Who is responsible when a steamer trunk falls from an airline's overhead cargo bin onto your noggin, or if a flight attendant douses you with 130-degree coffee? It used to be that airlines could expect the courts to give them a break because of the wording of the Airline Deregulation Act, but now that seems to be changing. A ruling by the 9th Circuit Federal Court of Appeals in November 1998 may signal a shift in how the courts will deal with personal injury claims brought against the airlines. Have the Justices opened Pandora's box with this ruling, and subjected carriers to a costly flood of nuisance lawsuits? AVweb's aviation law expert Phil Kolczynski takes a look at the ruling and its possible ramifications.
December 5, 1998
|About the Author ...
Phillip J. Kolczynski
manages his own law firm in Irvine, California. He has a national practice,
concentrating in aviation, product liability and business litigation in federal
and state courts. Phil teaches evidence, product liability and aviation law at
the Aviation Safety Program, School of Engineering, University Of Southern
California. He chaired the 1990 ABA National Institute on Aviation Litigation in
Washington, D.C., and has spoken nationally at numerous aviation litigation
Prior to moving to California in 1983, he was a trial attorney in the
Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation
Division, Office of the Chief Counsel, Federal Aviation Administration,
Washington, D.C. Phil graduated from Case Western Reserve School of Law,
Cleveland, Ohio, in December, 1976, and attended college at Marquette
University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full
Scholarship. Before entering law school, he was a Marine Corps Captain and F-4
Phantom Pilot. He is a Commercial Pilot with instrument and multiengine
Airline passengers injured or killed in
"operational" airline accidents have always been able to successfully sue the
airlines if they had proof of airline negligence. However, Airline defense
lawyers have frequently persuaded courts that the Airline Deregulation Act of
1978 (ADA) "preempted" state law tort claims for injuries resulting from the
airline's "services." Thus, claims for injuries resulting from beverage carts,
careless storage of overhead luggage, lack of care for disabled passengers,
spilling of hot beverages on business travelers, etc., have been blocked in
court by ADA "preemption."
On Monday, November 30, 1998, 11 justices of the 9th Circuit Federal Court of
Appeals, in a plain-spoken decision, reversed their own prior decisions and held
that personal injury claims caused by the negligence of airlines while providing
"services," will no longer be preempted under the Airline Deregulation Act
(ADA). Charas , et al. v. Trans World Airlines, et al. Civil Numbers
96-15490 et seq. (November 30, 1998). While this decision is only binding on
federal courts in the 9th Circuit (covering the nine Western states), I predict
that the decision will be very influential throughout the country.
The five cases before the 9th Circuit involved American Airlines, Continental
and TWA. The claims of the five plaintiffs alleged that flight attendants:
- dislocated the shoulder of a passenger with a beverage cart;
- dropped luggage on a passenger's head;
- left luggage in the aisles as a trip hazard;
- mishandled handicapped passengers resulting in injury; and
- failed to provide assistance to passengers in need while deplaning.
The plaintiffs will now have a chance to prove their claims.
I predict that the 9th Circuit's decision will encourage more lawsuits by
passengers who feel that they have been mistreated or injured by airline
personnel. The 9th Circuit's decision only dealt with garden variety personal
injury claims; however, the rationale of the court is much broader. The
justices' reasoned that if the state law claims of victims do not frustrate the
economic deregulation goals of the ADA, then the passengers should have a chance
to prove their case in court. Thus, I believe that if this decision is followed
by the other federal circuits, many of the types of disputes, which were
previously preempted, may now be viable. Potential cases might include:
- Tort claims for discrimination against passengers and pilots;
- Emotional distress claims by handicapped passengers who receive callous
treatment by airline personnel;
- Travellers who suffer damages from misrepresentations or deceptive trade
- Ticketed flyers with disclosed precarious health, who cannot get emergency
medical care on an airliner;
- Passengers who legally protest bad service but are subjected to false
imprisonment, defamation or false arrest;
- People who are injured because airline personnel fail to adequately
supervise the distribution of alcohol to intoxicated passengers.
Airlines are commercial carriers which make a lot of money from
ticket revenue. Airlines sell tickets for a transportation service with the
implied representation that they will safely and comfortably carry passengers to
their destination. Almost every service business in our society may be held
liable if they provide services negligently so as to cause injury. Why should
airlines be any different? This is especially true since airlines, as common
carriers, have the "highest duty of care" for their passengers.
The law should enable those who have been injured by any carriers' negligence
to obtain results in court based on the strength of their case. This decision
will correct the arbitrary implementation of a preemption law that was designed
for economic regulation, not tort reform.
Insurance defense lawyers tell the story about the intersectional collision
between a bus and a van. At the time of the collision, the bus had five
passengers. Five minutes afterwards, it had thirty passengers, all rubbing their
necks. Let's hope this decision does justice to those who need it and does not
reward the free-loaders.
NOTE: The issues discussed in this article do not constitute legal
advice. My objective is to alert you to some common issues so that you can
avoid or minimize legal trouble. Anyone with an aviation law problem should be
guided by the advice of his or her lawyer, under applicable federal and state
laws, after a full and confidential disclosure of all relevant facts.