Olympic Airways v. Husain, 540 U.S. 644, 18 (2004)

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Cite as: 540 U. S. 644 (2004)

Scalia, J., dissenting

of the carrier." 49 Stat. 3014 (emphasis added).) Finally, even if we disagree, we surely owe the conclusions reached by appellate courts of other signatories the courtesy of respectful consideration.

The Court nonetheless dismisses Deep Vein Thrombosis and Povey in a footnote responding to this dissent. Ante, at 655-656, n. 9. As to the former, it claims (choosing its words carefully) that the "conclusion" it reaches is "not inconsistent" with that case. Ante, at 655, n. 9 (emphasis added). The reader should not think this to be a contention that the Master of the Rolls' opinion might be read to agree with today's holding that inaction can constitute an "accident." (To repeat the conclusion of that opinion: "Inaction is the antithesis of an accident." [2004] Q. B., at 247, ¶ 25.) What it refers to is the fact that the Master of the Rolls distinguished the Court of Appeals' judgment below (announced in an opinion that assumed inaction was involved, but did not at all discuss the action-inaction distinction) on the ground that action was involved—namely, "insistence that [Hanson] remain seated in the area exposed to smoke." Id., ¶ 50.1 As I explain below, see Part II, infra, that theory does not quite work because,

1 The Court quotes only part of the relevant discussion. Here is what the Master of the Rolls said about our case in full:

"I have no difficulty with the result in this case but, with respect, I question the reasoning of the judge in both events. The refusal of the flight attendant to move Dr. Hanson cannot properly be considered as mere inertia, or a non-event. It was a refusal to provide an alternative seat which formed part of a more complex incident, whereby Dr. Hanson was exposed to smoke in circumstances that can properly be described as unusual and unexpected. The existence of the non-smoking zone provided the opportunity for Dr. Hanson, if suitably placed within it, to avoid exposure to the smoke that threatened his health and, as it proved, his life. The direct cause of his death was the unnecessary exposure to the smoke. The refusal of the attendant to move him could be described as insistence that he remain seated in the area exposed to smoke. The exposure to smoke in these circumstances could, in my view, properly be described as an unusual or unexpected event." Deep Vein Thrombosis and Air Travel Group Litigation, [2004] Q. B. 234, 254, ¶ 50 (emphasis added).


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