United Airlines: Can You Beat Your Clients?

On Sunday, United Airlines passenger David Dao was forcibly removed from his overbooked flight at Chicago’s O’Hare International Airport. Footage of his bloody face and the violent treatment were recorded by a fellow passenger, has since gone viral, sparking an outcry across the country. The airline was one of the top-trending topics on Twitter as people tweeted their anger over the forceful removal of the Dao from United Flight 3411, which was en route from Chicago to Louisville, Kentucky.

Every airline overbooks flights in order to offset the perceived likelihood of no-shows, and as a passenger you agree to this policy when purchasing your flight tickets. On Sunday, four crew members showed up needing seats, and federal rules dictate that the carrier must first check whether anyone is willing to voluntarily give up their seats. Abiding by the law, United asked for four passengers to leave the airplane to accommodate the crew. Three passengers were selected by a DoT computer algorithm and reluctantly agreed. The fourth was Dr. Dao and his wife, who is also a physician, and both were attempting to fly back home to see their patients.

Living in the post-9/11 skies, airlines can do whatever they want in many instances. Airlines have wide latitude to throw off anyone they suspect to be a terrorist (or those highly-allergic to nuts or wearing leggings). In cases where security is not a concern, airlines can throw off whomever they choose if the flight is simply overbooked. When that happens, being thrown off an airplane is called “involuntary denied boarding,” and there are rules. First, the airline must seek volunteers to give up their reservation for some kind of compensation, usually money. Once they bump a passenger off the flight, the airline must first notify the passenger of their rights in writing and then compensate the passenger with a check or cash unless they can rebook them on a flight that arrives within an hour of their original scheduled arrival. Based on a combination of federal aviation regulations, the federal Airline Deregulation Act and the contract that carriage airlines attach to their ticket purchases, airlines are essentially permitted to refuse to board someone on a flight or to remove someone from a plane. The contract of carriage is skewed to be one-sided, favoring the airlines. In its contract of carriage, United says it chooses those to be bumped based on a fare class, an itinerary, status in its frequent flyer program, “and the time in which the passenger presents him/herself for check-in without advanced seat assignment.” That means those who paid more for a ticket and those who fly the airline frequently are less likely to be selected for an involuntary bump. Once a person has boarded an airplane, they are required by federal law to comply with the flight crew’s instructions.

Technically, Dr. Dao could be charged with violating federal law for refusing to get off the plane, even if the officials who removed him from the flight exercised their authority in an excessive way. It’s a tough situation where the passenger is likely to lose. When an airline labels a passenger as disruptive, they can argue that he or she poses a risk to the flight. Whether the passenger goes voluntarily or in handcuffs, the passenger will get off the plane.

In an internal letter sent to employees, which has since been leaked, United CEO Oscar Munoz claimed Dr. Dao had “raised his voice and refused to comply,” and described him as “belligerent” and “disruptive, although the cell phone video demonstrated otherwise. On Tuesday, the CEO said, “nobody should be treated this way.” Munoz offered no real apology for the embarrassment and injuries to Dr. Dao, but instead reiterated that the airline needs to “re-accommodate delayed passengers.” By Tuesday morning, United’s stock plummeted 6.3 percent, dropping $1.4 Billion from the company’s market cap.

Airlines have do not have the right to batter, frighten or embarrass their passengers. In the case at hand, it appears that the cops are the ones who did the actual removal of the passenger, but both the airline and the police department could still be in some deep legal trouble.

We are all cognizant for the need of heightened awareness and security on airlines post 9-11. However when and where does that need conflict with an individual’s rights on an airplane? Why didn’t the airline resolve the overbooking problem at the gate prior to all the passengers boarding the flight?

Despite the law somehow permitting airlines to forcibly remove passengers under the circumstances, it appears that the force used here was excessive. If those dragging Mr. Dao down the aisle were police officers acting in their official capacity, the legal standard for what is considered “excessive force” would be significantly higher. Watching the video, it appears that at least some of those involved may have been uniformed police officers. In addition, some reports indicate that a plain-clothes officer was the initial actor. If it is true that these were indeed police officers, additional questions of legal significance would arise.

Were the police acting of their independent capacity? Or as agents of the airline? Dr. Dao may have a case here, and the police department could find itself defending a lawsuit. However, it may be difficult for Dr. Dao, or any passenger in his situation, to prove that force was “excessive” when the defendant is a law-enforcement professional. To make matters more complicated, police acting in an official capacity are often immune from liability altogether, which puts a damper on any lawsuit.

We don’t know the whole story. The video shot by another passenger certainly hurts the airline. If Dr. Dao decides to move forward with a lawsuit, this incident could result in a case against multiple defendants depending on the specifics of when, why, and how he was removed from the flight. To complicate the issue further, Dr. Dao’s patients might have good grounds to bring suit if the doctor had been permanently removed from the flight. If any of his patients suffered because Dr. Dao wasn’t able to provide them with timely care, they might have a valid legal action since Dr. Dao told the airline’s agents that he was a doctor who had to be on that flight home to see his patients.

What rights does an injured passenger have? Unfortunately, airlines are entitled to remove anyone from a plane, and not just for security reasons. If you’re improperly dressed, belligerent, or drunk, they can deny service to you. (See the United Contract of Carriage, which outlines the terms and conditions set forth when you purchase a ticket) According to the DoT, the maximum compensation for an involuntary bump is $1,350, and it has to be paid in cash. It’s less depending on certain circumstances. If fliers get to their destination between one to two hours later than their original flight (or one to four hours late if they’re flying internationally), airlines are required to pay two hundred percent of the the original one-way fare, capped at a $675 limit. If fliers get in more than two hours late (or four internationally), airlines have to pay four hundred percent of the one-way fare, capped at a $1,350 limit. In some cases you’re not entitled to any compensation at all if the airline can get you to your destination close to the scheduled arrival time. As a passenger, you have the right to insist on a check instead of a free flight or a voucher if you are involuntarily kicked off a flight. Airlines do offer vouchers sometimes for involuntary bumps, but they have been fined by the DOT for doing so because its not only against regulation, but also a sneaky way of getting out of what they owe you as a rightful passenger. For voluntary bumps, however, airlines are allowed to give passengers vouchers. These vouchers, however, expire in one year. To ensure you are on the end of the list of passengers to be booted, improve your loyalty program with the carrier and check in faster. Each airline considers different factors when it comes to bumping passengers, and it’s all stipulated in that pesky contract of carriage. Other than that, there are few, if any, protections.

At a minimum, the personnel from United should reach out to dr. Dao in order to resolve this matter before it goes any further. Our prediction is that United will settle privately with Dr. Dao pretty quickly. We can also guess that some of the surrounding passengers will file ancillary lawsuits for emotional distress. The unfortunate, but golden combination of the “involuntary denied boarding,” violent removal of a committed doctor, and the actual video footage of horrified onlookers is a lawsuit made in verdict heaven.

Fisher Stone Law- Business, Corporate & Startup Firm

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