Frequent Tortfeasers: plaintiff-side lawyers take on airlines
With so many legal loopholes, how can attorneys hold airlines accountable?
You’ve probably seen the cell phone footage by now: on April 9th, Kentucky resident Dr. David Dao was dragged, screaming and bloody, off a United flight.
Though United CEO Oscar Munoz publicly apologized for the brutal “reaccommodation,” nobody was disciplined for their behavior — in fact, hours after the apology Munoz told his employees they had responded appropriately to this “disruptive and belligerent” man. “While I deeply regret this situation arose,” wrote Munoz, “I also emphatically stand behind all of you, and I want to commend you for continuing to go above and beyond to ensure we fly right.”
Needless to say, these words don’t “fly right” with plane passengers or their advocates. But this is the realm where “above and beyond” means pat-downs, invasive x-ray technology, surprise carry-on charges, and mere millimeters of leg-room. Is there really any chance the industry will hear passenger demands for decent treatment.
This post explores the limits lawyers face when taking on the air travel industry, and remaining spaces where we can still push them to fly right.
It Oughtta be a Crime . . .
Whether in coach or in the courts, passengers and their advocates don’t have a lot of wiggle room. Airlines have found a number of ways to shield themselves from lawsuits and government requirements.
Take the United case. Even before Dr. Dao was bloodied up, it intuitively feels like United did something wrong in selling a ticket they didn’t really have. Overselling flights seems like some kind of breach of contract — but in truth, the airline’s ‘contract of carriage’ is written with so many loopholes and caveats, that they waive nearly all liability.
The history of overbooking flights has an ironic side note: we might have Ralph Nader to blame for its widespread legal use. In 1972, when the consumer advocate was overbooked on a flight, he sued Allegheny Airlines (forerunner of US Airways) in a ‘fraudulent misrepresentation’ case that went all the way to the US Supreme Court. Nader got his victory, but the Court discussion in Nader v. Allegheny Airlines, 426 U.S. 290 (1976) established a policy and language which airlines could follow to legally overbook. They’ve been doing it ever since, following the DOT guidelines for denying boarding on oversold flights.
But this month’s United fiasco is odd for a number of reasons. Apparently the flight wasn’t truly overbooked, but simply booked to capacity — and then at the last minute four employees urgently had to get to Louisville. Some say this makes the situation more akin to “refusal to transport” than it is to denial of boarding. Looking at United’s contract of carriage for ‘refusal to transport,’ there doesn’t appear to be any language that would allow them to drag off Dr. Dao. Under these different rules, it’s possible that United was in fact illegally misusing a contract even before things came to blows.
But far more important than the fine print in this case is the massive bad publicity the airline is getting right now. Its stocks fell, it became a PR nightmare meme alongside Pepsi and Sean Spicer, and the story went viral in China as an example of racism in the U.S. against Asians. United has no interest in feeding this media frienzy.
Dr. Dao has contracted with two attorneys — a corporate law expert and a personal injury lawyer — and has already filed papers demanding that United preserve all documentation they have of the bloody “reaccommodation.” The court papers say Dr. Dao “believes that serious prejudice will inure to the Petitioner if said relief is not granted” — a belief especially understandable following CEO Munoz’s criticism of Dr. Dao’s behavior.
Dr. Dao is likely to sue over excessive force, assault, and battery — and perhaps also intentional infliction of emotional distress, defamation, false imprisonment, and breach of contract as well. He could also possibly sue over racial discrimination. Whatever the charges, the case is highly unlikely to go to court, with United wanting this story to go away as quickly as possible (I’ll refrain from a “dragging it out” pun).
As one personal injury attorney put it, “Dr. Dao will likely get millions here. The only question is how many zeros will follow the first number.
For some of us watching the video, this was at least a small relief: this man will at least get a good settlement, and in the future United will have to consider nasty lawsuits before it resorts to this kind of ‘reacommodation.’
But when there hasn’t been some viral act of violence, can you still hold airlines accountable for bad behavior? First: attorneys need to know all the legal obstacles hindering airline litigation.
Attorney Alexander Anolik writes: “your rights as a passenger do not come from consumer-friendly state laws. Instead, they are dictated by international treaties, federal statutes, and other regulations that sole practitioners are not used to dealing with.”
Anolik explains that with lax federal enforcement and the refusal to pass the Passenger Rights Bill through Congress, airlines have been able to constantly cut back on services offered to passengers, without any form of reprisal.
But we have seen some new protections, coming from the DOT’s “Enhancing Airline Passenger Protections” rule. Motivated by the horror stories from passengers stuck on the tarmac for hours, without the ability to deplane, get food, or use the bathroom, the new rule demands that airlines have contingency plans for tarmac delays (with specific water, snack, bathroom, and notification requirements). The DOT also has the power to label airlines with consistent delays on a flight to have “unfair and deceptive” marketing practices.
However, when the DOT rules are broken, passengers have no private right of action. Passengers, stripped of the right to sue over rule violations, are completely dependent on the federal agency to go after abuse of the rules.
Anolik explains that Attorneys have tried the work-around of bringing suits under state laws — only to find a dead-end in the airline’s complete federal preemption. In Morales v. Trans World Airlines, 504 U.S. 374 (1992), the Supreme Court prohibited states from making laws “relating to rates, routes, or services” of airlines.
Other laws that airlines don’t have to follow include the Americans with Disabilities Act. They follow instead the Air Carriers Access Act, which, once again, provides no private cause of action
On issues like lost luggage and delayed or canceled flights, airlines protect themselves through a their ‘contract of carriage,’ which attorney Alexander Anolik describes as an “overwhelming document, full of legalese and every imaginable limitation of liability,” which is “a textbook contract of adhesion.”
With so few options, some passengers (including Ralph Nader) are turning to small claims courts. While there are some successes there, small claims courts can only offer limited remedy, leaving jilted passengers without punitive damages, emotional distress damages, or attorney fee reimbursement.
Cases Against Airlines
The odds are stacked against plaintiff-side lawyers, but there are some areas where attorneys can bring successful suit against air carriers and others in the industry. Here are a few to explore:
False Imprisonment or Malicious Prosecution
Airplanes are a bit like ships, with the captain and crew holding extra law enforcement power while you’re onboard. One of the most extreme forms of passenger abuse comes when workers turn on passengers — maybe it’s just for asking questions or doing something innocuous that gets on a worker’s nerves — and get the passengers cuffed, detained, or even jailed.
One highly publicized (and gossiped-over) case involves former stars of the Real Housewives of New Jersey, Amber and James Marchese. They sued Virgin Airlines last October for false imprisonment, but the airline has counter-sued for defamation. A Virgin Airlines employee claims she witnessed James physically and verbally abusing Amber, but no charges were ever filed against James, and Amber was also cuffed and detained. The couple claim the employee is lying, and perhaps is targeting them because she dislikes the show.
Other colorful cases include that of Aaron Tobey, who stripped down to his running shorts for the TSA, revealing the 4th amendment written on his chest. He was held handcuffed for 90 minutes, and originally charged with a misdemeanor. However, the misdemeanor was dropped and Tobey sued for $250,000, due to false imprisonment. Eventually the Fourth Circuit Court of Appeals ruled in his favor, determining that his behavior was protected speech.
Some passengers have found themselves facing far worse than a misdemeanor. Now you get in trouble for bringing on a pair of toenail clippers, but in 1999, two bail bond agents were told they could board a plane with their guns, after they filled out the requisite paperwork. By the time they landed, other Southwest employees had determined the men weren’t allowed to have weapons, and turned the cops on them. They wound up spending three days in jail. After some slimey moves on the part of the airline, the men were eventually awarded $500,000 in compensatory damages and $4 million in punitive damages by a jury.
Other cases worth looking at include Amanda Tuxworth’s: after an argument with staff in an airport, she was cuffed and held for fifteen hours. She sued Delta Airlines, which settled (years later) for a confidential amount. There’s also the case of grandmother Marilyn Parver, who was arrested after filming an altercation between passengers on a JetBlue flight. She sued the airline and the Las Vegas police, but a Nevada federal district court ruled summary judgment in favor of JetBlue. However, the Ninth Circuit, while upholding the immunity of the police department, found that the false imprisonment and false arrest claims should proceed against JetBlue.
Plaintiff-side attorneys will continue to be needed in these situations, when passengers find themselves cuffed and held in police custody for no good reason.
Aches on a Plane
Passengers and workers alike are harmed by bad design or negligent behavior on airlines. One big culprit is the overhead bin — putting heavy things on wheels up above your head feels like a recipe for disaster (but then, flying a heavy metal machine through the air is already a counterintuitive act). One source estimates 4,500 injuries from overhead bins every year.
There are also slip-and-falls, runaway drink carts, hot beverage spills and toxic meals, and damage that can happen during turbulence. These can lead to lawsuits around negligence or product liability. These cases can also be good for workers in the airline industry, as shown by the class action lawsuit regarding smoking tobacco on flights, claiming harm from secondhand smoke.
When passengers behave dangerously, the airline may be partly liable. Last year, three women sued Spirit Airlines after they were attacked by other passengers. The plaintiffs claim the flight staff over-served alcohol to the rowdy passengers, failed to reprimand them for their loud, brash behavior (and even encouraged them by dancing along to their boom box), and then responded too slowly when it came to hair-pulling and blows.
Occasionally, lawsuits like this are referred to as “air rage” suits.
Too Much Information
A recent class action lawsuit alleged Spirit Airlines gave out too much confidential financial information on their receipts, endangering the privacy of customers. The airline settled for $7.5 million.
In a place that gathers more personal information on passengers than the norm and uses sophisticated machinery to essentially peek underneath their clothes, it’s important to have plaintiff-side lawyers protecting consumer privacy. Especially in a world subject to massive information hacks.
Four Brooklyn men sued American Airlines last year, claiming they were asked to leave a flight because they looked “too Muslim.” And just in the past week, a pastor of Asian descent filed a lawsuit against American Airlines, claiming that he was bumped from a flight so white people could ride.
Other cases alleging racial discrimination include that of DeShon Marman, a black student and football player at University of New Mexico, who was ordered to pull up his sagging pants by a crew member. When Marman didn’t comply, everyone was forced to deplane and Marman was arrested and held in jail for two nights on charges of resisting arrest, assaulting an officer, and trespassing — charges that were later dropped. Marman sued the airline for racial discrimination, battery, and unlawful arrest. The case echoes one against US Airways brought by two black men who were made to change out of their hoodies and jeans before they could board a first-class fllght.
Other discrimination cases include situations where passengers are told they’re “too fat to fly,” and booted off planes or told they should buy additional seats. Often, airlines lack specific guidelines for these decisions, making it largely subject to employee whim. Kenlie Tiggeman’s case against Southwest Airlines for this sort of discrimination was dismissed without prejudice due to a missed deadline, with the judge stating there was merit in the lawsuit.
There’s also the moments when tragedy strikes, and planes go down. When negligent behavior or faulty products cause the plane to crash, survivors or families of the deceased are likely to sue.
On these larger issues of safety, there’s more than airlines to consider. Lawsuits have targeted the entire industry, including airlines, airports, aviation manufacturers, airline maintenance and security contractors, as well as government agencies such as the TSA and Federal Aviation Administration (FAA).
Our conclusion? It takes some creative case-building, but with the help of plaintiff’s attorneys, lawsuits can nudge the airline industry to ‘reaccommodate’ themselves — into practices that respect the safety and dignity of passengers.