Permanent brain damage - falling bag on Airline

[treskimo]

Was borading a plane - bag fell on back of my head - very rigid and heavy. When flight landed, ambulance waiting @ gate & took me to ER.

FF 2 yrs later... still have not fully recovered. Alaska Airlines' ins attorneys strung me along, then switched on me. Now they say statute of limitations is up cause it should be CA where the injury happened, but all along their lawyers were saying WA. Alaska is based in WA, I live in WA, went to ER in WA. WA is 3 yrs, CA is 2 yrs.

Either would need to try and file suit in WA or if it has to be CA or OR(landed in OR), then would need an exception on statute - from the date the verbal contract was broken and/or the date I became aware of a permanent disability. This is recently. 2 yrs should start now, right?

Main issues:
Quality of life nowhere near it was before.
Struggle to keep personal relationships, lost many
Health overall severely declined
Ability to work (use brain for living) insanely impaired - now I make less and have less potential.
Was out of work for a long time - lots of lost income; as a result had to drain 401k; early w/d fees and lots of CC interest.

Not trying to play victim here... I was honestly just trying to let it go and move on, trusting I would eventually get better... but 2.5 yrs later with no improvement in at least a yr is serious cause for concern.

I've done a little Googling with all that free time... here's why I think the Airline has proximate cause liability:

• Airline charges for checked bags, not carry on
• This encourages people to stuff as many bricks as possible into carry-ons
• FAA guidelines say airline should weigh carry-ons
• Airline manufacturer says carry-ons should be weighed for safety and balance
• Public studies concluded dangers, proof it was delivered to airline; they ignored warnings and recommendations
• Bag was simply too heavy for a passenger. She only dropped it on my head because a flight attendant told her to place it there, even though she was sitting several rows back, while her row was currently empty, thus no risk of injury even if she dropped.
• Airline says it's 100% other passenger, but of course will not give me contact info
• Passenger did drop the bag, but about 4500 accidents like this per year are mostly avoidable by following FAA and aircraft manufacturer guidelines. Neglecting warnings and Gov't guidelines = negligence, no?
  • It's not like this is a freak accident... it's a calculated risk. airline would rather play hardball and go for small settlements vs lower the windfall of cash they get from checked baggage.
  • Almost goes to intent, doesn't it? If you intend to allow accidents to happen because there's more revenue going against FAA and OEM rules... that not only breaks their responsibility of care, but is liable for these accidents because they know it will happen, yet they do not take a reasonable amount of care to avoid them.
• Seems at least 50-75% proximate cause to me.
• The handling of the aftermath was almost worse.
  • they did not file the incident report correctly
  • their Insurance company misled me in several ways - they are lawyers so they obviously have the upper hand here.
  • Straight up lies - documented - at various stages.

Questions:
What state should this be filed in?
Do the Statute of Limitation starting time(s) make sense? (Or am I truly SOL?)

Thanks in advance!

 

[Taxing Matters]

Do not trust what the airline’s attorneys are telling you. They are your adversary here, not your friend. You do have a potential SOL problem, but the details of your case do matter.

You live in Washington state and the airline is part of Alaska Air Group, Inc., (AAG) a company that is incorporated in the state of Delaware and headquartered in Washington state. Thus the Washington courts would clearly have personal jurisdiction over AAG. Moreover, for personal injury actions the state law provides that “For the recovery of damages for injuries to the person or for injury to personal property, the plaintiff shall have the option of suing either in the county in which the cause of action or some part thereof arose, or in the county in which the defendant resides, or if there be more than one defendant, where some one of the defendants resides, at the time of the commencement of the action.” RCW § 4.12.020(3). So there appears to be no bar to bringing the claim in Washington courts.

If you sue in Washington, it is Washington law that will apply to determine the statute of limitation (SOL). Washington state has a three year statute of limitations for personal injury claims. But like most states, Washington has rules that will sometimes apply the SOL of another state. In Washington, there are several rules that come into play to determine whether California SOL or Washington SOL would apply. California, where the injury occurred, has a two year statute of limitations for personal injury claims. So if the court says that California SOL applies it appears you'd be barred from filing suit. The basic rule that applies is this:

(1) Except as provided by RCW 4.18.040, if a claim is substantively based:
(a) Upon the law of one other state, the limitation period of that state applies; or
(b) Upon the law of more than one state, the limitation period of one of those states, chosen by the law of conflict of laws of this state, applies.
(2) The limitation period of this state applies to all other claims.​

RCW § 4.18.020. In general, the substantive law that would apply in a personal injury case in the law of the state in which the injury occurred, which in this case appears to be California. “To determine which laws apply, Washington uses the ‘most significant relationship’ test. Under that test, the applicable law in a personal injury suit is almost always the law of the place where the injury and the conduct causing the injury occurred.” Woodward v. Taylor, 185 Wash. App. 1, 7, 340 P.3d 869, 872 (2014), rev'd, 184 Wash. 2d 911, 366 P.3d 432 (2016). So initially it appears that California's SOL would apply.

For example, consider the case of Dr. Hein, a Washington resident who was allegedly injured while eating in a Taco Bell restaurant in in a case where a patron of Taco Bell was injured while at one of its restaurants in Anaheim, California. He sued Taco Bell in Washington state rather than in California. But he filed the claim after the California SOL, which at the time was one year, had already expired. The Washington Court of Appeals upheld dismissal of his case based on the expiration of the SOL because it was the California SOL that applied. The substantive law that applied was California since that is where the injury occurred.

The one escape clause from this is that the Washington statute will still apply if the other state's SOL is “substantially different” from Washington’s and the other state’s law did not afford “a fair opportunity to sue upon, or imposes an unfair burden in defending against, the claim.” In Hein, the Court found that the shorter period of one year, while substantially different, still afforded a fair opportunity to sue. But the court also noted that in that case Taco Bell did not string things out to get past the 1 year SOL. “There is no evidence that Taco Bell induced Hein to delay the filing of his claim until after the statutory period lapsed in April, 1988. Shranne told Hein, in July, 1987, that he would get back to him in a week. When Shranne failed to do so, it was unreasonable for Hein to delay any longer. Thus, none of the acts relied on by Hein, alone or together, justify his failure to file until December, 1988, eight months after the statute of limitations had run.” Hein v. Taco Bell, Inc., 60 Wash. App. 325, 333, 803 P.2d 329, 334 (1991).

That implies that the court might think differently if AAG deliberately strung out negotiations here to get past the CA deadline, misleading you into thinking you had 3 years under Washington law, and then after the 3 years is over turns around and says "sorry, the SOL in California is expired and we aren't paying you a dime.”

It may well be that the SOL that applies here is CA and that you might now be out-of-luck. But the details of your case matter, and depending on those details there still might yet be an opportunity to sue AAG here. Time is not on your side, though, so if you want to explore this, you need to run to a personal injury lawyer in Washington (maybe even see two or three of them, as opinions on this might differ) ASAP and have him/her review all the facts and advise you whether you have a shot at overcoming the SOL problem here.

 

[Zigner]

I'm not seeing how the airline is to blame for another passenger dropping a bag on the OP's head.

 

[justalayman]

Bag was simply too heavy for a passenger. She only dropped it on my head because a flight attendant told her to place it there, even though she was sitting several rows back, while her row was currently empty, thus no risk of injury even if she dropped.

While this does cause a problem, I wonder if the airline can be included as a culpable party for allowing a passenger to act in an unsafe manner. In other words, they should be assisting in stowing the bags to prevent exactly what has happened here.

 

[Taxing Matters]

I'm not seeing how the airline is to blame for another passenger dropping a bag on the OP's head.

It might not be. But we don’t have all the details as to exactly what happened that caused the bag to fall on the OP's head.

 

[treskimo]

Thank you, Taxing, for the very detailed response. Even if it's CA, there's both the very time-consuming activites they had me do to waste time and a date of breaking a verbal agreement. They said pretty clearly on the phone they will make me whole.... I just need to supply them documentation of everything so they know how much to pay.... - they wanted me to compile all medical records and financial statements and such. This took a little while... then when I sent all of this, they said weeks later they could access the docs and to resend... then after resending, they say they could not use any documents I provided and will need me to sign releases so they get the documents directly from providers. I go to medical providers to sign releases, then a month later they say I must use a different form. I then sign those releases, hear nothing and follow up weeks/months later, and they say the releases expired and I need to sign again. Once they couldn't play that game anymore, they said they will only cover out of pocket medical expenses - no lost income, or other financial losses as a direct result.

While I'm sure that's a bit annoying to read, I hope it helps convey just one example of the tactics they utilized to waste time. Is it even legal for a lawyer to act in such bad faith? I know they play these document games with each other, but isn't it the equivalent of a professional boxer getting hit with attempted murder with deadly weapon charges vs a normal joe that gets into a fist fight? There's an unfair advantage. Unfortunately, my mental faculties were even more impaired at the time due to the concussion. Every lawyer I talked to at the time advised me to continue down the path with the airline's insurance lawyers since it sounded like they were wanting to work something amicable out.


Zinger, for more context, an Airline employee instructed the passenger to place her bag over my head; she was forced to rush as she was being nudged by the line backing up behind her. they created a bit of a stressful scenario. Further, the Airline knows the FAA, OEM and independent studies have informed them of the risks of their baggage policies: Charging for checked bags, then do not weigh carry-ons.
This creates a scenario which introduces risks; they have accepted the fact injuries will take place, and do so because they make so much money from the checked baggage fees. Airline Tort law pretty clearly states if the airline is made aware of or can reasonably foresee incidents happening, but do not take action to prevent, they share responsibility.

Fact is, I didn't see the passenger drop it on my head. The airline told me this is what happened, perhaps as a way to shift responsibility. I was leaning over placing my briefcase under the seat in front of me. In reality, the other passenger could have dropped it on my head. It could have also been a flight attendant. I cannot say for sure. I was explaining conservatively before as I know their claims do introduce additional complexity in finding proximate cause.

even if there's some liability on the other passenger, the airline will never give info, so it could only be acquired via court subpoena after suing AAG.

I'm not trying to get a free lunch or windfall here, but if I could get some of what I lost back and some kind of step towards principle, I would be happy.

Thanks again for your insight, much appreciated!

 

[justalayman]

So the insurance company was successful in stringing you along until the sol they believe to be appropriate (or are they just saying that to string you along even more) expired. They did their job well and you fell for it.

I suggest you stop trying to do this yourself and speak with an attorney who can take the reins and run with this, if it isn’t already too late.

 

[adjusterjack]

Bag was simply too heavy for a passenger. She only dropped it on my head because a flight attendant told her to place it there, even though she was sitting several rows back, while her row was currently empty, thus no risk of injury even if she dropped.

Then there was a potential for dropping the bag no matter which compartment the flight attendant pointed to. The only factor that changed was you sitting there.

I don't see the airline being liable, despite your rather irrelevant other assertions.

 

[Taxing Matters]

Then there was a potential for dropping the bag no matter which compartment the flight attendant pointed to. The only factor that changed was you sitting there.

Then perhaps the flight attendant should have directed the passenger to use one where someone was not sitting underneath. While this kind of thing is hard to pin on an airline, under the right facts the airline might have liability. The federal government gives airline crews a great deal of power to direct what passengers do once on board the plane. With that greater power also comes some extra responsiblity, too. Because all the details matter the OP needs to have a personal injury lawyer look at everything.