Friday, January 16, 2009

A Water Landing? Seriously?

Yesterday's news was predominated by a truly remarkable story. 

A US Airways flight suffered a "double bird strike" (sounds cooler than it is) shortly after takeoff. Both of the jet's engines were apparently damaged by an impact with a flock of birds.  The controller suggested to "Sully" (pilot's full name: Chesley B. Sullenberger) that he make an emergency landing attempt at either a small airstrip in New Jersey, or on an empty runway at LaGuardia Airport. 
 
The pilot, however, literally dove into the Hudson River.  Miraculously, (Gov. David Patterson has, himself, dubbed the event a 'miracle') the water landing was a success! Steven Levitt, of Freakonomics fame, notes that there have been over 150 million commercial flights since 1970, and yesterday was the first official "water landing".  

To quote Vizzini from 'Princess Bride...INCONCEIVABLE!

Another interesting question arises when determining whether or not these passenger will have an action in tort for negligent inflection of emotional distress (NEID).  Such a case would likely turn on a finding of negligence...Aaron Twerski, a law professor at Brooklyn Law School, argues that negligence would be difficult to establish.  

"If the pilots were warned of the birds", he says, "and didn't avoid them, maybe you have negligence."  Since the presence of the birds appear to be happenstance  (a skillful pilot could surely have avoided the birds if he knew their position), it is difficult to find notice.  

New York tort law requires that, to recover for NEID, a plaintiff must be within the "zone of danger"; clearly these passengers were. As to damages, the passengers would need to demonstrate emotional distress - nightmares, fears, anxiety, etc.  

If negligence can be demonstrated, an action for negligent infliction of emotional distress could lie.  It will be interesting to see whether or not any of the passengers choose to pursue such an action, and whether they would dare to name the (heroic) pilot as defendant. 

2 comments:

ACorso said...

Ambulance chaser.

Couldn't an argument exist for assumption of the risk? Even better, there was an interceding natural event, that is, the birds flew into the engine. Nothing the airline could have done could have prevented it.

Just saying what the defense would say.

How'd you hear about the case?

They call me K. said...

im so going to "double bird strike" someone.