FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIN PHIFER,  No. 09-56858

Plaintiff-Appellant, D.C. No.

v. 2:08-cv-06561-

ICELANDAIR, AKA Icelandair ODW-CW

Northamerica,  ORDER

Defendant-Appellee. AMENDING

OPINION AND

AMENDED

OPINION 

Appeal from the United States District Court

for the Central District of California

Otis D. Wright, District Judge, Presiding

Argued and Submitted

February 17, 2011—Pasadena, California

Filed July 26, 2011

Amended September 1, 2011

Before: Pamela Ann Rymer and Jay S. Bybee,

Circuit Judges, and Gordon J. Quist,

Senior District Judge.*

Opinion by Judge Bybee

*The Honorable Gordon J. Quist, Senior District Judge for the U.S. District Court for Western Michigan, Grand Rapids, sitting by designation. 

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COUNSEL

Andrew N. Chang and Stuart B. Esner, Esner & Chang, Glendale, California; Richard C. Devirian, Torrance, California,

for the appellant.

Michael A. Hession, Kevin R. Sutherland, and Nicholas S.

Lieberknecht, Clyde & Co, San Francisco, California, for the

appellee.

ORDER

The opinion filed on July 26, 2011, slip op. 9601 and available at 2011 WL 3076393, is amended as follows:

1. At slip op. 9605, footnote 2 and the accompanying

text should be deleted: “This element requires us to

find that the television monitor’s being down was

both (1) an “event” and (2) “unexpected or unusual.”

The only issue before the district court was the “unexpected or unusual” determination. In its response

on appeal, Icelandair raised a second argument—that

the television monitor’s being down was neither “unexpected or unusual” nor an “event” under Article

17. Because Icelandair did not raise its “event” argument before the district court, we will not review it

here. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th

Cir. 1999) (“[A]n appellate court will not consider

issues not properly raised before the district court.”).

Accordingly, we here address only the issue of

whether the television monitor’s being down was

“unexpected or unusual.” ”

PHIFER v. ICELANDAIR 16643
With this amendment, the panel has voted to deny the petition for panel rehearing. 

The petition for panel rehearing is DENIED.

No further petitions for panel rehearing or rehearing en

banc will be considered.

OPINION

BYBEE, Circuit Judge:

Today we clarify that a plaintiff does not have to prove that

an airline violated an Federal Aviation Administration

(“FAA”) standard to establish that there was an “accident”

under Article 17 of the Convention of the Unification of Certain Rules Relating to International Transportation by Air

(“Montreal Convention”). Because the district court held otherwise, requiring the plaintiff to provide evidence the airline

had failed to meet FAA requirements in order to survive summary judgment, we reverse and remand.

I

After entering her assigned row on Icelandair Flight No.

656, Appellant Elin Phifer bent over, placed two carry-on

bags under the seat in front of hers, stood up, and struck her

head on an overhead television monitor, which was extended

in the down position. Phifer collapsed and was assisted to her

seat by her husband and an Icelandair flight attendant.

Phifer sued Icelandair in federal district court, alleging that

Icelandair was liable for her injuries under Article 17 of the

Montreal Convention, which establishes that air carriers are

liable for accidents that occur to passengers while they are

boarding, aboard, or disembarking aircraft. S. Treaty Doc. No.

106-45, *33.

16644 PHIFER v. ICELANDAIR
The district court granted summary judgment on behalf of

Icelandair because “even assuming a departure from [Icelandair’s] own policies or, possibly, industry standards, [Phifer]

ha[d] still not provided any evidence that [Icelandair]’s conduct was in violation of any FAA [Federal Aviation Administrative] requirements,” rendering any dispute “immaterial.”

Phifer appeals.

II

[1] Article 17 of the Montreal Convention reads in its

entirety:

The carrier is liable for damage sustained in case of

death or bodily injury of a passenger upon condition

only that the accident which caused the death or

injury took place on board the aircraft or in the

course of any of the operations of embarking or disembarking.

Id. at *33. The Supreme Court has defined “accident” for purposes of Article 17 as “an unexpected or unusual event or

happening that is external to the passenger.” Air France v.

Saks, 470 U.S. 392, 405 (1985).1 The Court has further clarified 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 . . . cannot apply.” Id. at 406. 

The Court has directed us to focus our attention on the “accident which caused the passenger’s injury, and not to [the]

1Although Saks addresses Article 17 of the Warsaw Convention of

1929, rather than Article 17 of the Montreal Convention of 1999, which

governs here, for our purposes, any differences between the provisions are

immaterial. Compare S. Treaty Doc. 106-45, *33 with 49 Stat. 3000 art.

17 (quoted in Saks, 470 U.S. at 397). We read Saks as applicable to our

understanding of Article 17 of the Montreal Convention. 

PHIFER v. ICELANDAIR 16645
accident which is the passenger’s injury.” Id. at 398. This is

because “[t]he text of the Convention . . . implies that, however we define ‘accident,’ it is the cause of the injury that

must satisfy the definition rather than the occurrence of the

injury alone.” Id. at 399 (referring to Article 17’s “accident

which caused the death or injury” language). See Olympic

Airways v. Husain, 540 U.S. 644, 646 (2004) (identifying the

“accident” at issue as a flight attendant’s refusal to reseat a

smoke-allergic passenger).

Saks makes clear that here, Icelandair is only liable to

Phifer if her injury was caused by an accident—in this case,

the television monitor’s being down during boarding. Accordingly, Icelandair is only liable if the television monitor’s

being in a down position during boarding (1) was an unexpected or unusual event or happening that (2) was external to

Phifer and (3) caused her injuries. See Caman v. Cont’l Airlines, 455 F.3d 1087, 1090 (9th Cir. 2006). The parties here

dispute only the first element. Therefore, we only review

whether the district court properly determined that the television monitor’s being in a down position during boarding was

not “an unexpected or unusual event or happening.” Saks, 470

U.S. at 405.2

[2] The district court below erred in granting summary

judgment to Icelandair on the ground that, “even assuming a

departure from its own policies or, possibly, industry standards, [Phifer] ha[d] still not provided any evidence that [Icelandair]’s conduct was in violation of any FAA

requirements.” Although FAA requirements may be relevant

to the district court’s “accident” analysis, they are not dispositive of it. We have never held that violation of FAA requirements is a prerequisite to suit under Article 17. See Husain v.

2We review de novo the district court’s conclusions of law. See Husain,

316 F.3d at 835. Accordingly, we “review de novo the legal question of

whether an ‘accident’ occurred” under Article 17. Prescod v. AMR, Inc.,

383 F.3d 861, 867 (9th Cir. 2004). 

16646 PHIFER v. ICELANDAIR
Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002) (finding

Article 17 liability without any evidence the airline failed to

meet FAA requirements), aff’d, 540 U.S. 644 (2004); Prescod

v. AMR, Inc., 383 F.3d 861, 868 (9th Cir. 2004) (per curiam)

(same). See also Rodriguez v. Ansett Austl. Ltd., 383 F.3d

914, 919 (9th Cir. 2004) (noting the plaintiff had not submitted evidence of the airline’s failure “to comply with any

industry standard . . . nor any other evidence [of an ‘accident’]” (emphasis added)). The Supreme Court has suggested

that a per se rule requiring a regulatory violation would be

improper. See Saks, 470 U.S. at 405 (“[The ‘unexpected or

unusual’ liability test] should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries.”).

III

[3] We reverse and remand so the district court can determine under the proper standard whether an Article 17 “accident” has occurred.

REVERSED AND REMANDED.

PHIFER v. ICELANDAIR 16647