JurisdictionUnited States
Publication year2021

§ 2.05 Physical Injuries

Physical injuries or death to travelers can occur while being transported by an airline, to an aircraft or disembarking from an aircraft. As a general rule an air carrier is a common carrier and held to a relatively high standard of care,568 although it has been held that the high degree of care owed by the airline to the passenger ends when the passenger arrives safely at the terminal569 Air carriers have not yet been found strictly liable for physical injuries nor have they been held to be insurers of the safety of passengers.570 However, the fact that passengers rely almost totally upon an airline for the maintenance and proper operation of its aircraft creates certain presumptions which often encourage the courts to apply the doctrine of res ipsa loquitur.571

In seeking to apply standards of care or in seeking to apply the doctrine of res ipsa loquitur it is necessary to demonstrate that the air carrier is a common carrier. Typically, a common carrier is one which holds itself out as serving the general public.572 Common carriers charge uniform rates and must provide transportation to those who seek it without discrimination.573 Common carriers have a regular place of business and, often, advertise the availability of their services to the general public.574

Physical injuries run the gamut from death to mental anguish. Reported cases involving wrongful death had their basis in accidents575 involving collisions with other aircraft,576 or with a mountain or other immovable object,577 bird strikes,578 being crashed into buildings,579 being left unattended in a wheelchair,580 disintegration of the aircraft,581 "torque roll,"582 suicide pilots,583 the presence of a bomb,584 hijacking,585 or flying into an ice storm586 or thunderstorm587 or a heart attack.588 Cases involving less severe injuries have arisen from slips and falls,589 air turbulence,590 changes in air pressure,591 hot coffee spills,592 wheelchair accidents,593 falling baggage from overhead luggage bins,594 emergency and hard landings,595 abrupt stops,596 failure to provide a wheelchair,597 failure to provide a lift,598 aircraft runs off runway,599 being hit by a beverage cart,600 car accident with intoxicated former airline passenger,601 deep vein thrombosis,602 air traffic controller's instructions,603 improper training by flight school,604 sexual assaults,605 shuttle bus accidents,606 inoperable equipment,607 failure to assist a sick or disabled passenger,608 improper boarding and deplaning procedures,609 assaults by other passengers or crew members,610 unsafe conditions,611 failure to deliver baggage,612 falling food and trash carts,613 collapsing ticket counters,614 improper preparation or handling of food615 or drinks,616 false imprisonment,617 and hijackings or other terrorist acts.618

Another possible cause of action might arise from a passenger suffering a heart attack while on board an aircraft. The airline may be negligent in failing to land as soon as possible or otherwise failing to assist a passenger in distress.619 Some airlines have decided to carry oxygen bottles and heart defibrillators on board,620 which may increase their exposure to charges of negligence in failing to train airline personnel in the proper use of defibrillators or failing to have oxygen bottles621 and defibrillator properly maintained. Since having a defibrillator on board is becoming increasingly common, an airline might even be liable in negligence for not having one on a particular flight.622

An air carrier's liability for the damages flowing from these accidents will depend on a variety of factors including: (1) the application of a federal standard of care;623

(2) common law principles; 624 (3) international agreements limiting liability; 625 (4) the place of the accident, and; (5) warranties of safety. 626 An air carrier may market the services of another 627 (regional) air carrier and may or may not be liable for a passenger's injuries on a regional air carrier. 628 Accidents which occur in an airport may or may not generate air carrier liability depending upon whether or not the passenger was within the "control" of the air carrier. 629 If the passenger was not within the control of the air carrier, then an action against the airport may present jurisdictional problems. In addition, the place of the accident will introduce choice of law considerations 630 including the possible application of the Death on the High Seas Act, 631 the Warsaw and Montreal Conventions 632 and the Foreign Sovereign Immunity Act. 633

[1] Negligence

The liability of domestic air carriers as common carriers634 for physical or mental injuries suffered by passengers on or near commercial aircraft is, for the most part, premised on negligence theory.635 Establishing negligence requires proof of a duty or standard of care.636 The most readily available standards are set forth in the rules and regulations promulgated by the Federal Aviation Administration637 and may preempt state common law and state statutes to the extent there is a conflict.638 These rules govern nearly every aspect of aircraft maintenance and operation and are admissible into evidence as appropriate standards of care.639 The FAA may impose substantial mandatory penalties for violating its rules and regulations.640 Additional standards are those which are self-imposed by the air carriers and are usually found in an air carrier's own operations and maintenance manuals.641 It should be noted that the EU has a list of banned airlines.642

In addition, the following specific acts may constitute negligence: (1) low flying;643

(2) lack of control; 644 (3) flying into a storm; 645 (4) failure to conform to air traffic pattern; 646 (5) failure to give accurate weather reports; 647 (6) failure to consider weather conditions; 648 (7) incompetent crewmen; 649 (8) insufficient training; 650 (9) defective equipment; 651 (10) failure to follow FAA regulations in screening baggage on international flights; 652 (11) failure to warn of dangers of overhead baggage; 653 (12) incompetent air traffic controllers; 654 (13) inadequate security screening, 655 (14) failure to manufacture an impenetrable cockpit door, 656 (15) failure to properly place unusual items such as golf clubs, crutches and radios in overhead stowage compartments, 657 (16) failure to post warnings on jetway, 658 (17) failure to carefully use equipment, 659 (18) failure to protect child passenger from molestation by another passenger, 660 (19) failure to properly stow baggage in overhead bins; 661 (20) failure to maintain equipment; 662 (21) failure to provide safe baggage retrieval systems; 663 (22) failure to screen passengers at airport; 664 (23) overloading; 665 (24) failure to furnish safe passageway; 666 (25) failure to physically inspect baggage; 667 (26) failure to furnish worthy aircraft; 668 (27) error in judgment; 669 (28) failure to rescue, 670 (29) failure to "equip its aircraft with enhanced medical kits or defibrilators," 671 (30) significant ice buildup, 672 (31) large bird strike, 673 (32) aerodynamic stall, 674 (33) water landing, 675 (34) ditching 676 and (35) pushing a beverage cart into a passenger's knee. 677

Considering the complexity of airline maintenance and operation procedures there is much that can go wrong. Finding a negligent act in failing to adhere to statutory or self-imposed operating procedures may not be a difficult task.

[a] Causation

The difficult part of a negligence action involves establishing that there is a direct relationship between the negligent act and the cause of the accident. To prevail a plaintiff must carry this burden.678 Although some courts may require a less rigorous demonstration of causation, the successful plaintiff must reasonably connect the negligent act with the accident.

[b] Res Ipsa Loquitur

In cases involving physical injuries there are, at least, two realities which can make the task of proving negligence very difficult if not impossible. First, given the complexity of airline operation, proving both the existence of a negligent act and causation may be an impossible burden. Second, in aviation crash cases the chief source of evidence may have disintegrated or disappeared. It is obvious that under these circumstances, plaintiffs need help in proving their case and that help can be found in the application of the doctrine of res ipsa loquitur. Simply stated, the doctrine permits an evidentiary shift from plaintiffs to defendants under the following conditions:

(1) The instrumentality involved in the accident must be under the exclusive control of the defendant.
(2) The accident must be one which normally occurs because of negligence.

However, it must be noted that each state has its own definition of the doctrine, particularly, with respect to its evidentiary impact. The doctrine has been defined by the United States Supreme Court.679

"In our opinion, res ipsa loquitur means that the facts of the occurence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. . . . When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff." 680

As noted, the acceptance of this doctrine by the courts has grown as the airline industry has matured.681 The doctrine has been applied in collision cases involving aircraft owned by the same defendant,682 collision cases involving aircraft not owned by the same defendant,683 cases in which aircraft disappear,684 and in admiralty cases under the Death on the High Seas Act.685 The doctrine may apply in accidents caused by a sudden...

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