United Airlines Incident Shines Spotlight on Regulations Applicable to Airline Passengers.

A passenger was recently involuntarily removed from a United Airlines commercial airline prior to the scheduled flight.  The removal, which was made infamous through cell phone video and first-person accounts, has been criticized by national media and government regulators. As a result, there has been much discussion of changing airline booking policies, and a reevaluation of airline passenger rights.

As many people are aware, airlines routinely overbook flights. A specific analysis of this overbooking practice would involve much discussion of revenue passenger miles and airline load factor, which is beyond the scope of this article.  The United incident was further complicated due to the involuntary removal being so that a United employee, a flight crew member for another aircraft, could utilize that passenger’s seat.  In order to understand why an airline would remove a paying passenger so that a flight crew member could utilize the seat would involve a thorough discussion and analysis of the hub-and-spoke system utilized by many airlines, many airlines’ use of multiple airframes, pilot certification and type ratings, and crew duty days.  Suffice it to say that the airline had an understandable reason for wanting this particularly air crew member on that specific United airplane.  

The question then becomes whether what the airline did was proper in terms of removal of the passenger.  As an initial matter, it is unusual for an airline to allow the passengers to board and then seek to volunteers to be bumped to a later flight.  Generally, involuntary bumps are resolved prior to boarding the aircraft.  Looking back on the situation, as United undoubtedly has done in the days since the incident, if it was impossible to perform the involuntary bumping prior to boarding, it would have made more sense for a United representative to go throughout the aircraft essentially offering increasing amounts of reimbursement for someone to voluntarily give up their seat.  At this point, with the benefit of hindsight, United likely would have been happy paying a passenger $10,000 or more in flight vouchers or even cash to avoid this whole situation.

However, based on the process United used, no one was willing to leave voluntarily.  At that point, United used a computerized process for selection of the passenger to be involuntarily-removed, which seems to have complied with the Department of Transportation regulations on point.  The passenger to be removed was selected by a computer according to an algorithm set by the airline.  Upon the passengers selection for involuntary removal the focus then shifts to the passenger’s actions. 

According to some reports, United employees asked that the passenger leave the aircraft, but the passenger refused.  Importantly, all airline passengers are required to comply with lawful requests made by crew members.  In a post-9/11 world, it is easy to understand that the regulations governing air travel must be followed.  As discussed above, the request for the passenger to leave the aircraft seems to have been lawful. Accordingly, once the airline employee(s) asked the passenger to leave the airplane, he was legally required to abide by that request.  The passenger refusing to leave likely resulted in an escalation of the situation.

It seems to be a common misconception that airline crew members actually removed the passenger from the plane.  On the contrary, it seems that the flight crew contacted police or airport security. At that point the police or airport security performed the physical removal that has drawn such scrutiny.  

Much ‘Monday morning quarterbacking’ has occurred since the event. Regardless, it is easy to understand that an aviator, e.g. the pilot of the aircraft the passenger refused to leave, would be concerned and perhaps alarmed by the passenger’s refusal to leave the aircraft, particularly after the police arrived to remove said passenger.  The same can be said for other passengers on the aircraft. It is difficult to say how you may react to another passenger refusing to leave an aircraft when instructed to do so by police. Some, perhaps many, of us would be rather suspicious of that passenger. Not too many people would refuse to be peacefully removed from a flight when faced with police or airport security.

I was recently contacted by local news regarding what types of legal claims a person may have regarding their involuntary removal from an airplane.  Unfortunately, there simply are not many.  Some pundits have indicated that a passenger could allege that the airline ticket created a binding contract that the passenger would be on that airplane.  This is simply not the case.  In accordance with the Department of Transportation regulations and the Terms and Conditions passengers agree to when booking flights, an airline ticket can be viewed as nothing more than an opportunity to fly on an airplane to a destination at some point in the future.  This particular involuntary removal may involve claims against the law enforcement or private security relating to whether the amount of force used was proper.  However, actions against the police are always an uphill battle, and the passenger’s own actions, refusing to leave the aircraft, would be considered.  Further, the passenger may try to assert a claim against the police or airport security and argue that those employees were acting on behalf of the airline in order to implicate the airline in the lawsuit as well.  Either way, these claims seem unlikely to succeed. 

In short, when you request to be a passenger within the heavily regulated aviation industry, you are required to follow the rules and regulations applicable there.  In this case, the passenger refused to leave the aircraft and thereby failed to comply with a lawful request of the flight crew.  As the law exists today, it seems unlikely that this passenger would win if the case actually went through the entirety of the legal process.  However, it seems likely United would be interested in settling the case as soon as practical to avoid further bad publicity. This seems like a case that may result in a settlement agreement with a  confidentiality clause before it actually progressed to a jury. 

I suspect all parties involved would have done things differently with the benefit of hindsight. However, passengers should not challenge flight crew, police, or airlines in this manner. The rules and regulations applicable to passengers on aircraft are intended for the safety of the other passengers and crews.  The regulations and the enforcement thereof should not be taken lightly by passengers or crew.  

For more information relating to passenger rights, airline operations, aviation law, or to generally discuss revenue passenger miles, load factors, the hub-and-spoke system, the use of multiple airframes, pilot certification and type ratings, and crew duty days, please contact Adam B. Kuenning or Tiernan T. Siems with Erickson | Sederstrom.