Air Travel Injury — The Tray Table Coffee Spill

http://www.dreamstime.com/royalty-free-stock-image-breakfast-plane-fruit-small-bun-juice-tea-passenger-tries-tea-teaspoon-image30423496Once again, an incident in which someone claims injuries from a coffee spill is making the news. Ms. Lourdes Cervantes filed suit last month against United Airlines, related to a cup of coffee that spilled on her during a flight in 2011.

The most famous “coffee spill” incident in history is likely the one that lead to the lawsuit filed by 79 year old Stella Liebeck against McDonalds following burns she suffered in 1992. That case actually served as the inspiration for the title of this blog – but not because I believe it to have been frivolous (my friends in the plaintiff’s bar are quick to point out that Ms. Liebeck’s injuries were actually quite severe and that her claims were very legitimate, and there have been numerous articles, videos and investigative reports since that time to support that position). Instead, I used that case because of the very fact that for nearly 20 years it has served as the flashpoint for every debate about what actually constitutes frivolous litigation. In Ms. Liebeck’s case, various tales and urban legends exist regarding how she was burned – some claim she held the cup between her legs as she was driving, while others suggest that a family member was driving and bounced a pothole as she tried to add creamer, etc. Ultimately, what truly came out of that suit was discovery of the fact that McDonalds’ coffee was REALLY HOT…perhaps hotter than coffee made in other establishments and general residential coffee pots, etc.

Since Ms. Liebeck’s suit, I suspect everyone has seen the warnings which McDonalds (and likely many other such entities) now put on their coffee cups, noting that the product or liquid therein may be “VERY HOT” and to exercise “caution”, etc. Notwithstanding the injuries Ms. Liebeck suffered, it still seems odd to many that a restaurant should have to actually warn people that a drink created to be enjoyed hot is actually HOT. Reading such a warning on the cup might make the average person say “duh”…

In the new suit by Ms. Cervantes, she claims that while on an international flight on Continental Airlines (now part of the United system) in 2011, a flight attendant put a cup of coffee down on Ms. Cervantes’ tray table, after which the passenger in front of her reclined his seat, causing her coffee to spill and burn her. In her case, however, she has sued under a 1999 treaty (the Montreal Convention) related to international air travel that essentially makes an airline strictly liable for injuries a passenger may sustain on a flight, but limits the awardable damages. It does not appear that under this treaty Ms. Cervantes will have to prove the airline’s negligence, which is a good thing for her, since I’m not sure I see the negligent conduct of the airline, and she sure can’t sue the schmuck in the row in front of her.

Were it not for the ability to pursue a “strict liability” claim under the aforementioned treaty, it would appear that Ms. Cervantes’ case ignores the realities of air travel. Anyone who has ever flown knows that a plane bounces around in the air like a roller coaster, and that putting anything on a tray table is fraught with risk. Planes in flight actually go both upward and downward, thereby changing the angle of the trays, I presume to the surprise of no one. I have had plenty of beverages (including coffee) that were on a tray table spill in flight, and that little indentation in the tray table that is supposed to “hold” a cup is of little use. Moreover, tray tables are almost smaller than a laptop computer footprint, and those of us who work on planes know that we have nowhere to put our beverage while trying to type. The fact remains that we are packed in a long aluminum tube like sardines, with seats as close to the one in front of you as the airlines can get them. As a result, when the big guy in front of you reclines (and he is bound to do so), your tray table will move, and you are likely to be staring right at the back of his head only a few inches in front of your face. Likewise, finding a tray table that actually sits rigidly parallel to the floor is rare. Most appear to be off kilter or have a bracket or arm on one side that is a little looser than the other, etc., and they generally are too ricketty to bear much weight as it is.

The bottom line is that it is hard to believe that anyone would be surprised that something might spill during a flight. And quite frankly, in my experience, I’ve never even been served anything other than lukewarm coffee on any flight anyhow. While I take Ms. Cervantes’ claims about the injuries she suffered as true, I can only wonder whether a jury would actually find in her favor if she could not benefit from the 1999 treaty to pursue her claim. Otherwise, this type of event screams “assumption of the risk” to me. Because given the fact that you are bound to hit turbulence with a drink on your table, if the airline has to pay damages for for every spill that occurs, I surmise that air travel is going to take another step away from the luxurious days gone by, and the simple beverage service and peanuts we now receive in flight will be the next thing to go.

When we run out of things that might spill on us in flight, perhaps the next wave of litigation will be over the cold or flu we contract due to the fact we all have to share the same virus and bacteria-infested air with others in that long, tight tube.