
Hawley's heart attack.
IT IS SO ORDERED.
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