Husain, et al. v. Olympic Airways

Plaintiffs brought a wrongful death action under the liability provisions of the Warsaw Convention.  After a non-jury trial in the spring of 2000, the court (Breyer, J.) found the defendant liable in the amount of $700,000.  The court found as follows: “On an international passenger flight in January 1998, Dr. Abid M. Hanson, a nonsmoker who suffered from asthma, inhaled a significant amount of second-hand smoke and died in the company of his wife and three children.  Dr. Hanson was not seated in the ‘smoking’ section of the airplane on which he died, but in a seat three rows ahead.  Considerable ambient smoke was present at this location.  Had Olympic Airways’ flight crew responded appropriately to the repeated requests to move Dr. Hanson from this area, he might be alive today.”  The court ruled that the flight attendant’s refusal, after three impassioned requests by Dr. Hanson’s wife, to move him to an area farther away from the smoke produced by the smoking passengers, constituted an “accident” for purposes of the Warsaw Convention, that the accident was a primary cause of his death and that the flight attendant’s refusal to move him was “willful misconduct.”  Thus, the $75,000 cap on damages under the Warsaw Convention did not apply.  The court further found that, because he did not attempt to move to another area of the airplane, Dr. Hanson “was contributorily negligent in causing his death, and that his negligence contributed to his death at a rate of 50%.”  Having found that the family suffered $1,400,000 in economic losses, the court therefore awarded the plaintiffs $700,000.  See Cooper, C., “Airline Must Pay in Secondhand Smoke Death,” Sacramento Bee, August 29, 2000; and “Olympic Hit With $700,000 Verdict in Second-Hand Smoke Death,” Airline Financial News, September 4, 2000.

After Plaintiffs filed a motion for modification and/or clarification of the Court’s findings of Fact and Conclusions of Law, the Court, at 2000 U.S. Dist. LEXIS 18234, “concluded that the plaintiffs should receive an award of non-economic damages equal to this Court’s earlier award for economic damages.”  Thus, the Court determined that the total award is $1,400,000.

On December 12, 2002, the Ninth Circuit Court of Appeals, at 316 F.3d 829, 2002 U.S. App. LEXIS 25470, 17.7 TPLR 2.479, ruled that the district court’s “findings and conclusions are well-grounded in the record. Olympic’s argument asks this Court to substitute its judgment and second guess the district court.  This we cannot do.  Olympic failed to meet its burden of showing that the district court’s findings are clearly erroneous and that the district court erred in its application of the law.  Therefore, we affirm the judgment of the district court.”   See MacLean, P., “Panel Upholds Second-Hand Smoke Award,” Los Angeles Daily Journal, December 13, 2002, 1.

On March 12, 2003, it was announced that the U.S. Supreme Court had granted a stay of the judgment.  See “Justices Put Hold on Payout for Asthma Death on Airplane; Court Will Consider Airline’s Appeal,” San Francisco Chronicle, March 13, 2003, A15. On May 27, 2003, the U.S. Supreme Court announced, at 2003 U.S. LEXIS 4074, that it would consider Olympic Airways’ appeal.

On February 24, 2004, the U.S. Supreme Court, at 124 S.Ct. 1221, 157 L.Ed. 2d 1146, 72 U.S.L.W. 4187, 2004 U.S. LEXIS 1620, 18.8 TPLR 2.407, ruled (by a vote of 6 to 2) that the conduct by Olympic Airways’ flight attendant constituted an “accident” under Article 17 of the Warsaw Convention.  Thus, the Ninth Circuit’s ruling is affirmed.  See Wald, M., “Justices Say Airline Is Liable for a Fatal Reaction to Smoking,” New York Times, February 25, 2004, A19; Lee, H., “Airline Loses case Over Forcing Man to Sit Near Smokers, Bay Area Doctor with Asthma Died,” San Francisco Chronicle, February 25, 2004; and Holzmeister, K., “Greek Airline to Pay $1.4 Million in Doctor’s Death,” Oakland Tribune, February 27, 2004.  On April 19, 2004, rehearing was denied, at 2004 U.S. LEXIS 3048.

116 F. Supp.2d 1121, 15.7 TPLR 2.665, 2000 U.S. Dist. LEXIS 17581, No. C 99-1400CRB (U.S.D.C. N.D.Calif. 2000).