Litigation Turbulence Ahead for United

The United Airlines passenger ejection fiasco was just that – a fiasco. The legal ramifications abound, both for United Airlines and the City of Chicago.

United Airlines, in addition to a significant image problem, can now anticipate plenty of legal problems.  The individuals who pulled Dr. Dao off the airplane were not United employees, they were Chicago Aviation Police. United is still liable for the injuries Dr. Dao sustained while on board the plane – both physical and emotional.

Additionally, once passengers are on a plane airlines can’t remove them without cause. “Cause” means the passengers are disruptive, refuse to turn off digital devices, endanger other passengers, etc…. Refusing to give up a seat for an airline employee is not cause.

When we fly on airplanes we agree to something called a “contract of carriage.” It’s in the fine print.  This contract sets forth the rights and responsibilities of both airline and passenger. Rule 21 of United’s contract of carriage sets forth when the airline may refuse to transport a passenger. In short, this rule allows United to remove a passenger from the airplane if that person is a threat to themselves or others, refuses to comply with or interferes with directives from the flight crew or causes a significant disturbance. Dr. Dao didn’t violate any of these rules, at least not until after he was assaulted.

Refusing to give up his seat was not the same as refusing to comply with a directive from the flight crew because they didn’t have a valid reason to order him to give up his seat. Refusing a directive from the flight crew refers to things like turning off your laptop, putting on your seatbelt and folding your tray table up.

When Dr. Dao refused to give up his seat United called Chicago Aviation Police (CAP).  United was in the wrong when they called CAP because the airline didn’t have legal grounds to remove Dr. Dao from his seat: He hadn’t violated the contract of carriage, and therefore hadn’t done anything to justify being removed from the airplane. United is therefore responsible for what happens after they wrongfully call CAP.

Dr. Dao allegedly suffered a concussion, a broken nose, lost teeth, etc…. These injuries were caused by the assaultive behavior of CAP. Dr. Dao can also sue for falsely arrest, battery, emotional distress, etc…  He probably has a substantial emotional distress claim against the airline. Then there are potential economic damages, such as the fact that he lost work time and may lose patients.

United has other potential legal exposure as well. The reason Dr. Dao was removed from the plane was because the flight was over-sold. That means there were at least 100 people who witnessed this event – which had to be very distressing for many passengers. The other passengers, at least in theory, have causes of action against United for emotional distress. There have been reports that United is offering compensation to other passengers – you can bet they have to sign a release of all legal claims in order to obtain those funds.

Who else potentially has legal liability? The City of Chicago and more specifically CAP.

There are about 300 CAP officers who work at the Chicago’s main two airports. According to an official City of Chicago website, the officers must meet the same minimum standards as other local police.  Unlike TSA agents who are not law enforcement and do not have the power to arrest people, CAP officers are law enforcement; and, while only Chicago PD has the power to file an arrest report, CAP officers have the ability to detain a person until a Chicago PD officer arrives. Luckily for Dr. Dao and the other passengers on board the place, CAP officers do not carry weapons.

Chicago, a city with a long history of abuses by law enforcement and cover-ups, initially issued a statement claiming Dr. Dao struck his head on an armrest causing injuries to his face. (Chicago law enforcement has, at best a troubled history. In 2017, the U.S. Justice Department concluded in a civil rights investigation that the Chicago Police Department has a culture of excessive violence, racism and poor training.) Luckily, passengers had pulled out their phones and were recording the entire scene – making it clear Dr. Dao was not responsible for his injuries. Given that a significant portion of society carries their smartphones with them, precisely why Chicago officials would issue a press release that blatantly contradicts reality – a reality they should have presumed was being recorded –  is nothing short of baffling.

The initial press release in Dr. Dao’s case adds fuel to any legal claim he may bring against Chicago. While the statement itself was technically legal, because the First Amendment protects the right to lie, it shows bad faith and a willingness to engage in a cover-up. The press release will likely figure prominently in any legal action brought by Dr. Dao to recover damages for his injuries.