25. Aviation Law
Every working day, millions of Americans who work in buildings that have multiple floors take elevators to get to and from their offices. Many apartment, condominium, and co-op residents use elevators to get to and from their units. And every day, countless Americans ride escalators to transport them from floor to floor inside retail department stores and malls.
There are approximately 600,000 elevators in the United States and 120 billion rides on elevators and escalators each year. There are 20 times more elevators than escalators in the United States, but the numbers of persons injured and killed by the two modes of transportation are about equal. This means that you are 20 times more likely to have an accident on an escalator as compared to an elevator.
In California, it is well established that commercial operators of elevators and escalators are “carriers of persons for reward.” This means that elevators and escalators are “common carriers.” As a common carrier, the owner and/or operator of an elevator or escalator has a higher standard of safety and care, and can be held financially responsible (“liable”) to passengers who have been injured by even the slightest amount of carelessness (“negligence”). The California Supreme Court stated that a higher standard applies to all persons who submit their bodies to another’s control by which their lives or limbs are put at hazard.
California Civil Code section 2100 requires a carrier of persons for reward (a “common carrier,” including commercial elevators and escalators) to use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. Civil Code section 2101 requires a common carrier of persons to provide vehicles safe and fit for the purpose to which they are put, and the common carrier is not excused for default in this respect by any degree of care. Accordingly, an elevator car or escalator must be in “safe and fit” order to safely transport its passengers.
California law requires a common carrier to use the “utmost care and diligence” for the safe carriage of its passengers. The owner/operator of an elevator or escalator is bound to use the utmost care and diligence that a very cautious person would as far as human care and foresight can go, and they are responsible for injuries resulting from the slightest neglect against which human care and foresight might have guarded. Common carriers are not, however, insurers of their passengers’ safety. An “insurer” of a person’s safety is liable for all injuries and deaths arising from its acts or neglect, even though it was not negligent in any way; it guarantees that the person will not be hurt, regardless of the cause of those injuries. In cases involving common carriers such as elevators and escalators, it is necessary to prove that the owner/operator was negligent in some manner. This is true despite the fact that the owner/operator of the device is bound to the standard of the utmost care and diligence, and even the slightest carelessness would be enough to impose liability.
An elevator or escalator owner/operator is a common carrier only in regards to individuals who are using the elevator or escalator for the purpose of transportation at the time of the injury. For instance, children who are playing at the top or bottom of an escalator, and not intending to ride the escalator, do not get the benefit of the common carrier higher standard of care. This does not mean, however, that the owner/operator of the elevator or escalator does not owe any degree of due care toward the child. In such case, the owner/operator still owes the child the duty to exercise reasonable care, that is, the standard of care owed under general negligence principles, to keep the premises reasonably safe.
The owner/operator of the elevator or escalator may have a duty to protect children playing on the elevator or escalator, particularly when the owner/operator knows that other children have played on the elevator or escalator in much the same way, while those who should have been watching them were busy shopping. Because the owner/operator knows or could anticipate that young children would play on or around the elevator or escalator, the owner/operator has a duty to take reasonable steps to prevent those children from being injured or killed by the elevator or escalator.
If a person is in the process of getting on or off an elevator car or escalator, she is considered a passenger even though the person may not be physically in the car or on the steps of the escalator, but is in the process of getting on or off. A person is considered a passenger until she has safely gotten off the elevator or escalator in a relatively safe place. The responsibility of the owner/operator of the elevator or escalator to its passengers continues until the passengers have had sufficient time to get away from the elevator or escalator without injury.
A passenger’s motive for using the elevator or escalator is irrelevant in determining the common carrier’s liability, and the common carrier owes the same high duty of care whether the passenger rode for pleasure or business. So if a passenger is injured by an elevator that she was taking for the sole purpose of getting to the top of a skyscraper to enjoy the view, and did not intend to transact any business in the building, she is no less entitled to a safe elevator than one who uses the elevator to get to an office to conduct business. Or a department store visitor who is injured by a defective and dangerous escalator while “just looking” is owed the same high duty of care as a person who goes to the store with the intent of purchasing an item.
Many elevator-related injuries occur when people are getting off the elevator, but the bottom of the elevator is not flush with the outside floor. Sometimes the difference between the bottom of the elevator and the outside floor is a foot or more. More frequently, however, “trip and fall” injuries often result when the floor of the elevator stops short of or overshoots the floor by as little as one or two inches. This can result in the person’s foot being tripped by the uneven lip between the elevator floor and the outside surface, causing the person to fall and suffer serious injuries, such as a broken leg, arm, or hip, or hitting his face on the ground causing broken bones and disfiguring injuries, or striking his head on the ground, resulting in a traumatic brain injury (TBI).
Hand, forearm, foot and lower limb injuries can occur when a person attempts to stop the elevator’s doors from closing so he can board the elevator car. The doors may be closing too quickly or too forcefully, causing injury. Occasionally an elevator cable will break, causing the elevator to drop to ground level in a free-fall, seriously injuring or killing the passengers. Modern elevators are usually equipped with a safety brake system to prevent this from happening, but the safety brake system has been known to fail, resulting in catastrophic, even fatal, injuries.
Many elevator accidents occur on construction sites when workers are traveling from floor to floor. If the worker’s employer installed the elevator and is the one in charge of servicing and maintaining it in a safe condition, but the worker is injured in an elevator accident, the worker’s sole remedy is usually worker’s compensation benefits. But if another company (i.e., a subcontractor) installed the elevator and has the duty of maintaining it in a safe condition, the worker injured by a defective and dangerous elevator may be able to sue the elevator company.
It has been estimated that as few as 15 percent of escalator accidents are the result of “unsafe acts.” The majority of accidents are caused by worn, damaged, or faulty equipment, many of which could be avoided with proper inspection, servicing, and maintenance. Unlike, say, a car, the mechanical workings of an elevator and escalator rolls are not easily accessible. This means that less effective techniques are often used instead of physical inspection. As a result, reliability is reduced and the potential for accidents is greatly increased.
Ordinarily, a passenger on an escalator stands and does not sit on the steps. When one considers, however, the enormous numbers of patrons of stores that use escalators as a means of transportation, one must conclude that occasionally someone will fall and her hand must rest upon the tread of the step either for a very brief time or for almost the whole descent, depending upon the force of the fall, the ability of the person to recover her balance, her ability in regaining her position, and similar factors. Children use escalators in great numbers, and their hands may be on the treads even though they have not fallen.
A department store, for example, invites not only persons who are alert and nimble and adult to use its escalators, but all of its patrons, with the possible exception of those patrons whose age and infirmity would make any use or moving stairs hazardous. Under the duty to use utmost care required of a common carrier, the escalator must be constructed, maintained, and operated with the purpose and design to prevent injury to those whose hands do get into the treads.
Not surprisingly, a large number of the persons who are injured while riding an escalator are young children. Young children do not have the same stability as adults and are especially vulnerable to falling and being injured at the slightest bump or shake of the escalator. Young children are frequently fascinated by the movement of the stairs and will attempt to put their fingers or hands between the moving stairs and the stationary rail. Young children also have a harder time getting on and off and escalator, often falling in the process and being injured.
Children under the age of five are exempt from the rule of “comparative negligence,” as a child of such early years is legally incapable of realizing and understanding that his conduct may result in his being injured by the elevator or escalator on which he is riding or playing. In short, the young child does not appreciate the nature and extent of the danger and voluntarily encounters it without regard for his own safety.
Unlike an elevator, which has doors separating the moving car and its passengers from the stationary shaft, an escalator must move alongside a stationary balustrade. It is important that openings (“apertures”) between treads and risers, and between steps and balustrades, be kept to a minimum in order to prevent a rider’s hand from being caught between them.
There are maintenance companies that service, maintain, and inspect elevators or escalators to ensure that they are operating properly and are free of conditions that might pose a hazard to persons using the elevators or escalators. Such a company can be held liable for injuries resulting from its negligence in inspecting, maintaining, and servicing an elevator or escalator. If the owner or operator fails to have the elevator or escalator regularly inspected for dangerous conditions, she can be held liable for injuries to or death of persons using the elevator or escalator that are caused by the unsafe condition of the elevator or escalator.
As noted above, it is well settled in California law that commercial elevators and escalators are “common carriers” and owe a higher duty of care towards its passengers than is ordinarily required. However, as to persons not on an elevator or escalator, nor in the process of getting on or off, the owner and/or operator owes them only the ordinary standard of safety (“due care”). Thus, if a part of an escalator broke off and was thrown 20 feet, hitting a shopper, the legal and financial responsibility (“liability”) to that person would be determined using ordinary rules of negligence law, and not the higher duty owed by common carriers, as the person was not a passenger on the escalator at the time of the incident.
If the elevator or escalator was defective because it was not properly made or designed, and a person is injured or killed due to that defect, the injured person (or the next of kin, if the person was killed) has the right to bring a strict products liability lawsuit against the manufacturer, supplier, owner, and operator of the elevator or escalator. Strict products liability law does not require that the injured person prove that the manufacturer or other person had failed to use due care (was “negligent”) in designing or making the elevator or escalator. All that needs to be proved is that the elevator or escalator was made or designed defectively and that defect was a cause of the person’s injury. There is no requirement that a specific act of carelessness (negligence) be shown. For further information about suing an elevator or escalator manufacturer, distributor, or seller, see Chapter 21, “Defective Products.”
Over 4.7 million people are bitten or attacked by dogs annually, with 800,000 of them bitten seriously enough to require medical attention. Each year, roughly 370,000 victims go to the emergency room for treatment of injuries due to being bitten by a dog.
Section 3342 of the California Civil Code makes the owner of a dog legally responsible (“liable”) for all damages suffered by any person who is bitten by the dog while in a public place or legally in a private place. The owner can be held liable for injuries from a dog bite even if they occur on the dog owner’s own property, if the person who is bitten was lawfully upon the property, such as in the performance of his lawful duty (e.g., a postal carrier or public utility meter reader). The dog’s owner is also liable for any bites by the dog to persons on her property if the person was on the dog owner’s private property with the express or implied invitation or consent of the owner.
Although California Civil Code section 3342 imposes liability against the dog’s owner for its bites, this does not mean that the dog’s owner cannot raise any defenses that may cut off or reduce her liability. For instance, if the person was pulling the dog’s tail, kicking it, or otherwise annoying it, leading to the dog biting him, the person may be banned from recovery or the amount of his recovery may be reduced under the legal doctrine of “comparative negligence,” discussed in Chapter 2.
Young children are the most common victims of a dog bite. Children are especially vulnerable to being bitten by dogs because they don’t understand the danger involved when a person approaches a dog, even if they have petted or played with the dog before without incident. Almost 80 percent of injuries to children bitten by a dog are to their face, neck, and head. Even a small dog can inflict serious injuries on a defenseless child. Note that, generally speaking, a child under the age of four is generally considered by the law to be incapable of being comparatively negligent. So if a child under four years old is bitten or mauled by the dog, it is no defense that the child may have been teasing the dog, pulling its tail, or otherwise harassing the dog. Whether an older child is capable of understanding the risks involved in approaching a dog, petting it, pulling its tail, and so forth, is determined on a case-by-case basis.
Dog bites can range from a superficial bite that does not break the skin to a fatal mauling by the dog. Frequently the dog attacks the victim’s face, inflicting severe and disfiguring injuries. The dog may go after the arms and torso of a victim who is trying to protect himself. In many cases, it will be necessary to get a tetanus shot, and if the dog is not current with its rabies shots, the dog will have to be quarantined until it can be tested. If the dog is found to have rabies, the bite victim will have to undergo a series of painful anti-rabies injections to ward off the disease.
Certain breeds, such as pit bulls, have acquired a reputation as unusually aggressive and dangerous. In one study, the Centers for Disease Control (CDC) found that pit bulls and Rottweilers accounted for 67 percent of human dog-bite-related fatalities, with pit bulls being responsible for the greater share of fatalities. The term “pit bull” actually refers to several breeds of dog in the same family. Most laws specifically define the category of “pit bull” to include the American Pit Bull Terrier, the American Staffordshire Terrier, and the Staffordshire Bull Terrier, and dogs with significant mixes of these breeds. A few jurisdictions also include the American Bulldog and Bull Terrier as falling within the definition of a pit bull.
Pit bulls frequently attack without provocation or warning, and the victim may be a family member as easily as it may be a stranger. As a fighting breed, pit bull dogs were bred to conceal warning signs before an attack. For instance, they rarely growl, bare their teeth, or issue a stare before they strike. While some pit bull proponents contend that they are only dangerous to other animals, media reports show otherwise.
Some people take the view that the pit bull has a “locking mechanism” in its teeth or jaw so that once the jaw clamps shut, it is practically impossible to get the dog to release its prey. Pit bulls often show “bite, hold, and shake” behavior when biting a person or other animal. Accordingly, some pit bull rescue organizations and advocacy groups recommend that owners of pit bulls carry a “break stick” with them to lever the dog’s jaws open if the dog does bite and clamp down on a person or another animal.
Some cities have passed laws prohibiting the ownership of pit bulls and certain other dangerous breeds, such as Rottweilers and Doberman Pinschers. Some laws prohibit these breeds of dogs from going into certain public areas, and other laws require that the dog be muzzled when out in public.
Accordingly, if you have been seriously injured or a loved one killed by a dog belonging to one of these dangerous breeds, the insurance company is more likely to settle the case and to settle for a higher amount than if, say, a Collie or Springer Spaniel inflicted the damage. (Generally speaking, the amount of damage a Collie or Springer Spaniel can inflict pales in comparison to what pit bulls, Rottweilers, hybrid wolves, and Doberman Pinschers can do.) Also, because of the severe injuries they can cause—such as serious damage to the face requiring extensive reconstructive surgery—it is important that you obtain a law firm with experience in dog bite cases to help to arrange that you get the best medical care possible for your often disfiguring injuries. In severe maulings, plastic surgeon and other medical expenses can run into tens, even hundreds of thousands of dollars in reconstructive surgery, such as skin grafting, tissue expansion, and scar diminishment.
Let’s say that you are walking down the street and a playful dog comes bounding toward you and jumps on you, knocking you to the ground, causing a broken limb, or hip or head injuries. Most cities and counties have laws requiring dogs to be on leashes and under the control of their owner or walker when off the owner’s or caretaker’s private property. The fact that this is the first time the dog has ever done something like this is no defense. The failure to have the dog on a leash, resulting in the dog causing injury, is called in legal terms “negligence per se.” It is not a defense to a violation of the leash law that the dog is trained to obey verbal commands or hand signals. Nor is it necessary for the victim to prove that the owner knew that her dog had a propensity to run at large, chase bicycles, or jump on strangers to hold her liable for injuries caused by her dog while it was running loose throughout the neighborhood.
A landlord generally is not liable for the injuries inflicted by his tenants’ dogs (or other animals), unless the landlord has actual knowledge of the presence of the tenant’s dog and its vicious nature. If the landlord knows of the vicious propensities of the dog and has the ability under the lease to order it removed or to terminate the lease altogether, the landlord may be held liable for allowing the dangerous dogs to remain on the property without doing anything about it. For instance, if the landlord knows that a tenant on a month-to-month lease has a dangerous dog, the landlord may be required to give the tenant notice either to get rid of the dog or, if that fails, give the tenant notice of termination of the lease.
A veterinarian, kennel operator, or her employees generally are barred by the “veterinarian’s rule” from suing the owner of a dog for bites or other injuries inflicted by the dog while under their care. According to the veterinarian’s rule, a veterinarian or other person who by his profession works with dogs and other animals is held to have assumed the risk that he may be bitten or otherwise harmed by the animal.
Millions of Americans are injured or killed each year due to defective, faulty products that are dangerous even when being used for their intended purposes. Unlike other types of cases, such as automobile accidents or “slip and fall” cases, it is not necessary to prove that the manufacturer, distributor, or retailer of the product—or anyone else involved in the “stream of commerce”—was careless (“negligent”) in designing or making the product. Rather, the manufacturer, distributor, or retailer is “strictly liable” for injuries, deaths, and damage to other property caused by a product that is dangerous because of a defect in its design or manufacture when it is being used for an intended or “foreseeable” use.
The rational behind holding a manufacturer, distributor, or retailer strictly liable for a defective product without regard to whether it was negligent or not is that the manufacturer and others in the stream of commerce are in a better position to protect themselves from the costs associated with a defective product than are the users of the product. For instance, the manufacturer, distributor, or retailer can obtain insurance to protect themselves and spread the cost of the insurance premiums across the board by raising the price of its product a few cents or dollars. Putting the brunt of liability for defective products on the manufacturer, wholesaler, or retailer simply makes this part of its cost of doing business that it can pass along to the purchasers of its product.
The definition of “product” is used expansively. Products include everything from automobiles to bottles to elevators to mass-produced residential homes and apartment buildings. But it is not necessary that the product be mass-produced. The fact that a product is unique does not render its maker, distributor, or seller any less liable for any injuries or damage caused by it if the product is defective, if the company is otherwise in the business of manufacturing and selling products as part of its full-time commercial activity. Thus, a company that makes a one-of-a-kind device for a customer is bound by the laws of strict liability. Indeed, some companies are in the business of making specialized products for each job. This does not make them any less amenable to the laws of strict products liability.
Strict products liability, however, does not apply to the one-time or occasional seller. For instance, if you hold a yard sale and sell an item that turns out to be defective and causes injury, you are not held strictly liable for the victim’s injuries. The victim will have to prove that you were somehow negligent in causing the defect that injured her. Proving negligence requires a much higher standard of proof than strict liability. (Used goods sold by nondealers are usually “as is” sales, and come with no warranties or guarantees.) Similarly, if a neighbor sells you a one-time batch of tomato sauce, he would not be considered a “seller” under products liability law. If you became sick after eating the sauce, you would have to prove that your neighbor was careless (“negligent”) in making the sauce, and such negligence was the cause of your injuries.
A person or entity involved in the manufacturing, distributing, or retailing of a product is strictly liable if: (1) the person or company places the product on the market; (2) the person or company knows that it is to be used without inspection for defects; (3) the product proves to have a defect; and (4) the defect causes injury to a person or damage to property. The defective product must be dangerous and unsafe when used not only for its intended purpose, but also for uses that can be reasonably anticipated by the manufacturer, distributor, or retailer of the product (“foreseeable” uses).
A product may be defective because of a flaw in its design or a defect in its manufacture. The difference between a product that is defectively designed and one that is defectively manufactured is that, in the first case (i.e., design defects), all of the products—even if made to the manufacturer’s exact specifications—are defective and dangerous. When a product is dangerous because of its design, then all products of that type are dangerous and the product is subject to recall, and a warning is given not to use the product and to take it back to the place where you bought it for a full refund.
On the other hand, when it is a defect in manufacture, that means that the product, when properly made, is safe for its intended use, but due to a mistake in its fabrication or assembly, the specific individual product is defective and dangerous. A common type of error that makes an individual product unsafe is a faulty weld. If welded properly, the product is safe for use, but if welded improperly, the product poses an unreasonable risk of harm to users of the product and persons nearby.
Mass injuries can result when products are mass produced, but defectively designed in a manner that makes them dangerous when used in their proper way. A product is defective in design if either: (1) the product failed to perform safely as an ordinary consumer would expect when the product was used in an intended or reasonably foreseeable manner; or (2) the risks inherent in the dangerous design outweigh the product’s benefits. The first test is known as the “consumer expectation” test, while the second test is known as the “risk-benefit” test.
Under the “consumer expectation” test, when a product fails to meet an ordinary consumer’s expectations as to the safety of the product in its intended or reasonably foreseeable use, a manufacturer is strictly liable for the resulting injuries or property damage. The consumer expectation test is based on the theory that when a manufacturer places a product on the market, it makes an implied representation that the product is safe for the tasks it was designed to accomplish.
Under the “risk-benefit” test of a defective design, this involves a balancing of the danger posed by the product’s design against the product’s usefulness (“utility”). This doesn’t necessarily require that the product’s risk of harm outweigh the product’s benefits. Liability may be imposed where the product’s design has an “excessive preventable danger,” and it would have been feasible for the manufacturer to reduce the risk of harm by using an alternate, safer design. For example, a glass bottle of apple juice marketed for infant use could be made safer by an alternative design, such as the use of plastic instead of glass, thereby preventing injuries to infants who might be injured by broken glass if the bottle was accidentally dropped.
A product is defective in its making when something happens during the manufacturing process that makes the particular item unsafe and dangerous, even though it has been designed safely. Some of the problems could be a faulty weld, loose or missing screws or nuts and bolts, or using materials that are inferior in quality than those called for by the specifications. The manufacturer or supplier of a defective part that is used in the product (a “component product”) is strictly liable for any and all injuries and damages caused by its defective part, even though it is incorporated into a larger product.
One major criteria of strict products liability law is that, at the time of the injury, the product was in substantially the same condition as it was when it left the manufacturer. If the company was in the business of supplying raw materials that would be incorporated into the final product, the questions are whether the raw material met the specifications the manufacturer set and whether the product was materially changed. If the manufacturer ordered raw material of quality “A” but the supplier sent an inferior quality of product, the supplier can be held liable for strict products liability. If the supplier sends product meeting the standard requested by the manufacturer, but the design is faulty in not requiring a higher standard of raw material, the supplier is not strictly liable.
If what was sent by the supplier is a dangerous material in and of itself, the supplier can be held liable under the laws of strict products liability if the material retains its inherent quality. The most common example of this is asbestos. For years, asbestos was used by many manufacturers in a number of products and in many of them the raw asbestos was processed, yet the asbestos (particularly its dust) retained its toxic qualities. In such a case, the supplier of the raw asbestos is held strictly liable for injuries resulting from the inhalation of asbestos dust.
A product may also be defective when, although the product was properly designed and manufactured, it fails to include adequate instructions for its use or in the failure to provide sufficient warnings regarding its dangers when used in a proper or foreseeable way.
Note that the law does not impose absolute liability. If the person were using the product in a way the manufacturer, distributor, or retailer could not have foreseen, strict products liability does not apply. Also, where the victim was partially at fault for his injuries or death, the legal doctrine of “comparative fault” applies to reduce the amount of monetary damages the manufacturer, distributor, or retailer must pay. The fault of the victim is weighed against (compared to) the fault of the manufacturer, distributor, or retailer.
For instance, if the victim was 25 percent at fault for causing his injuries, then the amount of his financial recovery is reduced by that amount. Hence, if a jury concluded that the total damages amounted to $100,000 but found that the victim was 25 percent responsible for the accident, then the victim’s award would be reduced by the percent of his fault (in this case, 25 percent), so that instead of receiving the full $100,000, the victim would receive only $75,000.
Sometimes when a person is injured by a defective and dangerous product, her injuries will be obvious, such as a broken arm, burns, or head injuries. However, in some cases, it is not at all unusual for injuries to take a few days to a few weeks—even years in the case of asbestosis—to show up. Therefore you should contact an experienced personal injury law firm as soon as possible after the accident. The attorney is familiar with the types of injuries that may arise as a result of being injured by a defective product, and oftentimes can help find a skilled doctor to treat you.
If you have been injured or a loved one killed by a defective product, you should promptly consult an experienced personal injury law firm. The defective property should not be reused, repaired, destroyed, or otherwise changed or disposed of without first giving the attorney and her investigator the opportunity to inspect and evaluate it. All instructions, warnings, other packaging materials (such as the box the product came in, if any), and receipts and warranties should not be thrown out, but rather given to the attorney so she can evaluate the sufficiency of assembly instructions, danger warnings, and other important information. The attorney or her investigator will want to talk to any witnesses to the incident while the facts are still fresh in their minds.
In most products liability cases, the attorney will want to keep the product in the same condition it was in when it caused the injuries until the case is completely over. In many cases, the attorney will want to hire an expert in a certain field to evaluate the defective product and testify at trial. The attorney will often need to have the product and/or assembly instructions or warnings evaluated by a professional such as an engineer or human factors expert to see whether the product posed an unreasonable risk of harm. For instance, if a product failed because of metal fatigue and caused serious injuries, the attorney will likely want to have the product tested and evaluated by a metallurgist.
Medical malpractice involves the negligence of a physician or surgeon, or anyone else in the business of providing physical and mental health care services. The error may be one in diagnosis, such as where the doctor misses or misinterprets (“misdiagnoses”) a condition as benign rather than the beginnings of a serious problem. Sometimes the error is obvious, such as when the surgeon mistakenly removes a healthy kidney rather than the diseased one. Sometimes the malpractice is more subtle, such as where the doctor fails to heed the warning signs of diabetes and treat the patient with medication and exhort her to check her blood sugar frequently, watch her diet, lose weight, and/or exercise more. Expert testimony of physicians or surgeons in the same field of medicine as the doctor you are suing are usually necessary to prove the degree (“standard”) of care and how the physician deviated from it.
Four elements are required to be proved to be successful in a medical malpractice case:
Most good medical malpractice lawyers will not take a medical malpractice case unless he believes it is a meritorious case and is worth at least $500,000 or more. The reason for this limitation is a law that was passed back in 1975, known as the Medical Injury Compensation Reform Act of 1975 (usually referred to by its acronym, MICRA). MICRA has several provisions that make it harder to sue negligent physicians, surgeons, hospitals, and other health care providers. For instance, although you can collect in full for all of your medical expenses, past and future, and all of your lost wages and loss of earning power (so-called “economic damages”), the most you can recover for so-called “non-economic damages” such as pain and suffering and loss of enjoyment of life is only $250,000. The lawyer is also limited by statute as to the amount of attorney fees he may charge for representing you, which is less than what he could charge in other types of personal injury and wrongful death cases.
MICRA was passed during a time when doctors were complaining about the sudden and steep increases to their malpractice insurance premiums. Insurance companies said the rise was justified due to the number of frivolous cases brought by unscrupulous attorneys who were smooth talkers who could sway and convince a jury that the doctor made a mistake and that the client had suffered an astronomical amount of financial and medical expenses and had undergone severe and prolonged pain and suffering. The insurance companies conveniently avoided bringing up the facts that they were suffering because of some bad investment and underwriting practices they had made, and the cyclical nature of personal injury payouts.
Another reason medical malpractice lawyers are hesitant to take cases worth less than $500,000 is that it takes a lot of time and money to prosecute a medical malpractice case through trial. Medical malpractice cases often turn into an expensive “battle of the experts.” The injured victim’s expert doctor will say it was malpractice, while the defendant doctor’s expert witnesses will testify that the care was proper and appropriate. The lay jury—most of them unschooled in medical matters—are left to make heads or tails out of the experts’ testimony. In most cases, especially those dealing with complex medical or surgical issues, the jury will believe the doctor who comes across as the most knowledgeable and confident of all the expert witnesses, rather than trying to sort out and deal with the technical medical testimony itself.
Doctors have long looked out for each other, one major reason being that if they were ever accused of malpractice, none of the doctors in the area would dare testify against them. Accordingly, a code or “conspiracy of silence” among the medical profession arose and existed as early as the start of the 20th century. Thus, in medical malpractice cases, it is often necessary to bring in an out-of-town doctor who is familiar with the medical standards of the area in which the defendant doctor was practicing.
Doctors charge high fees to review medical records to determine whether or not there was malpractice, and their fee for testimony at a deposition or trial is exorbitant. Indeed, some doctors make a very lucrative living just acting as experts in medical malpractice cases. It is much easier for the defendant doctor—whose malpractice insurance carrier is paying the bills—to get doctors to testify on his behalf.
Millions of Californians and out-of-state visitors annually visit the Golden State’s permanent amusement parks, such as Disneyland, Magic Mountain, Universal Studios, and Knott’s Berry Farm, and go on amusement rides. In addition to visiting permanent amusement parks, millions of people visit the annual county fairs or other traveling carnivals that bring with them a mobile midway equipped with dozens of amusement rides for young and old. Then there are church fairs and private birthday parties where people rent inflatable slides and “moon bounce” castles for youngsters to frolic on.
Unfortunately, a significant number of people are seriously injured or killed by amusement park or carnival rides that malfunction because of faulty operation; operator inattentiveness or carelessness; faulty design, construction, or maintenance; or lack of warnings regarding the required age, height, weight, and medical condition of a prospective rider.
Some amusement ride users are injured when they are thrown from their car because of the lack of a safety bar or a defective seat belt, or the car itself may detach from the ride causing serious injury to or even death of the riders or other fairgoers who are walking or standing in the area. In some cases, the rider is killed because of a defective ride or the negligence of the owner or operator in inspecting and maintaining the ride every day to ensure its safety.
Sometimes a rider who is injured because the ride isn’t in safe working condition will escape with only a few bumps and bruises. A number of others, however, will lose fingers or toes, a hand or foot, or even an arm or leg if the limb gets trapped in a tight space while the ride is moving. Or they may suffer broken bones, such as in an arm or leg. Some riders who get into an accident with a faulty amusement or recreational ride may sustain an injury to their spinal cord that leaves them paralyzed from the neck down (“quadriplegic”) or paralyzed from the waist down (“paraplegic”). Some riders will be killed due to a defective amusement ride.
At times, riders—especially those who ride the high-speed roller coasters and similar “thrill” rides—suffer traumatic brain injury (TBI, discussed in depth in Chapter 30) as a result of the ride. Severe TBI can result even if the rider didn’t strike his head on anything during the course of the ride. Rather, the force of the violent shaking of some rides is enough to result in severe TBI by causing the rider’s brain to move around and hit the inside of the skull. Often, a person who has ridden on a thrill ride will get off the ride feeling dizzy or nauseous. These are symptoms of possible serious brain injury and the person should be checked out by a physician (not just the park’s nurse) as soon as possible to prevent serious brain injury. (This method of brain injury is the same mechanism that works to cause brain damage in “shaken baby syndrome,” when the child isn’t struck but is violently shaken back-and-forth and from side-to-side.)
There is no single government body that oversees all types of amusement rides throughout the United States. The U.S. Consumer Products Safety Commission (CPSC) has jurisdiction over traveling carnival rides, like the kind that follow county fairs throughout the state. The CPSC does not have jurisdiction over permanent amusement parks or water parks. The CPSC does, however, have jurisdiction over inflatable rides, such as inflatable slides and bounces.
Unlike the federal government, California has many rules and regulations regarding most permanent amusement parks and rides therein to ensure that they are safe and will not subject the riders to an undue risk of harm. The California Division of Occupational Safety and Health (Cal- OSHA) Elevator, Ride & Tramway unit regulates rides and devices at large theme parks, smaller parks, fairs and traveling carnivals, and places offering bungees (see next chapter for more on bungee jumping) or waterslides. Dry slides are explicitly exempt from regulation. Inflatables, whether they are located at a traveling carnival or permanent amusement park, or are rented from a private business, do not meet the definition of amusement ride under California law and therefore are not regulated by the state, but are regulated by the federal CPSC.
For permanent park rides, state inspectors perform an annual records audit, unannounced operational inspections, and physical inspection of the ride each year. In addition, ride owners are required to have a Qualified Safety Inspector certify annually that each ride meets industry standards and state regulations.
All portable amusement rides are inspected before they are originally put into operation for the public’s use and at least once every year thereafter. Additionally, portable rides may be inspected each time they are disassembled and reassembled. Cal-OSHA regulations require all ride owners to report accidents resulting in death or injuries requiring medical attention other than ordinary first aid. As of 2008, portable ride owners must report major mechanical failures and any accident in which a patron falls or is ejected from the ride mid-cycle, regardless of injury.
California law requires the owner/operator of an amusement ride to be familiar with the ride manufacturer’s information on assembling and maintaining an amusement ride and follow the manufacturer’s recommendations, service bulletins, warnings of defective conditions, recalls, etc. Of course, the ride-owner/operator’s failure to read and follow all of the manufacturer’s instructions and warnings regarding the assembly, construction, operation, maintenance, and take-down of an amusement or recreational ride can lead to an injury to or death of riders and provide a basis of carelessness (“negligence”) on the part of the ride’s owner or operator.
In one case, a 23-year-old woman suffered a severe brain injury and eventually died from her injuries several weeks after riding on the Indiana Jones amusement ride at Disneyland in Anaheim. The deceased woman’s estate sued Disneyland, claiming that the woman had suffered serious brain injuries due to the violent shaking and stresses imposed by the ride. The estate alleged that the Indiana Jones attraction utilized jeep-style ride vehicles that were computer-controlled with 160,000 different combinations. The estate alleged that the ride was “fast, turbulent, combining the ups and downs of a roller coaster with jarring jumps, drops, and unpredictable movements,” and that the Indiana Jones attraction shook and whipsawed riders “with such fury that many passengers are forced to seek first aid and in some instances hospitalization.”
The woman’s estate claimed that the ride’s sudden changes in direction could and did cause bleeding in the woman’s brain similar to what happens in “shaken-baby syndrome.” The case was appealed to the California Supreme Court on the question of whether or not the amusement ride was a “common carrier.” The reason for designating a ride as a common carrier goes to the duty of safety (standard of care) the owner/operator of the amusement ride owes its riders. If designated a “common carrier,” the amusement ride owner/operator is held to a higher standard of care than would normally be applied (i.e., ordinary carelessness or negligence). Examples of common carriers are buses, trains, and subways that carry passengers for a fee.
The Supreme Court of California ruled that the Indiana Jones ride met the “common carrier” criteria, despite the fact that it started and ended in the same place and did not transport passengers from one site to another. The fact that a passenger begins and ends the ride in the same place does not mean that she has not been transported. As the California Supreme Court stated in one case, “A tourist in San Francisco who takes a round-trip ride on a cable car solely for entertainment has been transported and is no less entitled to a safe ride than another passenger on the same cable car who disembarks to visit a store or restaurant.”
As a common carrier with regard to its rides, the amusement park, traveling ride owner/operator, or other ride owner/operator owes its riders the highest degree of care for their safety and is legally responsible (“liable”) for all of the costs and expenses caused by even the slightest bit of carelessness (“negligence”) of the ride’s owner/operator. An amusement park or traveling carnival must use the utmost degree of care and diligence for the safe passage of its riders, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. Owners and operators of amusement rides are legally required to do all that human care, vigilance, and foresight reasonably can do under the circumstances.
Owners and operators of amusement rides are liable to their riders for injuries or death if they were even the slightest bit careless (“negligent”) in the operation, maintenance, design, construction, or warnings associated with the ride. Further, the owner or operator of an amusement ride is required to provide vehicles and rides that are safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care.
Roller coasters have been considered “common carriers” in California since at least 1934 when the California Supreme Court so ruled in a personal injury case. In that case, the court described the ride upon which the victim was injured as a “roller coaster” that was “in the nature of a miniature scenic railway consisting of a train of small cars constructed to carry two passengers each.” The owner and operator of a scenic railway in an amusement park is subject, where he has accepted payment from passengers on such railway, to the liabilities of a carrier of passengers generally, i.e., a common carrier. The common carrier’s higher standard of care originated in English common law, and is based on a recognition that the privilege of serving the public as a common carrier necessarily entails great responsibility, requiring common carriers to exercise a high duty of care toward their customers.
The common carrier rule that applies to amusement rides is not limited to roller coasters and high-speed thrill rides. In one case, the court held that the operators of a horse-drawn stagecoach ride at Disneyland were common carriers, and were therefore held to the higher standard of care when the horses became frightened and ran, causing the coach to tip over, injuring the riders. The common-carrier rule was also applied in a personal injury case arising out of the “Pirates of the Caribbean” amusement ride at Disneyland. Several riders were injured when the boat in which they were riding was struck from behind by another boat. The appellate court held that the boat ride came within California’s broad definition of a “common carrier,” as Disneyland offered to carry riders from the mass public and therefore owed the riders the duty of utmost care and diligence.
The operator of a mule train that took passengers from Palm Springs to Tahquitz Falls and back was considered a common carrier and therefore was held to a higher standard of care for protecting his customers from harm. Holding that the mule train was a common carrier, the court concluded: “The only reasonable conclusion to be drawn from these facts is that a person who paid a roundtrip fare for the purpose of being conducted by mule over the designated route between fixed termini, purchased a ride; that the [owner/operator] offered to carry such a person by mule along that route between these termini; and that the transaction between them constituted an agreement of carriage.”
The owner and operator of an amusement ride, be it at a set permanent place, such as Disneyland, or a traveling ride such as the ones that follow county fairs across the state, is required to provide its riders with rides that are “safe and fit for the purposes to which they are put.” This means that the ride and its cars must be in good working condition and are safe to carry riders. For instance, the owner/operator of the amusement or recreational ride owes its customers the duty to ensure that the brakes on the ride are in good working condition so that it will stop at the end of the ride without careening into other cars in front of it, that all cables are in good condition so that the cable pulling a car up a rise doesn’t break, causing the car to travel back downward into another car, and that seatbelts and safety bars are working properly in general and are properly secured by the owner/operator or his employees when a rider sits in the car. The owner/ operator of an amusement ride also has the obligation to inspect the entire ride periodically to see if there are any cracks, failing welds, or other defects in the ride that could fail or break, causing injury to or death of the riders.
Amusement rides have inherent dangers due to speed and mechanical complexities. They are operated for profit and are held out to the public to be safe. They are operated in the expectation that thousands of visitors, many of them children, will occupy their seats. Riders of roller coasters and other thrill rides seek the illusion of danger while being assured of their actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt. The rule that carriers of passengers are held to the highest degree of care is based on the recognition that “to his diligence and fidelity are entrusted the lives and safety of large numbers of human beings.” The California Supreme Court has stated that this rule applies equally to all common carriers, be it an amusement park ride or a bus, airplane, train, or other form of transportation.
Each year, inflatable rides account for approximately 5,000 users being injured or killed nationwide. Inflatable slides and bouncy castles of the type one might find at a church fair or a private birthday party are not subject to the “common carrier” rule, as they do not transport the users. Nevertheless, the owner/operator of the inflatable attraction has the obligation to use reasonable care in ensuring the inflatable is safe for use and is required to maintain, erect, and operate the attraction in a reasonably safe condition to prevent users of the inflatable from an undue risk of harm.
For instance, if the inflatable is improperly erected and secured, or is old and worn, if it deflates causing a user to suffer injuries—such as broken bones or head or brain injuries—the company that rented, erected, maintained, or operated the ride may be legally responsible (“liable”) for the user’s injuries or death. The owner/operator of the inflatable is required to give the renter of the inflatable complete instructions on the proper use of the inflatable and any warnings as to how it should not be used or weight limits to protect the users from undue harm.
If the owner/operator of the inflatable attraction fails to use due care in setting up the inflatable, making sure that it is properly secured to the ground so that is does not move around or can be blown over by the wind, and is properly inflated, she can be liable for all injuries and damage caused by her negligence. An inflatable castle or other “moon bounce” attraction must be securely anchored so that a gust of wind will not blow it over, causing injuries to or death of the users. Sometimes the inflatable will suddenly deflate, causing the users to fall hard to the ground, suffering broken limbs, internal injuries, and traumatic brain injury, even death.
If you have been injured on an amusement park ride, on a traveling carnival ride, or at a private birthday party or other event that rented defective rides and inflatables, you should seek medical attention as soon as possible. That dizziness or headache you feel after a thrill ride may be symptomatic of a traumatic brain injury that requires immediate treatment. Pain in the back or limbs should be evaluated as soon as possible at the nearest emergency department to ensure that no bones are broken. Be aware that if you injured your neck or back and cannot move your legs or arms, or having tingling in your hands or feet, you should not move or be moved but rather call the paramedics right away and stay immobilized until they arrive. The paramedics will properly secure you to a hard spine or cervical board before transporting you to the hospital. If your spine is not immobilized properly before you are taken to the hospital, your spinal cord could be injured further resulting in serious injury, such as quadriplegia or paraplegia. (This type of injury is discussed in detail in Chapter 29.)
If you have been injured or a loved one killed in an amusement ride accident, you should contact an experienced personal injury lawyer as soon as possible. This gives the lawyer the chance to see the accident scene and check out the ride before the owner/operator has the chance to make any modifications to it. Hiring a lawyer immediately is especially important when you have been injured by an amusement ride at a traveling midway or carnival so the lawyer can send out his investigators before the ride has been dismantled and moved to another part of the state or country, resulting in the loss of key evidence.
Suppose that you’re playing in a friendly game of pickup basketball at your local park. Another player misses a shot and you go for the ball on the rebound. However, a player on the opposing team goes after the ball, too. The other player starts flailing his arms and hits you in the eye with an elbow, causing you to become blind in that eye. Can you sue the other player for the lost vision in your eye and all that comes with it? Well, you can sue him but you won’t win.
According to the California Supreme Court, careless conduct (“negligence”) by other players is an inherent risk in many sports, and holding co-participants liable for resulting injuries or deaths would discourage vigorous competition. The California Supreme Court held that those involved in a sporting activity do not have a duty to reduce the risk of harm that is inherent in the sport itself. They do, however, have a duty not to increase that inherent risk through behavior that is intentional or is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.”
Whether a person assumes the risk of being injured depends on the nature of the sport or activity in question and the person’s relationship to that activity. In the context of sports, the question turns on whether a given injury is within the “inherent risk of the sport.” Conduct is totally outside the range of ordinary activity involved in the sport if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.
In a landmark case, a player carelessly knocked over a co-participant and stepped on her hand during a touch football game. The California Supreme Court ruled that the conduct was an inherent risk of the sport and therefore rejected the injured player’s complaint for monetary damages on the basis that she had assumed the risk of being injured. The Court reasoned that vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his ordinary careless conduct.
By choosing to participate in the sport, a person assumes that level of risk inherent in the sport. In a sports context, a court does not look at which risks a particular participant subjectively knew of and chose to encounter. Rather, the court evaluates the fundamental nature of the sport and the offending player’s role in or relationship to that sport in order to determine whether the player owed a duty to protect a participant from the particular risk of harm.
The degree of the risk anticipated varies from sport to sport. While in prize fighting bodily harm is expected, the fighters do not consent to or assume the risk of being stabbed or shot in the ring. At the other extreme, in bridge or table tennis, bodily harm is not contemplated at all. As one court stated: “The correct rule is this: If the defendant’s actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants—such as blocking in football, checking in hockey, knock-out punches in boxing, and aggressive riding in horse racing—no cause of action can succeed based on a resulting injury.”
For example, in baseball, a batter is not supposed to carelessly throw the bat after getting a hit and starting to run to first base. However, the “assumption of risk” doctrine recognizes that “vigorous bat deployment” is an integral part of the sport of baseball and a risk players assume when they choose to participate. Especially in the heat of competition, and in an effort to get to first base quickly, a batter may be careless in getting rid of the bat. However, under the assumption of risk doctrine, the hitter does not have a duty to other players or spectators to avoid carelessly throwing the bat after getting a hit.
There would be a chilling effect on players participating in the sport that would result from imposing liability on players for ordinary careless conduct. The California Supreme Court stated that “even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity.” Accordingly, the California Supreme Court has held that co-participants’ limited duty of care is to refrain from intentionally injuring one another or engaging in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.
It doesn’t make a difference if one of the participants is penalized for such actions by the officials. Routine rule violations, such as clipping in football, low blows in boxing, and fouls in horse races are common occurrences and within the scope of the athletes’ expectations. In an intercollegiate baseball game, a pitcher on the Rio Hondo Community College team hit a batter on the Citrus Community College team with the throw of a baseball. The next inning, the Citrus pitcher allegedly retaliated by hitting a Rio Hondo batter with a “beanball.” The Rio Hondo player sued the Citrus Community College District for negligence. The California Supreme Court ruled that the suit was barred by the assumption of risk doctrine, stating that while it is against the rules of baseball to intentionally throw at a batter, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball. The Court commented that it is not the function of personal injury (“tort”) law to police such conduct.
As for non-contact sports such as golf, the California Supreme Court held that the “assumption of risk” doctrine applies and that being struck by a carelessly hit golf ball is an inherent risk of the sport. In determining whether the defendant acted recklessly, the trier of fact (i.e., the jury) must consider both the nature of the game and the totality of circumstances surrounding the shot. In making a golf shot, the player focuses on the ball, unlike other sports in which a player’s focus is divided between the ball and other players. That is not to say that a golfer may ignore other players before making a shot.
Ordinarily, a golfer should not make a shot without checking to see whether others are reasonably likely to be struck. Once having addressed the ball, a golfer is not required to break his concentration by checking the field again. Nor must a golfer conduct a head count of the other players in the group before making a shot. Many factors will bear on whether a golfer’s conduct was reasonable, negligent, or reckless. Relevant circumstances may include: (1) the golfer’s skill level; (2) whether topographical undulations, trees, or other impediments obscured his view; (3) what steps he took to determine whether anyone was within range; and (4) the distance and angle between a plaintiff and defendant.
In one case, a student rock climber was killed after a fall allegedly caused by his instructors’ improper placement of rope anchors. The court rejected the survivors’ lawsuit, stating that “Falling, whether because of one’s own slip, a co-climber’s stumble, or an anchor system giving way, is the very risk inherent in the sport of mountain climbing and cannot be completely eliminated without destroying the sport itself.” That court further found that the defendant met the burden of proving that the climber was not taken beyond his level of experience and capability in the activity culminating in his fall, and that the risk to him was not beyond that inherent in any climbing activity.
A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is totally outside the range of the ordinary activity involved in teaching or coaching the sport. A 14-year-old novice on a school swim team broke her neck during a meet when she executed a practice dive into a shallow racing pool located on school property. The California Supreme Court held that the case should go to trial as a jury could find that the coach’s conduct was reckless in that it fell totally outside the range of ordinary activity involved in teaching or coaching the sport.
The injured girl presented evidence of the coach’s failure to provide her with training in shallow-water diving, his awareness of the girl’s intense fear of diving into shallow water, his conduct in lulling the girl into a false sense of security by promising that she would not be required to dive at competitions, his last-minute breach of this promise in the heat of competition, and his threat to remove her from competition or at least from the meet if she refused to dive. The girl’s evidence also supported the conclusion that the maneuver of diving into a shallow racing pool, if not done correctly, posed a significant risk of extremely serious injury, and that there is a well-established mode of instruction for teaching a student to perform this maneuver safely. The court found that the evidence presented by the injured girl raised a disputed issue of fact as to whether the coach provided any instruction at all to the girl with regard to the safe performance of such a dive, as well as to the existence and nature of the coach’s promises and threats. Thus, the court concluded the girl was entitled to a trial in front of a fair and impartial jury and her lawsuit should not be thrown out.
In the context of snow skiing, the courts have held that the participant assumed the risk of being injured by moguls on a ski run, snow covered stumps, variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and many other hazards which must be considered inherent in the sport of skiing. Generally, a skier is not liable for running into another skier, because it is not done recklessly or deliberately, but is usually the result of mere ordinary carelessness (negligence). However, while inadvertent collisions are an inherent risk of skiing and therefore assumed by the participants, a skier does not assume the risk that other skiers will ski while intoxicated. The increased risks of injury created by the consumption of alcohol are not inherent in the sport of skiing.
However, not all risks of being injured while using the slopes are assumed. For instance, a skier who was struck and injured by a runaway snowboard that was not equipped with a retention strap was not barred from suing the careless snowboarder. The court held that the assumption of risk doctrine was not an absolute bar to recovery on the facts presented, as the jury could find that the lack of a retention strap increased the risk of harm to the victim beyond what was inherent in the sport of skiing.
Although a snow skier or snowboarder assumes the risks inherent in the activity, that does not include assuming the risk that he may be injured by a defective chair lift. A snow skier or snowboarder puts his life and limbs in the hands of the owner or operator of a chair lift, gondola, or tram that takes people up to the top of the mountain. In California, a chair lift or tram is deemed to be a “common carrier” of skiers and others up (or down) the hill. As such, it owes its riders the duty of utmost care and diligence. A cable car company that, for a fee, shuttles sightseers up the snowless slopes of a mountain for downhill bike riders, sightseers, and others is a common carrier, too.
A commercial operator of a horse-riding facility has the duty to supply horses that are not unduly dangerous, to warn patrons renting a given horse of its predisposition to behave in certain ways which add to the ordinary risk of horse riding, to not provide faulty saddles, and to not provide dangerous trails. Being cut by the blade of another skater during a group figure skating session is an inherent risk of the sport, and the injured skater cannot recover for personal injuries under the doctrine of “primary assumption of risk.”
Bungee jumping is a popular pastime for many people who want to feel the experience of flying and the freedom it brings. Unfortunately, sometimes the bungee cord is not secured properly, or otherwise fails to stop the rider’s fall, causing the rider to free-fall a total of hundreds of feet, resulting in serious injuries, even death. Owners and operators of bungee jumping companies must check out the bungee cord regularly to ensure that it is still safe and sound. The person who is actually securing the bungee cord to the stationary surface—such as a bridge—must make sure that the bungee cord is properly fastened and will not slip or break when the person stretches the bungee cord to the limit, putting the most pressure on the site where the bungee cord is secured.
The operator must also make sure that the bungee cord and equipment are property fastened to the jumper’s leg and foot, ensuring that it will not break or the jumper’s leg will not come out of the equipment. Often, a person who participates in a bungee jump is given a “written release of liability” or waiver to sign, in which she promises not to sue the bungee-jumping company if she is injured in the jump, even if the injury is due to some carelessness (negligence) on the bungee-jumping company’s part. Such releases of liability, sometimes called a waiver, are discussed below.
Although a person may be barred from recovery on the basis that he assumed the risks inherent in the sport, one risk that is not assumed is that the playing field or course has been negligently designed, thereby increasing the risk of harm to the participant beyond those that are inherent in the sport. This was the case in a lawsuit that involved a 17-year-old boy who was injured while racing his bicycle on the defendant’s bicycle motocross (BMX) course. By its nature, BMX racing includes bumps, jumps, turns, straightaways and obstacles. The boy was injured on the “million dollar jump,” which consisted of two bumps joined together in a saddle-like configuration.
Both parties (the victim and the BMX operator) submitted declarations of experts that conflicted on the cause of the injury. The injured boy’s expert stated that the “million dollar jump” was defectively designed in that the slope of the first hill of the jump led to the accident as it was too steep and caused the rider’s center of gravity to rise too abruptly. The BMX operator’s expert witness submitted a declaration in which he stated that the jumps at the BMX park were of the type that could be expected at any BMX track. The court held that there is a duty to refrain from using BMX jumps that by design pose an extreme risk of injury, and it was a question of fact for the jury to decide whether that duty was breached by virtue of the design of the million dollar jump.
The court stated that it is not unreasonable to expect a BMX course to refrain from utilizing jumps that by design create an extreme risk of injury. Certainly the jumps and falls are inherent to the sport, and there is no duty to eliminate the jumps entirely. Nor is there a duty to protect a participant from injury arising from reasonably designed jumps. However, the sport does not inherently require jumps that are designed in such a way as to create an extreme risk of injury. The court concluded that a duty to exercise due care is owed to a bicycle racer injured on a bicycle jump that by its design creates an extreme risk of injury.
Likewise, a golfer assumes the risk that she may be hit by an errant golf ball; however, she doesn’t assume the risk that the golf course has been negligently designed in such a way that increases the risk of being injured beyond what is reasonably expected.
Before you are allowed to participate in a recreational activity—be it rock climbing, horse riding, participating in a baseball league, a bicycle race, a running marathon, bungee jumping, or parachuting, for example—you may be asked to sign a written “express release of liability” (also known as a “hold harmless” contract, a waiver agreement, or an exculpatory clause). An express release of liability is an assumption of risk by which you, in advance, take your chances of injury from known (and sometimes unknown) risks arising from what the other party is to do or leaves undone. A well-drafted release relieves the other party of his legal duty to you; that is, he cannot be held liable to you even if he was careless (“negligent”). However, a release that does not clearly and unambiguously inform an ordinary person untrained in the law that its purpose and effect is to relieve the owner/ operator of the business of responsibility is not enforceable and will not bar a lawsuit by a person who was injured by the other party’s negligence.
A release—no matter how well written—cannot relieve the party from wrongdoing more serious than negligence, such as gross negligence, recklessness and intentional misconduct. Although the release agreement is usually given on a take-it-or-leave-it-basis, and you have no negotiating or bargaining power, the release is valid unless it involves the “public interest.” However, California courts have uniformly refused to find a public interest or invalidate releases from liability for ordinary negligence for injuries that occur in the context and course of sports and recreational activities.
Just because you may have signed a release or received a pass or ticket with a waiver or release written on it does not necessarily mean that you are out of luck. To be effective to relieve a party from future carelessness or misconduct, the release must be clear, explicit, and comprehensible in each of its essential details. If the language is ambiguous or convoluted so that it does not clearly notify you that you cannot sue the party even if he was negligent, the release is invalid. If the release is printed in fine print on a portion of a document you are not likely to notice, the release may not apply. Under contract law, if there is any ambiguity about the meaning of a word, phrase, sentence, or entire paragraph, it is construed against the party that drafted the release.
A release that was both broad and explicit and through which a rock climber not only expressly acknowledged and assumed “all the risks” of rock climbing activities, both known and unknown, “whether caused or alleged to be caused by the negligent acts or omissions” of the rock climbing facility was enforceable and provided a complete defense to the lawsuit filed by a seasoned rock climber who was injured in a fall.
Foul balls hit into the spectators’ area clearly create a risk of injury at baseball games. But if such foul balls were to be eliminated, it would be impossible to play the game. Thus, the risk of being hit by a foul ball is an inherent risk to spectators attending baseball games. The owner of a baseball stadium has no duty to protect spectators from the natural hazards generated by the way in which the game itself is played. In determining whether an individual should be compensated for her injury and in crafting a rule that would permit or reject such compensation, there is a group of persons other than the immediate parties whose interests are worthy of consideration. Those are the literally millions of persons who attend baseball games all over the country.
In one lawsuit by a spectator who was hit by a foul ball, the court stated: “As we see it, to permit plaintiff to recover under the circumstances here would force baseball stadiums to do one of two things: (1) place all spectator areas behind a protective screen thereby reducing the quality of everyone’s view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or (2) continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be ‘priced out’ of enjoying the great American pastime. To us, neither alternative is acceptable. In our opinion it is not the role of the court to effect a wholesale remodeling of a revered American institution through application of [personal injury] law.”
One of the natural risks assumed by spectators attending professional baseball games is that of being struck by batted or thrown balls. The management is not required, nor does it undertake to insure patrons against injury from such sources. All that is required is the exercise of ordinary care to protect patrons against such injuries, and in doing so, the management is not obliged to screen all seats because many patrons prefer to sit where their view is not obscured by a screen. Moreover, the management is not required to provide screened seats for all who may apply for them. The duty imposed by the law is performed when screened seats are provided for as many as may be reasonably expected to ask for them on any ordinary occasion.
If a spectator chooses to occupy an unscreened seat or is unable to obtain a secured seat and consequently occupies one that is not protected, she is considered to be sufficiently warned of the risk of being hit by a foul ball or a thrown or broken bat by common knowledge of the sport, and assumes the risk of being struck by thrown or batted balls. If such a spectator is injured thereby, she is barred from recovering damages therefor. The courts reason that a person who fears being injured always has the option of not attending a baseball game or sitting in a part of the park that is out of reach of balls traveling with enough speed to cause them harm.
One woman who was an ardent Los Angeles Dodgers’ fan was injured when she was struck in the head by a foul ball and filed a lawsuit to recover the costs and expenses of her injuries and other damages. The court held that the woman had impliedly consented to take her own chances that she would not be injured by voluntarily electing to sit in a seat that was clearly unprotected by any form of screening. The court stated that, rather than request a seat in a section where injury was unlikely to occur, the woman chose to accept a highly sought after seat, close to the “sphere of action,” where the likelihood of foul balls entering the stands remained a possibility. She was sufficiently warned of the risk by the common knowledge of the nature of the sport and by the warning provided on the back of her ticket. Thus, the court concluded that the Dodgers were under no duty to do anything further to protect her from that hazard.
However, not all risks of being hit by a foul ball are necessarily assumed by the spectators. A spectator at a minor league professional baseball game was sitting in an uncovered section of the stadium when a foul ball struck him in the face. Immediately before being hit, the team’s mascot (a man dressed in a dinosaur costume as a character named “Tremor”) was behind the victim and the mascot’s tail was hitting the victim on the head and shoulders. The victim turned to see what the mascot was doing, and as he was turning back around to face the field, a foul ball hit him before he could react to it. The court agreed with the general rule that the risk of being hit with a foul ball was inherent in the sport of baseball and such risk was therefore assumed by spectators.
However, the court found that in this case the antics of the mascot may have increased the inherent risk to the victim and was a question of fact for the jury to decide at a trial. The court noted that the antics of a mascot were not an essential or integral part of the playing of a baseball game, and the game could be played in the absence of such antics. Indeed, the person who dressed up as the mascot submitted a sworn written statement (a “declaration”) that there were occasional games when he had not been there, but the game was nevertheless played.
Of course, if a person chooses to sit in a seat that is protected by a screen, but the screen turns out to be defective and lets a foul ball through to hit and injure the spectator, the spectator may have the right to sue the owner/operator of the stadium for her injuries.
The rule against spectators being hit by flying debris does not apply solely to baseball stadiums. A woman was injured when, during pre-game warm-ups at a Los Angeles Kings ice hockey game, a puck flew off the ice and struck her in the mouth. The woman claimed that the “assumption of risk” doctrine did not apply in her case. She asserted that while the risk of being hit by a puck at an ice hockey game is an assumed risk, the risk of having her view blocked by large groups of spectators congregating near the ice so she could not see the playing surface or the puck was not an inherent risk of the game. The court denied her claim, stating that just as baseball stadium owners owe no duty to eliminate the risk of injury from foul balls, the owner of an ice rink owes no duty to eliminate the inherent risk of injury from flying pucks during a hockey game or warm-ups.
As for the injured spectator’s contention that she did not assume the risk that her view would be blocked by groups of people mulling around in front of her, the court held that obstructions of view caused by the unpredictable movements of other fans are an inherent and unavoidable part of attending a sporting event. The court noted that views are blocked whenever fans spontaneously leap to their feet or move to and from their seats.
Aircraft accidents—whether it’s a four-seat private small plane or a commercial jumbo jet—can present difficult questions of fact and law regarding whether the owner and/or operator of the plane is legally responsible (“liable”) for injuries or death arising from his carelessness or the carelessness of his employees. And even if the owner or operator of the aircraft is liable for the injuries, there may be laws that limit the amount of money the injured passenger or the survivors of a passenger who was killed can recover.
Hundreds of thousands of Americans own small aircraft that they use for pleasure flying, attending fly-ins with airplane clubs, and taking vacations, among other things. Suppose your friend owns a small plane and asks you if you’d like to go for a ride. You enthusiastically agree. However, while in mid-flight, there is a problem with the engine and it stops the propeller from turning, and you crash land. Can you sue your friend for injuries you suffered in the crash? Or in the case of fatal injuries, can your loved ones sue your friend’s estate for your “wrongful death”?
A privately-owned noncommercial plane owner does not regularly charge a fee for transporting persons—whether the flight is just for a couple of hours of sightseeing or your friend is taking you from one place to another— and she is considered a “private carrier.” As such, your friend has the legal obligation (“owes you a duty”) to use ordinary and due care in making sure the plane is airworthy and that she is qualified and fit to be at the controls and not make any careless errors that would result in the passenger’s harm or death. In legalese, the “standard of care” applicable to private pilots flying pleasure craft is one of “ordinary care” for the safe transportation of their passengers. Ordinary care is that degree of care that an ordinarily prudent person would use under like circumstances when charged with a like duty. Ordinary negligence is a lack of due care; and due care means commensurate care, under the circumstances, tested by the standard of reasonable prudence and foresight.
The pilot of the small plane must perform a careful and thorough pre-flight inspection of the plane to ensure that it is indeed safe to fly, i.e., airworthy. She must also be familiar with the weather conditions on the route to your destination. If the pilot is qualified to fly only under visual flight rules (VFR), she must avoid flying into a storm, fog, or other inclement weather that requires an instrument flight rating and the appropriate instruments, indicators, and gauges in the plane to allow her to fly under instrument flight rules (IFR).
Because small planes are not required to have cockpit recording devices or flight data recorders, it may be more difficult to pinpoint the cause of a small plane’s crash than the crash of a commercial airliner. However, the National Safety and Transportation Board (NSTB) has jurisdiction over investigating accidents of planes of all sizes, and can often determine the cause of the accident.
Commercial aviation involves transport “for compensation or hire.” This includes airlines, commuter airplanes, and charter aircraft, but does not include corporate aircraft or privately owned airplanes. Commercial flying is considered to be one of the safest—if not indeed the safest—means of transportation going. You have a much greater chance of being injured in an automobile accident on your way to the airport than you do of being involved in a commercial aircraft accident. Unfortunately, when there is a commercial aircraft accident, it tends to be a major disaster resulting in tens, even hundreds of injuries and deaths and significant property damage.
When a commercial aircraft is involved in an accident that results in loss of life or serious personal injuries, there may be a number of possible defendants who may be legally responsible (“liable”) for the injuries or death. First there is the airline company itself. Because commercial airliners offer to the general public to carry goods or persons and are bound to accept anyone who offers to pay the “price of carriage” depending on seat availability, they are considered by law to be “common carriers.”
As a common carrier, an air carrier and its employees are required to use the “utmost due care and diligence” for the safe passage of, and to prevent injuries to, its passengers, and it can be held financially responsible for injuries resulting from even its slightest carelessness (“negligence”). Commercial airlines are bound to do all that which with human care, vigilance, and foresight, they can reasonably do under the circumstances to protect their passengers from harm. “Passengers” include not only persons who are on board the aircraft when it crashes, but also passengers who are injured or killed while getting on (“embarking”) or off (“disembarking”) the plane. However, as to other planes and persons who are not passengers, the airliner owes them only the ordinary standard of care, that is, the duty not to expose them to an unnecessary risk of harm (ordinary negligence).
A common carrier is one who holds himself out to the public as engaged in the public business of transporting persons for compensation from place to place, offering its services to those members of the public generally who choose to employ it and pay its charges. The distinctive characteristic of a common carrier is that it undertakes to hold itself out to the public, either expressly or as a course of conduct, as a business to carry for hire on a uniform tariff all persons wanting transportation, so long as it has the room to accommodate them.
“Holding oneself out to the public” means that the carrier in some way makes it known to its prospective patrons the fact that its services are available. This may be done in various ways, as by advertising, solicitation, or the establishment in a community of a known place of business where requests for service will be received. However the result may be accomplished, the essential thing is that there must be a public offering of the service, or, in other words, a communication of the fact that service is available to those who may wish to use it.
For a transporter of passengers such as an airplane to be a common carrier, it is not necessary that it have a regular schedule of flights, a fixed route, or a relatively unlimited carrying capacity. For example, a carrier that provides air transportation may limit its operations solely to charter flights and still be legally considered to be a common carrier. Important factors used to determine whether an operation is a common carrier include an established place of business, engaging in the operation as a regular business and not merely as a casual or occasional undertaking, and a regular schedule of charges.
To be a common carrier, it is not necessary for the carrier to leave one place and transport its passengers to another place. A sightseeing tour that embarks from and returns to the same point can be considered a common carrier. Hence, an airplane pilot who offered sightseeing flights to the ocean and back was held to be a common carrier, even though the flights took off and landed at the same airport. Similarly, a company that provides sightseeing helicopter rides for a fee is a common carrier, even though it takes off and lands at the same helipad. Commercial hot air balloons that advertise or otherwise promote their business of sightseeing trips from Point A to Point B are also considered common carriers.
Although common carriers must use the utmost care and diligence for its passengers’ safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill, a common carrier is not an insurer of its passengers’ safety, giving them an absolute guarantee that nothing will go wrong and they will not be injured or killed in any way whatsoever.
The airline, as a common carrier, is also legally required to provide vehicles (in this case, aircraft) that are safe and fit for the purpose to which they are put, and is not excused for default in this respect by any degree of care. Also, the passenger’s motive for seeking transportation is not relevant in determining the carrier’s liability. The common carrier owes the same high duty of utmost care whether the passenger rode for pleasure or business. A passenger’s purpose in purchasing transportation, whether it be to get from one place to another or to travel simply for pleasure or sightseeing, does not determine whether the provider of the transportation is a carrier for reward. Undisclosed purposes on the passengers’ part do not affect the duty of the common carrier to exercise the highest degree of care for the safety of the passenger.
The major causes of a commercial aircraft accident are:
The airline company may be held responsible for the errors of its pilots in operating the aircraft, its maintenance crew for failing to maintain the aircraft properly or failing to detect a crack or other structural problem with the aircraft, or its employees for improperly loading or over loading the aircraft. The manufacturer of the aircraft or supplier of a component part may be held liable under the doctrine of “strict products liability” (discussed in Chapter 21, “Defective Products”) for any and all defects in the manufacture or design of the plane or its defective parts that caused or contributed to the accident. Similarly, the United States government may be liable where the accident is due to the negligence of one or more of its employees, usually the air traffic controllers. In a collision with another aircraft, the other aircraft may be sued if its pilots were negligent in failing to avoid the crash.
An all-too-frequent yet completely preventable cause of injuries and deaths in aircraft accidents involve “runway incursions.” The FAA defines a runway incursion as “any occurrence at an airport involving an aircraft, vehicle, person, or object on the ground that creates a collision hazard or results in loss of separation with an aircraft taking off, intending to take off, landing, or intending to land.” Runway incursions are frequently the result of the carelessness (“negligence”) of air traffic controllers in managing the flow of air traffic on the ground.
Research has shown that the first three minutes of a flight and the last eight are when about 80 percent of airplane accidents take place. This is often referred to as the rule of “Plus Three/Minus Eight.”
A professor in England analyzed the seating charts of more than a hundred plane crashes and interviewed 1,900 survivors and 155 cabin-crew members. He found that the people most likely to survive a plane crash are those sitting right next to the exit row or one row away. He discovered that survivors usually move an average of five rows before they can get off a burning aircraft. The professor’s study concluded that beyond a five-row cutoff from the exit, your chances of surviving an aircraft fire are greatly reduced.
The National Traffic Safety Board (NTSB) is the governmental agency vested by Congress with the power to investigate all civilian aircraft accidents, whether it be a major airline disaster involving hundreds of deaths or a small, single-engine plane that goes down. Since its creation in 1967, the NTSB has investigated over 115,000 civilian aircraft accidents. After it has made a thorough investigation of the accident, the NTSB releases its report identifying the cause(s) of the crash—if a cause can be determined—and issues safety recommendations designed to prevent future accidents from the same cause.
In conducting its investigation, the NTSB gathers data from the plane’s cockpit voice recorder and flight data recorder if the aircraft was equipped with them. In major air disasters, the NTSB attempts to piece together the remaining parts of the plane in a hangar or other facility to try to reconstruct the plane and find the cause of the accident. The Federal Aviation Administration (FAA) usually also takes part in the investigation to determine what accident prevention steps it should implement to prevent another occurrence of the same cause. The FAA provides the NTSB with technical advice about the aircraft and flight conditions as well.
Commuter planes and regional jets are generally mid-sized planes that connect smaller cities with large ones having major airports. On February 12, 2009, during Continental Connection Flight 3407, a flight operated by Colgan Air under contract to Continental, a commuter turboprop crashed into a home outside Buffalo, New York, killing 50 people—45 passengers, four crew members, and one person on the ground in the house. The plane involved was a Bombardier Dash 8 Q400, a 74-seat twin-engine, mediumrange turboprop airliner. The plane was less than one-year-old and had flown for only about 1,500 hours.
Early speculation was that a buildup of ice on the wings was the most probable cause of the tragedy. However, approximately a month and a half after the disaster, the NTSB investigators stated that ice was not the likely cause of the crash and that it was looking at the actions of the pilot immediately before the crash. It was reported that the Flight Data Recorder indicated that the pilot’s control column—basically the device used to steer the plane—moved sharply backward, pitching the nose of the turboprop upward, causing the aircraft to stall. It is hard to recover from a stall like this, and the crew had only 1,600 to 1,800 feet to do so before the plane hit the ground. This was the deadliest American disaster in more than five years.
A fairly recent crash involving a commuter aircraft happened in the early morning hours of August 27, 2006. During Comair Flight 191, marketed as Delta Connection Flight 5191, a 50-seat Bombardier Canadair Regional Jet CRJ-100ER bound for Atlanta crashed while trying to take off from Blue Grass Airport in Fayette County, Kentucky, four miles west of Lexington. Forty-nine of the 50 occupants of the plane perished in the crash, with only the first officer (the copilot) surviving the crash.
In the Comair disaster, Flight 5191 was cleared for take-off on Runway 22. However, for some reason, the aircraft attempted to take off on Runway 26, a much shorter runway. The aircraft ran off the end of the runway, crashed through the airport perimeter fence, and came to rest in trees on an adjacent horse farm. The aircraft was destroyed by impact forces and a post-crash fire. The NTSB determined that the probable cause of the disaster was the flight crew’s failure to use available cues and aids to identify the aircraft’s location on the airport surface during taxi, as well as their failure to cross-check and verify that the aircraft was on the correct runway before take-off. Contributing factors were the flight crew’s non-pertinent conversations during taxi, which resulted in a loss of positional awareness and the FAA’s failure to require that all runway crossings be authorized only by specific air traffic control clearances.
In 1993, a commercial jet at Blue Grass Airport was cleared for take-off on Runway 22 but mistakenly went to the shorter Runway 26 instead. Fortunately, tower personnel noticed the mistake and cancelled the aircraft’s take-off clearance just as the crew realized their error. The aircraft subsequently made a safe departure from Runway 22. On September 1, 2006, the FAA issued a Safety Alert for Operators (SAFO), titled “Flight Crew Techniques and Procedures that Enhance Pre-takeoff and Takeoff Safety.” This alert highlights existing FAA aircraft ground operation guidance and reminds flight crews that maximum attention should be placed upon maintaining “situational awareness” during taxi operations.
A domestic flight is one entirely within the United States with no stopovers in another country, whether for refueling or to let off or take on passengers. Unlike crashes involving international flights, passengers on domestic flights do not face any limitations on the amount of recovery the passengers can receive for their injuries or the survivors’ can receive for the death of their loved one. Additionally, an injured passenger on a domestic flight can recover damages for purely emotional and mental injuries without having to prove any accompanying bodily injury, as she must do to recover such damages on an international flight.
When a passenger on a domestic commercial flight is killed in a crash, it may be possible for her next of kin to bring a “survival” action to recover monetary damages for the pain and suffering and mental anguish she experienced from the time she realized that something was seriously wrong with the flight until the time of her death.
When a commercial aircraft crashes causing a loss of life or serious injuries, the air carrier and its insurance company will usually contact the injured passenger or next of kin right away and provide immediate medical or grief support. The airliner will often pay for the hotel costs of a deceased passenger’s next of kin and help make and pay for funeral arrangements. The air carrier’s representative or its insurance company’s agent will frequently tell the survivors that there is no need for them to obtain a lawyer to represent them, as they will do right by them.
The insurance company may offer to pay what appears to the family to be a fair settlement. Do not accept any settlement offer from an insurance company without the advice of a skilled and experienced aviation accident lawyer. The grieving family is susceptible to accepting a much lower offer than an experienced aviation lawyer can get for them. Although the airliner or its insurance company will try to dissuade you from getting a lawyer saying that a lawyer’s fee will come out of your share, the truth is that studies consistently show that victims of accidents end up with more money in their pockets even after paying the lawyer his fee.
An experienced personal injury law firm can also help with seeing to it that you obtain appropriate and thorough medical care for your physical, emotional, and psychological injuries suffered as a result of the accident. They can also do everything possible to ensure that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, psychological injuries, loss of society, affection, and comfort, and all of your other injuries and damages.
If you are injured or a loved one killed in an international flight, your rights are much more complicated than if you or your loved one was flying on a domestic flight. Up until 1997, the maximum recovery for damages due to injuries to or death of a passenger on an international flight was $75,000. This limit came from a series of treaties and agreements between airline companies and was known as the “Warsaw System.”
In 1929, a treaty was formed in Warsaw, Poland that was intended to protect the new air industry from having to pay excessive damages in the event of an accident. Under its terms, the maximum amount an injured passenger or the family of a deceased passenger could recover was 125,000 francs (about $8,300 in U.S. currency at the time), unless the injury or death was caused by the “willful misconduct” of the airline or its employees, something that was extremely difficult to prove. According to the terms of the Warsaw Convention, an air carrier could escape liability by proving that it took “all necessary measures to avoid the damages or it was impossible for him or them to take such measures.”
In return for the limitation on the amount of money the air carrier would have to pay to compensate injured passengers or families of deceased passengers, the Warsaw Convention created a basis of liability (a “cause of action”) and established a presumption of air carrier liability for passenger death or bodily injury resulting from an accident occurring while the passenger was on board the aircraft or was in the process of embarking or disembarking the aircraft.
In 1955, the Hague Protocol increased the limit of liability to approximately $20,000. Then in 1966, at what is known as The Montreal Agreement, international air carriers agreed to enter into a “special contract” with passengers giving them higher limitations on liability on international flights originating, terminating, or having a connection point in the United States. As a result of the Montreal Agreement, the damage amount on such international flights was raised to $75,000. The air carriers also agreed not to invoke the defense of having taken “all necessary measures,” and they agreed as well that the $75,000 limitation would not apply if the airline or an employee engaged in willful misconduct that injured or resulted in the death of a passenger.
The Warsaw System led to some unfair results. Suppose two women were sitting side-by-side in an airliner. The plane was traveling from Los Angeles to London with a stopover in Bangor, Maine. One of the women planned on getting off the plane in Bangor; that was the end of her trip. The other woman intended to fly all the way to London. Now suppose that due to mechanical problems, the plane crashes while flying over the United States, killing all aboard. As for the woman who planned to end her trip at Bangor, Maine, her survivors could bring a wrongful death case against the airline with no limits on the amount of money her survivors could recover. However, as for the passenger who intended to continue on the flight to London, the most her survivors could recover under the Warsaw System was $75,000.
In 1996, some 30 years after the Montreal Agreement, at the urging of the United States, many international air carriers considered whether their liability limits were too low. Finding that to be the case, a number of international air carriers, through the International Air Transport Association (“IATA”) and in cooperation with the United States Department of Transportation, signed a series of agreements designed to change the limits of liability for injured or killed passengers. Over 120 airlines signed the agreement, which removed the $75,000 (U.S. currency) limit of liability and allows passengers to recover full compensatory damages for physical injury or death in an “accident,” according to the laws of the passenger’s “domicile,” which is usually the permanent place of his residence. The IATA Intercarrier Agreement provides that the international air carrier must pay up to 100,000 Special Drawing Rights (SDRs) to each injured passenger or the survivors of a deceased passenger without raising any defenses. (Special Drawing Rights are a mix of currency values established by the International Monetary Fund, and on June 1, 2009, the exchange rate was 1 SDR = 1.548 U.S. dollars.) This is a form of strict or absolute liability, in that the victims need not prove the air carrier was careless or negligent in any way to recover up to 100,000 SDRs. (approximately $154,800.00 U.S. currency). The international air carriers voluntarily waived the Warsaw System limits of liability for passenger injury and death, and allowed victims to make a claim for damages equal to what they could make if it had been a domestic flight. However, the Montreal Agreement continued the prohibition against recovering damages for emotional injuries and mental distress and anguish without some type of physical injury. It also continued the rule barring the recovery of punitive damages from the air carrier.
Then, in 1999, came The Montreal Convention for the Unification of Certain Rules for International Carriage by Air. The Montreal Convention is the new uniform and exclusive recovery method for applicable recoveries and purports to replace the entire patchwork Warsaw System. The Montreal Convention applies to all “international carriage” of persons, baggage, or cargo performed by the aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
Paragraph 1 of Article 17 of the Montreal Convention states that “[t]he carrier is liable for damages sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
The Montreal Convention of 1999 sets up a two-tiered system of liability: The first tier requires the air carrier to pay up to 100,000 Special Drawing Rights (SDRs) regardless of whether or not the air carrier was negligent or otherwise at fault in any way. All the injured passenger or survivors of a deceased passenger need prove is that the passenger was in fact injured or killed, and that such injury or death was caused by an “accident.” This is a form of absolute or strict liability, except that the air carrier can raise the defense that the passenger was also at fault (“contributory” or “comparative” fault) for his injuries or death. The second tier (i.e., claims above 100,000 SDRs) allows for unlimited recovery, up to the amount the victim can prove he suffered as a result of the injury or death. However, the air carrier is not liable if it can prove that the injury or death was not due to the negligence or other wrongful act or omission of the air carrier or its employees, or that the injury or death was solely due to the negligence or other wrongful acts or omissions of a third party.
The Montreal Convention went into force in November 4, 2003, the 60th day following the date of deposit of the instrument of ratification, acceptance, approval, or accession by the 30th country, the United States on September 5, 2003. As of August 2009, there were 92 signatories to the Montreal Convention, including most European countries, the European Union, Japan, Canada, Australia, China, Korea, Mexico, and the United States. The Montreal Convention has been ratified by those countries that cumulatively make up the largest share in international air transport. Under the Montreal Convention, the air carrier may agree to higher limits of liability, or even no limits on liability; however, it may not undercut the limits provided by the Montreal Convention. Additionally, the air carrier may waive defenses under the Montreal Convention.
Two conditions must exist in order to hold an airline liable for injuries or deaths arising in an international flight. First, there must be an “accident,” which the United States Supreme Court has defined as a “happening or event”—including negative conduct, such as an omission or failure to do something, such as the failure of airline personnel to respond to a medical request of a passenger, resulting in the passenger’s injury or death—that is external to the passenger, unexpected from the passenger’s point of view, and not associated with the normal operation of the airplane. Second, there must be an actual physical or bodily injury. Mental anguish or emotional distress cannot be the sole basis for a claim. The Montreal Convention also does not allow the recovery of “punitive, exemplary or any non compensatory damages.” As mentioned above, the Montreal Convention also gives the air carrier the right to raise the passenger’s own wrongful conduct (“contributory” or “comparative” negligence) as a defense to reduce or eliminate its liability.
Victims of air crash disasters are usually entitled to receive the full economic (“pecuniary”) damages suffered. Pecuniary damages are those items of damage upon which a value can be reasonably placed, such as hospital and medical expenses, lost past and future wages, lost earning power, etc. Non-economic damages (“non-pecuniary”) include such things as pain and suffering in the case of an injured passenger, and the loss of care, comfort, and society in the case of a passenger who is killed. Punitive and similar type damages are not recoverable. The right to all claim types is extinguished if not brought within two years from the arrival or date of scheduled arrival. The time limit is an absolute “condition precedent” to bringing a lawsuit and is not subject to extension.
The Montreal Convention of 1999 applies only if the trip involves a point of origin and point of ultimate destination in countries that are parties to the Convention. For instance, suppose the country Xanadu is not yet a party to the Montreal Convention. An Air Xanadu flight ticketed from Xanadu to San Francisco International Airport with a return to Xanadu is not governed by the Montreal Convention, since Xanadu is not a party to the Convention. However, a passenger on an Air Xanadu flight ticketed from San Francisco to Xanadu with a return to San Francisco would be governed by the Montreal Convention of 1999, because the point of origin and point of ultimate destination is in the United States (a contracting State), with an agreed stopping place in Xanadu (a non-contracting State).
The Montreal Convention and Warsaw System apply only to international air carriers and do not control damage claims by victims against other defendants. For instance, if the crash is due to a faulty design or manufacturer of a component in the airplane, the victim or his survivors can sue the manufacturer of the airplane and/or the manufacturer and supplier of the component part for all damages they can prove, without limitation. Airports, private security companies, and other service providers can be sued without having to worry about the Montreal Convention or Warsaw System’s limitations on damage. Indeed, even the United States can be sued without limitation for, e.g., the negligence of its air traffic controllers.
If a passenger dies in an aircraft crash on or above the “high seas,” the Death on the High Seas Act (DOHSA) applies in United States courts. Under admiralty law, the survivor’s damage was previously restricted to pecuniary loss only, that is, the financial loss the family suffers as the result of the death, reduced by the amount of expenses that would be incurred by the decedent. Until 2000, only pecuniary, or economic, damages such as medical expenses and lost wages were recoverable. However, under the 2000 Death on the High Seas Amendment, the victim’s family can recover for the non-pecuniary loss of care, comfort, and companionship resulting from the death of their loved one in addition to such pecuniary damages as lost past and future wages. But recovery is still not permitted either by the families or the passenger’s estate for the pre-impact pain and suffering suffered by the passenger in the airline disaster. The “high seas” are defined as the seas and oceans more than 12 miles from the shore of the United States and its islands. In most other countries, the high seas are defined as those seas more than three nautical miles off the country’s shore.
If the aircraft crashes within 12 nautical miles of the shores of the United States and results in death, then the cases will be determined using the laws in effect in the various states and under federal law. Crashes on or above the high seas outside 12 nautical miles from the shores of the United States will fall within the Death on the High Seas Act.
Approximately 7 million people worldwide go on cruises. Some go on long-weekend three-day cruises, others take six-month cruises, while many take cruises of two to four weeks. While the vast majority of passengers will have a delightful, memorable, and uneventful cruise, to some their dream cruise they had been planning for months, if not years, turns into tragedy when they are seriously injured or killed due to the carelessness (“negligence”) of the cruise liner and its employees. Any one of the following factors can turn a fun cruise into a nightmare, due to an injury or death:
The legal rights of a passenger who has suffered an injury on a cruise ship, or of the heirs of a passenger who has been killed, depend largely on two things: maritime law and the provisions of the passenger’s contract/ticket for carriage. Deaths occurring more than three miles off the United States’ shore come under the jurisdiction of the Death on the High Seas Act (DOHSA), discussed separately. Under maritime law, a ship owner owes passengers a duty to take ordinary reasonable care under the circumstances.
A passenger’s contract/ticket is carefully drafted by the cruise line not only to tell you of your rights, but just as important—if not more so—it governs such things as what you can sue the cruise line for, the location where you must bring suit, how soon after the incident you must give written notice of your claim to the cruise line (usually six months), and the length of time you have to sue the cruise line (usually one year). What law applies also depends on where the ship was at the time of the injury. For instance, the type and amount of damages you may be entitled to may vary greatly if the injury or death occurred while the ship was docked at Long Beach, was in Mexican territorial waters, or was on the high seas (more than three miles off most countries’ shores).
A passenger’s cruise ticket for an ocean voyage constitutes a maritime contract. Most ticket/contracts require that any lawsuits against the cruise ship must be filed only in certain places, usually cities or counties where the cruise line has its offices. The top places designated by the contract/ticket for filing a suit for personal injuries or death arising out of a domestic cruise ship’s negligent conduct are Miami, Los Angeles, New York, and Seattle. For purely international cruises, such as a Mediterranean cruise aboard a Greek cruise ship, if you should be injured or a loved one killed on the cruise, you are probably going to have to prosecute the claim in Greece, even though the ticket was purchased in the United States. But if the passenger set off aboard a cruise line out of the Port of Miami and went on a Caribbean cruise and returned to the Port of Miami, chances are that the contract/ticket provides that lawsuits against the cruise line for injury or death must be brought in Florida.
In determining where you can and must file your lawsuit against the cruise line, the contract/ticket contains language of where you must sue the cruise line if you have been injured or a loved one killed on a cruise. The standard applied is that the ticket must reasonably communicate the existence of important terms and the passenger must have the opportunity to become meaningfully informed of those terms. The court will also look to the location of any restrictive provisions and simplicity of the language used to limit a passenger’s rights.
The question boils down to whether, taken together, the various notices and provisions of the cruise contract/ticket are legally sufficient to give effect to the various liability and claim procedures it contains. For example, a passenger who claims that requiring the case to be filed thousands of miles away has a heavy burden of demonstrating why enforcement of the site specified by the contract/ticket is unreasonable. Whether the terms and conditions of the passage contract were reasonably communicated is a question of law for the court to determine.
A cruise ship passenger who has been injured because of a cruise ship’s employee’s negligence is entitled to recover monetary damages for past, present, and future medical expenses, lost wages—both past and present, loss of earning power, and, if within three miles of the U.S. coastline, her pain and suffering and loss of enjoyment of life. Outside the thre enautical- miles limit, the passenger must allege a physical injury to recover damages for purely emotional distress, mental anguish and psychological injuries. In one case involving a cruise ship, approximately 210 passengers brought suit against the cruise line and its captain for extreme emotional distress. The gist of the cases was that their emotional injuries occurred because the captain sailed into bad weather that the ship’s officer was aware of but did not avoid. The cruise line proved that some 140 of the passengers did not have any objective physical injuries and were therefore not entitled to recover for their purely emotional distress.
If you are injured or a loved one killed on a cruise ship, you should report your injury or loved one’s death to the cruise ship employees as soon as possible. If there is a medical doctor or other health care professional aboard the ship, you should contact him for immediate treatment in the case of an injury. It may be necessary for you to be taken off the ship by a helicopter, or the ship may have to change its destination and head to the nearest port of call so that you can get prompt medical treatment.
If you are able to, take pictures of the area where you were injured. If you’re not able to do it yourself, then you should instruct your spouse or traveling companion to take pictures for you. Don’t forget to take pictures of your injuries. If you didn’t bring a camera and your mobile phone doesn’t take pictures, a disposable camera can be purchased in the ship’s gift shop for around $10. If you are unable to do so, your spouse or traveling companion should get the names and addresses of all witnesses to the accident, and if possible, a brief statement from them relating what they saw. The cruise ship employees have a duty to assist you in collecting this information when you are unable to do so yourself.
If you have been injured or a loved one killed while aboard a cruise ship, you should contact a personal injury lawyer with experience in maritime law and cruise ship injuries and deaths as soon as possible so your claim is not barred by the “statute of limitations.” The statute of limitations tells you how long you have to file a lawsuit in federal court or you will lose the right to sue forever. Maritime law and the contract/ticket with the cruise ship determine the amount of time you have to sue the cruise line for injuries or death. Although the normal time a person has to file under maritime law is three years, by signing the contract/ticket with the cruise line, that time is generally shortened to one year. And before you can bring a suit in court, the contract/ticket usually requires that you must first file a claim with the cruise line within six months of the incident.
The contract/ticket may also require you to submit with your claim a “Bill of Particulars” to the cruise ship within six months of the injury or death. Typically, in the Bill of Particulars you must send notice of your injuries or loved one’s death and tell them why you feel the cruise line is liable to you within six months. If a satisfactory settlement cannot be reached with the cruise line, you must file a lawsuit within one year of the incident. The ticket inevitably will provide that you must present your claim to the cruise line within six months, and if you don’t, you lose your right to sue the cruise line forever. Unless your claim is very small, you should not attempt to negotiate with the cruise line itself. If you do send notice to the cruise line of your claim, you should send it and your “Bill of Particulars” via certified mail, return receipt requested to prove that you sent notice of your claim in on time. The cruise line is usually identified at the top of your ticket. Do not make the mistake of sending notice to the travel agent or ticket agent. The lawsuit is against the cruise line, and timely (i.e., usually six months) written notice of the accident and injury must be sent to it.
If your injuries are serious, or a passenger died on the cruise, you should contact an attorney promptly after you return home. An attorney experienced in cruise ship liability will know how, what, and where to file the notice and Bill of Particulars. Don’t forget to gather your contract/ticket, and all other written information, pamphlets, brochures, and all other receipts and documents and pictures so you will have them ready when you meet with your lawyer. If you are injured and unable to go to the lawyer’s office, the lawyer will usually come to your home or the hospital. If your injuries are serious or a death is involved, but you think you can handle the case yourself, think again. One respected study of injured and deceased victims demonstrated that, even after paying the lawyer’s fees, injured persons who had lawyers handle their case for them ended up with more money in their pockets than people who handled their cases by themselves.
In cases involving injuries or deaths from dangerous conditions existing aboard the ship, a cruise line is liable for injuries to its passengers only where it has actual or implied (“constructive”) notice of a dangerous condition. Without knowledge of any unreasonable risk or danger, the cruise line has no duty to warn of or remove the dangerous condition. In maritime law, constructive notice of an onboard dangerous condition is shown when it has existed long enough to give rise to an inference that crew members must have noticed it.
Suppose you are on a cruise that stops at an island and offers passengers various excursions, from souvenir shopping to paragliding or Jetskiing. One passenger goes out on the Jetski and is injured by another person on a Jetski that deliberately ran into her. Can the injured passenger sue the cruise line? Generally not.
The contract/ticket usually states that the cruise line is not liable for injury caused by any act not shown to be caused by its negligence or the negligence of its employees. The contract/ticket usually provides that shore excursions and other tours may be owned and/or operated by independent contractors and the cruise line makes no representation and assumes no liability for the wrongful conduct of the provider/operator of the shore excursion. The contract/ticket may state that if the passenger takes part in organized activities, whether on the ship or as part of a shore excursion, she assumes the risk of injury and the cruise ship is not liable or responsible for it.
When a passenger has died, for example, due the negligence of an employee of a cruise ship, and the incident occurs within three nautical miles of the United States, the death is said to have occurred within the state’s territorial waters and the wrongful death laws of the state apply. However, if the incident occurs more than three nautical miles off the U.S. coast, then the action is governed by the Death on the High Seas Act (DOHSA). In most such cases, DOHSA preempts the general maritime law and limits the types of damages the heirs can recover.
DOHSA was originally enacted in 1920 to make it easier for widows of seamen to recover damages for future earnings when their husbands were killed in international waters. The cruise line industry has since used the law to limit damages when a passenger aboard a cruise ship is killed on the high seas. In 2006, the Death on the High Seas Act was revised and reenacted (United States Code Title 46, sections 30301 et seq.). Under the new provisions, the Death on the High Seas Act states:
When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond three nautical miles from the shore of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible. The action shall be for the exclusive benefit of the decedent’s spouse, parent, child, or dependent relative.
Damages under DOHSA are primarily determined based upon the actual or projected value of the financial benefit that would have been received from the decedent, so-called “pecuniary damages.” A spouse can recover for the actual value of the financial contribution the deceased spouse would have made to the family had he lived, reduced by the amount determined to have provided for the care and maintenance of the decedent personally. DOHSA does not provide for a loss of society or consortium, but the surviving spouse and dependents can recover for the monetary value of the household services the decedent would have provided. This portion of recovery is based on the number of hours the beneficiaries would have expected to receive in services from the decedent and are calculated based upon an hourly rate for those services projected over the decedent’s life expectancy.
Under the 2000 Death on the High Seas Amendment, the victim’s family can recover for the non-pecuniary loss of care, comfort, and companionship resulting from the death of their loved one in addition to such pecuniary damages as lost past and future wages. But recovery is still not permitted either by the families or the passenger’s estate for the pre-impact pain and suffering experienced by the passenger in the airline disaster.
Under the 2000 amendment, dependent children can recover for the value of parental care, nurturing, training, and guidance they would have received from the deceased parent, as well as the loss of an expected inheritance. Pecuniary damages for the death of a loved one include predeath medical expenses, as well as funeral and burial costs. However, DOHSA does not authorize recovery for non-pecuniary losses, such as predeath pain and suffering (in most cases), loss of comfort and society, grief, sorrow, and other “intangible,” or non-pecuniary, damages.
The only damages available to other eligible persons (parents and dependent relatives) are the lost monetary sums the deceased person would have contributed to them had he survived. Under DOHSA, a lost monetary sums claim related to an older, retired person who is not employed, or a child who is not working, would likely result in only minimal damages, since they were not making any or much money or making a significant financial contribution to the family.
DOHSA does not allow for a “survival” action. A survival action covers the period from the time the person is injured until she dies. For example, if a person is severely injured and suffers intense pain for two weeks before succumbing to her injuries, the survivors are not allowed to bring a survival action to get compensated for the physical and emotional pain and suffering their loved one endured before dying. (They would, however, be able to recover the medical expenses incurred during this time as they are pecuniary damages.) The exception to the rule that damages for predeath pain and suffering are not recoverable is that, if an injured person files a DOHSA lawsuit and dies before it is resolved, the personal representative of the deceased person can be substituted as the plaintiff and the lawsuit is not otherwise affected.
Actions based on DOHSA must be filed within three years, although cruise lines may shorten that time to as little as one year in their contract/ ticket. DOHSA lawsuits can only be brought by a deceased person’s personal representative, for the exclusive benefit of the decedent’s spouse, parent(s), child(ren), and dependent relative(s). Additionally, before a DOHSA lawsuit may be filed, the ticket/contract with the cruise line often requires that the cruise line be given notice within six months after the injury or death of the passenger, along with a “ Bill of Particulars”—a statement of what injuries the passenger suffered and what the alleged cause(s) of such injury were or what the bases are for holding the cruise line liable for the death of a passenger.
Where the DOHSA case must be filed does not depend on where the person lives. Rather, it depends on where the negligent act that ultimately caused the death occurred. So if the person was injured on the high seas but taken to a hospital in California where he died of the injuries, the case is governed by DOHSA rather than California state law. In the case of cruise ships, usually the place(s) where the cruise line can be sued is specified on the contract/ticket.
Suppose the personal representative files a DOHSA lawsuit on behalf of a widow and her three children. The case is successful and a single monetary amount is awarded. How is the award divided among the four plaintiffs? It is up to the court (i.e., the judge) to apportion the recovery among those individuals in proportion to the loss each has sustained.