Most have heard by now of the blunder by United Airlines in forcibly removing a man who had paid for a ticket and already taken his seat on the airplane so that they could instead accommodate some of their own employees. The man was injured when airport police apparently dropped him in the process, and the video taken by other passengers went viral. To add some gasoline to the fire, the CEO of United tweeted to “apologize for having to re-accommodate” the man, proving that the company obviously misses the point. This all comes two weeks after the airline was lambasted in the media for its sexist dress code when they denied boarding to two young girls in leggings (this time before the passengers entered the aircraft).
But, the question that I’ve received at least a dozen times in the past 48 hours is: Was what United did legal? Relatedly, was the man doing something illegal? Will he win in a lawsuit?
Let’s find out…
Could United legally remove him from the flight?
The answer to this question is “certainly yes.” Here’s why.
When you are given permission to enter upon the property of another, legally you are given what is called a “license.” The biggest difference between a “license” to use property and having, say, a lease giving you the right to exclusive possession of the property for a period of time, is that the license is freely revocable at all times, regardless of whether the licensee and licensor have a contract that says otherwise.
Why? Because we are dealing with two different areas of law here. Property law governs the ownership of property and the rights and responsibilities of property owners. The above rule about revocability of licenses comes from property law. Contract law, on the other hand, generally allows any party to breach their contract duties at any time, under penalty of having to pay damages to the non-breaching party (see also: “efficient breach” theory).
So, the question of whether the contract of carriage allowed United to remove this man is entirely irrelevant as to whether they had the power to do so. Either way, United could legally oblige him to leave the aircraft because they are “allowed” to breach any contract they may have had with him, but if he had a contract allowing him to stay, he gets to ask for money.
Was the man doing something illegal?
A friend of mine, who is usually quite on top of things, pointed out that federal law requires compliance with crewmember instructions. Or, at least, that’s what that pre-flight announcement says, if you aren’t busy blasting music through your headphones during the process.
Yes, but, no…
14 C.F.R. § 91.11 – Prohibition on interference with crewmembers.
No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.
While some kinds of defiance may qualify as interference, the duty only attaches while the aircraft is “being operated.” Before the doors close, not so much.
It is possible he could be charged under some state law for trespassing or resisting the officers, since as discussed above, legally he was obligated to leave, and therefore the officers had the lawful right to use reasonable force to remove him. It is also possible that he lacked the intent required to be charged, since he believed he had the right to be here — a review of the law of the relevant state would be required and is outside of the scope of things that I care about, and thus this blog. But, these would be petty misdemeanors, rather than a federal felony, and I do believe the police are now sufficiently embarrassed as to their inability to safely move one man 20 feet without sending him to the hospital that he will face no charges.
Will he win in a lawsuit?
Against whom? For what?
In order to win against the police, since the officers were lawfully entitled to remove him, he would need to prove that the force they used was unreasonable. That is, there was a safer way to do it, and a reasonable police officer under these circumstances would have done so. This is regardless of whether he sues in battery (where “reasonableness” will be a defense) or in negligence (where lack of reasonableness will be an element of the tort).
This is a question for the jury, so I’ll leave it to you guys. Watch the video with the fact that the police did have the right to eject him in the back of your mind. Your verdict of liable or not liable depends on whether the police did the best they could given a non-compliant passenger, or whether the means by which they ejected him was unreasonable.
The more interesting one. The “for what” part of the question definitely matters.
- For breach of contract? Well, he paid for them to take him to another city, and they didn’t do so; therefore, United certainly owes him for the flight. However, how much they owe him turns on whether he was “denied boarding” or not. The reason is that federal law directly covers “denied boarding,” allows an airline to do it regardless of contract law, and provides a fixed payment schedule for how much the airline will owe the passenger for having done so. Four hundred percent of the fare, to a maximum of $1,350, to be exact. The question is whether asking someone already on the plane to leave is “denying them boarding.” I fear the answer will probably be that it is, as the intent of the law was to cover refused transport without any reason to think that the Federal Aviation Administration intended to distinguish between refusal issued before or after the person passes the gate agent. But, if not, United Airlines will be liable in contract for all foreseeable damages. This includes not just the cost of the ticket, but a missed hotel reservation in his destination, missed work in the morning, alternate transportation (to the extent that it is more expensive), etc. It does not include the police breaking his face — it is not “foreseeable” (although not really surprising either).
- For his physical injuries? United won’t be liable in contract for his physical injuries, but how about in tort under battery or negligence theories? Were the people who took the man off the plane United employees or even contractors, yes, they might be liable for the battery or any negligence. But, reports are that these were airport police, and as United does not have any control of how the police do their job, they do not have any liability.
- For anything else? It’s time to get creative here. I think this man’s best chance of tort recovery is negligent infliction of emotional distress. NIED requires two elements that are fairly obvious: 1) negligence, and 2) emotional distress. Let’s assume he can prove the second, as his face was broken on video that was now seen around the world, and he can probably show that he was traumatized by the event. Was United in any way negligent? Well, would a reasonable airline have made sure that they were not oversold before boarding passengers? Would a reasonable airline have found another way to deal with the situation? Was emotional distress a foreseeable possibility? These are the tough questions that any lawyer for this man will have to prove in court. Luckily, United will be anxious to settle with this man after watching their stock value plummet $800,000,000 on Monday, and so this case will probably never make it to the clerk’s office, let alone a judge and jury.
The tl;dr version is that United was probably, mostly, in the legal right. But, something need not be legally wrong to be morally wrong, or to be a good reason not to do business with someone, or to make you the butt of every joke on the Internet. United cost itself a lot of money for doing something that its customers don’t like and then pretending that it was no big deal, and this loss will be far greater than anything the man can hope to win in court.
Here’s another legal analysis, which I think persuasively argues for the man’s right to sue both the police and the airline:
“Once someone in possession of a valid ticket has been seated – whether on an airplane, a train or bus, or at the symphony – he cannot be ordered to give up that which he has a valid contractual right to enjoy, simply because his seat is needed for someone else.
While it is of course permissible to remove a seated person is such a situation for unruly behavior, drunkenness, to deal with a medical emergency, etc. – as spelled out here in United’s Rule 21 – simple over booking can only be dealt with by denying boarding originally, pursuant to United’s Rule 25.”
The significant point here is that the Contract of Carriage is given specific legal authority under the Federal Aviation Regulations, and so is not like an ordinary business contract. In particular, it establishes a number of passenger rights, one of which is the right of boarded passengers to be flown to their destination absent specifically-listed causes, none of which include overbooking or airline employee travel needs (https://fas.org/sgp/crs/misc/R43078.pdf)
The full article with this alternative legal analysis is at:
I’ve read that article and find it legally unpersuasive for the reasons discussed in this post.
Reading your post was incredibly enlightening – so many things the average person without a legal background has no knowledge of. As an average person, I read the Contract of Carriage so that I’d know in the future what my rights are, came to the same major conclusions outlined by packetguy1, and wondered why the news outlets aren’t discussing the Contract of Carriage at all. So now I know. This makes it most difficult for the average person to know how far they can go to stand up for themselves in an airport without fear of physical harm. Maybe I should be grateful that the TSA officer only threatened to arrest me and didn’t smash my skull when I recently expressed opposition to being molested at their checkpoint. I don’t have a lot of sympathy for the airlines, except for the thought that it must be a great challenge to profitability to deal with TSA on their side…the airlines don’t want terrorists on their planes, TSA has become the X-rated version of the Keystone Cops, and it’s the airlines and all of us that suffer when TSA is ineffective in doing its job. I don’t know the interconnection between airport police and TSA but maybe it’s just as bad as TSA’s relationship with everyone else. Perhaps TSA can claim victory against terrorism in the skies if it effectively bankrupts the airlines because no one wants to fly anymore, including the airlines themselves.
“I’ve read that article and find it legally unpersuasive for the reasons discussed in this post.”
Non-lawyer here. One of the things I find fascinating about Legal Blogs . . . two seemingly well reasoned analyses coming to different conclusions. Looking forward to reading the “Opinion” after a court battle.
FWIW . . . I’m more convinced that the alternative view, that “denied boarding” does not apply because he wasn’t denied boarding and that, instead, “refused transport” applies.
Corbett say that If he was “denied boarding” then some rules/compensation apply. True enough but it does seem that this does not apply, using the plain language because he *had boarded.*
But if was “refused transport” (which is covered separately in United’s Contract of Carriage, then the “refused transport” rules/compensation apply. United’s “Rule 21” has been posted elsewhere and United can refuse transport for a lot of reasons but it doesn’t appear that “’cause we want your seat” is one of them.
In other words, to this non-lawyer, it looks like United violated its Contract of Carria ge. Wouldn’t that make them liable for consequential damages.
With respect to the Law Enforcement Officers and the violent removal . . . . Seems to me that if United claimed the passenger was “trespassing” and asked for help removing him, then they may be okay, legally. But if, legally, United was wrong in making that claim, then it certainly could be argued that violence was “foreseeable, given that was pretty definite about now leaving.
LEO: You have to leave. United says you are trespassing.
PAX: I have every right to be here!
If damages result from what United told the LEOs and if that was wrong, seems to me the United is liable.
Anyway, that’s what I think.
Looks like we posted at almost the same times lol. If what he says about “license” is correct at the beginning of the post, it trumps whatever is in the contract. Maybe he put it in italics to emphasize that point.
Agreed that the nature of the relationship between airline and passenger is key but I’m not so sure that it is a “license” with the implication that the passengers right-to-a-seat can be revoked at will.
United is a Common Carrier and offers a Contract-of-Carriage.
Oooops! His by accident . . . .
Continuing on with respect to United’s CoC — you can see it here: https://www.united.com/web/en-US/content/contract.aspx
There’s a downtown parking lot that I use on occasion. Pull-in, pay the attendant, he offers a stub that explains 1) that this is a license to park and 2) that paying him the fee does not create a bailment (I’m sure this is oversimplified but the idea is that the lot owner has not taken “custody” of my car . . . it’s just sitting on his land. Important to note, I think, that this relationship is set before I’ve parked the car and I could turn around and leave if I thought the terms unacceptable.
So, getting back to United . . . .
When United offers transportation under their CoC and in this case the passenger has boarded the aircraft, I don’t see how United could ignore the CoC and introduce this entirely different argument that they are more-or-less revoking their license.
But then I’m not a lawyer . . . . ;-I
Like many, you’re confusing “whether United can ask him to leave” with “whether asking him to leave would be a breach of contract.”
The parking of your car in a garage is a good example. Even after giving you the stub, ***and even if you pre-paid***, the attendant could still come up to you and say, “Sorry, you’re no longer allowed on the property, leave.” They may be breaching their contract with you if you had already paid, but they may still ask you to leave. And coming back to United, just because the stub you get at the parking lot explains that it is a license doesn’t mean that United’s ticket is not a license because they do not explicitly say the same. A license is created by operation of law when you buy your ticket.
Again, the CoC has ***nothing*** to do with United’s ability to eject you from their property. It is only relevant to how much they owe you if they do eject.
“confusing ‘whether United can ask him to leave’ with ‘whether asking him to leave woue ld be a breach of contract.'”
Think I understand your point and that I’m not “over reading” the work “ask.”
Try this . . . . I lease a house (with no provision for loss of occupancy for anything but non-payment of rent) and am on the “outs” with the owner. He arrives at the house and *asks* me to leave; I refuse. He calls the cops claiming that I’m trespassing . . . consider two alternative scenarios.
1) I tell the cops that I’m the occupant; that I have a lease. The owner claims that I don’t . . . that I’m trespassing. Maybe I look out-of-place, maybe the owner seems credible. Anyway, cops order me out; I refuse; they force me out; I resist and am injured in the process.
2) I tell the cops that I’m the occupant; that I have a lease. I look presentable; my stuff is all around the place. Cops tell the owner doesn’t look like I’m trespassing; observe that this does not appear to be a “law enforcement matter;” suggest that he take “this” to landlord/tenant court and try to get an eviction order (which can be served on the tenant, right?).
To your point . . . . In #1, I accept that owner had a right to *ask* me to leave *his* house. Did I have a right to refuse? And given that the Law Enforcement Officers took their action based on false representations from the owner, does he share responsibility for my injuries?
Maybe I don’t understand the nature of a “legal right.” If he doesn’t want me living in his house any longer, I accept that he can *ask* me to leave. Does he have a right to *force* me out? If I’m away, absent a court ordered eviction, can he remove my stuff and lock me out?
This gets back to United . . . . They wanted Dao’s seat. They had a right to *ask* him to vacate it. *IF* (’cause that’s what this post was about) they didn’t have a legal right, under the contract, to take the seat back from the passenger then didn’t United contribute to the subsequent injuries.
You’ve already answered this but I don’t believe you explained your rationale.
Jonathan, you quoted 14 C.F.R. § 91.11 which doesn’t actually apply in this case. Part 91 is the FAA rules that I fly my personal plane under, rather 14 C.F.R. § 121.580 is the applicable rule. It appears to be roughly the same content but thought you would want to be sighting something actually applicable.
I don’t see anything that indicates that 14 C.F.R. § 91.11 does not apply with equal force to personal planes and commercial ones, but given that the statutes are the same… 🙂
I stand corrected. As a pilot we’re always told that we’re operating under 91 and airlines are operating under 121 but in looking at this closer, 91 is just general flying rules that apply and 121 is a subset of rules for airlines but the 91 rules still apply. Weird that they duplicate 91.11 in 121.580 since 91.11 should still apply.
First, no he didn’t have to leave the aircraft. The airline had a contract of carriage which gives the passenger the minimums required by federal law. The airline clearly limited the times when they could ask someone to leave. Dr. Dao didn’t fall into those categories. The contract still existts and Dr. Dao is entitled to specific performance.
Second, “interfere with a crewmember in the performance of the crewmember’s duties” but crewmembers weren’t duing their duties. They were trying to illegally defraud Dr. Dao through trickery and deciet
Third, a lawsuit against the police and Chicago are no brainers- the police used excessive force even if they thought they had a right to remove him
Fourth, against the airline- easy. The airline defrauded Dr. Dao, violated federal law by trying to invoke denied boarding in violation of federal law (the deadheading crew were not passengers with confirmed reseerved seats). They filed a false police report when they summoned the police
Finally, under the doctrine of joint and several liability UA and Chicago are joint tortfeasors. Each are liable for all the damages that Dr. Dao suffered and can fight amongst themselves over who pays what
lol who the fuck are you to call me clueless? :-p
1) Specific performance is a remedy given by a court, not the police at the scene. It’s also not available when money damages are sufficient, as they would be to remedy a missed flight.
2) There was clearly no fraud. At no point did the airline ever seek to trick the guy, and a good faith dispute as to their rights and responsibilities is not fraud. Not even close.
3) The rule for joint tortfeasors applies when two parties contribute to the same injury. Any contractual injury is United only, and any injury to his face is police only.
If you want to learn about the law, enjoy the blog. If you want to play asshole armchair lawyer, go somewhere else, as that’s my job around here! 🙂
The CEO referred to the passenger as “belligerent”. Possibly a defamation case, as the videos show a guy who is, at most, uncooperative.
Definitely not a defamation case. A statement that a person on video is acting in a “belligerent” manner is an opinion as to how the video should be interpreted rather than a statement of fact. Opinions are not actionable.
Were there no video and it was an eye witness saying the same, which later proved to be untrue, there would be more of a case. But even still, “belligerent” is a word open to vast interpretation.
I’m very late entering this discussion, but I like your analysis way more than the one everybody quotes. They don’t even discuss property and contract law in detail.
I also had a question. Though we haven’t gotten any details about the flight crews involved, if United was getting their flight crew in position so they could fly the plane the next day, could they have a case under the removal section which says they can do it if it is regarding a government regulation?
United settled yesterday so none of those questions had to be answered. Some of them would have been interesting legal questions.
I think you are wrong. I liked your analysis though.
A couple of things:
1) I think that IIED would be easier to make here than NIED as the element of extremely outrageous conduct is probably met (as shown by dragging his lifeless body down the isle–and you can hear the horror of the other passengers.)
2) Forget a contracts claim, it is hard to make and I think hides your best issue:
Does Dr. have a joint and several claim against Security/ Poiice + Republic + United for violations of the Civil Rights Act of 1991? If so PUNITIVE DAMAGES!!!!!!!
I dont know the facts well enough to apply them. I bet that just the thought of a 1991 case being brought keeps United’s PR agents up at night.
The public only remembers a few cases: McDonald’s coffee, Leonard v. Pepsico, the Ford Pinto case (LOL risk/ bennefit analysis REALLY?) their PR firm doesnt want the public remembering this case and United being looked at the way Ford was for years.
I am still interested in this case, though I guess it’s pretty dead. The DoT in their letter to United said the thing they did wrong was not providing written documentation of Involuntarily denied boarding. They made no mention of it being wrong in terms of contract of carriage and other rights. Unfortunately the DoT’s letter won’t silence people who thought it was wrong and no rule for United doing what they did.
But I was also curious about why none of the other lawyers talk about licenses or at least try and make the case that a license isn’t always revocable at will. That’s a strong argument than trying to find the right or wrong provision in the CoC
Michael Ely — many airlines passenger advocacy groups are aghast at the DoT’s decision. The DoT had a MAJOR fail with this one. Particularly the issue of involuntary denied boarding. Here are some key issues:
1) United Airlines violated their Contract of Carriage by calling this “Involuntary Denied Boarding.” The passengers had already boarded the plane. There are approximately 64 items in the definition section of their CoC. Board, boarded, boarding is not one of them. In a few of the articles about this case, some people argue, “you are not considered boarding until the cabin door is closed.” Wrong. In the absence of a specific clarification in the definitions section, Involuntary Denied Boarding does not apply.
2) Even if the plane had not started boarding, United would have been in violation of their Contract of Carriage if they had bumped passengers for crew. Oversold flights are defined in Rule 1 of the CoC. An oversold flight is, “a flight where there are more Passengers holding valid confirmed Tickets that check-in for the flight within the prescribed check-in time than there are available seats.” Flight crew members ARE NOT “passengers with valid confirmed tickets.”
3) So… Rule 25 (Involuntary Denied Boarding) does not apply. United Airlines cannot invoke Refusal of Transport (Rule 21). There are several reasons listed for Refusal of Transport such as, being intoxicated, disorderly conduct, in ninth month of pregnancy and many others. The list is VERY extensive. There is nothing in Rule 21 which has the words, “reposition a crew,” “deadhead a crew” or something similar.
Bottom line: UA has no legal basis to invoke either Rule 21 nor Rule 25 to force a passenger off the plane. If they don’t like that, they should have written a different contract.
Having said this, I completely understand that any airline needs to displace a handful of passengers to avoid cancelling a flight and disrupting hundreds of passengers. The problem is that their approach was to bully passengers off the plane instead of offering adequate compensation incentives to obtain volunteers. This debacle forced them to be reminded of customer service.
It’s unfortunate (and disgraceful) that it took a broken nose, two knocked out teeth and a severe concussion to get UA, Delta and AA to change their policies.