666
Scalia, J., dissenting
preparing to take off. In fact, some of the evidence on this point specifically related only to in-flight behavior. See id., at 1132 (testimony of a chief cabin attendant that the flight attendant should have reseated Hanson immediately after Husain's third request); ibid. (testimony of a company official that its policy is to move passengers "who become ill during flights" (emphasis added)). To establish that it is company policy to reseat an asthmatic does not establish that it is company policy to do so before takeoff, while the attendants are busy securing the plane for departure and before anyone has started smoking. In other words, there may have been nothing unusual about the initial insistence that Hanson stay seated, and for that reason no "accident." We do not know the policy in this more specific regard. The District Court made no findings because it applied an erroneous legal standard that did not require it to distinguish among the three requests.
But even if the flight attendant's insistence that Hanson remain seated before takeoff was unusual or unexpected, and hence an accident, it was not a compensable cause of Hanson's death. It was perhaps a but-for cause (had the flight attendant allowed him to move before takeoff, he might have lived, just as he might have lived if he had taken a different flight); but it was not a proximate cause, which is surely a predicate for recovery. Any early insistence that Hanson remain seated became moot once the attendant later told Husain and her husband they were free to move about.
There is, however, one complication, which I think requires us to remand this case to the District Court: Although the flight attendant, once the plane was aloft, invited Husain to find another passenger willing to switch seats, she did not invite Husain to find an empty seat, but to the contrary affirmatively represented that the plane was full. If such a misrepresentation is unusual and unexpected; and (the more difficult question) if it can reasonably be said that it caused Hanson's death—i. e., that Husain would have searched for
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