Everyone’s watching… and it’s all admissible

What do the United Airlines and American Airlines passenger incidents involving disputes between passengers and flight crew or ground personnel have in common? The answer is fairly simple and, like the recent freak incident aboard another US carrier when a metallurgical failure in an engine fan blade set off chain of events which culminated in a passenger fatality, the common thread for dissemination of news of the event was the smart phone.

Raising awareness

Sparked by an explosive video of a United Airlines passenger being dragged off an overbooked flight so that his seat could be given to a crew member, a series of incidents - all captured on smart phone video - have catapulted passenger conflicts with airline staff to viral video and tweet storm status, which in turn has raised awareness and concerns about travelers rights and airline safety practices.

The incidents, which are relatively few and far between, often involve a clash of passenger rights and airline regulations amid the high pressure world of airline operations. An added complication, particularly for the airlines, are the viral videos and live tweets which erupt following any passenger incident. Since virtually everyone in the flying public has a smartphone, there are always onlookers willing to record and transmit these events in real time to the world at large.

Admissible evidence?

From a litigation perspective, the uninvited eye spells certain victory for the aggrieved passenger in the inevitable claim for mistreatment and injury, unless he or she is acting in flagrant disregard to aircraft and fellow passenger safety.

For events involving US jurisdiction, the US Federal Rules of Evidence will provide a litigation forum with no available escape path to exclude videos recorded by John Doe in seat 14B or Jane Doe in seat 2J.

The danger of unfair prejudice or hearsay preclusion arguments will simply fail to activate the emergency lighting to the nearest exit. Instead, viral videos are virtually guaranteed to lead to fast, confidential settlements between aggrieved passenger and carrier.

Under English law, a phone recording would fall under the definition of a ‘document’ as delineated in the Civil Evidence Act 1995 and as such would be subject to the same rules of admissibility. The video would constitute hearsay evidence and would be afforded the usual sceptisim that accompanies that title.

However, despite the UK position being slightly stricter than their American counterparts, the tendency of pragmatic English judges has been to allow phone evidence which is highly relevant - and carriers must be alive to this reality.

Rising numbers

While statistics vary widely, the big three commercial carrier alliances (Sky Team, One World and Star Alliance) combined fly approximately 43,000 commercial flights daily. This number excludes discount and regional carriers as well as smaller commuter operations which link the world globally.

In 2016, roughly 2.5 million passengers a day flew in the United States alone, the equivalent of the population of a major US City taking to the sky daily. Multiply that figure to reflect global volume and factor in airline scheduling constraints for on time departures, crew member concerns for fellow passengers and post 9/11 safety concerns and the potential for conflict is ever present.

These already staggering statistics of daily airline travel will continue to increase. Boeing, for example, has increased production and decreased build time on its 787 Dreamliner and is already delivering a new 737 Max every nine days. As such, the problem is not going to vanish. A US Congressional Transpiration Committee is presently looking for ways to improve the flying experience for American carriers’ customers and a US Senate Aviation Subcommittee is exploring consumer protections in airline travel, but there are no quick fixes, and the likelihood of some type of legislation solving the problem is simply unrealistic.

Comment

While the likelihood of being party to mistreatment, an act of brutality, injury or death attributable to an isolated mechanical issue is less than winning a lottery jackpot, each isolated event will now be published worldwide at lightning speed thanks to a device feature which has been in existence for less than ten years. Today, video capability lies at virtually everyone’s fingertips and has brought a new level of accountability to industries worldwide.

Most of the recent incidents were filmed before the plane left the gate, but with on board Wi-Fi available on an estimated 55 international carriers, it is only a question of time until an event at 38,000 feet is live fed to news outlets, YouTube and other media dissemination venues.

The aviation industry has become among one of the most vulnerable to the power of this device feature and, from the litigation perspective, the unsolicited fellow passenger video will remain the aggrieved passenger’s (or their lawyer’s) best friend for the foreseeable future.

Read other items in the London Market Brief - May 2018