     Case: 15-10384   Document: 00513292483     Page: 1   Date Filed: 12/02/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-10384                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
TINH THI NGUYEN,                                               December 2, 2015
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

KOREAN AIR LINES COMPANY, LIMITED; DALLAS-FORT WORTH
INTERNATIONAL AIRPORT BOARD,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before STEWART, Chief Judge, KING, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Korean Air Lines passenger Tinh Thi Nguyen flew from Vietnam to
Korea, and from Korea to Dallas, Texas. After deplaning and walking through
the terminal towards baggage claim, Nguyen lost her footing and fell down an
escalator. She was seriously injured. Nguyen sued Korean Air, claiming that
the airline’s failure to place her in the wheelchair that she requested when she
booked her flight was an “accident” under Article 17 of the Warsaw
Convention. The district court granted summary judgment for Korean Air,
holding that Nguyen’s failure to be placed in a wheelchair was not an
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“unexpected or unusual event” and therefore not an “accident” under Article
17. Nguyen appeals.
                               BACKGROUND
      Plaintiff Tinh Thi Nguyen flew—by herself, 76 years old at the time—
from Ho Chi Minh City to Seoul and then on to Dallas on aircraft operated by
Korean Air. Nguyen speaks and understands only Vietnamese. Prior to her
trip, Nguyen arranged for the airline to provide wheelchair service once she
arrived in Dallas. Korean Air classified Nguyen as a wheelchair passenger on
her flight itinerary and on the flight manifest. Nguyen’s flight from Ho Chi
Minh City to Seoul was uneventful. During Nguyen’s flight from Seoul to
Dallas, she attempted to speak with a flight attendant about the wheelchair
she had reserved. The flight attendant did not speak Vietnamese and was
unable to communicate with Nguyen. There was no further communication
between Nguyen and any Korean Air personnel regarding a wheelchair.
      Per Korean Air’s policy, approximately 40 minutes before landing on
flights from Korea to the United States, the flight crew is to announce Korean
Air’s wheelchair policy, confirm wheelchair requests, and advise wheelchair
passengers to deplane last. This announcement was made on Nguyen’s flight
in Korean, because the aircraft departed from Korea, and in English, because
it landed in the United States. No one instructed Nguyen in Vietnamese.
Nguyen deplaned with her row—she did not wait with the wheelchair
passengers. After deplaning, Nguyen walked past a row of waiting wheelchairs
and wheelchair attendants. She did not ask for a wheelchair; she did not point
at a wheelchair; she did not sit in a wheelchair; she did not indicate a need for
a Vietnamese-speaker. Korean Air employees did not track Nguyen down and
provide her a wheelchair. On foot, Nguyen followed the other passengers onto
an escalator towards baggage claim; unable to maintain her footing, she fell,
suffering multiple injuries.
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                                     No. 15-10384
       Nguyen sued Korean Air. 1          Her claim is governed by the Warsaw
Convention, 2 which sets forth air carrier liability for a passenger’s injuries if
the accident causing the injury took place on board the aircraft, or during the
process of embarking or disembarking.              On cross motions for summary
judgment, the district court ruled for the airline, dismissing all of Nguyen’s
claims.
                             STANDARD OF REVIEW
       We review de novo a district court’s judgment on cross-motions for
summary judgment. First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 180
(5th Cir. 2009). Summary judgment is proper when the moving party shows
that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). We construe
all facts and draw all justifiable inferences in the light most favorable to the
nonmoving party, but “the nonmoving party must set forth specific facts to
establish that there is a genuine issue for trial.” First Colony Life Ins. Co., 555
F.3d at 180.
                                    DISCUSSION
       This is a case about the meaning of the word “accident” under the
Warsaw Convention, which imposes liability on air carriers for harm to their
passengers when “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.” Blansett v. Cont’l Airlines, Inc., 379 F.3d 177,
179 (5th Cir. 2004) (quoting the Warsaw Convention). Nguyen challenges the



       1  Nguyen also sued the Dallas-Fort Worth International Airport Board. The district
court granted the Airport Board’s motion to dismiss for lack of jurisdiction because Nguyen
failed to give proper notice, a decision that she does not appeal.
        2 Convention for the Unification of Certain Rules Relating to International

Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934) [hereinafter the
Warsaw Convention].
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district court’s grant of summary judgment in favor of Korean Air that there
was no “accident” under Article 17.
                                        I.
      The Warsaw Convention does not define the word “accident,” so the
Supreme Court did. After looking to the language and drafting history of the
Convention, the Court defined “accident” in this context to mean “an
unexpected or unusual event or happening that is external to the passenger.”
Air France v. Saks, 470 U.S. 392, 405 (1985). The plaintiff in Saks felt pain in
her left ear as the plane descended towards Los Angeles. Id. at 394. She
deplaned without informing the crew of the lingering pain. Id. Five days later,
Saks’s doctor told her that she was permanently deaf in her left ear. Id. Saks
sued. The Supreme Court held that “when the injury indisputably results from
the passenger’s own internal reaction to the usual, normal, and expected
operation of the aircraft, it has not been caused by an accident, and Article 17
of the Warsaw Convention cannot apply.” Id. at 406. Because Saks’s hearing
loss was not caused by an “unexpected or unusual event or happening,” it was
not an “accident” under the Warsaw Convention. Id.
      In contrast, in Olympic Airways v. Husain the Court held that a flight
attendant’s repeated refusals to assist a passenger (who had requested help
three times) did constitute an “accident.” 540 U.S. 644 (2004). The plaintiff’s
husband had asthma and was sensitive to secondhand smoke. Id. at 647. The
couple asked the airline for seats away from the smoking section. Id. On the
last leg of their trip, they discovered during boarding that their seats were
three rows in front of the smoking section. Id. The plaintiff asked to be moved
twice before takeoff, but the flight attendant refused their request, stating that
the plane was full when it was in fact not. Id. Not surprisingly, the passengers
in the smoking section began smoking during the flight. The plaintiff asked to
be moved a third time, but the flight attendant still refused to help. Id. at 647-
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48. The plaintiff’s husband died of an asthma attack onboard the aircraft. Id.
at 648. The Court emphasized “that it is the cause of the injury—rather than
the occurrence of the injury—that must satisfy the definition of ‘accident.’” Id.
at 650 (quoting Saks, 470 U.S. at 399). The Court concluded that the flight
attendant’s repeated refusal to assist in response to numerous requests for
help was “unexpected or unusual” and qualified as an “accident.” Id. at 657.
                                       II.
       Nguyen argues that Korean Air’s failure to provide wheelchair service
as promised constitutes an “accident” under Article 17. Specifically, Nguyen
argues (1) that the airline’s failure is akin to the flight attendant’s refusal in
Husain; and (2) that Korean Air’s failure to follow its own policies and
procedures for wheelchair passengers led to her “accident.” The district court
held that Nguyen failed to present evidence that the airline’s “failure” to place
her in a wheelchair was an “unexpected or unusual event” and concluded that
there was no “accident” under Article 17. Having reviewed the briefs and the
record, we agree.
A.    Korean Air did not Refuse Nguyen a Wheelchair
      Both parties agree that Nguyen requested a wheelchair, that Korean Air
designated Nguyen a “wheelchair passenger,” that Nguyen attempted to
discuss her wheelchair reservation with a flight attendant prior to landing in
Dallas, and that Nguyen was not in a wheelchair when she was injured. To
Nguyen, this is enough:       the airline’s failure to provide the requested
wheelchair was an “unexpected or unusual event” that led to her “accident.”
Nguyen argues that three cases support this result: Husain, 540 U.S. 644,
Bunis v. Israir GSA, Inc., 511 F. Supp. 2d 319 (E.D.N.Y. 2007), and Prescod v.
AMR, Inc., 383 F.3d 861 (9th Cir. 2004). Each case is distinguishable.
      First, Nguyen points to the Supreme Court’s decision in Husain,
discussed above. There, the Court focused on the flight attendant’s refusal to
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help—her “rejection of an explicit request for assistance.” 540 U.S. at 655. But
here the record is clear that Korean Air never refused Nguyen a wheelchair.
Indeed, the airline identified Nguyen as a wheelchair passenger, announced
deplaning procedures in Korean and English prior to landing, had wheelchairs
and wheelchair attendants waiting upon arrival, and allowed any passenger—
regardless of whether they were on the list of passengers who requested a
wheelchair prior to the flight—to use a wheelchair by asking a wheelchair
attendant, pointing to a wheelchair, or simply sitting in one. So Husain does
not control.
      Second, Nguyen contends that the district court’s decision in Bunis
supports her position.    Bunis is a case about jurisdiction.     The plaintiff
requested a wheelchair after deplaning and waited more than twenty minutes
to no avail—until the lights in the terminal started turning off. Bunis, 511 F.
Supp. 2d at 320. The gate agent never returned, so the plaintiff gave up and
began walking towards baggage claim. Id. The plaintiff suffered chest pains
on the walk and had to be taken to the hospital. Id. at 320-21. In denying a
motion to remand to state court, the judge held that the airline’s “failure to
provide the wheelchair . . . [was an] ‘accident’ within the meaning of the
Warsaw Convention,” id. at 323, and thus was properly removed. Unlike in
Bunis, Nguyen never requested a wheelchair after deplaning, nor did she wait
at the gate for one. To the contrary. Rows of wheelchairs were waiting for
passengers as they deplaned, and Nguyen walked right past them.
      Finally, Nguyen points to Prescod, a Ninth Circuit case in which the
airline confiscated a passenger’s medical bag and promised that the bag would
travel with her, but then lost it. Prescod v. AMR, Inc., 383 F.3d at 864. The
medical equipment arrived two days later, but the plaintiff died within a week.
Id. at 864-65.   Relying on Husain, the court found that the “seizure of
[plaintiff’s] carry-on bag, and the subsequent delay in the bag’s delivery” was
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an “unusual or unexpected” event that led to the plaintiff’s “accident.” Id. at
868. Here, Korean Air promised Nguyen a wheelchair and had one waiting for
her upon her arrival in Dallas, but a breakdown in communication meant
Nguyen did not get in it.
B.    Treatment of Nguyen was Consistent with Korean Air’s Policies
      and Procedures
      Next, Nguyen argues that the airline’s failure to follow its own policies
and procedures for wheelchair passengers was an “unusual or unexpected
event” that led to her “accident.” Nguyen contends that Korean Air violated
its own policies in two ways:     (1) by not informing her of its wheelchair
procedures in Vietnamese, her native language, even though an airline agent
in Dallas spoke Vietnamese; and (2) by overlooking that Nguyen, who was
designated a “wheelchair passenger,” did not end up in a wheelchair after
deplaning, and failing to locate her to provide a wheelchair.
      Nguyen relies on the district court opinion in Husain (“When a passenger
boards an airplane, he or she should be able to expect that the flight crew will
comply with accepted procedures and rules. A failure to do so is unexpected.”
Husain v. Olympic Airways, 116 F. Supp. 2d 1121, 1134 (N.D. Cal. 2000)), and
Blansett v. Cont’l Airlines, Inc., which Nguyen cites repeatedly. In Blansett,
the airline did not add a deep vein thrombosis warning to its pre-flight
instructions, although many other air carriers had. 379 F.3d. at 178. Blansett
suffered deep vein thrombosis on a transatlantic flight resulting in a stroke
that left him permanently debilitated.      Id.    He sued under the Warsaw
Convention, claiming that the airline’s failure to give the warning constituted
an “accident” under Article 17. Id. at 178-79. Recognizing that the Supreme
Court did not create “a per se rule that any departure from an industry
standard of care must be an ‘accident,’” and finding that some airlines gave the
warning and others did not, our court held that “Continental’s failure to warn

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of deep vein thrombosis was not an ‘unusual or unexpected event’ and not a
qualifying ‘accident.’” Id. at 182.
      Returning to this case, the district court held that “Nguyen has not
produced any evidence suggesting that Korean Air’s employees . . . deviated in
any way from their internal policies and procedures or from industry standards
in failing to ensure that she disembarked in a wheelchair.” We agree.
      1.    Personalized Instructions            in   a     Passenger’s     Native
            Language are not Required
      Nguyen asserts that Korean Air had a “Vietnamese-speaking gate agent
present who, on previous occasions had gone on to planes to make
announcements in Vietnamese.” She states that the airline’s “policy” required
the employee to communicate with Nguyen. This, she says, contradicts the
district court’s finding that Korean Air’s “employees acted in an entirely
normal and expected fashion during disembarkation.” Nguyen’s assertion is
misleading. The employee in question worked as a ground agent for Worldwide
Flight Services, not as a gate agent for the airline. The employee helped
Worldwide with wheelchair passengers, including Korean Air passengers, but
stated that he spent most of his time helping Customs officers with translation.
He went onto aircraft “very seldom,” and when he did it was when “Custom[s]
wanted to get a passenger from the airplane first,” not to speak with or assist
wheelchair passengers. The employee’s statements in no way contradict the
district court’s finding that the airline’s employees acted in a normal and
expected fashion.
      Nguyen contends that the airline’s “failure to take any reasonable steps
to communicate with [her] and get her in the promised wheelchair” was an
“unexpected or unusual event” that led to her “accident.” Nguyen does not
present any caselaw on this point and—tellingly—does not argue that either
Korean Air’s policies or industry standards require the airline to communicate

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with each passenger in her native language. The record here establishes that
on the flight in question, the airline had flight attendants communicate in
Korean, because the flight departed from Korea, and in English, because the
flight landed in the United States. 3 The passenger makeup of Nguyen’s flight
to Dallas demonstrates the implausibility of her “personalized instruction”
argument: the flight had passengers from eighteen different nations. The list
of “wheelchair passengers” alone included people from seven different nations.
Nguyen did not present any evidence that it was “unexpected or unusual” for
the airline to communicate with passengers in only Korean and English.
      2.      Any Failure to Ensure that Nguyen was Actually Placed in
              a Wheelchair was not “Unexpected or Unusual”
      Korean Air’s General Manager of the General Affairs Team declared the
following about the airline’s wheelchair policies and procedures:
      • Any passenger is eligible for a wheelchair, free of charge.
      • It was unlawful at the time of Nguyen’s flight to refuse a wheelchair
           to anyone who requests one.
      • Passengers can request a wheelchair prior to their flight, during their
           flight, or even after the flight has landed.
      • It is not uncommon for a wheelchair designated passenger to cancel,
           refuse, or ignore wheelchair service.
      • Korean Air allows passengers to cancel a wheelchair request or
           ignore/refuse the service.
      Nguyen’s final argument is that—in addition to the above—Korean Air
“has a policy of looking for a passenger on the wheelchair list . . . who did not
end up in a wheelchair,” which it violated when it did not try to locate Nguyen
after she deplaned. Nguyen points to only the statement of Alexander Moore,


      3As one would expect, Korean Air had three flight attendants who spoke Vietnamese
on Nguyen’s flight from Vietnam to Korea.
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an employee of Prospect Services at Dallas-Fort Worth airport who assisted
Korean Air passengers needing wheelchair assistance. Moore testified that
Korean Air “always tried” to find wheelchair passengers who deplaned but did
not end up in a wheelchair. But Moore also testified that (1) he never saw a
Korean Air employee actually find someone looking for a wheelchair, (2)
Korean Air employees looked for Nguyen on the day she deplaned in Dallas
because that is what they always did, and (3) he did not actually know what
the airline’s policy or practice was in this regard—he could only speak to
Prospect’s policies and procedures and what he saw Korean Air employees
doing. Construing all facts in light most favorable to Nguyen, we do not
perceive in Moore’s testimony that the airline had such a policy. Even if it did
however, the airline’s failure to (1) identify Nguyen as a “wheelchair
passenger” who did not end up in a wheelchair after deplaning and (2) track
her down in the airport to ensure that she did not want a wheelchair would
still not constitute an “unexpected or unusual event” leading to an “accident”
under Article 17.
      Nguyen concedes that a flight attendant announced the airline’s
wheelchair procedures prior to landing, and that Nguyen walked past a row of
wheelchairs next to the door of the aircraft. Wheelchair attendants stood
behind the wheelchairs. Moore himself testified that any passenger on the
wheelchair list who chose to disregard her wheelchair request and walk was
permitted to do so. In fact, Moore said that a typical flight would have one-to-
two such “disregards.” Under these facts, it would not have been “unexpected
or unusual” for Korean Air employees to assume Nguyen simply did not want
a wheelchair, and to refrain from tracking her down in the airport to provide
her with the same empty wheelchair she just walked past. As in Blansett, we
do not depart from the direction of the Supreme Court by establishing a per se
rule that any deviation—no matter how small—from an airline’s policies and
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procedures must give rise to an “accident” under the Warsaw Convention. See
Blansett, 379 F.3d at 182. And Nguyen has provided no evidence that the
industry standard requires such a search.
                               CONCLUSION
      The district court was correct in holding that Nguyen’s injuries were not
the result of an “accident” under the Warsaw Convention because her failure
to be placed in a wheelchair was not an “unexpected or unusual” event. As
Nguyen did not suffer an “accident” under Article 17, we need not determine
whether the failure to place Nguyen in a wheelchair was a “link in the chain”
of causes leading to her injuries. See Saks, 470 U.S. at 406.
      The judgment of the district court is AFFIRMED.




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