FAA-Regulatory Noncompliance as Evidence of a Montreal Convention “Accident”; Internal Policy Deviations and Imperfect Medical Response Usually Insufficient

Introduction

In Arzu v. American Airlines (5th Cir. May 14, 2026), Melissa Suzette Arzu—individually and as administrator of the Estate of 14-year-old Kevin Greenidge—sued American Airlines under the Montreal Convention after Kevin suffered cardiac arrest and died mid-flight on an international route. Arzu alleged that American was strictly liable under Article 17 because Kevin’s death was caused by an “accident,” and she also asserted a derivative loss of consortium claim and a Texas-law breach of contract claim based on American’s Conditions of Carriage.

The appeal presented three core issues: (1) whether an allegedly imperfect in-flight medical response—framed as deviations from internal airline policy—can constitute an Article 17 “accident”; (2) whether an allegedly malfunctioning onboard Automatic External Defibrillator (AED) can constitute an Article 17 “accident,” particularly in light of FAA regulations requiring approved AEDs; and (3) whether the Montreal Convention preempts a state-law contract claim tied to obligations that mirror Convention provisions.

Summary of the Opinion

The Fifth Circuit affirmed in part and reversed in part the district court’s summary judgment for American:

  • Affirmed summary judgment on Article 17 and loss of consortium claims to the extent they relied on the “ineffective medical response” theory. The court held that deviation from internal policy is irrelevant to the Article 17 “accident” inquiry, and that an imperfect medical response—absent unusual circumstances and willing inaction—does not qualify as an “accident.”
  • Reversed summary judgment on Article 17 and loss of consortium claims to the extent they relied on the “AED malfunction” theory. Because the FAA required the flight to carry an approved AED (14 C.F.R. § 121.803(c)), evidence that the AED failed to deliver a shock created a triable dispute as to whether there was an “unexpected or unusual event.”
  • Affirmed summary judgment on the Texas breach of contract claim, holding that Montreal Convention Article 29 expressly preempts domestic-law claims within its scope, and stating that the parties’ reliance on the older Warsaw Convention “substantive scope” test was obsolete under Montreal’s express preemption text.

Analysis

Precedents Cited

1) Defining an Article 17 “Accident” (and why “negligence” is not the test)

  • Air Fr. v. Saks, 470 U.S. 392 (1985): The foundational definition—an Article 17 “accident” is an “unexpected or unusual event … external to the passenger.” The Fifth Circuit treated Saks as controlling and reiterated that Article 17 is not a negligence standard.
  • Olympic Airways v. Husain, 540 U.S. 644 (2004): Clarified that courts focus on the cause of the injury and apply the “accident” definition flexibly to surrounding circumstances. The panel also drew from Husain the concept that airline inaction can qualify as an “accident” in limited circumstances.
  • White v. Emirates Airlines, Inc., 493 F. App’x 526 (5th Cir. 2012): A Fifth Circuit application rejecting an “accident” theory based on allegedly imperfect medical assistance. White served as the closest factual analogue and the panel used it to anchor the conclusion that the crew’s response here—though criticized—was not “so unexpected or unusual” as to be an Article 17 accident.

2) Rejecting “per se” liability based on standards or internal policies

  • Blansett v. Continental Airlines, Inc., 379 F.3d 177 (5th Cir. 2004): The panel treated Blansett as the Fifth Circuit’s principal rejection of a per se approach (i.e., that deviation from standards automatically equals an “accident”). The key move in Arzu is extending the logic: deviations from internal airline policy “add little” and are “not relevant at all” to the Article 17 inquiry, which instead turns on whether the event itself is unexpected or unusual.
  • Nguyen v. Kor. Air Lines Co., 807 F.3d 133 (5th Cir. 2015): Reinforced that failure to follow internal procedures does not itself establish an Article 17 accident. The panel used Nguyen, alongside White, to show that Fifth Circuit law forecloses policy-deviation-as-accident theories.

3) The “willing inaction” boundary and why medical-response claims usually fail

  • Olympic Airways v. Husain: The panel read Husain as a narrow paradigm—liability based on inaction requires something like a deliberate refusal to act in the face of a specific risk and request (the flight attendant’s repeated refusals to reseat a passenger away from smoke).
  • Krys v. Lufthansa Ger. Airlines, 119 F.3d 1515 (11th Cir. 1997); Hipolito v. Nw. Airlines, Inc., 15 F. App’x 109 (4th Cir. 2001); Rajcooar v. Air India Ltd., 89 F. Supp. 2d 324 (E.D.N.Y. 2000): Cited as part of a broader judicial “chorus” resisting attempts to convert imperfect onboard medical responses into Article 17 “accidents.”

4) FAA expectations as a practical benchmark for “unexpected or unusual”

  • Blansett v. Continental Airlines, Inc. (relying on Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004)): In Blansett, the absence of an FAA requirement (DVT warnings) supported the conclusion that not warning was not “unexpected or unusual.” In Arzu, the Fifth Circuit flips the logic: an FAA requirement (a functional/approved AED) makes noncompliance material evidence of unexpectedness or unusualness.

5) Summary-judgment evidentiary conflicts and “objective contradiction” limits

  • Scott v. Harris, 550 U.S. 372 (2007): American argued the AED’s internal data “blatantly contradicted” witness testimony. The panel refused to apply Scott broadly.
  • Aguirre v. City of San Antonio, 995 F.3d 395 (5th Cir. 2021): Used to emphasize that Scott is “exceptional” and narrow.
  • Anderson v. McCaleb, 480 F. App’x 768 (5th Cir. 2012): Supported the court’s reluctance to treat medical or technical records as automatically disqualifying testimonial evidence at summary judgment.
  • Gunter v. Township of Lumberton, 535 F. App’x 144 (3d Cir. 2013): Distinguished because it involved objective timing contradictions, not data generated by the allegedly malfunctioning device itself.

6) Causation posture and expert-testimony gatekeeping

  • Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993): The panel characterized American’s attack on the expert’s assumptions as an admissibility challenge that should have been raised below.
  • Johnston v. Ferrellgas, Inc., 96 F.4th 852 (5th Cir. 2024) (quoting Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009)): Cited to illustrate that reliability disputes are typically framed via proper evidentiary motions in the trial court.
  • Olympic Airways v. Husain: Provided the causation standard: the accident need only be a link in the causal chain.

7) Preemption under Montreal: moving beyond Warsaw-era framing

  • Mbaba v. Societe Air Fr., 457 F.3d 496 (5th Cir. 2006) (quoting El Al Isr. Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999)): The parties cited Warsaw Convention displacement principles. The Fifth Circuit held this framing is outdated because Montreal contains an express preemption provision (Article 29), rendering the “substantive scope” test “obsolete.”

Legal Reasoning

1) Why internal policy deviations do not determine Article 17 liability

The opinion draws a sharp line between internal compliance and treaty liability. Article 17 asks whether the injury was caused by an “unexpected or unusual event external to the passenger,” not whether employees complied with the carrier’s own manuals. The court reasoned that if Article 17 turned on internal policy adherence, airlines could effectively rewrite treaty exposure by drafting more or less demanding procedures. Instead, the Fifth Circuit emphasized a more objective yardstick: whether the event is unexpected/unusual in real-world practice, informed by industry frequency and—importantly—regulatory expectations.

2) Why an “imperfect medical response” usually is not an Article 17 “accident”

The court treated onboard medical care as an area where outcomes can be tragic without being treaty-accidental. Under Blansett and Husain, inaction can qualify only when unusual circumstances transform inertia into an unexpected/unusual event and the inaction is willing (i.e., a deliberate refusal to act).

Applying that framework, the panel credited (for summary judgment purposes) that there may have been delay, chaos, and arguable missteps (late cockpit notification, no Physician on Call contact, delayed CPR). But it found no evidence of (a) circumstances showing the response was unusually deficient compared to comparable emergencies, or (b) a deliberate refusal to provide care. The record instead showed extensive efforts: moving Kevin to the galley, securing medically trained passengers, performing CPR, retrieving the AED, notifying the captain, and diverting promptly.

3) Why an alleged AED malfunction can be an Article 17 “accident”

The court’s most consequential move is its treatment of FAA regulations as probative of “unexpectedness” and “unusualness.” Because 14 C.F.R. § 121.803(c) required the aircraft to carry “an approved [AED],” evidence that the AED failed to deliver a shock could support a finding that the airline failed to provide required equipment—an occurrence passengers would not expect and that should be unusual.

Critically, the panel did not adopt a strict per se rule that any regulatory violation equals an Article 17 accident. Instead, the regulation functions as an evidentiary anchor: it makes the alleged malfunction capable of being viewed as unexpected or unusual by a reasonable jury.

4) Why the court refused to affirm on causation

American sought affirmance on causation despite the district court not reaching it. The Fifth Circuit declined, noting that American’s arguments largely went to Daubert-type reliability and were not properly presented as trial-level evidentiary rulings. On sufficiency, the court held the plaintiff’s expert testimony created a genuine dispute that a functional AED and timely defibrillation could have materially increased survival odds, satisfying Husain’s “link in the chain” causation concept.

5) Montreal Convention preemption and the “obsolete” Warsaw test

On the contract claim, the Fifth Circuit placed decisive weight on Article 29, which provides that “any action for damages … whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and … limits of liability” in the Convention. The court thus treated Montreal as expressly preemptive, rendering older Warsaw-era “substantive scope” framing unnecessary.

It also connected the Conditions of Carriage advance-payment language to Article 28 (advance payments “if required by its national law”), reasoning that DOT approval of conditions of carriage for antitrust immunity made the conditions effectively “required” and therefore governed by Convention limits—preempting a free-standing state contract remedy.

Impact

  • Narrowing policy-deviation theories: Plaintiffs in the Fifth Circuit will face steeper barriers when attempting to plead “accidents” based on alleged departures from airline manuals. The opinion frames such deviations as irrelevant to the Article 17 inquiry, pushing litigants toward more external, objectively assessable events.
  • Clarifying the medical-response boundary: The decision consolidates Fifth Circuit doctrine that even serious errors in emergency response are generally not “accidents” absent unusual circumstances plus willing inaction. This may reduce Article 17 exposure for response-quality claims while leaving room for Husain-type deliberate refusals.
  • Strengthening equipment-malfunction pathways: The AED holding gives plaintiffs a clearer route: where FAA-required safety equipment allegedly fails, regulatory duties can help establish the “unexpected or unusual” element. This is especially significant for claims involving onboard medical and safety devices (AEDs and potentially other mandated equipment), because it reframes “accident” around objectively required operational readiness.
  • Preemption under Montreal becomes more text-driven: By calling the Warsaw “substantive scope” test obsolete in light of Article 29’s express language, the opinion may shift briefing and judicial analysis toward Montreal’s text rather than Warsaw legacy formulations—particularly for creative state-law contract and tort theories.

Complex Concepts Simplified

  • Montreal Convention (Article 17): A treaty governing international air travel that can make airlines strictly liable for death or bodily injury caused by an “accident” onboard—meaning you do not have to prove negligence, but you do have to prove an “accident.”
  • “Accident” (Saks): Not “something bad happened,” but an unexpected or unusual event that is external to the passenger (not simply the passenger’s internal medical condition).
  • “Willing inaction”: A purposeful refusal to act (as in Husain), not merely a delayed, imperfect, or overwhelmed response.
  • Summary judgment: A pretrial ruling that ends a claim if no reasonable jury could find for the nonmoving party based on the evidence.
  • Regulatory compliance as “unexpected/unusual” evidence: If the FAA requires something (like a functional AED), its failure can look “unexpected” to passengers and “unusual” in the regulated system—supporting the “accident” element.
  • Preemption (Article 29): When the Convention governs, plaintiffs cannot bypass it by suing under state tort or contract law for “damages” outside the Convention’s conditions and limits.

Conclusion

Arzu v. American Airlines draws a clear doctrinal map for Montreal Convention litigation in the Fifth Circuit. First, it reinforces that Article 17 is not a negligence regime: internal policy deviations and imperfect medical response—without unusual circumstances and willing inaction—do not amount to an “accident.” Second, it recognizes that FAA regulatory requirements can meaningfully inform the “unexpected or unusual” inquiry, allowing an AED malfunction claim to proceed where evidence suggests mandated equipment did not function. Third, it strengthens Montreal’s preemptive force through Article 29’s express text, sidelining older Warsaw-era “substantive scope” framing and preempting parallel state-law contract damages theories tied to Convention-like obligations.