U/A and Dr. Dao (2017)

[PeterNSteinmetz]

...and you can’t actually force them to read the terms and conditions that they agreed to by buying their ticket, so those certainly can’t be enforced.

This where actual adjudication of the case would have been quite interesting.

These type of terms, such as the airline can take you off the plane for reasons having nothing to do with your own behavior, and which tend to run contrary to a commonplace understanding of what is happening, namely buying a ticket to get on the plane and go somewhere, are often found to be not enforceable. Particularly when they are printed in very small print in obscure places and placed in the contract by the drafter who is in a much stronger negotiating position.

 

[PeterNSteinmetz]

You mean obscure places like “click here to verify you’ve read this stuff”?

No, I mean like what paragraph number out of how many pages? I believe the courts have often found that it is not reasonable to expect consumers to read through 5 pages of legal mumbo jumbo when making an online purchase.

These things have been adjudicated in a variety of ways. It would have been interesting to see how it turned out in that case.

I suppose if people really want to discuss that one could go and find the terms and conditions in effect at the time of Dr. Dao’s purchase and see exactly the location and language that purportedly allowed the airline to pull him off. I’ll read it if someone pulls it up, but don’t personally have the time to do so.

 

[PeterNSteinmetz]

More generally of course it clearly was UA’s airplane and from that perspective he was pretty clearly trespassing. There is also the announcement on every flight that you have to follow crew member instructions per Federal law. I don’t know what he was thinking honestly refusing to do so. But that has not been my primary point in this thread.

 

[PeterNSteinmetz]

Just looked at 14 CFR 250. It covers what is to happen in terms of compensation etc. in an oversale situation. But does it provide the legal authority to forcibly remove someone? I didn’t see that there.

I think that authority must stem from the law of trespass. Particularly if nothing in the terms and conditions agreed to deal with it either.

 

[PeterNSteinmetz]

If the business does not have the legal right to remove a customer then why did law enforcement remove him?

I did not mean to imply the business does not have such a right, I am curious what exact legal justification they had in this case? I assume there is one stemming from the law of trespass.

It is complicated because as noted by dmspilot above, the people who did this were not supposed to be wearing uniforms stating they were police. So were they LEOs actually? If they weren’t, then they may have been acting illegally in their removal.

Also, I would not always assume that if LEOs arrest or remove someone, that means the person was legally wrong. LEOs make mistakes on that sort of thing with reasonable frequency. It is not a bad first assumption LEOs are legally correct, but one that should be scrutinized in more controversial cases.

 

[PeterNSteinmetz]

That's true, but it's not an excuse to refuse to follow their directive to leave. If they are wrong, you can address that later.

In general I agree. There are some fine points here though which is what I’m trying to understand. I’m pretty sure you are not under a legal obligation to follow an illegal command given by an LEO. And certainly are not under a legal obligation to obey a command given by someone impersonating an LEO.

So if these people were not LEOs, he was under no legal obligation to obey them. Thus that would have been a “valid excuse” not to obey them. I don’t think Dr. Dao would have known that however.

If they were LEOs, he probably was under a legal obligation, derived from trespass law, to obey them. Similarly with the commands he was probably given by a proper agent of the airline. But that authority is not derived from the CFR about compensation in oversold situations.

I suppose it is possible that the combination of the regs and statutes might not actually legally permit the forcible removal of a passenger, so I would have been curious to see it parsed more precisely.

And in general it is very risky, both legally and in terms of physical injury, to fail to obey the commands of an LEO, lawful or not. Generally best to follow them and sort it out later in court, unless there is extreme immediate risk of serious physical injury or death. A lot of people get hurt that way.

 

[PeterNSteinmetz]

Someone refuses, just pick someone else.

Some of that dealt with earlier in terms of selection rules etc.

But this is one of my main points. There were more peaceful alternatives to trying to force him off the plane. As Larry in TN had noted, that is probably why most airlines have decided to deal with in other ways.

 

[PeterNSteinmetz]

I am still curious if the airlines even had the legal authority to physically put him off the plane. The regulations don't provide that. Apparently the security people who were called thought they had a legal basis, but they may not have even been LEOs at the time. Trespass law may provide this, but it is possible in this regulated industry it does not.

 

[PeterNSteinmetz]

14 CFR 91.3(a)

Interesting idea, but I don't think that provides legal authority to forcibly put someone off. It is just a regulation. Violating it can result in civil action generally speaking.

 

[PeterNSteinmetz]

That would be a violation of 14 CFR 250 which requires each airline to establish, and apply, a procedure for selecting the passenger(s) who will be IDBd. The regulation requires this so that the airline can't pick arbitrarily. The DoT investigated the incident and found that Dao was selected properly for IDB under 14 CFR 250 and the carrier's contract of carriage.

I read that and the regulation doesn't really seem to deal with this particular situation. It does not appear to me to say anything about putting someone off who has already boarded, or about choosing another person to be denied if an already boarded person refuses to leave. (Please point out if I missed it somehow.)

UA's actual policies may something about it. But they may not because it may not be clearly covered by the regulations (as are many situations in the real world when they run up against pre-defined regulations.)

So there may have been no real reason that UA couldn't have simply chosen someone else or denied their own employees transportation (as EdFred, myself, and others have previously noted).

I would contend that both alternatives could reasonably have been anticipated to be less likely to result in a violent confrontation than calling the police. The fact that UA chose the latter, the violent alternative, in the face of ambiguity, in my opinion indicate the kind of company they were and the type of culture they likely still have.

 

[PeterNSteinmetz]

This reinforces my earlier point that it's unreasonable to claim that the airline should have anticipated what was in reality unprecedented violence.

And relating this to my last post. Regardless of previous experience by airlines, is it the serious contention here that you are less likely to have a violent confrontation when dealing with an otherwise peaceful contract dispute by calling the police than by not calling them?

And in this particular case, of the three alternative available to UA, 1) call the police, 2) ask another passenger to leave, or 3) deny boarding to your own employees, that alternative #1 is the one least likely to result in a violent confrontation? That seems an incorrect ordering of the probabilities of violence to me. I would judge that 1,2,3 is the order of decreasing likelihood of violent confrontation.

 

[PeterNSteinmetz]

Thanks, I had forgotten about the fact that the boarding process continues until the door is shut. Do you think that regulation specifies what to do if a passenger refuses, what physical steps can be taken to ensure compliance, and that another passenger cannot be selected in that event?

It struck me that the regulations are mute on those points. As a regulatory agency, it appears the DoT does not have law enforcement powers or its own police force.

 

[PeterNSteinmetz]

I think those questions are irrelevant to the issue of whether the airline was to blame for the violence that befell Dr. Dao. The change in the airline's policies were necessitated by public expectations and public relations considerations, not any legal, ethical, or moral transgression on the airline's part.

Well I have to disagree they are irrelevant and would still be curious to hear what your answers are.

 

[PeterNSteinmetz]

Perhaps even better would be 14 CFR 91.11 and 49 USC 46504, which prohibit interfering with a crew member's performance of his or her duties.

A statute could provide the proper authority, but 49 USC 46504, states “who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties...”

Did Dr. Dao assault or intimidate prior to the police being called? I don’t recall seeing that, but perhaps I missed it.

So I am still puzzled as to the legal authority to physically remove him, leaving aside the issue of whether these security personnel were even LEOs.

 

[PeterNSteinmetz]

Another pair of rank orderings that may be interesting to think about in this case.

I would submit that the rank ordering of alternatives in terms of decreasing convenience for the flight crew was call the police, refuse boarding to the employees, ask another passenger.

The rank order in terms of increasing anticipated cost to the airlines was call the police, ask another customer, refuse boarding to the employees.

The fact that UA chose the policy which could have reasonably been anticipated to have the least cost to the airline, the least inconvenience to the flight crew, and the highest likelihood of resulting in a violent confrontation is what bothers most people I think. And thus leads to the need to change policy and mitigate a public relations and perception disaster, as suggested.

 

[PeterNSteinmetz]

Are you writing a paper on this?

Good question! At this point I almost could, but have several other scientific papers I need to keep focused on. Also a less formal one about Andrew Wakefield and the MMR/vaccine scare which I’ve been researching for the last few months.

I do appreciate all of the inputs and perspectives here and have learned a lot so far about this incident. Thanks all for discussing it in further detail. :emoji846:

 

[PeterNSteinmetz]

One of the security officers involved is suing UA and the city of Chicago over this - https://www.courthousenews.com/wp-content/uploads/2018/04/Dao.pdf

May be an interesting read.

 

[PeterNSteinmetz]

It appears Dr. Dao may never have filed an actual lawsuit with a set of allegations.

I gather this may have been the interview which started the renewed interest in this incident - https://www.app.com/story/travel/ne...gged-off-united-flight-speaks-out/3408956002/

 

[PeterNSteinmetz]

I'm not interested in spending time on a subject that I consider to be irrelevant.

Then let me check if I understand the thrust of the argument here. Basically it boils down to the argument that UA should not be held responsible for the violent confrontation which resulted in Dr. Dao’s injury because no reasonable person could have anticipated that calling the police would result in such a violent confrontation. (Please correct me if I am mistaken.)

The counter argument is that a reasonable person would anticipate that calling the police is more likely to result in a violent confrontation than not calling the police when other alternatives are available and so UA should have chosen one of the other alternatives. Therefore UA bears some responsibility for the violent confrontation which resulted in injury.

I see two possible differences between these. The first is the reasonableness of the estimates of violence ensuing if one calls the police (essentially an empirical question). The second is a theoretical difference in whether one can assign blame based on relative risks and partial causation (beliefs about human agency).

With my questions I was trying to probe the differences between these two. In the first case, for a discussion to go forward, it is likely most productive to discuss data relating to the relative probabilities of police use of excessive force. In the second case it is likely most productive to discuss beliefs about human agency and causation.

I find it is often useful to understand the cause of differences of opinion amongst reasonable people, at least to sharpen one’s own understanding. Thanks for the inputs on this.

 

[PeterNSteinmetz]

14 CFR 250 requires that the airline establish, then adhere to, the procedure. It is available from the airline at the airport or on their website.

I gather the dead-headers aren’t placed in the list with the passengers and so so effectively in this case were treated as being on the very top priority ahead of everyone else?

I gather the change in policy at UA essentially says now that the police will no longer be called in to enforce that.