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United Liable; Ejecting Passenger From Seat Not "Denied Boarding"
Doctor Dragged Screaming From Plane Should Sue United Airlines For Civil Damages
Although the airline is claiming that it has a right to eject ticketed passengers who have already boarded and seated under a "denied boarding" federal regulation [14 CFR 250.5] which provides that it "shall pay compensation in interstate air transportation to passengers who are denied boarding involuntarily from an oversold flight," that provision is not applicable here, says public interest law professor John Banzhaf.
"Denied boarding" means exactly that, argues Banzhaf - a passenger may be prevented from boarding an over-booked flight providing the compensation required by law is offered. But this passenger was clearly not "denied boarding," since he had already been permitted to board, and to take his seat.
Having boarded and been seated, a passenger is generally entitled to keep a seat and remain on the flight, except in rare instances: e.g., a legitimate concern about terrorism, unruly or drunken behavior by the passenger, it is suddenly discovered that he is ill, is using a forged or stolen ticket, etc. Here, none of these rare exceptions applied, so the carrier had no right to eject him once he had validly boarded, says Banzhaf.
Moreover, the usual process, and the one contemplated by the rule, is that the airline will offer enough compensation (cash and/or free flights in the future) to induce one or more passengers to volunteer to surrender a seat - even though it may cost the carrier thousands of dollars as a recent article in the Washington Post illustrates. Here, for such a short flight, it is virtually certain that a passenger who did not have an urgent need to be on that flight would have made the seat available for a reasonable compensation.
There may also be questions about whether or not the airline used reasonable force to have him removed from the plane. Even with rare instances - such as those noted above - where an airline has a legal right to remove a passenger who has already boarded and has been seated, it must use no more than reasonable force to effectuate the removal.
Here, since there clearly was no emergency, the passenger posed no threat and did not fight back, and there would have been room for addition security personnel to restrain him with less violence, and not literally drag him down the floor of the passenger cabin, a jury could easily find that the amount of force used was more than was reasonably necessary under the circumstances, and that the cabin crew should have taken whatever steps were necessary to see that the force used was no more than what was reasonable.
In short, while carries may deny boarding (with compensation)
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418