Asiana Flight 214’s crash landing and the events that followed were traumatic experiences for all aboard. Even some of those who suffered no physical injury will struggle with emotional injuries for months if not years to come.
Normally, a passenger would be entitled to compensation for all the emotional distress suffered, regardless of whether the passenger was physically injured. But under the Montreal Convention, Asiana is not liable for a passenger’s emotional distress, regardless of how severe, unless the passenger has also sustained a physical injury. Thus, those passengers who managed to evacuate without being physically injured will likely be left with no rights against Asiana at all.
What if, in addition to severe emotional distress, a passenger sustained a relatively minor injury, such as a cut on a leg or a twisted ankle? Can that passenger recover for her emotional distress then?
Most courts say no.
Jack v. Trans World Airlines, involved TWA Flight 843. The aircraft was headed to SFO from JFK, but aborted its takeoff and crashed. Fire destroyed the plane but everyone survived. Many passengers had minor physical injuries. The federal court in California ruled that passengers could recover damages for the emotional distress stemming from their physical injuries, but not the emotional distress caused by the experience of crashing.
The emotional distress recoverable is limited to the distress about the physical impact or manifestation, i.e., the bodily injury. Recovery is not allowed for the distress about the accident itself.”