Flying, Disappointment, and Lawsuits

The topic of air travel is often in the news. The hot topic in recent days has been the volume of flight cancellations. There have been a great many. Many don't know those daily cancellations are tracked in real-time by Tens of thousands of canceled flights have disrupted and stranded people in recent days. It has been a tough holiday season for many. Government is reportedly interested. Though prior to the holiday rush, I experienced a flight cancellation in December, the first I can recall. It was disconcerting, disappointing, and discouraging me from flying.
It is not the first report this year of airline issues. See The FAA and Seats (August 2022). The topic of seat size and passenger comfort was not new then. Comfort has been an issue of complaint for years. Remember the consternation over people who use the reclining seat function? In 2014, NBC labeled them "seat wars," and people actually bought devices to prevent having the seat in front of them operate as designed (your seat is in my space).
Short conclusion, space on airplanes is limited. Passengers want more space, but believe they can have their comfort legislated or regulated. They are campaigning for more government intervention and may find solace in standards dictating the size and spacing of seats. And, they may find fewer opportunities for the deep-discount fares they have enjoyed. In the inflation-wasteland we find ourselves, would anyone notice? Perhaps the government would fight that inflation effect by pumping more money into the economy? 
There are limits to space. Only one body can occupy a space at the same time. Thus, if you are sitting in an airplane seat, or beyond it, no other person can sit simultaneously in that same space. All of the space you occupy is not available to others. It is, your space, and within some reasonable perimeter, perhaps you also have some personal space. This "surrounding" space was discussed in Manspreading (November 2022).
Business Insider reports that a "plus-size" model was recently denied boarding on an airline. The Daily Mail reports she was striving to fly from Beirut to Doha, en route back to Brazil. estimates this trip to Doha to require about three hours. The Mirror provides a more ready appreciation for the model's size. Another site reports she is 5'7" and weighs approximately 330 pounds (BMI 51.66). Is Body Mass Index relevant? See BMI Conundrum (August 2022). The Centers for Disease Control says that: 
  • If your BMI is less than 18.5, it falls within the underweight range.
  • If your BMI is 18.5 to 24.9, it falls within the Healthy Weight range.
  • If your BMI is 25.0 to 29.9, it falls within the overweight range.
  • If your BMI is 30.0 or higher, it falls within the obese range.
It makes no representation of what label might be used for a BMI of 51. Any such label would likely hurt someone's feelings. Perhaps the CDC avoids that for fear of paying for someone's therapy? Back to the "sticks and stones," and names apparently do hurt us. A Holiday Greeting with Best Intentions (December 2022). 
This model has made international news because she sued the airline for denying her boarding for a coach seat she purchased. They suggested a larger seat purchase, which the model declined. The lawsuit proceeded rapidly in a Brazilian court (it takes a long while to get a civil case to trial in America). 
The Brazilian judge ordered the airline to pay for the model to have a "weekly therapy session . . . for at least a year." It is valued at $3,700. This is to "ensure that the stressful and traumatic event is overcome." The model's attorney is quoted labeling this victory "a milestone in the fight against prejudice." The model claimed the denial was dehumanizing and she felt treated as "a fat monster that couldn't get on board."
The airline has a different view. It contends that the model "was denied boarding when she became 'extremely rude and aggressive' to check-in staff after a traveling companion failed to produce the necessary COVID-19 documentation required to enter Brazil." In years of travel, I have learned that arguing with airline staff never accomplishes anything.
For that matter, corresponding, chatting, texting, and even social media with airlines can be less than productive (as I learned in December when my flight was canceled). I invested hours in gaining a refund, and suspect that a great many travelers simply give up and let the airline keep the money. The motivation is clear. The execution was superb - the phone center insisted I must file a website request, the website habitually faulted and instructed me to call the phone center. It was a vicious circle of failure and incompetence.
There will be some tendency to see consumer victory in the plus-model holding this airline responsible for her emotional distress. She was shamed and this verdict will both help her and prevent others from being shamed in the future. As I have typed this, Weird Al Yankovic's take on Another One Bites the Dust (Queen, EMI, 1980) - Another one Rides the Bus (Placebo, 1983) has been running inexplicably in my head; and suddenly my memory lights on the clarifying lyric of that parody.
Mr. Yankovic, in Rides the Bus, laments the experience. The lyrics describe the discomfort of mass transportation, the aromas, the litter, the confined spaces ("packed in like sardines"). He laments that there is not enough room and notes that people just keep boarding ("Another comes on and another comes on"). Then he concludes with "Hey, he's gonna sit by you, another one rides the bus." And, there we perhaps have it. The "manspreader," the plus-size model, the man who elected not to bathe and instead has marinated in cologne or body spray, is going to sit by you. Or, it might just be that nice person that feels compelled to tell you a life story, series of bad jokes, or updates regarding what she/he read in today's news. 
The airlines will be increasingly reluctant or unwilling to enforce their (or any) rules. The cabin may become increasingly unbearable. Even if the seats are regulated to be larger, the knee room more generous, the seat coverings more supple, the refreshments more pleasing, someone you don't know or like may nonetheless share your seat and legroom with you. In accommodating someone, the airline will (or allow a fellow passenger to) impose on (sit on) someone else. It is an apt illustration of the balance of laws.
Every legal accommodation for any person is likely to work a corresponding impairment upon the rights of another. It is hoped that society can protect all, but airplane space is a zero-sum game. Every inch which I occupy is an inch that you cannot. Space is finite. We might hope that everyone in the world would be respectful of those around them. But we all know that is unrealistic. The answer to this conundrum of competing interests and rights is likely out there somewhere. I don't know where.
In the end, the needs and wants of some will result in the diminution of the rights of others (zero-sum in some instances). Airlines will either raise fares to pay for emotional injury claims or they will retreat from denying boarding and someone "will sit by you." Airlines may be forced to enlarge seats and legroom (less seats on each plane), and ticket prices will rise. In either event, there will be someone unhappy - with their seat, the price, or their neighbor. The immutable truth is that there is no perfect answer. 
In that, this discussion of regulation and imposition of damages is much like workers' compensation. The law, the balancing of rights, and the challenges of various duties, all amount to a grand bargain that teeters and swings. There is perception of too much this, too little than, and frequently imperfect outcomes. The construct strives to produce equity, fairness, and balance. At times, it succeeds, and in some moments it fails completely. Any regulation for the many will produce unwelcome results on at least the few (zero-sum). 
And life goes on. As a flight attendant recently announced, "it was our pleasure serving you today and we hope to see you on a future flight." Will the course they plot encourage you and discourage others? Or, will you be the discouraged one? Will you be hurt, insulted, imposed upon, canceled, or delivered to destination appropriately as promised?
By Judge David Langham
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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