Airline must pay in secondhand
smoke death
by Claire Cooper / Bee Legal Affairs Writer
Sacramento Bee, Tuesday, 8/29/00
SAN FRANCISCO -- In the largest secondhand smoking
award to date in the United States, a federal judge Monday ordered Olympic
Airways to pay $700,000 to survivors of a California man who died from being
seated too close to a plane's smoking section.
According to Richard Daynard, an expert on tobacco
litigation at Northeastern University, only one other secondhand smoking case has
ended with an order to compensate the victim, a prison guard who was exposed to
tobacco smoke on the job.
Daynard said that although almost all planes now are
smoke-free, the new ruling should be viewed as a warning that all types of
employers are putting themselves "at serious risk" if they fail to
train their staffs to respond properly to complaints about secondhand smoke.
In finding Olympic negligent, U.S. District Judge
Charles Breyer considered evidence that the attendant paid little attention to
a series of increasingly urgent pleas by Hanson's wife, Rubina Husain.
The attendant said the plane was "totally
full," though it was not. After Husain made her third request to change
her husband's seat, the attendant advised her Hanson could walk through the
cabin and try to find someone who would swap with him.
More than two hours after the flight started, as
Hanson walked toward the front of the cabin to breathe fresher air, he suffered
a respiratory attack. Attempts to revive him with drugs, oxygen and CPR were
unsuccessful.
No autopsy was performed, and Olympic argued in court
that a food allergy or unknown medical problem provoked the fatal attack. But
Breyer said the evidence pointed "at least in significant part" to
"smoke inhalation which triggered a severe asthmatic reaction." The
judge also ruled that the flight attendant's refusal to change Hanson's seat or
report the seat- change request to a supervisor was "willful
misconduct" and a violation of standards for passenger care.
The attendant "deliberately closed her eyes to
the probable consequences of her acts," Breyer wrote.
That finding permitted Breyer to exceed a $75,000 per
passenger limit on liability set by the Warsaw Convention, a treaty on
international air travel.
Based on Hanson's expected earnings, Breyer set his
family's economic loss at $1.4 million. He reduced the award by half, however,
after finding Hanson partly liable for his own death because he did not try to
switch seats with another passenger.
Susie Injijian, Husain's lawyer, said the Warsaw
Convention was interpreted to permit a claim for secondhand smoke injuries in
just one other case, a dispute litigated a few years ago in a Canadian court.
Stephen Fearon, Olympic's lawyer, said he will
discuss a possible appeal with his client after he and Olympic review the
opinion.
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Airline Partly Liable in Asthma
Case
By David Kravets - Associated Press Writer Monday,
Aug. 28, 2000
SAN FRANCISCO -- Invoking an international treaty
rarely applied in such cases, a federal judge on Monday ordered a Greek airline
to pay $700,000 for its role in a passenger's asthma-related death aboard a
cigarette-smoke filled plane.
U.S. District Judge Charles R. Breyer said Olympic
Airways attendants should have switched the seat of Abid M. Hanson after he
complained that nearby smoke was bothering him on the January 1998 flight from
Egypt to the United States.
"Had Olympic Airways' flight crew responded
appropriately to the repeated requests to move Dr. Hanson from this area, he
might be alive today," the judge wrote.
In holding Olympic partially liable, Breyer cited the
Warsaw Convention treaty. All international carriers must sign the treaty,
amended since it was signed in 1929, which sets limits on airlines' financial
liability for accident victims.
Breyer said the flight crew's failure to move the
victim away from the smoking section following a request that they do so,
including one before Hanson got on the plane, "can be considered an
'accident' under the convention."
Other courts, Breyer pointed out, have inferred that
airline accidents may include a flight attendant spilling scalding water on a
passenger or when a flight attendant served alcohol to a passenger whose
behavior was already erratic and aggressive.
"We argued that he had preexisting medical
asthma and allergy conditions and that his death was not the result of an
accident under the Warsaw Convention," Fearon said. "There has to be
an accident for there to be an accident. He did not die as a result of any
malfunction on the airplane."
The judge awarded $1.4 million but cut it in half
after concluding the 52-year-old victim could have found another seat when the
flight attendant told him to "go ask people yourself."
Hanson family lawyer Susie Injijian said the case
involved the airline's "willful misconduct" and is unlikely to change
policies of international carriers that allow cigarette smoking.
While smoking is banned on all domestic U.S. flights,
some airlines permit it on international flights embarking or leaving the
country.
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