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 Jonathan Corbett, Civil Rights Attorney

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united airlines

Class Action Lawsuit Against United Airlines for Flight 328 Disaster

I usually focus my blog (and my law practice) on civil rights issues, but sometimes big corporations can step on human rights just as well as the government. United Airlines is one of those companies, missing no opportunity over the past several years to demonstrate that it simply does not care about anything but profit. From beating up its passengers, to killing the family dog, to refusing to block middle seats throughout the pandemic — all while taking $15 billion in federal coronavirus aid (and demanding $15 billion more) — it almost seemed like every time something went wrong with domestic plane flights, you could count on United to be involved.

So two weeks ago, when a Boeing 777-200 flying from Denver to Honolulu lost chunks of its engine a few minutes after takeoff, treating the passengers to an uncontrolled engine fire and an emergency landing, it wasn’t particularly a surprise to hear that United was the carrier.

A passenger’s view from UA328 on February 20th, 2021.

The ATC recording from the cockpit demonstrates that the plane was piloted by two calm and collected crewmembers, who thankfully were able to land the plane without any serious physical injuries, but were unable to extinguish the fire in-air (despite cutting fuel) and left the 231 passengers on board in fear for their lives for a total of 18 minutes.

Airplane engines don’t simply explode mid-air unless something was done wrong. The NTSB has preliminarily opined that “metal fatigue” caused one of the fan blades to separate (taking a second blade with it) and flew off into the fuselage, possibly further damaging the controls that would have been able to put out the fire. But how would United know that the metal was fatigued? Perhaps because the plane is 25 years old (making it one of the oldest 777s in service in the world), because there are straight-forward tests available to check for metal fatigue (and, early reports show that was last done five years ago), but most importantly, because the plane in question — tail number N772UA — has a sister plane — N773UA — that lost a fan blade for this reason in 2018!

To add insult to injury, the passengers on UA328 were rebooked on a “new plane” to get to their destination, but you won’t need 3 guesses as to which plane United chose: none other than N773UA. You can’t make this up.

It is time United stop playing games with safety. I was retained by a passenger on UA328 and today I filed a class-action lawsuit on behalf of all passengers on the plane who were subject to the intense emotional distress that comes along with watching your airplane on fire for 18 minutes, wondering if you’re going to make it safely to the ground or end up in a fiery crash. No one should have to live through that as a result of an airline’s refusal to take proper care of its planes and its customers, and I look forward to forcing United to make it right as best is possible.

Case is Schnell v. United Airlines, No. 21-CV-683, in the United States District Court for the District of Colorado.

Schnell v. United Airlines – Class Action Complaint (.pdf)

United Airlines Fiasco: Was It “Legal?”

United GestapoMost 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?

The police?

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 airline?

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.

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