Memo warns failure to heed airline safety instructions could get passengers sued

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OTTAWA — Like most people, you probably tune out as flight attendants give their safety briefing before the plane takes off, but if you’re in an exit row, you might want to think twice about not payi

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OTTAWA — Like most people, you probably tune out as flight attendants give their safety briefing before the plane takes off, but if you’re in an exit row, you might want to think twice about not paying attention.

Transport Canada documents obtained by Canwest News Service question whether there is a possibility that exit row passengers could be sued if they ignore the instructions and someone is injured or dies as a result.

A cabin safety standards inspector with Transport Canada raised that possibility in an e-mail to a colleague, obtained by Canwest News Service.

The e-mail quoted an Air Law and Commerce article from 2003 that suggested that “holding exit row passengers liable for damages resulting from their inattention to safety materials could deter exit row passengers from ignoring safety information and compensate those victims harmed.”

The e-mail also questioned whether cabin crew on the plane, “those responsible for informing exit row passengers of their duties could also become targets for a ‘negligence cause of action.’ In the end, the airline could likely become involved in such actions. Thus, the importance of providing exit row passengers with detailed briefings to prepare them for emergencies cannot be underestimated,” Christopher Dann, the inspector, wrote.

Dann said that the 2003 article by Wendy Gerwick was the only published work that he was aware of on the topic.

Jean Riverin, a Transport Canada spokesman, said his department is not aware of any specific legal action against an exit row passenger resulting from an incident or accident. Transport Canada would not comment directly on the potential for lawsuits.

Canadian airlines are required to brief passengers in exit rows on how to open the emergency door, but the question of when and if they should do it is far more murky and that potentially opens the door to lawsuits.

Transport Canada regulations require exit row passengers to be able to understand the safety briefing, be physically able to open the door, to be able to determine visually if the door is safe to open and that they be of a minimum age, established by the airline. If they don’t meet those criteria, the airlines have to ask them to change seats.

The U.S. National Transportation Safety Board has reviewed the issue of exit row passengers and the results weren’t great. In six cases it looked at, its questionnaire found that passengers had difficulty in knowing when to open the emergency exits. It found that in two cases, exits that should have remained closed were opened. In other case, flight crew ordered an evacuation from the forward exits only, but a passenger still opened an exit over the plane’s wing.

The board also found that passengers had trouble assessing conditions outside the plane. In one case, passengers opened an exit and smoke started flowing into the plane. Two passengers were severely burned as they jumped through fire as they exited the plane.

It also concluded that most passengers don’t read safety information on the plane and that “exit procedures for emergency evacuations are critical and if not followed could lead to tragedy.”

A recent Australian Transportation Safety Board study also found “passenger attention to safety communications were found to be generally low.” It noted that in part that may be because “perceptions that it is socially undesirable to pay attention to safety information.”

In Canada, the question of whether a passenger could sue a fellow passenger, the airline or both is extremely complex because it isn’t necessarily clear what jurisdiction the case would fall under. Where it happens and where the plane was from could be factors. For example, civil suits in Quebec fall under that province’s civil code but in the rest of Canada, common law is used.

In Quebec, retired civil law professor Claude Fabien says it would be difficult to sue someone for damages if they are trying to help others and it ends in injury. Fabien said the code essentially exonerates anyone of blame if they are trying to help someone else.

“The passenger would really have to do something very stupid to not enjoy immunity from this rule. The goal of the rule is to encourage people to help others without having to worry about a civil lawsuit.”

While there is “no initial obligation to help others,” under common law, University of Montreal law professor Stephane Beaulac says, exit row passengers could potentially become liable if things go wrong after “explicitly or implicitly” accepting to help in case of an emergency.

They can do the latter by “listening to the briefing of the crew and acknowledging, giving the impression they accepted the mandate to help.” In that case, Beaulac added, “there must not be negligence and passengers must to the best of their abilities be able to follow the crew’s directives.”

If there is negligence, in theory the passengers could be held responsible and have to pay for damages.

But lawsuits are more likely to target the airlines, which have deeper pockets, Beaulac noted.

“The entire process of delegating, giving a mandate, a responsibility to someone with no expertise in the evacuation of the plane,” could be called into question, he said. The passengers could sue the airline, raising issue with the instructions or the problematic character of the delegation process.

Neither Air Canada nor WestJet would comment on the potential for lawsuits over exit row passenger issues.

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Editor in chief is Linda Hohnholz.