Airlines Could Be Landing In Courts

June 20, 2002
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GRAND RAPIDS — The entire airline industry, not just United and American airlines, could be facing litigation stemming from the hijackings that led to the worst terrorist attacks on American soil.

The airlines could be sued not only for the passengers who lost their lives on four commercial flights on Sept. 11, but also for those who died in the three buildings that were attacked, and for the lost rescuers who tried to save them.

In addition, the Federal Aviation Administration, Boeing Inc. and every airport security firm may also face lawsuits from the families of victims for their alleged complicity in the events that will likely result in the death of more than 7,000 people.

The saving grace for the airlines is that each can only be sued for compensatory damages that do not exceed the liability coverage of each airline’s existing insurance policy, as Congress has prohibited suits that seek punitive damages. So the airlines are protected from any potential monetary awards.

That means insurance firms and reinsurers will bear the financial consequences coming from successful litigation, rather than the airlines. An early estimate has that loss exceeding $20 billion. Years will likely pass before a more accurate estimate can be made.

In addition, Congress gave the airlines $10 billion worth of guaranteed loans to help with any fiscal losses, as part of a $15 billion bailout bill. Congress also set up a fund to help the families of those who lost loved ones. But to collect that money, a family has to give up the right to sue the airlines.

“Where they are vulnerable is in the area of security,” said Eric Richards, a securities and aviation attorney with Mika, Meyers, Beckett & Jones PLC. “Specifically, the way airport security is operated is through private companies that are hired by the airlines as opposed to federal employees.

“The people that you see at the airports are, basically, subcontractors, and that is the weak link currently in the system,” he added.

The legal argument for the families of passengers against the airlines is that the action was foreseeable, and the inaction by the airlines to upgrade airport security goes to cause in a suit. Not in the exact sense that someone should have know that four commercial airliners would be hijacked and commandeered on the same day, but that airport security wasn’t as tight as it should have been.

A number of reports filed with the FAA and Congress after 1993, along with a pair of recent presidential commissions, criticized the present system and warned that a major disaster could occur due to the current state of security at the nation’s major airports.

“The FAA had recognized that even prior to the Sept. 11 attacks, there were already proposals to federalize airport security and bring it directly under the regulatory supervision of the FAA and make them [airport screeners] employees of the federal government,” said Richards, who chaired the state bar’s aviation law section until last month.

“I don’t think that anyone has established exactly how the terrorists got these weapons on board. But if they snuck them through airport security teams at the terminals in Boston, New York and Washington D.C., the victims could bring a claim against the airlines for the security lapse,” he said.

That is the argument plaintiffs used, and won with, in their case against Pan American Airlines, when a hijacked airliner went down over Lockerbee, Scotland, in 1988. In that case, a jury found that Pan Am had failed to have proper security measures in place at an airport in Frankfurt, Germany.

“That contributed, in part, to Pan Am’s bankruptcy,” Richards said.

He said that families of those who died on the ground from the incidents can also bring the same claim in a suit against the airlines. But that claim removes them a step from proving liability.

“If hijackers take over a plane, it’s foreseeable that the passengers on the plane could be killed. But is it foreseeable for the airlines that somebody would hijack a plane and slam it into a trade center and kill thousands? Certainly it was unexpected,” he said. “The questions, as a matter of law, are should the airlines have reasonably foreseen that risk, and should they have taken measures to prevent it.”

There is another route to use to sue for negligence. The fact that the airlines didn’t have locked and impassable doors that separated the pilot’s cabin from the seating area could be a claim used by families of those who died on the ground. Having those doors on the doomed flights would have prevented the airliners from being commandeered and flown directly into the World Trade Center towers and the Pentagon.

“This, again, goes to approximate causes and whether it was foreseeable. This alternative exists, and it’s my understanding that some airlines, such as the Israeli national airline, El Al, do require those kind of doors,” said Richardson. “Then certainly the plaintiffs are going to argue that this was a feasible alternative that was not too costly, could have saved thousands of lives and prevented billions of dollars in damages — and they should have done it.”

A manufacturer of reinforced cockpit doors told National Public Radio that his product costs nearly the same amount, around $9,000, as the doors used on the United and American flights. He said a few domestically owned airlines had contacted him about his doors a few years back, but none bought the product. When asked why the airlines didn’t buy, he felt it was that the FAA didn’t require the airlines to do so.

Plaintiffs also can use the reports filed from 1995 through 2000 that found quite a few security lapses at the nation’s major airports to bolster their suits, and argue that these flaws were a major liability to the flying public. The reports included security spot checks made by firms hired by the FAA. The findings showed that in hundreds of tests, security breeches were successful more than 95 percent of the time.

“It relates to, again, the question of foreseeability, and to the extent that there were known risks and dangers and the airlines failed to take steps to correct those problems,” said Richards. “Then, yes, it is more likely that they will be found negligent.”

     

Next week:The airlines’ defense in a potential lawsuit.

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