APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 74-653.
Adams, Van Dusen, and Rosenn, Circuit Judges.
This appeal arises from a diversity action for personal injuries and loss of consortium sustained by plaintiffs, Attorney and Mrs. John DeMarines, as a result of an alleged accident aboard an aircraft operated by defendant KLM Royal Dutch Airlines ("KLM") on an international flight. DeMarines and his wife boarded the KLM flight, chartered by the Pennsylvania Bar Association, in Pittsburgh, Pennsylvania, the point of origin, on May 12, 1972. The plane stopped briefly in Philadelphia, Pennsylvania, to receive another group of passengers and then flew to Europe; this flight was uneventful. The return flight left Zurich, Switzerland, on May 20, 1972, bound for Amsterdam, The Netherlands; after a short stopover, the plane continued to Philadelphia. It was on the Zurich-to-Amsterdam leg that the alleged accident occurred.
DeMarines testified that some time during the flight to Amsterdam he suffered an explosion-like pressure within his head. As a result, his speech became garbled and he experienced a "stoned, completely numb feeling" inside his head. Later that day he claims to have experienced a loss of equilibrium which has continued to the present.
Plaintiffs commenced this action on March 18, 1974.*fn1 The case was tried to a jury on the bifurcated issue of whether, for the purpose of liability under the Warsaw Convention,*fn2 an "accident" occurred. A mistrial was declared on April 16, 1976, because of a hung jury.
On October 5, 1976, a second trial on all the issues began, plaintiff*fn3 advancing the theory that he sustained an injury proximately caused by an accident in connection with the pressurization of the aircraft. After a ten-day trial, the jury returned a verdict in favor of Mr. DeMarines in the amount of $1,000,000 and in favor of Mrs. DeMarines in the amount of $50,000. Subsequently, KLM filed post-trial motions for judgment notwithstanding the verdict ("n.o.v.") or, in the alternative, for a new trial, arguing that plaintiff presented insufficient evidence from which the jury could infer the occurrence of an "accident" and that the district court made several erroneous rulings during the course of the trial. The district court denied both motions. DeMarines v. KLM Royal Dutch Airlines, 433 F. Supp. 1047 (E.D. Pa. 1977). We affirm the denial of the motion for judgment n.o.v. but remand for a new trial.*fn4
I. OCCURRENCE OF AN "ACCIDENT"
The parties agree that the provisions of the Warsaw Convention,*fn5 as modified by the Montreal Agreement, 31 Fed. Reg. 7302 (1966), apply to this action and govern the rights of the parties. The liability of an airline to its passengers is delineated in Article 17 of the Warsaw Convention, which reads:
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
(Emphasis supplied). Thus, Article 17 requires as a condition precedent to liability under the Warsaw Convention a determination that an "accident" occurred and that the accident proximately caused the injury sustained.
Precisely what kind of event can be labelled an "accident" is not, however, defined in the Warsaw Convention. In formulating its jury charge on this subject, the district court canvassed the few cases which discuss the meaning of accident under the Convention, e.g., MacDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971) (plaintiff's fall in baggage claim area of terminal did not establish occurrence of accident within meaning of the Convention), Husserl v. Swiss Air Transport Co., Ltd., 351 F. Supp. 702 (S.D. N.Y.), aff'd 485 F.2d 1240 (2d Cir. 1972) (hijacking is within the ambit of accident), Chutter v. KLM Royal Dutch Airlines, 132 F. Supp. 611 (S.D. N.Y. 1955) (fall from aircraft doorway after removal of boarding stairs constitutes accident), as well as cases defining accident in a more general context, e.g., Ketona Chemical Corp. v. Globe Indemnity Co., 404 F.2d 181 (5th Cir. 1969) (accident defined as "unexpected untoward event which happens without intention or design"), Koehring Co. v. American Automobile Insurance Co., 353 F.2d 993 (7th Cir. 1965) (accident defined as "an undesigned, sudden and unexpected event").
Distilling the analytical essence of these decisions, the district court delivered the following charge:
An accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. If the event on board an airplane is an ordinary, expected, and usual occurrence, then it cannot be termed an accident. To constitute an accident, the occurrence on board the aircraft must be unusual or unexpected, an unusual or unexpected happening.
433 F. Supp. at 1052. This definition of accident, which is in accord with our own reading of the relevant case law, properly presented the jury with the correct legal standard for determining the occurrence of an accident. *fn6 We do have a serious question, however, whether the plaintiff produced sufficient evidence from which a jury could reasonably infer that an "accident" did in fact occur.
Viewing the evidence in the light most favorable to the party who secured the jury verdict, Kademenos v. Equitable Life Assurance Soc. of U.S., 513 F.2d 1073, 1074 (3d Cir. 1975), we conclude that the plaintiffs presented sufficient evidence from which the jury could infer the following:
1. plaintiff suffered an injury during the KLM flight;
2. medical experts tied plaintiff's injury to rapid decompression;
3. several other passengers experienced pain or discomfort in their ears; and
4. one passenger overheard a flight steward tell another passenger, to whom he was administering oxygen, that "it was a wonder that other people hadn't complained because they were having a problem with the air pressure."
A parallel fact pattern was presented in Warshaw v. Trans World Airlines, Inc., 442 F. Supp. 400 (E.D. Pa. 1977), in which an airline passenger who suffered a hearing loss during an international flight brought suit against the airline to recover damages under the Warsaw Convention. The district court, acting as fact-finder, found that cabin repressurization was a cause of injury to the plaintiff. Nevertheless, the court held that the plaintiff was barred from recovery, as a matter of law, because he failed to establish that his injury resulted from an accident:
Had the evidence established abnormality or malfunction in the operation of the aircraft, then we would have been presented with an entirely different situation. Instead, we find that the injury to plaintiff, regrettable as it is, is clearly one that was proximately caused during normal operations of a ...