Recoverability of pre-impact fear damages in aircraft disaster cases.

• Author: Barry, Desmond T., Jr.

These damages are recoverable in both state-based and Warsaw Convention cases, but the proof must rise above speculation and pure conjecture

CLAIMANTS are recovering pre-impact pain and suffering damages in domestic aviation accidents governed by U.S. state survival and wrongful death statutes and in "international aviation" cases governed by the Warsaw Convention.

This article examines the present state of the law and reviews the evidentiary issues surrounding pre-impact fear damages.

RECOVERABLE DAMAGES UNDER STATE WRONGFUL DEATH AND SURVIVAL STATUTES

1. Michigan and New York

   On May 25, 1979, an American Airlines DC-10 manufactured by McDonnell-Douglas Corp. crashed shortly after takeoff from Chicago's O'Hare International Airport, killing all the passengers instantly. During takeoff, an engine on the left side of the aircraft broke away, but the aircraft was able to take off and climb to an altitude of 325 feet. It then began to roll slightly to the left, and three seconds before impact it reached a 90-degree position and ultimately crashed to the ground. A number of actions were commenced seeking, in part, damages for the decedents' pre-impact pain and suffering under the wrongful death statutes of Michigan and New York.

   In Platt v. McDonnell-Douglas Corp.,(1) the U.S. District Court for the Eastern District of Michigan held that Michigan's wrongful death statute permits recovery for conscious pain and suffering between the time of injury and the time of death on a showing that the decedent suffered such damages. The defendants argued that the claims for pre-impact fear were not expressly provided for by the Michigan act. Rejecting this contention, the court reasoned that the plaintiffs were entitled to recover damages for those claims for which the decedent would have been able to maintain had she survived. The court also noted that Michigan's jury instructions permit a jury to include an element of fright and shock in an award for wrongful death damages.

   In another case arising from the same accident, Malacynzski v. McDonnell-Douglas Corp.,(2) the U.S. District Court for the Southern District of New York held that under New York's wrongful death statute, damages for the decedent's conscious pain and suffering are recoverable where the plaintiff can produce evidence from which a jury can infer that the decedent was aware of the danger and suffered pre-impact fear. The court noted that New York law permits recovery for mental anguish induced by the fear of one's physical safety even where physical injuries are absent.

   Moreover, New York law permits recovery for post-impact pain and suffering in wrongful death actions where the plaintiff can prove that the decedent regained consciousness after impact.(3) Because New York courts recognize a cause of action for post-impact pain and suffering, "it would be illogical for the court to conclude that the state courts would hold that the pre-impact claims merge into the main action for wrongful death." It ruled that the plaintiff was entitled to maintain an action for wrongful death, as well as her claims for pre-impact pain and suffering.

   Likewise, in Shu-Tao Lin v. McDonnell-Douglas Corp.,(4) the same court denied the defendants' motion to set aside the jury award of $10,000 for the decedent's pre-impact pain and suffering on the grounds that New York law provides a cause of action permitting plaintiffs to recover pain and suffering damages following injuries which result in death. The court reasoned that "it is only a short step to the allowing of damages for a decedent's pain and suffering before the mortal blow and resulting from the apprehension of impending death."(5) The court noted that on a sufficient showing of apprehension, recovery for pre-impact pain and suffering was permissible.

2. Louisiana

   In Haley v. Pan American World Airways Inc.,(6) a Pan Am aircraft crashed after takeoff from Moisant International Airport in Louisiana. The plaintiffs were awarded $15,000 for the decedent's pre-impact fear in the face of the defendants contention that Louisiana law did not permit recovery of pre-impact fear damages. Article 2315 of the Louisiana Civil Code provides: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repait it."

   The Fifth Circuit upheld the trial court's decision and noted that under Louisiana law, fright or mental anguish is a separate element of compensatory damages.

3. California

   In In re Air Crash Disaster at Sioux City, Iowa on July 19, 1989,(7) 111 people were killed when a flight from Denver to Chicago crashed during an attempted emergency landing. After a lengthy choice of law analysis, the U.S. District Court for the Northern District of Illinois concluded that California law applied to the issues of damages. Because Section 573(c) of the California Probate Code specifically prohibits a personal representative from recovering damages for pain and suffering sustained prior to death, the defendant argued that pre-death pain and suffering damages were prohibited. The court noted, however, that under California's wrongful death statute, damages are recoverable "under all circumstances of the case but shall not include damages recoverable under Section 573 of the Probate Code." The court reasoned that because damages for pre-death pain and suffering are prohibited under Section 573, they are recoverable pursuant to the wrongful death statute.

4. Practice Pointer

   A number of courts have uniformly held that pre-impact fear damages are recoverable under the relevant state survival and wrongful death statutes. Because those damages generally are compensable, the challenge for the practitioner arises in an attempt to preclude such damage awards on the grounds that there is insufficient evidence that the decedent suffered pre-impact fear or terror.

   COMPENSABLE DAMAGES UNDER THE WARSAW CONVENTION

   Article 17 of the Warsaw Convention provides:

   The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.(8) Courts have held that Article 17 permits recovery by the estate of the decedent for the terror or fear of impending death that occurs between recognition of the impending disaster and death. To recover for pre-impact fear, a plaintiff must show by a preponderance of credible evidence that (1) the decedent survived the explosion, (2) the decedent was conscious and aware for a period of time, and (3) the decedent experienced pain and suffering.(9) Circumstantial evidence is sufficient to allow the jury to make a reasonable inference that the decedent suffered pain and fear prior to death. As with a state-based cause of action, the evidence must be more than just guesswork or speculation.

   In In re Inflight Explosion on Trans World Airlines, Inc. Aircraft Approaching Athens, Greece on April 2, 1986,(10) four passengers were killed and others injured when a bomb exploded under a seat on a TWA aircraft en route from Rome to...