Fear of liability may match fear of flying for many Americans.
We all know that commercial aviation is one of the safest forms of modern transportation. But it only takes a gut-wrenching drop of an aircraft in the midst of turbulence to turn the most experienced business traveler into a white-knuckle flyer. And who among us does not re-calculate the odds when we hear of a disaster like the crash of the Germanwings flight by an apparently suicidal co-pilot?
Although the current legal era is known for the death of common sense, Congress had the foresight after 9-11 to provide immunity to those who come forward in good faith to report aviation safety concerns to authorities.
In the wake of the Germanwings tragedy, news reporting focused on a culture of secrecy over employee medical files as possibly contributing to the failure of the airline and flight surgeons to keep an unfit crew member out of the cockpit. And we may readily perceive fear of legal liability at the root of excessive concern over the privacy of air crew medical and personnel files.
Over the last quarter-century in the United States, numerous federal and state statutes have gone on the books to protect individual privacy. As one example, federal HIPAA law has caused a sea change in the handling of patient medical information. Where family and friends – and even the media – could once routinely learn from a hospital the condition of a patient, the specter of fines and privacy litigation now chills the free flow of even the most innocuous medical data.
By and large, the culture of protecting employee and patient privacy is a public good, particularly in a society like America that prizes individual autonomy. But sometimes the zeal to conceal is counter-productive, placing third parties at undue risk. Might a mass shooting be prevented if mental health professionals were less fearful of liability when contemplating going to authorities about the danger posed by an unstable patient? Even the most altruistic may stop short of sounding an alarm for fear of facing a ruinous damage award for defamation or invasion of privacy.
So it may come as a surprise that at least in commercial air transportation in the United States, the law offers immunity to whistleblowers against such liability. Although the current legal era is known for the death of common sense, Congress had the foresight after 9-11 to provide immunity to those who come forward in good faith to report aviation safety concerns to authorities. See Aviation and Transportation Security Act, 49 U.S.C. § 449941(a). Borrowing from the landmark libel decision of New York Times v. Sullivan, Congress conditioned that immunity on reports made without "actual knowledge that the disclosure was false, inaccurate or misleading" or without "reckless disregard as to the truth or falsity of that disclosure." Id. at § 449941(b).
Last year, that statute was tested and challenged in the U.S. Supreme Court. In Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014), a pilot, who faced termination after failing an aircraft proficiency exam, sued an airline for defamation. An employee of the airline had warned TSA officers that the pilot was unhinged and about to board a flight with a handgun. After a verdict in his favor at jury trial, the pilot recovered a judgment for more than $1 million in compensatory and punitive damages against the airline.
The Supreme Court vacated the damages award after finding that the statements by the airline employee were substantially true and therefore not made with New York Times actual malice. The Court made clear that passenger safety trumped self-censorship predicated on fear of legal liability. "All of us from time to time use words that, on reflection, we might modify. If such slips of the tongue could give rise to major financial liability, no airline would contact the TSA without running by its lawyers the text of its proposed disclosure," Justice Sonia Sotomayor wrote for the six-justice majority.
Air Wisconsin is ringing affirmation that threats to passenger safety must be quickly communicated notwithstanding the trend to protect personal reputations and privacy interests. While the Germanwings disaster has amped up fear of flying, frequent travelers in the U.S. may draw solace that fear of liability need not ground information-sharing aimed at keeping unfit crew members out of the cockpit.
