Girardi | Keese

Airplane Accident Victims May Receive Drastically Different Injury Awards

If you are injured in a mass-injury accident, such as a plane crash, and your injuries are very similar to another passenger's injuries, shouldn't you recover the same amount of compensation as that passenger? That would be logical, perhaps, but it is not how our legal system works, especially if the accident involves international travel.

Let's first take two similar cases in the U.S. There were 64 American passengers on Asiana Flight 214, the airplane that crashed at the San Francisco International Airport a week ago. Let's say two of those American passengers suffered similar spinal cord injuries. They sue Asiana for their injuries, which could cost them more than a million dollars during their lives.

Under an international treaty, the Montreal Convention, Asiana would have to pay approximately $138,000 to both passengers as "strict liability damages." The rest of the damages, however, do not fall under a strict liability standard, but a negligence standard, which means Asiana could raise multiple defenses to try to avoid liability.

And the amount of negligence damages that each injured person will bring home depends on a number of factors, including:

  • The judge or jury
  • The attorneys involved in the case
  • The perceived extent of the injuries as portrayed through evidence
  • The age of the injured person
  • The amount of rehabilitation and medical care that will be necessary throughout the person's life

Since these factors will vary, the injury awards for the two passengers similarly injured will also vary.

Now, imagine that one of the injured people was South Korean and flying on a round-trip ticket. Under the Montreal Convention, there are five places where an injured international passenger can bring a lawsuit, including:

  • The injured person's country of residence
  • The injured person's final destination
  • Where the ticket was issued
  • The air carrier's base
  • The air carrier's principal place of business

While the injured American in this scenario could bring a lawsuit in the U.S. (his or her place of residence and final destination), the South Korean would have no basis upon which to bring a lawsuit in the U.S. This matters, because a spinal cord injury verdict in the U.S. could be upwards of a million dollars while one in South Korea would likely be substantially lower. In fact, a South Korean attorney that represented victims in the 1997 Korean Air Lines crash in Guam said that individuals who sued Korean Air Lines in the United States settled for 100 times more than some of those who sued the company in South Korea.

Of course, this isn't fair, but it does teach a lesson: Individuals injured in international air travel should "forum shop," if they have the option.

Questions about aviation accident law? Visit our website on aviation accidents.

Source: USA Today, "Courts will treat Asiana passengers differently," Associated Press, July 14, 2013

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