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United States Court of Appeals
Fifth Circuit
F I L E D
United States Court of Appeals
July 21, 2004
for the Fifth Circuit
Charles R. Fulbruge III
_______________
Clerk
m 03-40545
_______________
MICHAEL SHAWN BLANSETT;
MODESTA N. BLANSETT,
AND AS NEXT FRIEND OF MCKENNA BLANSETT, AS NEXT FRIEND OF BLAKE BLANSETT,
INDIVIDUALLY, AND MINORS,
Plaintiffs-Appellees-
Cross-Appellants,
VERSUS
CONTINENTAL AIRLINES, INC.,
Defendant-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________

Before SMITH and DENNIS, Circuit Judges,
airline is responsible for injuries to passengers
and LYNN,* District Judge.
on an international flight where the injury
results from an "accident." The district court
JERRY E. SMITH, Circuit Judge:
denied Continental's motion to dismiss under
FED. R. CIV. P. 12(b)(6), concluding that if
I.
Continental's failure to provide DVT warnings
On June 18, 2001 plaintiff Michael
and instructions was an "unreasonable de-
"Shawn" Blansett traveled from Houston,
viation from industry standards," it would be
Texas, to London, England on a flight
an "accident" under the Convention. We now
operated by Continental Airlines, Inc.
consider Continental's interlocutory appeal,
("Continental"). During flight, he suffered an
pursuant to 28 U.S.C. § 1292(b), on the issue
episode of deep vein thrombosis ("DVT"),
of article 17's proper meaning and application.
resulting in a cerebral stroke that left him
permanently debilitated. DVT involves the
clotting of blood in the extremities and creates
We review a rule 12(b)(6) ruling de novo.
a threat of death or disability if a clot migrates
See, e.g., Lowery v. Texas A&M Univ. Sys.,
to the lungs or other vital organs.
117 F.3d 242, 246 (5th Cir. 1997). We
assume the truth of all pleaded facts and
The likelihood of a DVT injury is
review purely legal issues de novo.
heightened by the pressurized conditions
Concluding that Continental's failure to
aboard an airliner, especially during long
provide DVT warnings and instructions could
flights, though experts believe that passengers
not have constituted an "accident" under
may undertake precautionary measures to
article 17, we reverse and remand.
reduce the risk. Many international carriers
have added DVT warnings to their battery of
II.
pre-flight instructions to passengers, though at
Article 17 imposes liability on an air carrier
the time of Blansett's flight, Continental had
for a passenger's death or bodily injury in con-
not. Federal regulations do not require that air
nection with an international flight. It provides
carriers issue any such warnings, though at the
in relevant part:
time of Blansett's flight, the International Air
Transport Association, a trade association, had
The carrier shall be liable for damage
recommended that airlines implement a long
sustained in the event of the death or
schedule of instructions to passengers on the
wounding of a passenger or any other bod-
risks of DVT.
ily injury suffered by a passenger, if the
accident which caused the damage so sus-
Blansett and his close relations sued
tained took place on board the aircraft or in
Continental, alleging that it was liable for
the course of any of the operations of
Blansett's injury under article 17 of the
embarking or disembarking.
Warsaw Convention, to which the United
States is a signatory. Under article 17, an
49 Stat. 3000, 1934 WL 29042.
The pertinent question, as we have said, is
* District Judge of the Northern District of
whether Continental's failure to provide warn-
Texas, sitting by designation.
2

ings and instructions concerning DVT could
the smoke, he suffered an allergic reaction and
have constituted a covered "accident" under
died. The Court held that the airline's refusals
article 17. Because the Convention was
constituted a qualifying "unusual or unexpect-
written in French and against the background
ed event" under article 17. Id. at 1230.
of French law, the Supreme Court has looked
to French law to interpret the meaning of
III.
"accident" in article 17. Air France v. Saks,
The situation in the instant case differs
470 U.S. 392, 400 (1985). In French law,
markedly from that in Husain. Here, no re-
"accident" is usually given to mean a
quest was made of the airline; the flight staff
"fortuitous, unexpected, unusual, or
was entirely passive. The Supreme Court not-
unintended event." Id. The Court noted,
ed that facts similar to those here are at least
accordingly, that an accident under article 17
distinguishable from those in Husain. Justice
is an "unexpected or unusual event. . . ." Id.
Scalia's dissent, id. at 1230, 1231 (Scalia, J.,
dissenting), pointed to decisions in several for-
The Convention speaks of an "accident
eign jurisdictions concluding that a failure to
which caused" an injury rather than an
warn and instruct of DVT risks is not an
accident that is an injury. Id. at 398.
"event" under article 17. The Court stated
Accordingly, a qualifying "unusual or
that the failure to give warning in the foreign
unexpected event" must be distinct from "the
Warsaw Convention cases involving DVT, as
passenger's own internal reaction to the usual,
distinguished from a specific refusal to lend re-
normal, and expected operation of the
quested aid in Husain, was enough to prevent
aircraft." Id. at 405, 406. For instance, where
conflict between them. Id. at 1229 n.9.
normal pressurization of the aircraft hull
caused hearing damages to an unusually
That is to say, the Court specifically left
sensitive passenger, the occurrence of the
open the question now before us, even as it
injury was not an "accident," however unusual
supplied the general rules for the detection of
or unexpected. Id. An "unusual or
qualifying "accidents" under article 17. In this
unexpected event" that qualifies under article
case, as the Court did in Husain, we consider
17 must be part of the "chain of causes"
whether certain omissions may constitute an
leading to an injury. Id. at 406. So, it need
"accident" under article 17.
not account wholly for the injury but must
have been a significant part of the cause.
The district court held, "An airline's
violation of an industry standard of care,
In Husain v. Olympic Airways, 124 S. Ct.
alone, can be an `unusual or unexpected event
1221, 1227-30 (2004), the Court concluded
or happening that is external to the passenger,'
that, under some circumstances, an "accident"
. . . and thus an `accident.'" Blansett v. Cont'l
may constitute an omission or refusal to act.
Airlines, Inc., 246 F. Supp. 2d 596, 601 (S.D.
In Husain, a passenger with an allergy to
Tex. 2002). Accordingly, the court would
smoke asked to be reseated when smoke from
have left it to the jury to determine whether
another section of the plane impinged his seat
Continental's failure to provide the suggested
in a nominally smoke-free area. The crew re-
DVT warnings was an "unexpected and
fused three times to reseat him, even though
unreasonable departure from routine industry
other seats were available, and as a result of
procedure," and thus necessarily an accident
3

under the Convention. Id. at 602. In so
The Blansetts accept that the district
holding, the court wished to compel airlines to
court's choice of language was inapt, but they
"keep up with reasonable and practical
argue nonetheless that they can demonstrate
industry practices." Id. at 601.
that Continental's failure to give DVT
warnings was an "unusual and unexpected
In allowing a finding of an "unreasonable"
event" merely because it was departure from
departure from "airline standards" to establish
standard practice within the airline industry.
an unusual and unexpected event, the district
For purposes of this appeal, we assume the
court's approach resembles that of the Ninth
truth of the Blansetts' allegation that
Circuit, which held, in its iteration of Husain
Continental's failure to provide DVT warnings
that preceded the Supreme Court's review,
as part of its battery of pre-flight instructions
that "[t]he failure to act in the face of a
is a departure from an "industry standard."
known, serious risk satisfies the meaning of
`accident' within Article 17 so long as
As we have said, the Supreme Court has
reasonable alternatives exist that would
held that some kinds of inaction can constitute
substantially minimize the risk and
an "accident." In Husain, specific refusals to
implementing these alternatives would not
render requested aid constituted an "unexpect-
interfere with the normal, expected operation
ed or unusual event." We take note also of the
of the airplane." Husain v. Olympic Airways,
Court's mention of the example proffered by
316 F.3d 829, 837 (9th Cir. 2002) (emphasis
the district judge a quo in another case, in
added), aff'd, 124 S. Ct. 1221 (2004).2 The
which he speculated that it would be an
latter part of this formulation echoes for-
"unusual and unexpected event" if an air crew
mulations of the law of negligence in torts.
decided not to divert a flight to save the life of
Although the Supreme Court ultimately
a passenger who suddenly became ill. Husain,
affirmed that Olympic Airways' refusal to aid
124 S. Ct. at 1229 (citing McCaskey v. Cont'l
the plaintiff was an "accident," the Court
Airlines, Inc., 159 F. Supp. 2d 562, 574
declined to base its analysis on language of
(S.D. Tex. 2001)). In Husain3 and the
reasonableness or unreasonableness.
McCaskey hypothetical, unusual circumstances
Likewise, we reject the district court's use
of an "unreasonable departure" approach here.
3 As the United Kingdom Court of Appeals ob-
Inasmuch as the court called for the con-
served with respect to Husain,
sideration whether Continental's conduct was
an accident merely because it was
[t]he refusal of the flight attendant to move Dr.
"unreasonable," it was in error.
Hanson cannot properly be considered mere in-
ertia, or a non-event. It was a refusal to pro-
vide an alternative seat which formed part of a
more complex incident, whereby Dr. Hanson
was exposed to smoke in circumstances that
2 See also Fulop v. Malev Hungarian Airlines,
can properly be described as unusual and unex-
175 F. Supp. 2d 651, 665 (S.D.N.Y. 2001) ("Any
pected." Deep Vein Thrombosis & Air Travel
major deviation from a standard articulated in rec-
Litig., 2003 WL 21353471, ¶ 50 (emphasis
ognized practices and procedures represents the
added); see also Qantas Ltd. v. Povey, [2003]
exceptional case--the unusual or unexpected hap-
VSCA 227, ¶ 17, 2003 WL 23000692, ¶ 17
pening.")
(Dec. 23, 2003).
4

existed to elevate the willing inaction of airline
parture from "an industry standard of care."5
personnel from mere inertia SSfrom a non-
But, we will not depart from the demonstrated
eventSSto an event both "unexpected and
will of the Supreme Court by creating a per se
unusual."4
rule that any departure from an industry
standard of care must be an "accident." In
No such circumstances were thrust on the
Husain, 124 S. Ct. at 1230, the Court again
flight crew in the present case, and their com-
emphasized that the appropriate test for article
pliance with the regular policy of their airline
17's application under every set of relevant
was hardly unexpected. Rather, the Blansetts
facts is whether there was an "unexpected or
allege that the "unexpected" nature of the al-
unusual event." Some departures from an "in-
leged event arose not from the choices of the
dustry standard" might be qualifying accidents
flight attendants, but from the Continental pol-
under Article 17, and some may not.
icymakers who decided not to mandate DVT
warnings on Continental flights.
Continental's failure to warn of DVT was
not an "unusual or unexpected event" and not
The Blansetts reason that though this
a qualifying "accident." Though many
decision occurred at a time and place distant
international carriers in 2001 included DVT
from Blansett's flight, article 17 is to be
warnings, it is undisputed that many did not.
"applied flexibly" after "assessment of all the
Moreover, Continental's battery of warnings
circumstances surrounding a passenger's
was in accord with the policies of the Federal
injuries . . . ." See Saks, 470 U.S. at 405. It is
Aviation Administration ("FAA"), which pre-
appropriate to consider the deliberate per-
scribes what warnings airlines should issue to
petuation of company-wide policies as
passengers.
potential "events" within the context of the
individual flights in which they are given
In Witty v Delta Air Lines, Inc., 366 F.3d
effect. We may accordingly compare the
380 (5th Cir. 2004), we held that the warnings
instructions given on Continental flights with
reasonably required to be made by an airline
those customarily given within the airline
are those enumerated by the FAA, and no oth-
industry generally, in gauging whether
ers.6 We noted that the balance of warnings
Continental's deliberate choice was "unusual
and unexpected."
5 As the district court noted, he relied on the
Again, we assume, for purposes of this ap-
testimony of an expert witness, Farrol Kahn, who
peal, that a failure to warn of DVT is a de-
was of the opinion that failure to provide DVT
warnings departed from industry custom. McCas-
key, 246 F. Supp. 2d at 601. Kahn noted that at
the time of Blansett's injury, five of the ten most-
traveled international airlines provided information
4 Judge Dennis disagrees with the mere iner-
and instructions to passengers about DVT. Id. at
tia/inertia plus unusual circumstances dichotomy
602.
drawn by the majority because: (1) it is not nec-
essary to the resolution of this case, (2) the Su-
6 "[F]ederal regulations do not require warnings
preme Court left the issue open in Husain, and
to passengers about the risks of DVT or methods
(3) the potential ramifications of distinguishing
for preventing this condition." Witty, 366 F.3d at
between different types of inaction are not clear.
385. Therefore, we concluded that in a negligence
5

required by the government is the product of
its careful judgment. For example, "Any
warning that passengers should not stay in
their seats, but should instead move about to
prevent DVT, would necessarily conflict with
any federal determination that, all things con-
sidered, passengers are safer in their seats."
Id. at 385. We noted also that the courts' re-
quirement of other warnings would dilute the
impact of warnings that are required by the
FAA.
Though Witty does not decide this case, be-
cause its lesson directly applies only to
negligence causes of action, it is nonetheless
instructive. It was not an unexpected or
unusual decision for Continental merely to
cleave to the exclusive list of warnings
required of it by the agency that has regulatory
jurisdiction over its flights.
Ultimately, no jury may be permitted to find
that Continental's failure to warn of DVT
constituted an "accident" under article 17.
Continental's policy was far from unique in
2001 and was fully in accord with the expecta-
tions of the FAA. Its procedures were neither
unexpected nor unusual.
The order appealed from is REVERSED,
and this matter is REMANDED.
action, an airline "cannot be held liable for failing
to provide warnings or instructions." Id.
6