While workers’ compensation is considered a “no-fault” system, there are instances where the culpability of the injured worker is examined. In airport injury cases, normally the negligence of the injured worker is often not an issue. Intentionally inflicted injuries are a topic for another day. A flight attendant or ground crew member can be clumsy yet still be awarded full workers’ compensation benefits for an accidental on the job injury.
However, if an airline ground crew member or airport employee disregards a known AND enforced safety rule, and was injured as a result, he or she is not entitled to any workers’ compensation benefits under the Virginia Workers’ Compensation Act.
This is known as the willful violation of safety rule defense.
Insurance companies will raise this defense in situations where the airport or airline worker failed to use available safety equipment, failed to follow standard operating procedures, left his or her duty station, was intoxicated or under the influence of narcotics or other illegal substances while at work, etc.
According to airport injury lawyer Doug Landau of the Herndon law firm Abrams Landau, Ltd., this defense must be raised well in advance of court. The willful violation defense may not be sprung on the injured worker at the 24th hour. A workers compensation insurance company lawyer cannot raise this potentially lethal defense less than a fortnight before the court date.
If you or someone you know has been injured while working at an airport or for an airline, and there are questions as to what laws apply, email or call Abrams Landau, Ltd. at once (703-796-9555).
In addition to “extra leg room,” should airlines offer “extra hip room ?” In this era of maximizing the number of passengers that can safely fit into commercial aircraft and charging for food, bags, pets, bikes, and headsets, Herndon Airline injury lawyer Doug Landau wonders if “extra wide in the sky” will become another “a la carte” option for air travelers. “Fly-Guy” George Hobica, founder of airfarewatchdog, recently published an article calling on airlines to add a couple rows of wider seats on their commercial aircraft. The article has gone viral, and is turning up all over social media. Airline safety lawyer Doug Landau first came upon it on Linked In.
Hobica argues that if some travelers are willing to pay for extra legroom, surely there are also some who would be willing to pay for extra width.
Extra wide seats, he says, would alleviate problems caused when obese passengers — or even bodybuilders — “encroach onto other passengers’ space, causing discomfort for everyone.”
Lawyer Landau sees the merit in Hobica’s argument. “Tall travelers are offered the option to upgrade their seats for extra legroom,” notes Landau, “so why can’t wide passengers have the option for extra width? I have seen larger passengers made uncomfortable by crew members who bump into them with beverage carts. I have also seen larger travelers endure the embarrassment of requesting a double seat belt. Wider seats would be a welcome solution.”
As the original article noted, although some airlines’ policies dictate that larger passengers must purchase two seats, this is rarely enforced.
If you or someone you know has been injured while traveling on an airplane or in an airport and there are questions as to what laws apply, email or call Abrams Landau, Ltd. at once (703-796-9555).
According to an article in the Washington Post, the Metropolitan Washington Airports Authority (MWAA) paid a $2 million wrongful death settlement to the parents of 25 year old Southwest Airlines ramp agent Jared Dodson who was killed when the baggage tug he was steering was struck by a mobile lounge on the runway at Dulles International Airport in 2012.
The mobile lounges, 35 ton vehicles that transport passengers from one terminal to another at Dulles airport, are not used at any other airport in the country.
The legal team hired by the Dodsons claim that problems with the instruments on the lounges themselves, poor visibility at Dulles in the dark, and unclear rules governing vehicles used around the terminal make use of the mobile lounges unsafe. Furthermore, they blame these conditions for their son’s death.
The airport’s manager, however, said that lounges always have the right of way, and cited data showing that Dodson is the only fatality in 10 years of more than 4.5 million trips by the lounges at Dulles.
According to Washington area airport injury lawyer Doug Landau, accidents on the Air Operations Area (AOA) occur as a result of jet crew just making unsafe maneuvers, vehicle operators on the tarmac acting negligently, or a combination of vehicle operators, ground personnel, and aircraft operators failing to follow safety protocols.
“The death of Dodson is a tragic example of what can happen in a crowded AOA. Hopefully the investigation into this accident will cause MWAA to take a harder look at its safety standards at both Dulles International and Reagan International airports,” notes Landau.
If you or someone you know has been injured while working at an airport and there are questions as to what laws apply, email or call Abrams Landau, Ltd. at once (703-796-9555).
Delays and cancellations of international flights have stranded and antagonized travelers flying out of Dulles, Reagan National, and Baltimore Washington Airports. At Abrams Landau, Ltd., we help people with permanent injuries due to the negligence of airlines, their employees, and airport personnel. We have recovered money damages for physical injuries, lost earnings, and mental anguish as the result of unsafe conduct in the air, on the runway, and even inside the international air terminals.
Can I Recover Damages Arising from Delay or Cancellation?
Sometimes our Herndon law firm is contacted by passengers who have not suffered a physical injury, but whose travel plans have been delayed or ruined. Unfortunately, international law gives passengers limited rights and leaves the airlines with little in the way of liability exposure. The Montreal Convention is an international treaty affecting the rights of passengers traveling internationally among the 104 countries that signed this agreement. The Montreal Convention governs any delay claims stranded international passengers may pursue against an airline.
Damages Recoverable For International Air Travelers Under the Montreal Convention
Once it has been established that a passenger’s claim for delay damages would fall under the Montreal Convention, and that the airline did not take all reasonable measures to avoid the damages, or that it was impossible for it to take such measures, the passenger can then determine the type and amount of damages available pursuant to the Montreal Convention.
The amount of damages available to a passenger is contained within the treaty, and is less than $10,000. An airline’s liability to pay delay damages may occasionally exceed this amount in the rare instance in which an air passenger can prove reckless misconduct on the part of the airline.
In general, international passengers may recover for economic losses due to delays. Courts have interpreted the Montreal Convention to allow for the recovery of compensatory damages, including physical and financial injuries as well as damages for “inconvenience.” However, the treaty does not permit the recovery of emotional harm damages, such as “pain and suffering.” The reasonably foreseeable compensatory damages that are encompassed within the treaty generally include out-of-pocket expenses, economic damages due to lost work, compensation for physical illnesses, and damages related to inconvenience. Just as passengers may not recover for emotional harm damages, they may not recover for the cost of their airfare.
In the 2004 Connecticut case of Ikekpeazu v. Air France, the plaintiff was a busy surgeon who claimed he was required to cancel surgeries, procedures, and consultations he was scheduled to perform during his nearly week-long delay. The court held that the plaintiff’s “allegations of financial injury resulting from the delay in his return to practice provide[d] a basis for a claim” under the Montreal Treaty. In addition to recovery for economic losses related to lost business opportunities, courts will also allow passengers to recover damages for consequential out-of-pocket expenses directly attributed to the delay. For example, the court may allow for taxi fare for the cost of the plaintiff’s transportation from the airport to their home to be a recoverable out-of-pocket expense. In Harpalani v. Air India, Inc., another federal district court determined that recoverable out-of-pocket expenses can also include the cost of meals and lodging, inconvenience, and telephone expenses.
Prepaid Vacation Expenses
Although prepaid vacation expenses are generally recoverable, courts have not extended this category of damages to include reimbursement for the cost of the delayed flight if the passenger ultimately used the ticket to complete his or her travels. In one case, the defendant airline transported the plaintiff roundtrip from China to San Francisco, albeit with a delay, eliminating the cost of the round-trip ticket as an element of the plaintiff’s damages claim. The court noted that the Montreal Convention only allows for recovery for damages occasioned by a flight delay, and found that the plaintiff did not sustain an economic loss occasioned by the delay as he actually received the benefits of his round-trip ticket. In so ruling, the court relied on the holding in the 2000 New York federal court case of Fields v. BWIA Int’l Airways, Ltd., in which the district court noted that the plaintiff actually flew to her destination the day following her scheduled departure and, therefore, could not claim total nonperformance under the contract to be entitled to damages.
Know Your Rights
International passengers seeking any form of reimbursement against an airline for delays should be familiar with the limited rights available for recovery. Given that the Montreal Convention specifically regulates and limits airline liability, careful consideration of the burden of proof, defenses, and available remedies is necessary in deciding whether to make a delay damage claim.
At Abrams Landau, Ltd.., we help people with permanent injuries due to the negligence of airlines, their employees and airport personnel.
A recent situation at the Baltimore Washington International (BWI) airport highlights the problems faced by developmentally disabled individuals and their families when seeking accommodations for air travel.
A 53 year old, developmentally disabled woman who cannot read, write, or use a phone was left to wander around the terminal after landing at BWI while the volunteer assigned to meet her at the gate was denied a pass by US Airways.
The airline insisted it was following federal regulations when it refused to let the volunteer through security, stating in an email that issuing a gate pass is “at the discretion of the airlines and TSA.” The email goes on to say “passengers who are incapable of taking care of themselves in case of an emergency will not be allowed to travel on their own.” (Source: Washington Post)
Ultimately, with the assistance of another volunteer with access to the BWI arrival area, the woman was found and made it home safe and sound.
But this brings up the issue of the rights of the disabled.
The Air Carrier Access Act prohibits discrimination against air travelers with disabilities, including mental impairments.
US Airways’ website includes a page dedicated to policies and special needs, but does not have a section on accommodations for people with developmental disabilities. Instead, the airline’s policy basically says individuals with developmental disabilities must travel with a companion, who must purchase a ticket.
So how are the rights of the disabled — particularly those whose disability is developmental and therefore not necessarily visible — protected during airline travel? How can we be certain disabled travelers won’t be treated unfairly, discriminated against, or even put in harm’s way because of their disability? Instances of violations of travelers rights are not infrequent, unfortunately, and at Abrams Landau, we help our clients and their families seek justice when they have been injured as a result.
If you or someone you know has been injured due to discrimination during travel because of a disability, and there are questions as to what laws apply, email or call Abrams Landau, Ltd. at once (703-796-9555).
“Lost at the airport.” These are words that no parent wants to hear. But those with a family member with special needs who call the airports and airlines looking for a little flexibility may find they cannot get a pass to meet their loved ones on the other side of the TSA screening area. Families who call to see if they can escort their disabled loved ones are assured that there was no chance that such a traveler would get lost. But that is precisely what happens.
Christopher Elliott did an excellent piece on this topic entitled “Unfriendly skies,” that I came across in the St. Paul Pioneer Press (TwinCities.com) on July 20th, when I was in the area for the US DUathlon National Championships. The airlines’ position is that anyone who is unable to understand or act appropriately because of a mental disability on a flight or during the airline travel experience should should travel with an assistant. If an air traveler cannot adequately function or respond to flight crews’ instructions, then they should fly with an escort. However, the expense of a care giver can be prohibitive to many families.
Our own family experienced a very similar problem when we paid for elderly, infirm family members to fly across the country with their regular caregiver. A week after the tickets were paid for, the home aid quit. When we tried to change the names on the assistant’s ticket to the new health aid, the airlines would not allow us to do so. We explained that the 90-year-old war veteran and his wife of 73 years were incapable of traveling alone and that we were simply changing the name to reflect the new reality. United Airlines would not be flexible, and we had to purchase a whole new ticket. The disabled and those with special needs should be able to travel on our national airlines. Just as with “unescorted minors,” the airlines should have standard operating procedures for accommodating those who, because of age, disability, limited mental capacity, have special needs.
When an airline worker is injured on the job and receives comp benefits, their employer (or workers comp insurance carrier) can request that they see a doctor not of their choosing, and not for treatment. Under the Virginia workers compensation law, the comp insurer can have the disabled employee seen by a physician, once per year per speciality. For example, the compensation carrier can have an injured pilot seen by both a neurologist and then an orthopedic surgeon after an injury to their back. In a flight attendant’s herniated disc case, the insurance adjuster or nurse case manager can set both an appointment with an orthopedic surgeon and a neurosurgeon before authorizing an operation !
The workers compensation insurer can also have a flight attendant undergo a permanent partial disability evaluation as well as a Functional Capacity Exam (“FCE”). Injured flight crew members have a right to be reimbursed for their travel expenses for these appointments, and the insurance company (or the airline) is responsible for the medical examination fee. While the opinions of the airline employee’s treating doctors are given greater weight by the Deputy Commissioners of the Virginia Workers Compensation Commission, thorough exams by the doctors selected by the insurance company can trump unsupported records from the attending physicians. It is for these reasons that anyone permanently injured while working at an airport or onboard an aircraft should consult with experienced workers comp counsel.
If you or someone you know or care for has been injured as the result of an airport terminal, runway, hanger, airplane or other air travel related accident and there are questions about what laws apply, e-mail or call us at ABRAMS LANDAU, Ltd. (703-796-9555) at once.
With heightened security requirements of air travel, airline and airport employees — not to mention travelers — often must produce a copy of their birth certificate when applying for job, seeking access to “sterile areas,” or travel clearance. “While hanging on the “monkey bars” on the Dulles Airport midfield people mover busses is fun*; waiting in long TSA lines is not !” Notes Herndon Virginia accident and injury lawyer Doug Landau. “Making it easier to get a copy of one’s birth certificate is a positive development easing travel for airline passengers and US Air travelers.” lawyer Landau adds.
Getting a copy of your birth certificate just got a little easier in the Commonwealth of Virginia. Virginia birth certificates are now available at all Department of Motor Vehicle (DMV) locations throughout the state, including mobile DMV centers. Simply by completing an application and paying a fee ($14), those born in Virginia can walk out of a DMV center with their document in their hands!
And, starting the first of 2015, you will also be able to obtain copies of death, marriage, and divorce records at your local DMV center.
*Lawyer Landau, of the Herndon law firm ABRAMS LANDAU, Ltd., uses these bars to stretch after long cross country, “red-eye” and crowded flights. When subject to long layovers, small airplane seats &/or multiple connection flights, the airport accident lawyer and top area age-group athlete finds that using the time to stretch, rest and re-hydrate enables him to remain competitive in his fifth decade despite a challenging trial and triathlon schedule.
In 2012, a partially paralyzed airline passenger was forced to crawl on and off his flights when traveling on Delta Air Lines between his home in Hawaii and Nantucket, Massachusetts.
The rights of disabled passengers are protected by the Airline Carrier Access Act (ACAA). The lawsuit filed in U.S. District Court in Hawaii earlier this year claims Delta is guilty of negligence and non-compliance with ACAA.
The man claims he was denied use of a wheelchair or other assistance, and instead had to crawl across the tarmac, up and down the plane’s stairs, and down the aisle to his seat. On one of the flights, he was offered a piece of cardboard upon which to crawl so he would not get his clothes dirty. A piece of cardboard!?!?
This humiliating experience prompted the passenger to call Delta to complain. Delta offered him 25,000 frequent flier miles to make up for the company’s behavior. When he pressed for more action, they actually cut the offer in half.
After a complaint with the Federal Aviation Administration got him nowhere, he filed the lawsuit against Delta.
Not surprisingly, Delta settled the suit. The terms are confidential.
The rules pertaining to airline travel for disabled passengers could not be more clear. Airline carriers are prohibited from discriminating against a passenger based upon the passenger’s disability.
Carriers are REQUIRED to offer certain provisions to disabled travelers. For example, for small aircraft, airlines must provide “boarding assistance to individuals with disabilities using mechanical lifts, ramps, or other suitable devices that do not require employees to lift or carry passengers up stairs.” Carriers are also required to provide adequate training for their employees on treatment of disabled passengers. Clearly the Delta employees who refused to assist the traveler did not follow proper guidelines.
The way this passenger was treated certainly amounts to discrimination and violation of the law.
He did the right thing to sue the airline, and the airline was wise to settle the suit.
If you or someone you know is disabled and has been the victim of an additional physical injury caused by an airline’s policies or employees and there are questions as to what laws apply, email or call Abrams Landau, Ltd. at once (703-796-9555).
Disabled airline passengers are protected by the provisions of the Airline Carrier Access Act (ACAA). Enacted in 1986, the ACAA “provides that no airline carrier may discriminate against any otherwise qualified individual with a disability, by reason of such disability, in the provision of air transportation”. (Source: U.S. Department of Transportation implementing regulations, 14 CFR part 382)
In plain English, this means a person cannot be discriminated against by an airline solely by virtue of a disability.
The U.S. Department of Transportation has published regulations for the implementation of ACAA. These regulations lay out in great detail the steps airline carriers must take in order to make air travel accessible for disabled passengers. Click here to read the full document.
The regulations — 16 pages worth — are quite comprehensive. They spell out the type of seating, accessibility of aircraft lavatories, boarding assistance for both small and large aircraft, stowage of personal equipment, accommodations for persons with hearing impairments, security screenings, service animals, and more. They also detail the training airline carriers must provide their personnel with regard to accommodating passengers with disabilities.
What Should a Disabled Passenger Do When Denied Access to Air Travel?
A disabled passenger who has suffered discrimination by an airline has several options:
Contact the airline’s complaints resolution official (CRO) onsite at the airport.
File a written complaint with the carrier within 45 days of the alleged violation. The carrier, in turn, is required to record all complaints, categorized by type of complaint, and submit an annual report summarizing the disability-related complaints received during the prior calendar year.
Contact the Aviation Consumer Protection Division of the Department of Transportation for assistance. Here is the contact info: 400 7th Street, SW., Washington, DC 20590 phone: 202-366-2220.
Contact an attorney well-versed in airline discrimination cases.
If you or someone you know is disabled and has been a victim of a violation of the ACAA, email or call the law firm Abrams Landau, Ltd. at once (703-796-9555). We can explain what laws apply and what recourse is available. But don’t delay because there are deadlines that must be met.
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