David G. Smith, Attorney At Law
Call for a Free consultation
OAKLAND: 510-431-2598 | WALNUT CREEK: 925-308-6484

In-flight Injuries: Understand Your Rights

33491246922_4f42d1d644_m.jpg

In-flight injuries are a popular new topic these days thanks to one well-publicized incident.

On Monday, Thomas Demetrio, lawyer and partner of Chicago-based Corboy & Demetrio, confirmed that his client, Dr. David Dao, will sue United Airlines over his treatment when forcibly removed from a flight.

The incident dominated media most of this month as the public tried to understand why United ordered Dao off the plane to make room for four United employees, and why aviation officers dragged a bloodied Dao down the aisle after he refused to leave. Could that happen to me? Most likely, no.

Dao's case goes much deeper than his injuries. We won't dig into the rules around involuntary denied boardings and federal laws around refusing to get off the plane. We will talk about your rights if you get injured when traveling on an airline.

When injuries happen in the air, airlines have two points of protection: federal law and the contract of carriage. Found on each airlines' website (buried, in some cases) the contract of carriage spells out the rights, duties, and liabilities of the airline and passenger. Terms generally include the following:

• Limits on liability for delay and damage or loss of baggage.

• Claims restrictions, such as the time period under which a passenger can file a claim or bring action against the airline.

• Reservation rules.

• Limits on liability for delay or failure to perform service, schedule changes, and rerouting.

Southwest's contract, for example, states: "no claim for personal injury or death of a Passenger will be entertained by Carrier unless written notice of such claim is received by Carrier within 21 days after the occurrence of the event giving rise to the claim."

Twenty-one days. That's not much time. Further, you have only one year after Southwest's written denial of a claim to bring legal action. It's worthwhile to search your airline's website to read its contract of carriage.

Because it's a contract of adhesion (similar to the contracts you agree to when you download software), you can't negotiate for more favorable terms. You can only use another airline.

If you get injured during a flight, multiple laws and regulations come into play. If, for example, a bag falls out of the overhead compartment and lands on your head, your claim may fail under negligence law or it may be pre-empted under The Airline Deregulation Act. Claims related to "rates, routes, and services" are pre-empted under the Act. Claims related to "operations and maintenance" are not pre-empted under the Act according to Hodges v. Delta Airlines Inc., 44 F.3d 334 (5th Cir. 1995).

For a negligence claim to survive, a passenger has to show the airline was somehow at fault. Even if you can show the airline was at fault, it may be pre-empted under the Act because it relates to a service. However, if the overhead bin's latch broke, causing the bag to fall on your head, you may have a claim because the incident falls under operations and maintenance.

Airlines are required to provide the "highest duty of care" to get you from point A to point B. What happens in between is subject to a number of complex laws and requirements.

If you think an airline failed to provide the highest duty of care, and that negligence caused you significant injuries, consult with a lawyer experienced in both personal injury law and aviation.

Photo courtesy of Tomas Del Coro, Flickr

No Comments

Leave a comment
Comment Information
Email Us For A Response

Schedule a Free Initial Consultation

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Back to Top

David G. Smith, Attorney At Law
2201 Broadway
Suite 506
Oakland, CA 94612

Phone: 925-308-6484
Fax: 510-893-2701
Map & Directions