Metropolitan News-Enterprise


Tuesday, April 26, 2022


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Airline Not Liable for Unforeseeable Attack By One Passenger Against Another—C.A.

Plaintiff Was Injured When Man Struck By Assailant Fell on Him; Lui Says Such Occurrences Can’t Reasonably Be Prevented


By a MetNews Staff Writer


Southwest Airlines is not liable to a passenger who was injured when an unanticipated fight broke out, with a man who was being punched falling onto him, the Court of Appeal for this district has held, declaring that while the defendant is a common carrier, with a special relationship to persons it transports, its duty to them does not extend to protecting them against unforeseeable events and public policy would not be served by imposing liability.

Unless passengers were subjected to intolerable measures, Presiding Justice Elwood Lui of Div. Two wrote, airlines cannot be expected to prevent such altercations which, he noted, are occurring with increasing frequency.

The opinion was filed Friday and was not certified for publication. It affirms a Jan. 11, 2021 summary judgment granted by Los Angeles Superior Court Judge Stephen I. Goorvitch in favor of Southwest.

“As for the policy of preventing future harm, undoubtedly the airline industry, passengers, and government agree that the need to prevent unruly airline passenger conduct is critical,” Lui wrote. “That need is growing as more airline passengers have returned to flying following the pandemic-related drop in ridership and the number of onboard unruly passenger incidents has increased dramatically.”

He cited an Oct. 19, 2021 report by the Congressional Research Service showing that the Federal Aviation Administration received in excess of 4,000 reports of disorderly behavior on aircraft in the first three-quarters of last year, triggering more than 800 investigations of the episodes—more than a 500 percent increase over recent years. The jurist said:

“The question, however, is whether mandating that airlines be responsible for preventing fistfights between passengers like the one in this case is feasible without imposing an unrealistic and unacceptably heavy burden on both airlines and passengers. Short of having airlines require that passengers (1) be screened for emotional stability before boarding; (2) remain strapped in their seats under the watchful eye of onboard security guards; (3) and submit to having security guards escort them to and from the rest rooms and the aircraft, we can envision no practical, cost effective, and tolerable means of safeguarding passengers from such unforeseen attacks and controlling such unforeseen attackers.”

Flight From Dallas

Suing Southwest was Miguel Rodriguez, a passenger on Flight 8, traveling from Dallas to Los Angeles on March 2, 2018. A woman came onboard with a roller carry-on suitcase; a customer service representative who had boarded the aircraft to close overhead bins volunteered to place it in an overhead compartment; to facilitate that, he removed two small bags in a compartment; after ascertaining they belonged to Rodriguez and his companion, Eric Lopez, he directed them to place the bags underneath the seat in front of them, reducing their legroom; Rodriguez complied; Lopez didn’t.

Lopez was told that he would either have to abide by the direction or leave the aircraft. He refused to do either.

Following a procedure authorized by the airline in responding to such incidents, all passengers were directed to deplane. As passenger Trenton Scott Pickett-Evans came by the seat from which Lopez would not budge, he commanded Lopez to get off the plane; Lopez stood up; an argument ensued; Pickett-Evans knocked Lopez off balance; Lopez fell on Rodriguez whose knee was knocked against the seat, snapping a tendon.

Rodriguez sued the airline.

Goorvitch’s View

In granting summary judgment in favor of Southwest, Goorvitch said:

“At heart, Plaintiff is attempting to hold Defendant strictly liable for a fight between two other passengers. The cause of Plaintiffs injury was not Defendant’s employee’s conduct but rather the unruly behavior of two other passengers. Plaintiffs remedies lie against the participants in the fight, not Defendant. Were the Court to deny this motion, it effectively would mean that airlines are liable whenever a passenger becomes upset at their efforts to secure the cabin for take-off or decide to return to the gate to deplane.” In his brief on appeal, Rodriguez argued: “The intervening cause of Rodriguez’s injury, an altercation between two other passengers, was not only foreseeable but became likely as tensions increased in the aircraft’s cabin. The acts and omissions by Southwest’s employees, and the manner in which those acts and omissions occurred, was among the initial links in the chain of causation. As tensions increased and injury became more likely, Southwest’s employees failed to maintain order in any way….Rodriguez is entitled to a jury’s determination on these issues….”

Respondent’s Brief

Southwest said in its respondent’s brief:

“Plaintiff s case against Southwest Airlines Co….rested on a novel, untenable proposition. It was this:

“An airline should bear tort liability for injuries allegedly sustained by Passenger A when (1) the airline’s employee asks Passenger B to place the passenger’s carry-on bag underneath a seat; (2) Passenger B refuses the request; (3) Passenger C intervenes and engages Passenger B in a fist fight; and (4) Passenger A—the plaintiff—is injured in the ruckus initiated by Passenger B.

“By itself, this notion was astounding because, among other things, it stretched the airline’s legal duty, and precepts about legal causation to, and well past, their outermost limits.”

Lui’s Opinion

Lui expressed agreement with Goorvitch that Southwest did not breach a duty to protect Rodriguez. He pointed out that there was no “preexisting animosity” between Pickett-Evans and Lopez, “no records of similar incidents that may have made it sufficiently likely an assault would occur in these circumstances,” and “the attack happened in a setting in which airline employees could not control the attacking passenger.”

He went on to say:

“The crux of Rodriguez’s argument is the employees’ breach of their duties and failure to maintain order caused rising tensions among the passengers, making the assault foreseeable.

“The problem with Rodriguez’s argument is that it is addressed to the elements of breach and causation for a negligence cause of action, not to the element of duty, which is to be established first.”

The case is Rodriguez v. Southwest Airlines Co., B311405.

Torrance attorney Kyle Philip Schneberg teamed with Jeffrey Lewis and Sean C. Rotstan of the Rolling Hills Estates firm of Jeff Lewis Law in arguing for reversal. Richard Gerard Grotch of the Half Moon Bay firm of Jetstream Legal represented Southwest.


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