Why United Was Legally Wrong to Deplane David Dao

newsweek ^ | 4/13/2017 | jens david ohlin

[SteveH]

Like all airlines, United has a very specific (and lengthy!) contract for carriage outlining the contractual relationship between the airline and the passenger. It includes a familiar set of provisions for when a passenger may be denied boarding (Rule 25: “Denied Boarding Compensation”).

When a flight is oversold, UA can deny boarding to some passengers, who then receive compensation under specific guidelines. However, Dao was not denied boarding. He was granted boarding and then involuntarily removed from the airplane. What does the contract say about that?

It turns out that the contract has a specific rule regarding “Refusal of Transport” (Rule 21), which lays out the conditions under which a passenger can be removed and refused transport on the aircraft. This includes situations where passengers act in a “disorderly, offensive, abusive, or violent” manner, refuse to comply with the smoking policy, are barefoot or “not properly clothed,” as well as many other situations.

There is absolutely no provision for deplaning a seated passenger because the flight is oversold.

[Avalon Memories]

Pretty much settles it. Whatever they say, the opposite is true.

Actually, in this instance Newsweek merely reprinted an article that appeared on a law site here.

I know the tendency among conservatives is to support police, but it is my understanding these were one security officer and two airport cops. There is no question they used excessive force.

Also, some people want to use Dao's past brushes with the law as a reason to say he deserved what he got. Sorry, that doesn't wash. The incident on that plane had zero to do with anything in Dao's past. From all accounts, he was peacefully seated and minding his own business when asked to voluntarily leave. He refused and instead of looking for another means to solve the airline's problem, the airline personnel decided to bully and force this guy off the plane.

There is a reason this has been such a PR nightmare for the airline. Most people see what happened and know that what the airline did both during the incident and after with the CEO's boneheaded comments.

[Gaffer]

I read the article. It was written by a dean in Cornell University Law. It is a well-researched argument and presents different interpretations of several CoC rules giving one side’s justification for the legal argument.

Well constructed for a plaintiff’s action for sure. Nonethe less it is an interpretive argument of the CoC rules applied to non-yet-litigated information in a court.

In the end, the two sides are squaring off and preparing for the case. Dao has a case he’ll have to get a judge or jury to side with. United Airlines has their case also, plus their own lawyers. It will end up going to court unless Dao and his lawyers get more realistic about the damages and the amount of the claim they seem to be bandying about ($250M).

[Alberta's Child]

You get a very different perspective on the thing if you have a chance to see the video clip from another fellow passenger that was posted on some foreign news sites. Two things that stood out about that one to me:

1. He is talking to someone on his cell phone, and when the police order him off the plane he says to them: "We make a lawsuit against United." This was before anything had happened to him.

2. The police basically tell him that he has to get off the plane, come hell or high water ... at which point he tells them the they will have to drag him off.

It sounds to me like the police did exactly what he asked. Case closed.

I hate airline travel, and this whole incident encapsulates many of the reasons why. United deserves all the bad publicity they get from it, but if I were on a jury I wouldn't award this guy a dime.

[af_vet_1981]

The amount of false information is staggering. They were not employees who just wanted to go Nashville. It was their job under federal regulations to be there to staff another flight. The major player in the drama is the doctor who equated submitting to airline requests as being sent to the gas chamber. The guy's a nut who brought the whole thing on himself by his rebellion.

The more UAL takes the approach you articulate, the higher the cost for them goes up, up, up. Attacking the victim is a very, very, very bad idea.

[cgbg]

This is an out-of-control corporation putting its convenience ahead of any concern about the rights or lives of its customers

95% correct

What we have is a sick corporate culture.

That is why the Board of Directors needs to fire the President immediately--he has set the tone for the entire organization and that corporate culture is a total disaster.

Note to United Board of Directors:

Your customers _are_ your business.

One scalp will send the right message to all of your managers and employees.

[Thumper1960]

You claim prior intent for Dao becoming injured. You claim Dao intentionally set out to ensure he suffer a concussion, broken nose and lost teeth from the start. That is a ridiculous claim. It has no merit. United set into motion the events and injuries suffered by the actions they took. United’s goose is cooked.

[Caipirabob]

The airline had already seated the person. If he showed no signs of belligerence until UA initiated the disaster, they are way out of line as anyone would agree that they could have coaxed someone off the plane by offering better compensation. Policy or not it is completely unacceptable for them to initiate violence under any circumstance here.

Yes, they captain can choose to toss any passenger off his plane with cause, but as I understand it, there was no cause. They could have ended the situation and made someone very happy, but instead they chose to cause bodily harm to someone who took possession of their seat and promised service in good faith.

Jury rules in favor of the plaintiff ONE ZILLION DOLLARS...

[SteveH]

http://prawfsblawg.blogs.com/prawfsblawg/2017/04/did-united-airlines-act-under-color.html

Did United Airlines act under color?

It strikes me as a question worth considering. Ordinarily, one private actor calling law enforcement to enforce private rights as against another private actor is insufficient. And properly so, otherwise everyone would act under color any time she called the police to remove trespassers or to protect her rights and things went sideways.

(interesting comments follow)

[SteveH]

It was 2 non-cops, and one non-cop who was wearing a police uniform or badge, according to one article.

[Wuli]

excellent legal analysis

yes, passengers are entering a contract with the airline

and what does United’s contract say

it says they violated their own terms of service

United needed to meet all the needs of its overbooked condition BEFORE boarding anyone; which in my experience is how it has usually been done.

[New Jersey Realist]

Perhaps the airline will “disappear” this guy. They need to get in touch with the Clinton Foundation for instructions.

[samtheman]

There is absolutely no provision for deplaning a seated passenger because the flight is oversold.

---

I’m willing to take that statement at face value but even if it’s NOT true, here’s a simple POLITICAL and SOCIAL fact that UA cannot gainsay:

The man was already sitting in a seat that he already paid for.

Anything else — and I mean ANYTHING ELSE — is absolute bullshit.

Now I know it’s possible to come up with some kind of life/death/emergency scenario... but that’s not even being remotely hinted at here so please, let’s drop that non-argument and stick to the facts.

And there are only 2 facts.

He was already seated.
He had already paid for that seat.

There is nothing else. Period.

[Thumper1960]

When Munoz stated Dao did nothing wrong and should not have been removed, your entire argument became moot. In effect, Munoz made the case against his own airline. Despite the facts, as outlined by Dao’s lawyer, being fully with Dao. A “trial” will be a waste of money and United would/will pay.

[samtheman]

But think about the implications of this. Every time you get overbooked...you refuse to cooperate with them....get beat up by the security guys, and then collect a minimum of $100 million?

---

Hey... here’s an idea: DON’T OVERBOOK!

And even if you DO overbook, DENY FURTHER BOARDING, don’t try to take people out of seats to put standing passengers a seat.

If you end up in a bad situation with the wrong people outside the gate, then START FIRING MANAGEMENT and make sure it doesn’t happen again.

But never, ever take a person off the plane for the sole purpose of giving some other moron the seat.

How hard is THAT????

[SteveH]

here is a test for you.

a passenger P1 walks across a plank (or “board”) from a dock to a ferry. several other passengers are still on the dock, waiting to walk across the plank.

then the ferry sinks.

has passenger P1 “boarded” the ferry before it sank?

can passenger P1 correctly regard himself as having “boarded” the ferry once he crossed the plank?

you can define “boarding” in two ways, individual and collective.

i would venture that the tickets do not mention any “collective” nature to the status of any passenger rights within the four corners of the ticket (contract) itself. hence the “boarding” must be relative only to the passenger who received the ticket.

What am I missing?

[samtheman]

Just the culmination of corporate and union culture that encourages employees feel contempt for the customers that pay their salaries.

---

I forgot about the unions in all this. You are absolutely right. And I bet the pilot was in on this big-time.

[Ken H]

Jury rules in favor of the plaintiff ONE ZILLION DOLLARS...

Yep, which is why this will never get in front of a jury. United is just so screwed and so are the Chicago Dept of Aviation security officers.

As one poster put it on another blog => 'I've been trying to come up with how this could have possibly been screwed up worse. The only thing I could think of would have been to set the passenger on fire.'

[grania]

Agree 100%. The other aspect is that in this case it’s only a 297 mile, four to five hour drive from Chicago to Louisville. If UA had any common sense and even an iota of concern for its paying customers, it would’ve been totally practical to put the employees in a rental car and do the drive. Even stockholders should be outraged. The cost of losing the fare on those four seats and then add in normal compensation makes putting those four employees on that flight financially incomprehensible.

[Brookhaven]

Yea, but he had purchased the seat at a discount.

United’s computer algorithm to pick who to boot apparently is designed to save the company money by choosing people who paid the least for their seats (to save refund costs).

So, if you planned ahead and bought your seat ahead of time, you are the most likely to get booted for someone who waited till the last minute to and thus paid through the nose.

[SteveH]

that was “Norman” commenting at 8:55 AM and 9:01 AM here:

http://www.dorfonlaw.org/2017/04/united-airlines-own-contract-denied-it.html

(I was actually referring to a FR comment on a different article, but whatever.)

“Norman” refers to an IMHO obscure “standard” definition which is not however supplied, and in any case is apparently not mentioned in United’s rules.

So, the IMHO obscure “standard” definition is not within the 4 corners of the contract.

Oops.

So, IMHO Dr. Dao is correct to interpret the contract that he should be allowed to stay on the plane.

It is UAL’s responsibility to define (or re-define in this case) explicitly in a contract a technical term if the technical term is different from the commonly accepted English term by a reasonable person.

Note that later at 9:35 PM “gregory barton” wrote

Norman says,

“When the last door is closed, boarding is then complete. This is a critical point because the airline had the legal right to deny boarding to Mr. Dao in this case because the aircraft doors were still open.”

The issue is not when boarding is complete. It is whether a passenger can be denied boarding. The author claims that one cannot be denied boarding if, by one’s action, one has already boarded. The airline would be estopped from invoking the ‘denial of boarding’ clause.

The contract of carriage does not define ‘boarding’, which term must therefore be given its ordinary meaning, ‘get onto the aircraft’.

However, I would go further. The appropriate point at which boarding is deemed is not physical boarding but issuing the boarding pass. At that moment the airline has given its assent to board. If it attempted to deny boarding after issuing the boarding pass it would be estopped. The physical boarding of passengers is irrelevant.

I agree with Mr. Barton.

What are Mr. Barton and I missing here?