Appellant Forfeits Argument Concerning Exception to Montreal Convention By Not Raising First in Trial Court

March 27, 2016 7:50 AM | Anonymous member (Administrator)

   The Illinois Appellate Court recently issued an opinion finding that the appellant had forfeited an issue on appeal. Although the main issue of the case was whether the Montreal Convention - a treaty that governs the international carriage of passengers, baggage, and cargo - governed the parties' dispute, which the appellate court held it did, the case also demonstrates the importance of preserving issues for appellate review.

In El-Zoobi v. United Airlines, Inc., 2016 IL App (1st) 150813, plaintiff Sam El-Zoobi was a passenger on a United Airlines flight to China when an announcement was made asking all passengers to turn off their electronic devices. Id. ¶ 3. Flight attendant Janet Tucker observed defendant using his cell phone and asked him to turn it off. El-Zoobi told her the phone was in "airplane mode" and insisted that was sufficient. Id. Tucker alerted the lead flight attendant, Brenda Dismuke, who also told El-Zoobi to turn off his cell phone. El-Zoobi again refused. Id.

Dismuke told the plane's pilots about El-Zoobi and his refusal to turn off his cell phone. Id. A pilot went to speak with El-Zoobi, and when he returned to the cockpit, he told Dismuke that El-Zoobi was allegedly an employee of the Federal Aviation Administration (FAA). Id. Eventually, plaintiff told Dismuke that he turned off his cell phone, and the flight took off as planned. Id. At some point during the flight, Dismuke decided to report plaintiff to the FAA. Id. ¶ 4. When the plane landed and after she arrived at her hotel, she filed a complaint against El-Zoobi on the FAA's website. Id. ¶ 5.

Plaintiff filed a complaint in the circuit court of Cook County against United Airlines, alleging tortuous interference with a business relationship and intentional infliction of emotion distress. Id. ¶ 8. He stated that due to United Airlines' "false complaint," he lost an opportunity to be promoted, suffered a loss of other advancement opportunities and had severe emotional distress. Id.

In response, United Airlines filed a motion to dismiss El-Zoobi's compliant arguing his claim was governed by the Montreal Convention and he failed to state a valid claim for relief under the Convention. Id. The circuit court granted United Airlines' motion because El-Zoobi's alleged injury occurred on board an international flight, and thus, his claim was governed by the Convention (id.), which only allowed recovery for harm caused by accidents resulting in bodily harm. Id. ¶ 12. Furthermore, the Convention provides the sole remedy for passengers on board international flights. Id. ¶ 13. El-Zoobi appealed. Id. ¶ 8.

In addition to arguing on appeal that the Montreal Convention did not apply to his alleged injury (id. ¶ 10), El-Zoobi also argued that article 25 of the Montreal Convention contained an exception, allowing passengers to bring claims under local law if the alleged conduct if willful, including intentional tort claims. Id. ¶ 21. In addressing this argument, the appellate court found that El-Zoobi did not raise this argument in the circuit court, and accordingly, he forfeited arguing it on appeal. Id. The appellate court accordingly affirmed the circuit court's judgment, dismissing El-Zoobi's action. 

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