Previously published in Skywritings, The Newsletter of the Aerospace Law Committee
On June 23, 2011, a jury in the Eastern District of Pennsylvania returned a verdict in favor of Independence Air and against a passenger with a disability who fell down the stairway of a commuter jet when deplaning at the Philadelphia Airport.1 The case involved the standard of care under state negligence law as to the type of assistance an airline is required to provide to passengers with disabilities and to what extent the directives embodied within the Air Carriers Access Act ("ACAA") could impact that standard of care.2
The passenger had an above-the-knee amputation and ambulated with crutches. The airplane utilized integral stairs, that is built-in steps that folded into the main cabin door during flight and out to the tarmac for boarding and disembarking. The passenger's negligence claim was based on two primary contentions: (1) that no one had offered him any assistance in disembarking; and (2) that, even if they had offered assistance, they failed to explain the type of assistance that was available – such as a lift or a straight-back chair. He claimed that the narrow width of the stair treads made it more dangerous than usual for him to descend without assistance and that, had he known that a mechanical lift could be provided, he would have used it and avoided his fall.
The pilot and the flight attendant both testified that they did ask the passenger if he needed any assistance and that the passenger had stated that he could manage by himself. They admitted, however, that they had not explained the various types of assistance that could have been used. In addition, a member of the ground crew testified that he also offered assistance to the passenger, and specifically offered use of a "lift," but that the passenger declined. He also admitted, however, that he had not explained to the passenger the specifics of how a lift operates or how it could have been used.
The testimony of the airline personnel was consistent with the implementing regulations to, and Department of Transportation guidance associated with, the ACAA, 49 U.S.C. § 41705 et seq., pertaining to passengers with disabilities. Those regulations stress that passengers with disabilities are the experts as to their needs and capabilities; that an airline may not require passengers to accept assistance; and that airline personnel should comply with the passengers' instructions on how best to assist them. The regulations specify that assistance must be provided to a passenger with a disability if "requested" by the passenger or if offered by the airline and "accepted" by the passenger.3
The passenger argued that the Act was a discrimination statute, not a safety standard, and should therefore not be admitted into evidence. However, the case had already been to the Court of Appeals for the Third Circuit, on appeal from a summary judgment in favor of the airline on preemption grounds. Although the Third Circuit held that the Act did not preempt state negligence law as to operations on the ground, the Court also stated that the jury could be informed of the Act and allowed to consider the Act in determining the proper standard of care. 4 Based on that directive, the trial court allowed the regulations and related testimony into evidence and instructed the jury on the regulatory scheme.
The passenger's ultimate argument was that the higher standard of care expected of common carriers under state law required more than just a generic and undefined offer of general assistance. He argued that passengers with disabilities could not be expected to know of the available options, and that the failure to fully describe such options was negligent, even if the passenger declined a generic offer, which he also denied had been made. The jury disagreed.
This case demonstrates how the disability provisions of the ACAA regulations may impact airline obligations even in circumstances not involving disability discrimination and not involving flight "operations." Here, these provisions were considered by the jury in relation to state negligence standards of care for a common carrier. Educating the jury to the fact that the less expansive offers of assistance in this case were not the result of oversight but, instead, were rooted in respect for the dignity of passengers with disabilities, resulted in a favorable outcome for the carrier.
Footnotes
1. Independence Air is no longer operating. The case was captioned as Elassaad v. Independence Air, No. 08-3878 (E.D. Pa.).
2. The passenger did not allege discrimination based upon his disability.
3. E.g., 14 C.F.R. §§ 382.7(2), 382.39(a) and (b).
4. See Elassaad v. Independence Air, 613 F.3d 119, 133 n. 20 (3d Cir. 2010).
Mr. Colonna-Romano is an associate in Schnader Harrison Segal & Lewis LLP's Litigation Services Department and a member of the Aviation Practice Group. His practice focuses on the defense of manufacturers in the aviation industry, including aircraft, engine and other component manufacturers. In addition, he has represented a Part 135 charter operator and a commercial airline. Mr. Colonna-Romano graduated the George Washington University with a B.A. in History. He received his Juris Doctor, cum laude, from Rutgers School of Law - Camden.
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