JetBlue Passenger Sues After Flight Attendants Gave Her Dry Ice For A Swollen Leg — It Burned Her Skin

A JetBlue passenger has filed suit after asking flight attendants for ice to reduce swelling in her left leg on a flight from Paris to New York last year. They gave her an “ice pack” – that she says was actually dry ice. It caused burns and tissue damage to her left leg, which she frames as an “accident” in order to claim damages under Article 17 of the Montreal Convention.

Let’s first start with this: never use dry ice directly on the skin. Flight attendants should also never hand it to a passenger as a therapeutic cold pack. Always use gloves designed for very cold temperatures when handling it! Avoid direct contact and never handle it with bare hands. Dry ice is about -109°F.

A normal cold compress or ordinary ice with a barrier between the cold and skin is appropriate here. Dry ice is not, and should itself be treated like a frostbite injury.

Assuming the story is close to true, it’s a very strong Montreal Convention Article 17 claim.

• The airline is liable for damage sustained in case of bodily injury of a passenger if the accident causing the injury took place on board the aircraft or during boarding or deplaning.

• The question is whether there was an “accident.” Under Air France v. Saks that’s an “unexpected or unusual event or happening that is external to the passenger.” And Olympic Airways v. Husain clarifies that this includes airline personnel conduct. If a JetBlue flight attendant handed over dry ice, without warning, for direct skin contact, that’s an Article 17 accident.

• Under Article 21, the airline can’t limit liability up to 151,880 SDR (US$215,802).

JetBlue’s best defense is that the passenger’s own negligence contributed to the damage. If the flight attendant warned her not to apply it directly, told her to wrap it, or if the passenger kept the dry ice applied after pain began, there may be some mitigation. They can also argue the underlying condition – which caused the passenger to ask for the ice in the first place – is contributory. (They can also question whether the damages are medically overstated.)

There either might be no negligence on the part of the crew, or that excess damages above $215,802 are not recoverable because the injury resulted from plaintiff’s own handling of the ice rather than crew negiglence.

The lawsuit itself is very bare bones. It was filed just under one year from the incident, but the Montreal Convention deadline is two years so it’s not a statute of limitations issue. So the logic of a placeholder complaint seems likely to initiate discovery. The suit may be needed to obtain the airline’s incident report, any ground medical consultation, catering records showing dry ice boarded, airline training materials, crew statements, etc.

We’ve seen JetBlue sued over medical damages from its catering supplies in the past, like the passenger who broke a tooth over rock hard ice cream. And I just wrote about a lawsuit against United Airlines because a 4-year old was burned by 200 degree tea – the perfect example of why I’ve questioned Montreal Convention liability limits.

(HT: Paddle Your Own Kanoo)