United Faces a Beating… in Court

Over the last week, the news (and many videos) of one Dr. David Dao being brutally attacked by Aviation Security Officers and dragged from his legally purchased seat on United Flight 3411 has been absolutely everywhere.  The incident has caused a firestorm of public outrage against United.

For those who have not seen the videos or read the news, passengers of Flight 3411 from Chicago to Louisville were told before boarding that the flight had been overbooked (United had sold more tickets to the flight than there were seats on the plane) and asked for volunteers to take $400 and a hotel stay to take a flight the following day.  This was apparently resolved, and the passengers were allowed to board the plane.  However, after the flight was boarded, United decided that it wanted four seats to fly employees to Louisville for their work on a flight the following day–it should be noted that the drive to Louisville is just over four hours.  United again requested volunteers to get off the plane, then when nobody was willing upped their offer to $800.  However, there was still nobody willing to get off.   Finally, United had a computer randomly select people to be kicked off the plane.  Dr. Dao was one member of the second couple to be randomly selected.

Dr. Dao refused to get off the plane and security was called to remove him–and remove him they did.  The footage from the many recordings made by other passengers on the flight show Dr. Dao’s head being slammed into the armrest next to him before he is pulled from his seat and, as onlookers scream in horror, his motionless form is dragged down the aisle of the plane–mouth bleeding, glasses askew, and shirt riding up his belly.  After this happened, the passengers were all removed from the plane so United employees could clean up the blood before the plane took off.

Since then, Dr. Dao has retained attorneys and has filed a motion to preserve evidence from the incident for a future lawsuit.  His attorneys report that he suffered a concussion, lost two front teeth, had his nose broken, and his sinuses were so badly damaged that he will require reconstructive surgery.

So the question is, how the heck did this happen in the first place?  The answer may surprise you, airlines have an enormous amount of leeway in a post-9/11 world.  So, with this in mind, let’s look at the law here and Dr. Dao’s chances in his upcoming lawsuit.

Airlines Overbooking and Booting Paying Customers

As anybody who’s flown in the last few years can attest, overbooking flights is an extremely common practice nowadays.  The heartbreak and annoyance of buying a ticket months in advance then being told that an airline sold more tickets than there were seats happens all the time-but it rarely escalates as far as it did in this case.

Almost every major airline currently intentionally overbooks the majority of its flights for the simple reason that it usually makes them more money than it loses them–despite how awful that is from a customer service standpoint.  The reason for this is not only the careful algorithms these airlines apply to overselling their flights, but also because these airlines are protected under both the contract you agree to and-believe it or not-federal law.

First and foremost, when you buy a ticket you are essentially agreeing to a contract with the airlines.  You best believe this contract gives the airlines enormous leeway to, among many other things, boot you off a plane.

United’s contract, a behemoth at just a bit over 37,000 words long, specifically says that when a flight is oversold passengers may be “denied boarding involuntarily.”  Overbooked is defined in their contract as when there are more passengers with valid confirmed tickets than seats before check-in time.  “Passenger” is defined as any non-crew person holding a confirmed registration.  The contract also gives them the right to boot disruptive or violent passengers–or to boot passengers for any number of other reasons.

When you buy an airplane ticket, you’re usually agreeing to something like this–United or no.  In fact, almost every major airline–with the notable exceptions of JetBlue and Virgin America–have some sort of provision allowing them to “deny boarding involuntarily.”

Code of Federal Regulations § 250.5–titled “Amount of denied boarding compensation for passengers denied boarding involuntarily”–not only allows this but substantially limits the amount an airline needs to pay out to a booted customer.  This makes overbooking even more appealing to airlines.  All the provisions require is that any involuntarily booted passenger be provided notice in writing (see the contract you totally read when you bought the ticket) and they are compensated.  However, compensation is limited to a maximum of 200% of the one way value of the ticket ($675 maximum) if the airline offers alternative transportation and 400% ($1,350 maximum) if they don’t.  If the alternative transportation is less than an hour away–they don’t have to give you anything.  They can even offer you vouchers for their own flights in lieu of cash or check in some situations–read most situations.

This is pretty cheap for the rare occasion where the airlines actually have to pay out, so it’s no surprise they aren’t shy about overbooking.  Since the United incident occurred, the Department of Transportation has said that they are reviewing whether overbooking rules were followed here–but they doubled down on the legality of bumping passengers and are not reviewing the rule in place.

Dr. Dao’s Lawsuit

So, United can bump people off planes.  They can even do it involuntarily.  However, you’ll notice that there are a few issues in their contract that are definitely going to come up in any lawsuit with Dr. Dao.

First, they are allowed to boot passengers where a plane is overbooked–but was the plane overbooked by their own definition?  There were the exact same number of paying customers as there were seats, United just wanted to jam in four of its employees.  The question is, were these employees passengers?  If they count as crew they definitely were not.  What’s more, if they didn’t have a boarding pass at time of check-in it’s unlikely they’d count as a passenger.  If the flight wasn’t overbooked, then United didn’t have the right to boot Dr. Dao in the first place.  If Dr. Dao was being disruptive or belligerent, United may still have grounds under their contract to remove him from the plane.  However, despite the police report describing him as “irate” the videos and passenger accounts put him calmly on the phone with what turned out to be his attorney.  There is some question over the mere act of refusing to disembark from the plane was sufficient to give United grounds under their contract to remove Dr. Dao.

This being said, if remove Dr. Dao from the plane was all United did this would be much less of a media explosion–the Aviation Security Officers seriously injured Dr. Dao.  The contract you sign with United absolutely does not give them the right to assault, batter, or intentionally inflict emotional distress upon a passenger.    These are all civil torts which could Dr. Dao could use as a cause of action against United.

However, even these actions might have a bit of a hiccup.  The question would become whether the Aviation Secutity Officers acted as agents of the airline or in their own independent capacity as police officers.  If the officers were not acting as agents of the airline-or it can found that the airline sanctioned them to use such force in removing Dr. Dao-then the airline is unlikely to be held liable for the actions of their officers.

In this case, Dr. Dao may need to sue the police department of Chicago itself.  One would expect that, if and when a lawsuit finally does come there would be lawsuits target both United and the police department.  Police acting in their official capacity enjoy a certain level of immunity to lawsuits.  However, if it can be shown that the use of force was excessive here–an analysis made by looking at, among other things, standard police procedure and the level of threat posed by a suspect–Dr. Dao may still be able to bring a case.

Since the incident, the three Aviation Security Officers who attacked Dr. Dao have been placed on paid leave.  However, it is worth noting that the general procedure for the security officers is to–where there is no imminent threat–contain the situation until the officers from the Chicago Police Department arrive.  In fact, according to a deputy commissioner overseeing airport security, the protocol for Aviation Security Officers is apparently to not even go on the plane if it’s a customer service issue.  While at least one of the Aviation Security Officers wore a jacket reading “police,” they are not actual police officers and the practice of wearing such a jacket was banned a few months back.

All of this points to excessive force, a situation unnecessarily escalated in violation of standard protocol.  This would strengthen any case brought by Dr. Dao.

Almost Certain to Settle

You can see that, while Dr. Dao has several causes of action with merit, none of them are without their issues.  However, it’s very unlikely to reach that point.  This whole situation has been a PR nightmare for United and they have been judged in the court of public opinion–this is not the sort of case they are likely to want to bring before a jury.  Dollars to donuts says a settlement will be forthcoming.

Since the video hit the internet, United lost around a billion dollars in value before recovering to a mere quarter of a billion loss.  The CEO of United, Oscar Munoz, has been all over the news apologizing for the incident, although he has been doing a fairly poor job of it–first describing Dr. Dao’s beating as a “re-accomodation,” then telling United employees he thinks they did nothing wrong and calling Dr. Dao “belligerent”, then finally making an unequivocal apology.  He’s since been on television promising that United would never again let law enforcement remove a “booked, paid, seated passenger”–although he had no promises regarding overbooking in general.  Mr. Munoz has also publically stated that Dr. Dao cannot be at fault for what happened and should not have been treated like he was.  These are not the responses of somebody looking to go the long haul on a lawsuit with Dr. Dao.  I would expect a settlement to hit the news sooner rather than later.