Posted on: 3/28/2012
Jerry L. Tanenbaum, Schander Harrison Segal
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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.
Jerry L. Tanenbaum is a partner at the law firm of Schnader
Harrison Segal & Lewis LLP, and an Adjunct Professor, Special Education
Law, Temple University Beasley School of Law. Mr. Tanenbaum practices general
civil litigation, with an emphasis on litigation related to employment
discrimination, intellectual property, contract, family and education law. He
has represented individuals and businesses in matters related to restrictive
covenants, employment, fiduciary duties, intellectual property, securities
fraud, products liability, premises liability, defamation and libel, surety,
environmental liability, environmental insurance coverage, divorce and special
education services.
[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).