Lawyers who travel know that turbulence is an expected part of commercial airline flight, particularly in the summer months. That jarring in the cabin is caused by changes in atmospheric pressure, jet streams, fronts, thunderstorms, and airflow patterns around large objects like mountains and buildings.

Most frequent fliers react to minor turbulence as they would a bump in the road when driving, with the only adjustment being a tighter grip on their drink cup. White-knuckle fliers take heart: Even when turbulence is severe, it almost never causes structural damage or a loss of control in a commercial aircraft.

It is a testament to how safe commercial flight is that, in nonfatal accidents, neither mechanical failure nor pilot error is the leading cause of injuries. Instead, the Federal Aviation Administration identifies turbulence as the cause of more injuries to airline passengers and flight attendants than any other factor, and most of these injuries are minor, according to “Turbulence: Staying Safe” on the FAA’s website.

Approximately 58 people are injured each year during turbulent flights, the FAA’s information continues. From 1980 through 2008, U.S. commercial carriers had 234 turbulence-related “accidents” (defined as an occurrence associated with the operation of an airplane in which any person suffers death or serious injury or the aircraft is substantially damaged). Well over half of those injuries were to flight attendants, who are more likely to be unbelted and unseated, notes the website.

Like predictions of weather, forecasts of any type of turbulence are imperfect. Commercial pilots rely on reports from other aircraft to minimize encounters with turbulence. Turbulence-forecasting tools also exist.

When a flight crew knows that it will travel through areas of expected turbulence, the crew warns passengers and illuminates the fasten seat belt sign. When the plane cannot avoid turbulence, pilots reduce air speed and fly with the turbulent air rather than fighting against it.

The most effective way to decrease the chances of being injured from turbulence is to wear a seatbelt. However, the FAA does not mandate that passengers wear seatbelts at all times. Federal regulations require seatbelts to be fastened during taxi, takeoff and landing.

The last time the FAA considered requiring that passengers fasten seatbelts while seated, the agency rejected it because of negative comments from the public and the belief that passengers would not follow crew instructions to keep seatbelts fastened.

Theories of Liability

“[T]here is no general duty in Texas not to negligently inflict emotional distress,” wrote the Texas Supreme Court in Boyles v. Kerr (1993). Therefore, if the negligent failure to warn passengers about or avoid turbulence results only in a frightened passenger, there must be some accompanying physical injury before the airline is exposed to liability.

When a passenger suffers physical injuries as a result of turbulence, the passenger is usually not wearing a seatbelt. The FAA reports that, of the three U.S. fatalities involving turbulence from 1980 – 2008, two of the three passengers were unbelted even though the seatbelt sign was illuminated, according to “Turbulence: Staying Safe.” In such a situation, a defense lawyer can explore issues of possible passenger contributory negligence.

However, there are often factual issues in dispute between the passenger and the carrier. In several published cases, the airline and the passenger disputed when and what warning to fasten seat belts was given to passengers. There can be factual disputes as to whether the seat belt was unfastened by the passenger or came unfastened. There is also disagreement about whether the flight crew had sufficient information to know that the flight could encounter turbulent weather.

Several court decisions address the issue of federal law pre-emption in the context of what warnings must be given to airline passengers. In Abdullah v. American Airlines (1999), the 3rd U.S. Circuit Court of Appeals addressed whether the Federal Aviation Act, codified at 49 U.S.C. §§ 40101-49105, impliedly pre-empts other laws for the standard of care required of commercial airlines in the context of warnings during a turbulent flight. The 3rd Circuit concluded that federal law pre-empted the territorial standards (the trial court sat in Saint Croix, U.S. Virgin Islands) for air safety, but that local law governed what remedies were available for damages.

Although the 5th U.S. Circuit Court of Appeals has not considered the exact issue, based on other Federal Aviation Act pre-emption cases, such as Witty v. Delta Air Lines (2004), it seems likely that the court would reach a similar result.

It is unlikely that a Texas court following the law would allow a claim solely for a passenger’s emotional distress during a turbulent flight. When there is a physical injury, if the airline provided the required warnings, its exposure to liability is minimal. For passengers, the best way to avoid being injured is to stay belted and seated during all phases of flight.