In January I wrote an opinion post regarding my thoughts on the swiftly filed lawsuits by two Continental 1404 accident victims.

On December 20th this Houston bound 737 aborted takeoff from Denver and careened into a field.  Fortunately all passengers escaped into the frigid night before the battered plane caught fire.

I haven’t read any follow up pieces hinting at a cause. The only stories a news search provides are more lawsuit filings. This relatively minor aviation accident has also been overshadowed by Captain Sully and crew’s dramatic Hudson River landing of USAir 1549, and then the recent tragedy of Colgan/Continental 3407 in Buffalo.

My main beef with this suit was the law firm naming of the pilots PERSONALLY, as well as a complete lack of understanding in describing wind shear.  That and the skeezy appearance of the firm and website of the lawyer gave the entire package a less than savory feel.

Aaron was kind enough to comment on my article and offer his expertise on WHY it’s necessary to name the causes I find absurd and ridiculous.  In addition he notes the role the NTSB plays in the courtroom and also stresses the contract Continental makes with their passengers.

His comment is detailed and insightful and an excellent compliment and counter to the original post.  I wanted to summarize and repost as it’s a great comment and I appreciate his time in writing it.

Such theories make me wonder about workplace liability.  For example what if I worked at McDonald’s and I gave the Heimlich to a fellow diner, but proceeded to fracture their rib in the process?  What if that person came after me personally?  (Rather than insurance laden McDonald’s.)   I realize a rational judge would throw the case out, but having to face that process while worry of my assets and home being garnished would stress me out greatly.  (Perhaps enough to countersue.)

I see the same circumstances with these pilots.  They sensed a bad situation and stopped it, albeit creating a heart stopping scare the passengers won’t soon forget.  However almost all past serious emergencies past takeoff point have resulted in death.  They definitely should answer to an investigative panel, but I don’t feel they should be immediately subjected to lawsuit happy passengers – at least not until proven they carry responsibility beyond the inherent risks of random life.

Check out my original post and comments.  I’ve reposted his comment below:

Hey James,

I like your blog.

There are several things that need to be addressed.

First with regard to suing the pilots personally.
In tort law there is a doctrine known as respondeat superior. It basically means that if one is injured by an employee acting within the scope of his employment compensation may be sought against both.

Second, the timeliness of the lawsuit being filed (in that it is being filed before ‘fault’ is determined). Any good lawyer files early and often, if the statute of limitations elapses before the suit is file, no claim. If you don’t include possible causes of action, etc in your initial few pleadings, they cannot be brought up in court. You throw every possible scenario in your initial and ammended complaints and then through the discovery process elements of fact become available. This, combined with the NTSB report is how it is determined if the pilots were drinking appletinis or texting or overly tired or confronted with a mechanical problem or…or…

While the NTSB report is definitely evidence as to who is at ‘fault,’ it is ultimately up for a fact-finder (judge or jury) to decide if it was pilot error (pilot/continental) or something outside the realm of human control. The NTSB report is for the NTSB, to provide information to remedy chronic problems and ensure the air system is safe, it is not to determine fault in tort cases.

Which brings me to the next point. Common carrier (like airlines) are generally strictly liable to passengers when there is an accident. Carriers know this, they carry insurance for that purpose, it is called special-purpose wealth. Continental is no more paying for the destroyed plane as they are for the injuries suffered by any of the passengers, Lloyd’s or one of those guys is.

Yes, this attorney obviously makes his money by capitalizing off of ambulance chasing. BUT, these girls were injured and it is a shame they are going to such a scumbag, but they do deserve to be made whole.

When one purchases an airline ticket they are not consenting to being in an air crash, they are contracting a carrier to take them from point A to point B. This is exactly what Continental agreed to do as well. Instead, they were thrown into a field and set on fire, Continental and its employees violated their contract for WHATEVER reason, be it crantinis, texting, windshear, a blown tire or a wayward prairie dog (or maybe one of those creepy rabbits that hang out in the economy lots).

I appreciate the expertise you provided on the aviation side of things, this is just my take on the legal side of things.

Cheers!

Aaron

PS, sorry that last guy was such an ass.

Caleb Cross, Denver, Colorado