Wednesday, April 12, 2017

United Airlines' Own Contract Denied it any Right to Remove Passenger

by Jens David Ohlin

On Sunday, United Airlines passenger David Dao was forcibly removed from his United Airlines flight when he refused to relinquish his seat. The police officers who removed him from the seat then dragged him down the aisle of the airplane. Videos of the incident show a visibly injured and bloodied Dao screaming. Videos also show a clearly injured Dao returning to the plane, walking up and down the aisle, and muttering that he needed to get home. He was then escorted off the plane a second time.

The incident has caused a PR nightmare for United Airlines. Videos of the incident have reinforced the public perception that airlines care too much about their profit margins and too little about their passengers. The initial public comments from the airline exacerbated the PR crisis by insufficiently recognizing the depth of the public’s anger over the issue. Instead of apologizing profusely in the first instance, the airline initially issued statements indicating that it was reviewing the situation and apologizing only for the need to “re-accommodate” the affected passengers. Only later did United CEO Oscar Munoz issue a blanket apology for the incident and pledge a full investigation and review of its policies that led to the event.

The airline’s stock has declined since the incident became public, and some on the Internet are suggesting a consumer boycott. Twitter users have relentlessly mocked the airline with a series of vicious memes.

For the moment, I want to focus on the basic premise—and legal assumptions—behind most of the press accounts of the incident. Most articles and news reports have implied that the airline was permitted to remove Dao from the airplane. Articles have made this claim as part of a larger point to readers: Airlines frequently overbook their flights and “bump” passengers, and then pay them compensation in line with federal regulations governing the payment of this compensation.  It happens all the time, according to the newspapers.

This overarching narrative—repeated in virtually every newspaper, with only a few exceptions—is incorrect at least as applied to this situation. Or, at the very least, it is far more complicated than the news reports suggest. In truth, airlines do indeed “bump” passengers from oversold flights, but the process by which they do so is to “deny boarding” to ticketed passengers who have otherwise complied with the boarding requirements. However, Dao was not denied boarding. Dao was granted boarding, and then subsequently involuntarily deplaned, which is not the same thing.

To understand the difference, it is important to review the facts of the case. This summary is drawn from press reports in major newspapers. It appears that Dao had a valid ticket. He presented his ticket to the gate agent, who accepted the ticket, scanned it, and granted him access to the causeway and the airplane. Because he was granted boarding, Dao walked onto the aircraft and took his seat. Only later, after he and the other passengers were in their seats, did a representative come onto the plane and explain that four seats would need to be surrendered to make room for four United Airlines employees who needed to get to Louisville. After no passengers accepted financial incentives to voluntarily relinquish seats, four seated passengers—including Dao—were told to leave. Dao refused.

Like all airlines, United has a very specific (and lengthy!) contract for carriage outlining the contractual relationship between the airline and the passenger. It includes a familiar set of provisions for when a passenger may be denied boarding (Rule 25 “Denied Boarding Compensation”). When a flight is oversold, UA can deny boarding to some passengers, who then receive compensation under specific guidelines. However, Dao was not denied boarding. He was granted boarding and then involuntarily removed from the airplane. What does the contract say about that?

It turns out that the contract has a specific rule regarding “Refusal of Transport” (Rule 21), which lays out the conditions under which a passenger can be removed and refused transport on the aircraft. This includes situations where passengers act in a “disorderly, offensive, abusive, or violent” manner, refuse to comply with the smoking policy, are barefoot or “not properly clothed,” as well as many other situations. There is absolutely no provision for deplaning a seated passenger because the flight is oversold.

An added complication here is that the flight wasn’t even oversold. The contract defines an oversold flight as “a flight where there are more Passengers holding valid confirmed Tickets that check-in for the flight within the prescribed check-in time than there are available seats.” In this case, the airline attempted to remove seated passengers to make room for airline staff requiring transport to another airport, not because it had sold more tickets than there were seats available. In any event, this point is largely moot, because neither employee transportation nor oversold situations is listed as among the reasons that a passenger may be refused transport.

One might argue that Dao had not completed “boarding” until the cabin door was closed. This argument would be wrong. The term “boarding” is not defined in the definition section of the contract, and absent an explicit definition in the contract, terms are to be afforded their plain meaning. “Boarding” means that the passenger presents a boarding pass to the gate agent who accepts or scans the pass and permits entry through the gate to the airplane, allowing the passenger to enter the aircraft and take a seat.

It is possible in this regard to distinguish between the collective completion of the plane’s boarding process, which is not complete until all passengers have boarded and the cabin door is closed. But that is different from each passenger’s boarding, which is complete for each individual once he or she has been accepted for transportation by the gate agent and proceeded to the aircraft and taken his or her assigned seat.

Bottom line is that if the airline wants to bump you from the aircraft, it must deny you boarding. After the crew grant you boarding, the number of conditions under which they may deplane you substantially decreases. In this case, United Airlines made the mistake of boarding all passengers and then trying to find space for additional crew. The airline should bear the burden of this mistake, not the passengers who successfully boarded the plane.  If the airline doesn’t like this, it should have written a different contract.

Might the airline argue that it had the right to refuse transport because Dao was “disorderly, offensive, abusive, or violent” (Rule 21H1) or causing a “disturbance” (Rule 21H4)?  Although this depends on the facts, news reports suggest that Dao was not upset, and was minding his own business, until he was told that he was being involuntarily removed and he was dragged kicking and screaming from the aircraft. His being upset was caused by United Airline’s breach of its contractual duties towards him as a passenger, rather than the reverse.

Finally, Rule 21 includes a provision on force majeur and other unforeseen circumstances such as weather, but there is no evidence that the airline had to specifically deplane Dao due to a force majeur that was impacting his plane. Perhaps UA could make the argument that getting the airline employees to Louisville was a necessary response to unforeseen circumstances (weather-related flight delays and cancellations in another city that caused the crew to be misplaced). The contract allows the airline to take actions that are “reasonable” or “advisable” in response to circumstances beyond its control.

UA might give “reasonable” a utilitarian gloss and argue that it was reasonable (i.e. economical) for it to deplane four passengers to transport the misplaced crew and thus prevent cancellation of another flight that would have impacted a far greater number of passengers. (I have no idea if the facts support this contention or not.) The argument is vulnerable to various questions about the reasonableness or advisability of the action. Could the airline have arranged alternate transportation for the misplaced crew, such as renting a car and driver, or used a larger aircraft, but refused to do so because it was too cheap? Following this train of thought might just make the public angrier. The utilitarian argument suggests that the rights of individual passengers can be balanced away—which is precisely why so many people are furious about the airline’s conduct.

All of this means that the airline may not have had the right to remove Dao from the aircraft. What are the consequences of this breach? Rule 21 on Refusal of Transport states that “UA is not liable for its refusal to transport any passenger or for its removal of any passenger in accordance with this Rule” and that the sole remedy is a refund of the ticket. In this case, however, United Airlines did not deplane the passenger “in accordance with this Rule,” but probably acted contrary to the Rule. So, the liability exclusion by its terms does not apply.

The last aspect of this case – the most disturbing one – is the level of force used by the police officers. Based on the videos, most observers have concluded that the force was excessive and unnecessary given the circumstances. A deeper issue is whether the police had the authority to remove Dao in the first instance once United Airlines declared him persona non grata and asked the police to treat him as a trespasser. Presumably the police had the authority to remove him (but only with an appropriate level of force), but even so, there is a plausible argument that Dao’s injuries and damages suffered during that process were caused by the airline’s breach of contract, which specifically defines the circumstances when it can refuse transport, none of which applied in this case.
In some situations, a contractual dispute and a trespassing dispute should be kept separate. Say you hire a painter to paint the inside of your house. You refuse to pay and so the painter says, “I’m not leaving until you pay me.” When the painter refuses to leave, you call the police and ask them to remove him because he is trespassing. The proper resolution is that the painter must leave but can sue you for breach of contract.

That may be so, but in that case, the painter’s refusal to leave is incidental to the object and purpose of the contract, which is to paint the house, not stay in your house. In contrast, the object and purpose of the contract of carriage is, among other things, to require the airline to transport the passenger from location A to location B aboard aircraft C. Being on the aircraft is the whole point of the contract, and it specifically lists the situations when the airline may deny transport to a ticketed customer. Since the airline did not comply with those requirements, it should be liable for the damages associated with their breach.


Howard Wasserman said...


I will ask you the question I asked here ( Is there an argument that UA acted under color in calling the police to enforce an (so you argue, convincingly) unlawful removal from the plane with excessive force?

el roam said...

Thanks for that interesting post David ( typically , I read your posts in " opinion juris " good to read you here also ) . Of course such conduct should be condemned , yet , we have some issues or lacunas in that analysis ( although I haven't read the contract ) :

First , you claim implicitly , that the four crew members , weren't passengers , while no definition , no explanation brought forward in that post . How do we know , that the wording " passengers " has to do solely with those paying for tickets , and not others , like : prisoners , crew members , or whatever may come up .

Second : You state clearly that Dao was already on board , but : not proven , that as such ( already on board ) he couldn’t in no way be deplaned , no rule or provision has been stated , defining , that boarding , is the end of the story .

Third : How do we know , whether that Dao , was aware or not , to the rules , or alleged wrongdoing . Suppose he didn't knew that the new " passengers " were crew members, would it be the same then ?? Suppose it was legal , because , on board is not yet over ( in terms of deplaning ) would it be the same ?? He was manifesting , clear passive violence ,but probably , no clear and coherent legal justification , yet , he was resisting passively the action taken .

Finally : It looks like a classic civil dispute . As such , without specific rules ( concerning aviation protocols ) I doubt whether the police , has jurisdiction upon such situation . This is because , that Dao , had a ticket , and ID I guess , and wasn't disturbing the peace , so prima facie , no cause for any action or intervention .


Sam Rickless said...

Great post. I agree with every word of it.

Michael C. Dorf said...

Howard: The post is by my colleague Jens Ohlin, not me, although I agree with his analysis. You mention Adickes v. Kress. I have always regarded that case as a cousin of Shelley v. Kraemer. In the pre-Civil Rights Act era, a Court sympathetic to the victims of race discrimination stretches the concept of state action to encompass private conduct. I think that the stretch was justified in the historical circumstances, given the ways in which Jim Crow as a whole was, as the case you cite in your post puts it, a brutal joint venture. But I hesitate to say that the courts should or would extend the principle to cases like UA.

Unknown said...

This fiasco reminded me of an old 9th circuit decision: "For, while the skies are friendly enough, the ground can be a mighty dangerous place . . ." Andrews v. United Airlines, Inc., 24 F.3d 39, 40 (1994)

Eric Rasmusen said...

I'll read and comment specifically later, but for now, you might be interested in something I wrote up for teaching my class and because I'm frustrated by how little certain key facts have been reported, to wit, that it seems
1. FAA regulations forbid bumping passengers except because of overbooking.
2. United's contract requires it to pay more compensation than it offered in this case.

My paper's at

See also the discussion of my paper at

Norman said...

Very good article but the "boarding" process includes all activities up to the closing of ALL aircraft doors. When the last door is closed, boarding is then complete. This is a critical point because the airline had the legal right to deny boarding to Mr. Dao in this case because the aircraft doors were still open.

Norman said...

By definition no individual is legally "boarded" until all the aircraft doors are closed. This is the standard definition of "boarding".

Joe said...

Norman challenges the article which notes:

It is possible in this regard to distinguish between the collective completion of the plane’s boarding process, which is not complete until all passengers have boarded and the cabin door is closed. But that is different from each passenger’s boarding, which is complete for each individual once he or she has been accepted for transportation by the gate agent and proceeded to the aircraft and taken his or her assigned seat.

It would be helpful to get more information on why he thinks "legally" this is wrong. Perhaps, some citation.

Mobley Meadows said...

Someone,either the police dept. involved or United is now in the process of slandering Dr. Dao, accusing him of felony convictions without noting what they were, who they are, and suggesting he had been suspended from medical practice. I don't believe a word of it. Police do this routinely to make themselves look better and it is outrageous. They just keep on digging their hole ever deeper. Back off you idiots; you've already given the guy a concussion, a broken nose and sinuses. Is that not enough for you?

Fred Raymond said...

I get the impression that what happened was that, AFTER they let all the passengers get on the plane, oops, it was discovered that they needed to get this flight crew on the plane also. I'm sure they always WANT to do that BEFORE they let anybody get on the plane, because yes it's a BIG difference.

Ron Levy said...

Is it really a legal decision now based on contract or civil rights case law? What about the intent behind selected definitions of "boarding" or even "civil rights"? Isn't that what the judges and court of public opinion ultimately base all our decisions on?

Everyone is using arguments that basically support and bolster the intent we all feel after boarding the plane that we have been accepted on board, and we have that basis of security to defend ourselves against actions like UA's and police actions of the "state".

Eric Rasmusen said...

I'm wondering about the following legal questions. It seems that United breached its contract by not offering the contractual compensation for being bumped to Dr. Dao and also broke an FAA regulation by bumping him for an unlawful reason. Assume that, for present purposes. They started performance by seating him. Then United decided to breach. At that point he was on United's property. They told him to leave and he wouldn't, so they called the police and said he was trespassing, so the police ejected him forcibly.

Questions: \\
1. COuld the prosecutor charge him with criminal trespass? \\
2. Could United get damages for civil trespass? \\
3. Could Dao get damages from United for reckless false claims to the police that he was trespassing, and the consequent harm to his reputation, as well as medical damages? \\
4. Would it be relevant that practically speaking, Dao had no remedy at law for the breach by United? \\
5. Did Dao have a legal right to specific performance, as opposed to monetary damages?

Joe said...

Is it exam time, already?

Anonymous said...

Question: has the Contract of Carriage for any of the Legacy carriers ever been brought to a Civil jury trial? I choose 1991 as the demarcation between Deregulation and Post-Deregulation. Excluding Regionals, "States", and Trunks to make the search easier. The list of "Legacy" carriers in 1991:


Has the CoC for any of the above successfully been brought to a Civil trial in front of a jury?

gregory barton said...

Norman says,

"When the last door is closed, boarding is then complete. This is a critical point because the airline had the legal right to deny boarding to Mr. Dao in this case because the aircraft doors were still open."

The issue is not when boarding is complete. It is whether a passenger can be denied boarding. The author claims that one cannot be denied boarding if, by one's action, one has already boarded. The airline would be estopped from invoking the 'denial of boarding' clause.

The contract of carriage does not define 'boarding', which term must therefore be given its ordinary meaning, 'get onto the aircraft'.

However, I would go further. The appropriate point at which boarding is deemed is not physical boarding but issuing the boarding pass. At that moment the airline has given its assent to board. If it attempted to deny boarding after issuing the boarding pass it would be estopped. The physical boarding of passengers is irrelevant.

Cars San Diego said...

Is the airplane itself fully under United's control while parked at the gate? I ask as a non-legal scholar/lawyer because shouldn't the airport have rules in their contract to the airlines who are renting/leasing space about rules of conduct, i.e. when police can enter the gate area and the plane. To Eric's question about trespassing: does the airport define when trespassing occurs on airplanes? I also wonder if airports define "boarding" in their lease/rental contracts with airlines that would inform how United should understand "boarding."

If airports are forms of government speech, then does this apply to the airport workers, too, or something more 'official'? I ask because if the airline gate staff called out "We are now boarding group 1...", did they define boarding at that moment that overrode the contract of carriage? Did they set expectations for Dr. Dao that when he had his ticket scanned at the gate and then proceeded to the jetway that United boarded him. Furthermore, when the plane crew typically announce that the "boarding process is complete and the door is closed..." they mean that the last passenger has been seated and baggage secured in the overhead bins. Boarding, then, as defined by the cabin crew--as opposed to the gate staff--would be when you sit down in your assigned seat and baggage put away. The argument of boarding being complete once the door closes seems to apply to the last passenger.

fireman said...

Analysis makes sense to this layman but you might also want to consider that United - in addition to their civil liability - also apparently have a more criminal kind of liability for breaking federal regulations - specifically 14 CFR 250.2a:

"In the event of an oversold flight, every carrier shall ensure that the smallest practicable number of persons holding confirmed reserved space on that flight are denied boarding involuntarily."

All the passengers on that flight held "confirmed reserved space" - and indeed they were occupying those spaces.

It seems clear to me that that late-arriving employees can not have held "confirmed reserved space". Therefore since the flight was full of passengers who did have "confirmed reserved space" the only way to comply with the federal requirement to deny boarding to the "smallest practical number" was to deny boarding to ZERO passengers. Zero being the minimum number possible in this case because none of the employees could possibly have had "confirmed reserved space"!

Note that this would apply even prior to boarding. Taking the everyday meaning of "confirmed reserved space" as being when a passenger is issued a boarding pass with a specific seat number exclusive to themselves. the only way an airline can legally shove employees to the 'front of the line' is if they do it before all passengers have seat allocations.

Does that make sense to a lawyer? Or should I refrain from giving up my day job?

HuaJiao said...

Does it matter at all that they presumably would have been within the terms of the contract to have just cancelled the flight, cleared the airplane, declared a new flight and issued new passes to all minus 4 passengers? What occurred instead was a shortcut process to achieve the exact same effect. Does it matter how they remove someone from a plane if they are ultimately allowed to in the long run under the contract?

gregory barton said...

You mean, 'is it ok that they breached their contract with one passenger because they could have achieved the same result lawfully by way of some hypothetical legerdemain'? I think not.

Unknown said...

Illinois law has no such rule against remaining on a vehicle, there was no trespass as he entered with permission:

720 ILCS 5/21-2

A person commits criminal trespass to vehicles when he or she knowingly and without authority enters any part of or operates any vehicle, aircraft, watercraft or snowmobile.

Norman said...

Stephen W - The passenger committed trespass twice, first when he refused to comply with a lawful order to exit the aircraft then again when he unlawfully entered the aircraft the second time.

Norman said...

fireman - The 4 crewmembers not only held "confirmed reserve space" but they had the highest confirmed status as "must ride" confirmed passengers critical to airline operations. As such they would be the LAST passengers to be taken off the aircraft. All of this is perfectly legal and consistent with aviation laws and regulations. The time of their booking is moot.

Physically occupying a seat does not constitute legal entitlement to that seat. In aviation law a passenger is not legally boarded until all the aircraft doors are closed and the nose wheel begins to roll. Prior to that point in time a passenger can be legally unseated in accordance with aviation law and the Contract of Carriage all passengers agree to as a condition of travel.

Unknown said...

Hi Norman, thats not correct. He was not given a lawful order, he was breaking no laws and the police had no right no request him to leave or use force (since he was not trespassing at that point).

The 2nd one is an interesting point, that he may have trespassed with his second entering - I guess that depends if he ever left the aircraft (I presume he did though). Though by this point he has had his rights seriously impinged upon, he's been assaulted, is injured and probably concussed, and appears to be mentally incapable and in fear of his life. I doubt even if it is technically a trespass that anyone sane would proceed with criminal proceedings. Actually you can avoid trespass on property if you entered for emergency if there is imminent danger tho this isn't stated within the vehicle section.

Unknown said...

Norman, in your response to fireman I believe you're also incorrect. The crew did not have confirmed space, evidenced by the fact that when they showed up there was already a plane full of seated passengers who were all confirmed, ticketed and with confirmed seatings in order to have been able to board.

Boarding has nothing to do with being "in flight" which is what you describe after doors close. The CoC does in fact legally entitle passengers to their seats, I am not sure what you're referencing but it does not permit removal of a passenger for the reason of them wanting to give someone else your seat (regardless of status of the person needing a seat)

Norman said...

Stephen W - The four crewmembers did have confirmed seats in the airline's computer systems at the highest boarding priority of "must ride crewmember". The other passengers, also with confirmed seats, were physically in their seats but not yet LEGALLY boarded in accordance with longstanding aviation law. No passenger is ever legally boarded until all the aircraft doors are closed and the nose wheel begins to move. The mere fact of physically occupying a seat does not constitute being LEGALLY boarded. Therefore a passenger can be legally unseated in these situations.

Unknown said...

Norman -- How do you explain the following sentence from the UA CoC?

"For purposes of this Rule, Unaccompanied Minor service includes reasonable supervision for Unaccompanied Minors from boarding until deplaning at the final destination."

Are you suggesting that UM service only begins once the doors of the airplane are closed and the nose wheel begins to move?

Also, "boarding" here is paired with "deplaning". I assume that "deplaning" means getting off the airplane. By parity of reasoning, "boarding", in context, means getting on the airplane. Which is exactly in line with what one would expect UA to be saying about UM service, which begins the minute a UM gets on the airplane (and perhaps earlier, at the point when the UM walks onto the jet bridge).

Unknown said...

We had a great discussion of these issues on yesterday's episode of The Law Is My Ass.

Norman said...

Samuel Rickless - Unaccompanied minors and their handling is not pertinent to unseating passengers. The UM rules are designed to ensure proper supervision for the safety and well being of the minors while under the care of airline personnel.