Twardowski v. American Airlines, Inc.
United States Court of Appeals for the Ninth Circuit
Appeal from the United States District Court for the Northern District of California
Filed July 30, 2008
Cite as 06-16726

No liability for Air Carriers Failure to Warn About DVT

Between the year 2001 and 2004, passengers or their decedents purchased a plane ticket on an air carrier for an international flight.

Previous from their flights, the International Air Transport Association (IATA), the English House of Lords, and airlines’ own medical personnel had suggested that airlines warn passengers about DVT. These were all evidenced by series of publications and press releases that the said entities have exerted all for providing air patrons sufficient information regarding DVT.

Air carriers generally put information about DVT on their websites and in in-flight magazines. Air carriers also publicly state that preventing passenger injury is a priority.

Meanwhile, the passengers or their decedents after finding the failure of the Air carriers to warn about the potential risks of DVT, and after having allegedly incurred injuries and, in five cases, death, which they attribute to DVT, filed their respective cases against the airlines involved in this appeal. Later on the case continued to their respective resolution.

During this course, Air carriers moved for summary judgment before the District Court for the Northern District of California, which the district court granted. In deciding for the Airline Carrier, the court concluded that Caman mostly controlled, but that, to the extent passengers maintained that the airlines elected not to give warnings (or effective warnings), those decisions would be too remote from the embarking, disembarking, and on-board process for injury to be compensable under Article 17.

The court allowed discovery into industry practice and individual airline policy, but rejected passengers’ Federal Rules of Civil Procedure 56(f) request for additional discovery.

Thus, the Passengers timely appealed to the United States Court of Appeals for the Ninth Circuit from the summary judgment in favor of Continental Airlines and a number of other air carriers on their claim for damages for failure to warn of the risk of Deep Vein Thrombosis (DVT) on international flights.

The passengers or their decedents argue that the airlines’ refusal of requests to warn was an unexpected event and thus, an accident under Article 17 of the Warsaw Convention.

In affirming the respective district Court’s decision, the United States Court of Appeals for the Ninth Circuit held in these respects:

• In a bunch of cases, we have already held that developing DVT in-flight is not an accident, which is defined as an unexpected or unusual event or happening external to a passenger, Rodriquez v. Ansett Australia, Ltd., 383 F.3d 914, 917 (9th Cir. 2004). Thus, airlines were not liable for failing to warn passengers of risk.


• Failure to warn about the risk of DVT is not an event for purpose of liability for an accident under Article 17, Caman v. Continental Airlines, Inc., 455 F.3d 1087, 1092 (9th Cir. 2006). Neither requests by public agencies, nor the airlines’ public commitment to safety, converts the failure to warn about DVT into an event or accident. The gist remains, at its core, a failure to warn.


• If there is no liability for failure to warn, there is none for failure to warn effectively.