Asiana Airlines Blames Passengers for SFO Crash

Like most lawyers, I took Civil Procedure during my first semester of law school.  Early in the class, we learned of the “cracked black pot” defense.

Here is how it goes:  when someone sues you with the claim that you borrowed a black pot but returned it damaged, the answer to the complaint should go something like this:

  1. You don’t own a black pot.
  2. I never borrowed any pot from you.
  3. The pot that I borrowed from you was not black.
  4. The pot that I borrowed from you was already damaged when I got it.
  5. I delivered your pot back to you in the same condition in which I received it.

The message, of course, was that the lawyer should draft the answer to a complaint to cover all possibilities, so that whatever facts are ultimately discovered over the course of the case, the answer is still appropriate.  This was an example of “good lawyering.”

Unfortunately, the lawyers for Asiana Airlines subscribe to the same style of thinking as my civil procedure professor.  On Monday, they filed with the Federal District Court in San Francisco their answer to the first lawsuit stemming from the crash of Asiana 214 at San Francisco International Airport.  In that answer, Asiana denied responsibility for the crash and said that the passengers contributed to their own injuries.

Asiana’s denial of responsibility, made in a filing in U.S. District Court in San Francisco, is “standard stuff,” said Gerald Sterns, an attorney with offices in Oakland and San Francisco who handles aviation cases but is not a party to any litigation related to the Asiana crash.

“A lot of people get inflamed by that: ‘How could this airline say that?’ ” said Gerald Sterns, a Bay Area attorney who handles aviation cases but is not a party to any litigation related to the Asiana crash. “The standard defenses are: ‘It didn’t happen. If it did happen, we didn’t do it. If your guy got hurt, he caused his own injuries.’ ”

The fact that such filings may be standard litigation does not change that fact that high profile litigation (and the litigation about the Asiana crash is clearly high profile) is both decided in the courtroom and in the court of public opinion.  Such an answer is quite a stumble in the PR battle for public opinion – and the lawyer who represents the plaintiffs in the case was quick to pounce on the error.

“I’m astounded that Asiana would blame the passengers for its gross negligence in not being able to safely land this aircraft,” Walnut Creek attorney Michael Verna said. “The very first filing in the very first lawsuit in this case in a public courtroom is to blame the passengers for causing the accident. I’m not only astounded; I’m incensed.”

As the case continues, it will be interesting to see the maneuvering of both sides to address the audience inside the court and outside.


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