“Stop fondling me, or else the airline will be liable!”

Once in a while I encounter cases in my studies that are so bizarre that they must be mentioned. If not to educate, then at least it will entertain.

Imagine the following situation. You are onboard a long trans-Pacific flight, and the cabin lights are dimmed, as most passengers are lying asleep. You are next to the window, which on most long-haul economy class planes effectively means you are ‘hemmed in’ by two other strangers. You doze off. Then, suddenly, you feel something wriggling in your pants. You open your eyes, and see that the passenger next to you has extended his (or her) naughty hand down to fondle you. You turn your body away, causing the unwelcome hand to withdraw, and continue to sleep, only to wake up moments later to see that the naughty passenger simply has not lost interest in your underpants. You leap across the two passengers to freedom, and inform the flight attendant. The dirty perv is apprehended upon arrival. You sue the airline for personal injury.

And you win. Big time.

As twisted as this may be, there is no need to imagine, because this is exactly what happened in Wallace v Korean Air (US Appeals 2^nd Circuit, 2000). The poor Ms. Wallace woke to find that dirty Mr Park had “unbuckled her belt, unzipped and unbuttoned her jean shorts, and placed his hands into her underpants to fondle her”. The most bizarre fact was perhaps not the sexual predation—however undesirable it is and may have been—but that Ms. Wallace brought the case not against the sex offender, but against the airline.

She did so under the Warsaw Convention—that long-winded text printed on the back of airline tickets—which limits liability for personal injury or death to US$75,000 in the event of an “accident”. But Ms. Wallace actually managed to make the Appeal Court in the US find that the airline is liable for the unsavoury actions of dirty Mr. Park, because “the lights were turned down and the sexual predator was left unsupervised in the dark”. The court called what happened “an unexpected or unusual event”, and therefore the law which normally deals with a serious air crash or aerial accident on an international flight would apply.

It is of course not wrong that Ms. Wallace should get her right, and that she is indeed entitled to compensation for the emotional discomfort she may have endured. But do use the Warsaw Convention, which was drafted to deal with more ‘serious’ aviation accidents undermines the law and opens it up to abuse. Luckily, it seems like this peculiar case and peculiar facts are one off, and probably will not be repeated.

But the consequences of Ms. Wallace’s victory are mind boggling. Basically the case implied that airlines has a duty to know who is a sexual predator, and that the inflight steward(ess) should regularly patrol the aisles with a flashlight to see if there are any unwanted hands extended down unwanted pants.

Besides the regular security questions on whether anyone has tampered with your luggage, perhaps the next time you board the plane,the checkin people will ask you if you are a sexual predator, or whether you would mind sitting next to one.

I will be looking forward to my next flight…