Chapter § 2.05 PHYSICAL INJURIES

• Jurisdiction: United States
• Publication year: 2021

§ 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...