That last step really was a doozy: Court rules woman can make case to jury that airline is to blame for her injuries getting off a plane from Boston at a London airport

A federal appeals court ruled yesterday that a woman who tripped going down a mobile staircase after her flight from Boston to London can try to convince a jury that the way she was injured constitutes an accident for which she's owed damages.

A judge in federal district court had sided with British Airways and tossed Jennifer Moore's lawsuit for damages for the two broken legs she suffered after getting off a flight from Boston to Heathrow Airport around 9 a.m. London time on Sept. 15, 2018. But the US Court of Appeals yesterday reinstated her suit.

At issue was the meaning of the word "accident," under the terms of the Montreal Convention, a treaty that deals with mishaps involving international flights, and which limits the amount of money an airline has to pay out for a mishap that is not an "accident" to roughly $175,000, far short of the $9.9 million Moore is seeking for what she says are permanent injuries that will affect her future earnings.

In siding with the airline, US District Court Judge Mark Mastroianni agreed with the airline that, even well into the 21st century, there is nothing "unusual or unexpected" about having passengers deplane via a mobile stairway rather than a jetway and then having a gap between the final step and the ground nearly twice as large as the spacing between each step on the stairway. And so, under the Montreal Convention, which uses the phrase "unexpected or unusual" what happened was not, legally speaking, an "accident." Given that, he then dismissed Moore's case.

Moore appealed. The appeals court said the issue is not what an airline is accustomed to, but whether a passenger should be used to the idea of, first, going down a staircase instead of walking through a jetway and, second, tripping because the gap between the final step and the ground was 13 inches, rather than the 7.4-inch spacing between each step on the mobile staircase used for the flight that morning. And, the court concluded, what sent Moore from the airport straight to an English hospital was "unexpected or unusual " enough to warrant having her case go to a jury.

To reach that point, however, the three judges had to wade through both the Montreal Convention - which normally limits airline liability to roughly $175,000, far short of the $9.9 million Moore is seeking - and its predecessor, the Warsaw Convention, court decisions involving airplane mishaps from New York, England, Wales, the European Union and the Australian state of Victoria, British and European staircase-riser regulations, a case heard by the British House of Lords and a 1992 edition of the American Heritage Dictionary.

The 29-page decision, written by Judge Bruce Selya, one of the federal bench's best known experts on words and their definitions, starts its legal considerations by noting that "unusual" and "unexpected" are not always congruent:

Words often shadow-dance with each other, and "unusual" and "unexpected" are, admittedly, somewhat overlapping categories. But only somewhat. For example, a solar eclipse is likely to be an unusual event - but if it is widely forecast by astronomers across the globe, it is likely to be expected.

The court continued that one of the reasons we have the Montreal Convention instead of the Warsaw Convention is because the older treaty was weighted far too heavily in favor of airlines rather than their passengers:

The Montreal Convention does not mince words: it declares its purpose, in part, as "ensuring protection of the interests of consumers in international carriage by air" and recognizes "the need for equitable compensation based on the principle of restitution."

This, along with further analysis of relevant court decisions, led the judges to conclude that the issue is whether what happened on the tarmac was "unexpected or unusual" for Moore, not British Airways.

The court concluded that all the factors cited in filings in the case were enough to take the case to trial, by creating "the inference that an ordinary, reasonable passenger in the plaintiff's position would not have expected to disembark on a staircase in which the bottom step had such a yawning riser height."

First, all of the steps on the staircase before the bottom step were of a uniform height = a height several inches less than that of the bottom step. The plaintiff's expert asserted that someone descending a staircase "tend[s] to develop a specific gait and expectation that the stairs are uniform." That "expectation" evolves into a "stepping pattern" as the staircase progresses and "an unexpected difference in stair dimensions" can interrupt the pattern, causing a fall. Relatedly, the expert opined that the plaintiff fell because she took an "air step," which he described as occurring due to "an unexpected depression or step down." A jury could find this analysis convincing.

Second, the plaintiff's travel companion, Ms. Burnett, testified that she was "surprised" because "the bottom step didn't arrive when [she] thought it would." A jury could appropriately take Ms. Burnett as a proxy for the ordinary passenger, whose expectations were, under the circumstances, objectively reasonable. And such a jury could credit her testimony that the height of the bottom step was unexpected.

Third, a jury could find that the passengers were not warned of the bottom step's elevated riser height. On this point, British Airways does not deny the absence of any specific warnings but insists that it was under no obligation to give any such warnings.

And then there were those British and European stair-riser standards, although British Airways argued those weren't really standards so much as recommendations.

The court did agree with British Airways that mobile staircases, even if they are no longer as common as they once were in the days when people dressed up to travel, are still pretty common, even "incredibly normal," and that a jury might still side with the airline that the mishap, while unfortunate, was not an "accident" as defined by the Montreal Convention.