On March 11, 2020, an aircraft carrying an ill passenger landed at Palm Beach International Airport. Apparently, the passenger had been feeling bad for a while, and had been tested for coronavirus. A passenger on the plane was quoted as saying that the ill man’s wife:
was sitting in the same row as me and mentioned to others that he wasn’t feeling well. She said he had gotten a phone call with his test results right before we had taken off, implying that he had a positive test but not actually saying it.
Health officials were called, and it was confirmed that the passenger had the coronavirus. The aircraft stayed on the tarmac for two hours. After the ill man was removed, the other passengers were permitted to disembark and leave the airport. Health officials did not detain the other passengers, claiming that, since the ill man was not coughing or sneezing it was “most likely” that the other passengers would catch the virus. The passengers who sat very close to the ill man spoke to the media after the incident, and stated that they were feeling “very uncomfortable,” given the amount of time they had spent in close proximity.
As the coronavirus continues to spread, stories such as this are likely to reoccur. The obvious question for airlines is, what is the potential liability if the virus is spread on an aircraft? In the United States, tort liability is normally based on concepts of negligence. The jury will be asked to determine if the airline has a duty to protect the passenger from the particular harm, and whether the airline behaved with the level of care that an air carrier of ordinary prudence would have exercised under the same circumstance?
Of course, the analysis is not quite that simple. Pervasive federal regulation of the airlines means that many claims are likely to be intertwined with complex issues of federal preemption. Let’s examine three potential risks for airlines: 1) failure to warn passengers, 2) allowing a sick individual to fly, and 3) failing to properly clean an aircraft after a confirmed coronavirus passenger transport.
A claim that the airlines have a duty to warn passengers of the risk of coronavirus would likely fall under the rationale of Montalvo v. Spirit Airlines, where the Ninth circuit held that passenger claims based on the failure to warn of the risk of deep vein thrombosis were preempted. The Court held that liability in an area where the FAA has provided pervasive guidance and requirements, such as the safety warnings that should be given passengers, interferes with the agency’s authority to serve as the principal arbiter of aviation safety. A claim that the airlines should be warning of the risk of coronavirus exposure on a plane would also likely be preempted.
The question of airline liability for exposing others to disease by carrying a sick passenger is complicated by 14 C.F.R. § 382.21. That section of the Federal Aviation Regulations is captioned with the following question: “May carriers limit access to transportation on the basis that a passenger has a communicable disease or other medical condition?” Section 382.21(a) provides:
I. You must not do any of the following things on the basis that a passenger has a communicable diseaseor infection, unless you determine that the passenger’s condition poses a direct threat:
(1) Refuse to provide transportation to the passenger;
(2) Delay the passenger’s transportation (e.g., require the passenger to take a later flight);
(3) Impose on the passenger any condition, restriction, or requirement not imposed on other passengers; or
(4) Require the passenger to provide a medical certificate.
The FAA recognizes that airlines are not health professionals, and provides the following guidance:
(b) In assessing whether the passenger’s condition poses a direct threat, you must apply the provisions of § 382.19(c)(1)–(2) of this subpart.
(1) In making this assessment, you may rely on directives issued by public health authorities (e.g., the U.S. Centers for Disease control or Public Health Service; comparable agencies in other countries; the World Health Organization).
(2) In making this assessment, you must consider the significance of the consequences of a communicable disease and the degree to which it can be readily transmitted by casual contact in an aircraft cabin environment.
The section goes on to provide three concrete examples:
Example 1 to paragraph (b)(2): The common cold is readily transmissible in an aircraft cabin environment but does not have severe health consequences. Someone with a cold would not pose a direct threat.
Example 2 to paragraph (b)(2): AIDS has very severe health consequences but is not readily transmissible in an aircraft cabin environment. Someone would not pose a direct threat because he or she is HIV–positive or has AIDS.
Example 3 to paragraph (b)(2): SARS may be readily transmissible in an aircraft cabin environment and has severe health consequences. Someone with SARS probably poses a direct threat.
The current coronavirus outbreak is related to SARS. However, indications are that coronavirus is less lethal than SARS, but also more contagious. Interestingly, even with regard to SARS, the regulation only goes so far as to state that the passenger “probably” poses a direct threat. Whether these differences make coronavirus more or less of a direct threat than SARS is open for debate.
Thus, while there is a federal regulation dealing directly with the airlines ability to deny boarding to a coronavirus passenger, it leaves the ultimate decision to the carrier to make on a case by case basis. As a result, the extent to which there would be federal preemption of a claim that the airline negligently permitted a coronavirus passenger to travel infecting others on the plane becomes less clear.
A third potential area of exposure to liability for an airline comes from the potential of exposing passengers to the virus on subsequent flights when the airline knew there had been a sick person on board. Initial reports indicate that the virus can live on plastic surfaces for 16 hours or more. In the West Palm Beach incident mentioned at the beginning of the article, the carrier removed that aircraft from service for a thorough decontamination by workers with protective gear. In the absence of concrete federal guidance on when and how to decontaminate an aircraft after coronavirus exposure, a state law claim would be unlikely to be preempted and, depending on the facts and knowledge of the carrier, might be permitted to proceed.
Of course, for international flights, the liability issues would be governed in the first instance by the Warsaw Convention or Montreal Convention, depending on what countries the plane departed from and were destined to. Assuming that contracting coronavirus on an aircraft would constitute an “accident” for purposes of the conventions, then the passenger’s actual economic damages could be recoverable up to the applicable liability limits. However, it is clear that recovery would be barred for anyone on the plane who did not actually contract the virus.
In the West Palm Beach incident, a number of passengers told the media that they were fearful and apprehensive after learning of their possible exposure to the virus. Normally, this could potentially give rise to a claim of emotional distress for those in the “zone of danger.” However, the Montreal and Warsaw Conventions only permit recovery for bodily injury. Under cases such as Ehrlich v. American Airlines, recovery for purely mental or nonphysical injuries are prohibited.
Clearly, the global spread of coronavirus has created a wide array of new sources for airline liability to passengers. However, the complex interplay of federalism and federal preemption means that the issues won’t be decided based purely on the basis of negligence under state law. Creative framing of the claims will be required by potential plaintiffs to pierce the protections of federal law.
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