Does The Fine Print In United’s Contract Prevent Kicked-Off Passenger From Suing Airline?

Image courtesy of Bernal Saborio G. (berkuspic)

A lot of people are saying the United Airlines passenger who was forcibly booted from a Sunday afternoon flight should sue the carrier, while others say he can’t sue because of fine print in United’s 37,000-word customer contract. Turns out he probably can take the airline to court, but whether or not he’d prevail is unclear.

Anyone who flies on any United flight is bound by the airline’s Contract of Carriage. When purchasing a ticket, you’re not even asked to lie and said you’ve read the document. There is merely a note in tiny type advising you that the terms of this contract apply.

If you actually read through the United contract, you begin to see how much it limits the airline’s liability for things that can go wrong.

The phrase “not liable” appears 32 times in the United contract, including “Rule 21 J,” which dictates that the airline is “not liable for its refusal to transport any passenger or for its removal of any passenger in accordance with this Rule. A Passenger who is removed or refused transportation in accordance with this Rule may be eligible for a refund upon request… As an express precondition to issuance of any refund, UA shall not be responsible for damages of any kind whatsoever.”

Moreover, as Sen. Patrick Leahy (VT) noted on Twitter this morning, the United contract states that a refund is the “sole and exclusive remedy” for a passenger removed from a flight.

Leahy, who is sponsoring legislation that would curb the use of forced arbitration, called this clause “absurd” and later argued that companies should stop “limiting our rights [through] legal fine print.”

All the major U.S. carriers have similar conditions in their contracts that effectively say the airline can kick you off for just about any reason, so long as you get a refund. Unlike a typical arbitration clause — which prevents you from even having your day in court — these sorts of clauses just make it more likely for you to lose if you do sue.

For the moment, let’s imagine a situation where the United passenger was told to leave the plane but wasn’t dragged down the aisle. There’s nothing in the contract that says the passenger can’t sue, but as long as he gets that contractually mandated refund he wouldn’t really have a case.

“You can bring a lawsuit for breach of contract, but if the airline didn’t breach the contract, you’re not going to win,” says Scott Nelson, an attorney with Public Citizen’s litigation group. He adds that, depending on the specifics of an airline’s refund policy, a passenger may not even be due a refund if the airline is able to find them a seat on another carrier’s flight.

A booted passenger could try to sue, claiming the reason for removal did not fall under any of the reasons given in the contract, but the United agreement specifically lists more than a dozen kinds of passengers who can be kicked off a plane, including the vague “Passengers who fail to comply with or interfere with the duties of the members of the flight crew.” So the odds of being successful in a breach of contract case are slim.

These sorts of clauses are well established in commercial contracts, notes Nelson, pointing out that they are generally there to protect companies from liability in cases where the business could not reasonably have predicted the consequences of its actions. For example, how could an airline know that you’re going to lose your house and your car because your flight got delayed and you didn’t make it to a job interview on time?

That said, Nelson points out that there’s a good reason for people to be unhappy about being bound by contracts that are novella-length and must be accepted without change.

“People don’t have any understanding of what they’re agreeing to,” he tells Consumerist. And even if people do know what they’re signing, they can’t opt out of specific parts of the contract or take their business elsewhere.

Now let’s acknowledge that this United situation really isn’t about the “why” of the passenger’s ejection, but the “how.”

Yes, the contract allows airlines to remove passengers who disobey flight crew. In fact, federal regulations explicitly prohibit interfering with crewmembers, and if it rises to the level of intimidation or assault, a passenger can go to prison for up to 20 years.

However, just because you have to listen when a flight attendant or pilot tells you to do something, that doesn’t necessarily mean they — or their agents — have a green light to do physical harm when you don’t follow orders. Even when you’re being arrested charged with a crime, which the passenger in this case was not, federal law still guarantees that your basic civil rights are protected.

So if this matter ever gets to a courtroom, the real question, says Nelson, is likely to be whether the city-employed security officers went too far in forcibly removing the passenger and if the airline can be held responsible for the behavior of those officers.

“In circumstances where there is a reason to eject a passenger and the passenger refuses, there’s an inevitability that some kind of force will be used,” says Nelson, adding that the court would be asked to “look to see what is a reasonable response to the passenger’s behavior.”