Legal News

Can the Passengers of Flight 1549 Sue for Emotional Distress?

By Dan Slater

Survivors of the US Airways plane crash in the Hudson River wait for a bus to take them from a First Aid center in Weehawken, N.J. back to La Guardia Airport, Jan. 15, 2009. (AP)

Thankfully, savvy piloting and a quick rescue helped keep the death toll at zero yesterday, when US Airways Flight 1549 crash-landed on the Hudson River. New York Gov. David Paterson called it a miracle on the Hudson.

But it’ll take more than a miracle to keep the lawsuits from flying. As far as we know, no suits have yet been filed. But we were curious about what such a claim — negligent infliction of emotional distress, anyone? — may look like, and whether it could succeed. So we called up tort law guru Aaron Twerski of Brooklyn Law School. Twerski, a longtime tort professor, co-authored the products liability section for the Restatement of the Law (Third) Torts as well as one of the leading tort casebooks.

“My visceral reaction is that there’s probably no case, because there’s probably no negligence,” Twerski told the Law Blog. Any claim – whether for negligent infliction of emotional distress or for physical injuries — would be predicated on there being negligence, said Twerski. Either ‘you knew or should’ve known that the birds were there and you should’ve taken avoidance measures’ or ‘you should’ve been on notice.’ ”

“If the pilots were warned of the birds,” Twerski said, “and didn’t avoid them, then maybe you have negligence. But from what I read in the papers, this flock just happened on them. And, given the quality of this pilot, he would’ve avoided them had he known. It seems to me that this probably was a real cracker jack.”

He continued: “But, if there is negligence, then these passengers are clearly in the ‘zone of danger’ ” — a requirement for an NIED claim in New York. “So then the question becomes, what’s the damage? Well, it was a harrowing experience, and the people will probably be able to say they’ve suffered emotional distress – such as nightmares and fears – as a result. There’s no question that, if there was negligence and follow-on emotional distress then there’s a cause of action. In any event, I don’t see this as a big dollar item case.”

For more comprehensive coverage of the crash, we recommend the WSJ’s Middle Seat Terminal blog.

Full post as published by Law Blog - WSJ.com on January 16, 2009 (boomark / email).