Cite as: 540 U. S. 644 (2004)
Scalia, J., dissenting
¶ 50. I cannot agree with this analysis, however, because it miscomprehends the facts of this case.
Preliminarily, I must note that this was not the rationale of the District Court. That court consistently referred to the relevant "accident" not as the flight attendant's insistence that Hanson remain seated, but as her "failure" or "refusal" to reseat him. See 116 F. Supp. 2d 1121, 1131-1135 (ND Cal. 2000). Its findings of fact were infected by its erroneous legal assumption that Article 17 makes no distinction between action and inaction. The only question is whether we can nonetheless affirm on the ground that, since there was action in any event, this error was harmless.
It was not. True, in response to the first request, the flight attendant insisted that Husain and her husband " 'have a seat.' " Id., at 1125. This insistence might still have been implicit in her response to the second request. But these responses were both given while the plane was still on the ground, preparing to take off. The flight attendant's response to Husain's third request—made once the plane was in the air and other passengers had started smoking—was quite different. She did not insist that Husain and her husband remain seated; on the contrary, she invited them to walk around the cabin in search of someone willing to switch.
That the flight attendant explicitly refused Husain's pleas for help after the third request, rather than simply ignoring them, does not transform her inaction into action. The refusal acknowledged her inaction, but it was the inaction, not the acknowledgment, that caused Hanson's death. Unlike the previous responses, the third was a mere refusal to assist, and so cannot be the basis for liability under Article 17.
The District Court's failure to make the distinction between the flight attendant's pretakeoff responses and her inflight response undermines its decision in two respects. First, the court's findings as to airline and industry policy did not distinguish between reseating a passenger while in flight and reseating a passenger while still on the ground
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