Rough Skies Ahead: Legal Options for Turbulence Injuries
July 16, 2024
By: Erin R. Applebaum, Partner, Taylor A. Sandella, Associate
Recent severe turbulence events have caused serious injuries and deaths to passengers, generating an upswing in public interest over a natural phenomenon that is now more dangerous than ever before.
Whether you’re a casual traveler or a frequent flyer, you’ve likely encountered rough air at some point in your jet setting. You know the feeling: the aircraft starts to tremble, your drink sloshes in your glass, and your stomach lurches up and down in sync with the jerking aircraft until the air becomes smooth again. Throughout aviation history, turbulence events overwhelmingly resulted in no more than mild anxiety and annoyance to passengers. But as the climate changes, commercial flights are encountering turbulent skies with markedly increased frequency. Recent severe turbulence events have caused serious injuries and deaths to passengers, generating an upswing in public interest over a natural phenomenon that is now more dangerous than ever before.
What Is Turbulence?
Put simply, turbulence is air movement upset. Atmospheric pressure systems, jet streams, cold or warm weather fronts, wind shear and thunderstorms are frequent causes of the turbulence experienced on airplanes. Much like ocean waves break on the beach, air waves break against mountains and travel upwards towards passing aircraft. Similarly, storm clouds push air away as they grow, generating waves in the atmosphere that can cause turbulence.
Turbulence can occur at every level of flight, from shortly after takeoff to high altitude. It is not always easy to detect; storms can create turbulence miles away from the storm site, which means that airlines must not only avoid the storm cell but also must avoid flying too close to it, adding to the difficulty of predicting turbulence in real time.
Studies show that turbulence is increasing in both frequency and
intensity. Researchers at Reading University found that incidents of severe turbulence increased by 55% between 1979 and 2020. They
attributed the startling rise in turbulence events to climate change, with
the increase in carbon dioxide (CO2) emissions leading to warmer air
and increased wind shear in the jet stream.
Prosser, M.C., et al:
“Evidence for Large Increases in Clear-Air Turbulence Over the Past
Four Decades.” Geophysical Research Letters.
A Threat to Commercial Flights
Turbulence regularly occurs during commercial flights, and even
serious turbulence events are not rare. One 2024 study found that
aircraft encounter moderate to “severe-or-greater” turbulence 68,000
times each year.
Zhuang, Z., et al: “Detection of turbulence anomalies
using a symbolic classifier algorithm in airborne quick access record
(QAR) data analysis.” Adv. Atmos. Sci., 41(7), 1438−1449.
But until
recently, the risks of severe injury or death from turbulence were
remote. According to the FAA, just 34 passengers and 129 crew
members were injured by turbulence on U.S. commercial flights
between 2009 and 2022.
On April 3, 2024, Southwest Airlines Flight 4273 from New Orleans to Orlando was forced to divert to Tampa after flying through an area of severe turbulence. Dozens of passengers and multiple members of the flight crew were injured, some with life-threatening neck and back injuries.
Just six weeks later, on May 21, Singapore Airlines Flight SQ32 encountered severe clear air turbulence while cruising at 37,000 feet over Myanmar. According to Singapore’s Transport Safety Investigation Bureau, the flight experienced a sudden unexpected and uncommanded increase in altitude to 37,362 feet, triggering the plane’s autopilot to immediately pitch the aircraft down to its original altitude. This sudden shift caused a rapid change in gravitational forces. Unbelted passengers were launched airborne, and the plane’s return to cruising altitude caused those passengers to fall violently back down to the floor. As a result of the chaos, over 100 people were seriously injured, many with broken necks and backs, and one passenger died.
Before SQ32, no commercial airline passenger had been killed in a turbulence event since 1997, when one person died aboard a United Airlines flight from Tokyo to Honolulu.
With turbulence events increasing in frequency and severity, a savvy passenger would be correct to wonder what happens next—after seeking medical treatment, does the injured passenger have legal recourse against the airline?
The Legal Landscape
Passengers harmed in turbulence events can seek legal recourse from the airlines for their damages. But the odds of recovery differ depending on the flight itinerary,
Legal claims for injuries and deaths arising on international flights are governed by a multinational treaty called the Montreal Convention. Around 135 countries, including the United States, are signatories to the Convention.
Under Article 17 of the Convention, an airline is strictly liable for a passenger’s injuries so long as those injuries were caused by an “accident” that occurred aboard the aircraft or during the course of boarding or disembarking. Although the Montreal Convention does not explicitly define “accident,” the Supreme Court has held it to mean “an unexpected or unusual event or happening that is external to the passenger.” Air France v. Saks, 470 U.S. 392, 405 (1985).
To the extent a passenger’s injuries resulted from his own internal reaction to the normal operation of the aircraft, an “accident” has not occurred within the meaning of the Convention. Saks, 470 U.S. at 406. Monetary damages are limited to a cap of 128,821 Special Drawing Rights (approximately $170,000) if the airline can prove that it was not negligent in allowing the injury-causing event to occur.
If a passenger traveling on an international itinerary is injured or killed
by turbulence, any level of turbulence may be considered an “accident”
so long as it is determined by the jury to have been unexpected or
unusual to the injured passenger. Magan v. Lufthansa German Airlines,
339 F.3d 158, 164 (2d Cir. 2003). The analysis is highly fact-dependent
and requires the fact finder to examine the individual circumstances of
each specific occurrence.
Furuta v. Hawaiian Airlines, 2022 WL
3645764, *6 (D. Haw. Aug. 24, 2022).
Surpassing the cap on damages for seriously injured passengers is the trickiest part of litigating international turbulence cases. Airline defendants frequently argue that clear air turbulence is not detectable, and pilots therefore cannot be blamed for flying through it. Plaintiffs can fight back with the thoughtful analysis of qualified experts and a thorough evaluation of pilot reports (PIREPS) from nearby aircraft around the time of the event.
The airlines also like to point to Article 20 of the Montreal Convention, which covers exoneration, to argue that their liability should be offset by the negligence of passengers who failed to wear their seatbelts. Plaintiffs can overcome this argument with effective witness testimony from passengers who can verify that the seatbelt sign was not on, that the sign had been turned on only merely seconds before the turbulence began with not enough time for passengers to react, or that the flight crew did not properly warn of the turbulence and permitted passengers to get up to use the restroom when the crew should have required passengers to stay seated and belted.
Proving liability for passengers on domestic flights rests on a showing of negligence and the airline’s breach of its duty of care. If domestic passengers cannot prove by a preponderance of the evidence that their pilots were negligent in encountering the turbulence that injured them, they risk a defense verdict a trial. There are several key pieces of evidence passengers can utilize to argue their case, including expert reports, radar imaging, Airmen’s Meteorological Information (AIRMETS), Significant Meteorological Information (SGMETS) and Pilot Reports (PIREPS).
In the case of Southwest Flight 4273, for example, radar images show that the Flight 4273 pilots chose to fly directly through a line of thunderstorms rather than divert around it, like many other contemporaneous flights chose to do. Such a showing can afford passengers a strong liability argument against the airline. If, however, the Southwest injuries had been the result of clear air turbulence, the passengers still could have utilized AIRMETS, SGMETS, and/or PIREPS to support their claims.
What You Can Do
If you have suffered injuries caused by a turbulence event, whether on a domestic or international flight, it’s important to act quickly. First and foremost, you should notify the airline right away that you’ve been hurt and visit a medical professional as soon as possible for diagnosis and treatment of your injuries. It’s also important that you or your attorney demand that the airline preserve key evidence, including the airplane’s digital flight data and cockpit voice recordings. These recordings can be taped over if the airline conducts flights after the turbulence event and it is important that this evidence is not destroyed.
You also need to be aware of potential deadlines. Most turbulence lawsuits are against airlines. If the turbulence occurred on an international flight governed by the Montreal Convention, there is a strict two-year limit to bring suit. Lawsuits arising from turbulence on domestic flights are governed by state statutes of limitations, which can be as short as one year. And if you choose to go after the FAA for air traffic controller negligence, there is a two-year deadline to file a notice of claim under the Federal Torts Claims Act.
Above all, information is key. Make your health a priority, know your rights to legal recourse, and when in doubt, contact an experienced attorney who can navigate this complex legal landscape with you.
Authors
-
Erin R. Applebaum
Erin has dedicated her career to seeking justice for people harmed during air travel. As a partner in Kreindler’s aviation practice, she represents the interests of passengers severely injured or killed in general aviation accidents and commercial airline disasters. Erin is considered by many in the aviation community to be a foremost authority on litigating claims governed by the Montreal Convention, the international treaty on commercial air travel.
Read More -
Taylor A. Sandella
Taylor Sandella joined Kreindler in 2023 following her role as a Judicial Law Clerk at the Superior Court of New Jersey. She holds a J.D. from Brooklyn Law School, where she earned the Prince Merit Scholarship and the Gold Public Service Award. Taylor brings a wealth of experience, including drafting legal briefs, conducting research, and representing veterans in the Veteran Advocacy Project Clinic. Her commitment to public service and strong legal acumen make her a valuable addition to Kreindler.
Read More
