Domestic carriage – liability for passenger injury or death

Governing laws

What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?

The state law of the relevant state in the United States would govern, subject to a choice of law analysis and resolution of federal preemption issues. However, where the death occurs on the high seas, the Death on the High Seas Act (DOHSA), 46 USC sections 30301 et seq, governs. Federal aviation standards are generally found to govern matters pertaining to aircraft operation and safety. However, US law is still developing as to standards to apply for claims involving aircraft or engine manufacturing defects, and the standards for determining liability will either be based on federal standards/regulations or state common law/reasonable care standards.

Nature of carrier liability

What is the nature of, and conditions, for an air carrier’s liability?

This is an issue that we believe should be governed by federal safety standards, but may be governed by the applicable state law and a duty of ‘ordinary care commensurate with the existing circumstances’ albeit older cases in some states have found that there is a heightened duty for common carriers.

Liability limits

Is there any limit of a carrier’s liability for personal injury or death?

There are no specific limits of liability applicable to domestic carriage and the general rule followed in the United States is that any such limits would not be enforceable. Damage issues are generally governed by state law. For the most part, limits for personal injury and death do not generally apply although the parties entitled to recover and the types of damages recoverable will vary from state to state and be subject to choice of law analysis to determine which state’s damage law applies.

Main defences

What are the main defences available to the air carrier?

The defences will vary based on the facts and circumstances of the case but some of the more common defences include federal pre-emption, superseding and intervening cause, no duty, contributory or comparative negligence, foreseeability causation, acts of God and sudden emergency. In addition, pre-emption of state law liability standards, compliance with federal standards, absence of duty under either federal or state law, ‘price, route and service’ pre-emption under the Airline Deregulation Act.

Damages

Is the air carrier’s liability for damages joint and several?

This varies from state to state, but most states apply some type of joint and several liability and most states make the defendants jointly and severally liable for economic losses to a certain extent.

Rule for apportioning fault

What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?

The rule varies from state to state:

  • in a pure contributory negligence state (minority rule), a plaintiff cannot recover any damages if the plaintiff is even 1 per cent at fault;
  • in a pure comparative fault state, damages will be reduced by the plaintiff’s percentage of fault;
  • in a modified comparative fault state (majority rule), each party is held responsible for damages in proportion to their own percentage of fault, unless the plaintiff’s negligence reaches a certain designated percentage (eg, 50 per cent or 51 per cent), which would then bar or limit recovery by the plaintiff for economic or non-economic damages; and
  • most states also recognise that persons under a physical or age-related disability, such as minors, are held to a standard of care commensurate with their physical or age capacity (note: mental disability will generally preclude contributory fault).
Statute of limitations

What is the time within which an action against an air carrier for injury or death must be filed?

The rule varies from state to state:

  • personal injury - the statute of limitations for a personal injury action can vary from one to six years (two or three years is most common; and
  • death - the statute of limitations for a death action can vary from one to six years (two or three years is most common).

Similarly, the tolling rules and discovery rules vary among the states but as a general rule a statue of limitations with respect to a minor is tolled until the age of majority. This minor tolling rule does not apply, however, in an action governed by the Warsaw or Montreal Convention. See question 9.