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A thought experiment on non-economic damages

Ten years ago, on June 25, 1995, American Airlines Flight 58, en route to New York from Los Angeles, suffered severe turbulence in flight when it flew into a thunderstorm. Over the course of a few seconds (the NTSB says five-to-eight seconds, the plaintiffs say 28 seconds), the plane dipped and rose 200 feet suddenly, throwing unbelted passengers from their seats, before resuming level flight. No one was seriously injured, though 16 of the 117 people aboard were treated at hospitals for minor injuries after the flight diverted to Chicago for medical treatment.

Thirteen passengers, including Steven Spielberg's sister, sued for emotional distress. American Airlines acknowledged its liability for failing to avoid the thunderstorm, but refused to offer more than five to twenty thousand dollars per plaintiff, so the question of damages went to a jury trial. A jury assessed $150,000 to $215,000 per plaintiff in emotional damages. (Christa Zevitas, "Fear of Death Nets $2.2 Million For 13 Airline Passengers With Only Minor Physical Injuries", Lawyers Weekly USA, Nov. 19, 1999; Overlawyered, Oct. 8, 1999).

You might see where this is going in the wake of the recent dramatic landing of JetBlue Flight 292 in Los Angeles after an interrupted Burbank to New York flight. The flight had problems with its landing gear, circled for a few hours to burn fuel, and made a safe emergency landing; the event was televised, and passengers could watch the tv coverage up until fifteen minutes before landing. As with Flight 58, passengers feared death. If the $150,000 in emotional damages per passenger that a jury awarded for Flight 58 was appropriate, that would cost JetBlue $20 million. But, recall, Flight 58 was only in jeopardy for a few seconds. JetBlue circled for three hours, and passengers had time to make cell-phone calls to loved ones. Should damages be 360 times more because of 360 times the length of fear? That would imply liability to JetBlue of a bankrupting $7 billion for an accident where noone was hurt.

The problem is that dollars are incommensurate to "emotional distress." While juries hearing evidence on lost wages will tend to cluster around the correct result reflecting economic reality, what any jury of six or twelve people decide for noneconomic damages is essentially going to be a random number. It's just as easy to rationalize a million dollars as it is $100,000 or $10 million. In such a circumstance, is it really so problematic to suggest that a democratically-elected legislature put constraints—caps—on what a jury can award?



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.