Vail Daily column: The Dao of flying | VailDaily.com
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Vail Daily column: The Dao of flying

Ever feel beat when you fly?

Maybe what should have stayed in Vegas didn’t. Or you let your LaGuardia down a bit in the Big Apple. Or maybe, according to the modern Dao of flying, a couple of ham-fisted goons in uniform beat the holy crap out of you because you … ah … wouldn’t give up the seat you paid for to fly home.

The friendly skies sure don’t seem so friendly any more, do they?

What I’m talking about, of course, is Dr. David Dao, the hapless physician who booked and boarded a United Airlines flight from Chicago to Kentucky who, after stowing his baggage in the overhead compartment and securely fastening his seatbelt, was yanked from his seat, bloodied, dragged down the aisle and thrown off the flight, not because of anything he did, but because United needed his seat to shuttle a couple of United employees to Kentucky. Say what? Imagine what might have happened if the good doctor had actually done something; would he have perhaps faced the firing squad had he not returned his seatback to the full upright position?

It is a general precept of law that one may only employ reasonable force, that quantum or force appropriate to the threat. As far as the viral video shows, Dr. Dao presented no threat at all and to break his nose, knock out a couple of teeth, concuss him, bloody him and drag him like roadkill down the aisle of the plane seems a bit of an overreaction to his docile defiance. Could this been a crime? I’ll leave it to the Courts of Cook County to sort it out.

Besides the understandable outrage that spread across the world when the video of Dao’s mistreatment went viral, many people have been left scratching their heads. Can an airline do that? Was United within its rights? Was any crime committed?

Well, sorta.

It has generally been reported in the media that United — and all other commercial carriers — have the right to involuntarily remove a flier when a flight is overbooked. That’s true, as far as it goes. But when you drill down into the fine print and the details of what actually transpired, well, not so much.

A close reading of the contract in every ticket purchase from United Continental Holdings provides that the airline may deny boarding to a passenger in case a flight is overbooked. But — oops! — that ain’t what happened here.

The key word in the above paragraph is “boarding.” Dao was not denied boarding; he was already boarded and securely in his assigned seat. What’s more, the flight was not oversold. No, no. Instead, Dao was manhandled and ejected not because of overbooking but because a couple of United employees had a date to make in the Bluegrass State.

As I’ve noted before in my columns, in the law, words matter.

And what the United “contract of carriage” specifically provides, is found in Rule 25(A)(2) which applies to “oversold flights.” What it holds is that “no one may be denied boarding against his/her will” until the airline first asks for volunteers. “If there are not enough volunteers, other passengers may be denied boarding involuntarily in accordance with United Airlines’ boarding priority.”

Who’s priority?

What that “priority” is follows. If not exactly the law of the sea’s women and children first, what the rule provides is that unaccompanied minors and disabled persons will be denied boarding last. As for everyone else, United’s decision “may be determined based on a passenger’s fare class, itinerary, status of frequent flyer program membership and the time in which the passenger presents him/herself for check-in without advance seat assignment.”

For a lawyer, this “may be determined” stuff is a gold mine for the airline’s almost willy-nilly, make-it-up-as-you-go discretion.

Nonetheless, Dao had already boarded and, therefore, was not “denied boarding” and, in any event, the rule is limited to “oversold flights” which appears not to have been the case. In fact, “oversold flights” are specifically defined in the contract as “a flight where there are more passengers holding valid confirmed tickets that check-in for the flight within the prescribed check-in time than there are available seats.” Where, I ask, does this definition contemplate that a passenger may be removed from a flight when there are not “more passengers holding valid confirmed tickets that check-in for the flight within the prescribed check-in time than there are available seats,” but where the airline, instead, wants to shuttle its employees on a fully-booked (but not overbooked) flight?

OK, so under Rule 25(A)(2), United could — under proper circumstances — have denied Dao from boarding, but what about removing a passenger after he or she has boarded? Well, there’s a Rule for that, specifically Rule 21, which addresses “refusal of transport.”

That rule provides for involuntary removal of a passenger once he or she has boarded for a whole smorgasbord of misconduct. The key, however, is that one can only be ejected for wrongdoing, not for the convenience of the airline. Searching low and 32,000-feet-high, nowhere can it be found in the rule that the airline may eject you for no reason other than the airline needs to warm your seat with a United employee’s backside.

Was it a crime?

What then about a crime? Was any crime committed in United’s treatment of Dao?

Well, maybe.

If United had simply removed Dao from the flight without violence, then no. This would simply have constituted a breach of the contract of carriage for which Dao may have been entitled to money damages. But when the brouhaha escalated into physical violence, the altercation may have bootstrapped to a crime. It is a general precept of law that one may only employ reasonable force, that quantum or force appropriate to the threat. As far as the viral video shows, Dr. Dao presented no threat at all and to break his nose, knock out a couple of teeth, concuss him, bloody him and drag him like roadkill down the aisle of the plane seems a bit of an overreaction to his docile defiance. Could this been a crime? I’ll leave it to the Courts of Cook County to sort it out.

What I do know is this. Yes, an airline may deny you boarding without your consent if a flight is overbooked. If they do so, then they must offer you financial compensation. No, an airline cannot beat the crap out of you for nothing. And yes-on-steroids, United Airlines acted reprehensibly and brought upon itself a public relations nightmare.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, Robbins@SLBLaw.com.


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