Potential COVID-19-related liability claims against airlines face an uphill battle because proving causation will be challenging for plaintiffs, legal experts say.
As major U.S. airlines take steps to protect passengers and crews such as requiring masks to be worn on board and blocking off middle seats, COVID-19 lawsuits against airlines so far appear to mainly involve issues related to refunds.
Christopher B. Kende, a New York-based defense attorney at Cozen O’Connor, said he has not seen any case in which the claim is for having contracted the virus while on board an aircraft, though there are many against the cruise industry involving passenger vessels.
“My sense is that, given the incubation period and causation issues, any such claim would be challenging,” Mr. Kende said.
The Centers for Disease Control and Prevention has indicated that symptoms may appear as late as 14 days after exposure to the virus. This would make it difficult for passengers to prove they caught the virus while on the aircraft, he said.
Airlines must take precautionary steps to understand their potential liability and be prepared to defend their response to protect passenger health and safety, said Elaine Solomon, Philadelphia-based partner at Blank Rome LLP, in written comments.
Airline liability would depend on an analysis of whether the airline knew or should have known that a passenger or crew member posed a health risk and took reasonable steps to protect passenger health and safety, and/or whether the airline’s response was reasonable once on notice of the risk, she wrote in a recent brief.
A public health investigation into a March 2 flight from the United Kingdom to Vietnam suggests transmission by one passenger to up to 14 other passengers and one crew member.
That is the only event known to the International Air Transport Association of likely onboard transmission to a number of people, the Montreal-based airline trade association said in an Aug. 6 report.
On Sept. 22, IATA called for COVID-19 testing for all passengers before departure.
Multiple airlines have started offering complimentary COVID-19 insurance for certain passengers booking flights in a bid to restore customer confidence. The insurance typically covers medical and quarantine costs incurred by passengers who contract COVID-19 while traveling.
