For years, experts have complained with passengers that the ridiculously little legroom offered by airlines is not just uncomfortable but unhealthy. Now, a tort case could force airlines to give passengers more space. An appellate panel recently reversed the dismissal of a case against the airlines alleging that the lack of leg space for passengers is increasing the risk of deep-vein thrombosis, a sometimes-fatal blood clot.

The litigation involves 14 lawsuits out of California. The Ninth Circuit ruled that, while airlines do not have a duty to warn of the risk, they might still be liable for the denial of healthy space. At issue is an interesting federal jurisdictional issue. Congress has been caving into every demand of the airlines from federal subsidies worth billions to protections from lawsuit. One of the most important such laws is the Airline Deregulation Act of 1978, which prohibits enforcement of any state law related to airlines’ prices, routes or services. The Court held that, while it may affect prices, it is unclear that the tort action is preempted by the federal law. It is a ruling that would preserve some remaining tort liability for these airlines, which enjoy a great level of control over Congress. With record delays and luggage losses, Congress may have to face a public backlash over its carte blanche treatment of airline lobbyists. In the meantime, this tort action will focus attention on the fact that a normal individual must be a contortionist to fit into a standard seat today in coach.

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