Disabled passenger’s PI suit against Austrian Airlines stays in Indiana

A Crown Point woman who claims employees of Austrian Airlines broke her leg after failing to accommodate her disability may proceed with her federal lawsuit in Hammond, a judge has ruled.

Mary Dordieski sued the airline and its affiliates in May of 2015 after she claimed she was injured during a flight from Chicago to Vienna, continuing to a final destination of Skopje, Macedonia. Dordieski has spina bifida, Chief Judge Philip P. Simon wrote, “as a result of which her right leg is deformed and has always been outstretched and rigid since birth.”

Her mother and caregiver purchased two tickets in the bulkhead section of the plane to accommodate Dordieski, because the seats provide more space for passengers. However, the plane experienced mechanical difficulties and was forced to make an emergency landing in Toronto. On the flight departing Toronto, “the airline issued them boarding passes for regular seats that did not accommodate Mary’s disability,” Simon wrote. “Mary claims that, despite her protests, the airline’s employees or agents forced Mary’s outstretched leg into the inadequate space, causing it to break.”

Austrian Airlines denies the allegations in its answer to Dordieski’s complaint. The airline petitioned to dismiss the complaint on the basis of non-convenient forum, arguing against litigating in the U.S. District Court for the Northern District of Indiana. Simon denied the airline’s motion in an order issued Tuesday.

Simon wrote that under the Montreal Convention, which regulates claims for damages against airlines, Dordieski is allowed to bring her personal injury suit in the federal court jurisdiction where she lives. The airline sought to litigate the complaint in Canada, which Simon wrote was unpersuasive because plaintiffs enjoy a strong presumption of choice of forum in such disputes.

“I recognize that the converse may also be true: it is probably inconvenient for Austrian Airlines to defend the case in the United States. But let’s be pragmatic. Which one of these parties is in a better position to litigate in a foreign country?  A multi-national transportation company who is accustomed to business dealings and litigation around the world, on the one hand, or Mary, a wheelchair-bound woman afflicted with spina bifida who has no income, on the other? It’s a fair question to ask since the Seventh Circuit has instructed me to consider ‘practical problems’ when deciding forum non conveniens issues,” Simon wrote. “And to ask the question is to supply the answer. For all these reasons, I am not persuaded that Austrian Airlines has met its high burden in attempting to overcome Mary’s forum selection under the doctrine of forum non conveniens.”

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