Chump Tort? Asiana Airlines To Sue Bay Area TV Station Over Fake Names Of Pilots In Crash

article-0-1ACA2A10000005DC-840_634x394After an Asiana Airlines passenger jet crashed and burned at San Francisco International Airport on July 6, 2013, a Bay Area TV station published what it claims were the names of the pilots, including Captain Sum Ting Wong, Wi Tu Low, Ho Lee Fuk, and Band Ding Ow. Unbelievably, as shown below, no one at KTVU-TV picked up on the joke and the anchor read the names in all seriousness. It turns out that a summer intern with the National Transportation Safety Board was the culprit in passing along the names. Now, Asiana is suing the station for injury to its reputation, a novel claim that could raise questions over not just the fact of injury but the degree of injury in such a prank.

The crash of Asiana Airlines Flight 214 resulting in the deaths of three and injuring dozens. However, the lawsuit does not raise pain or suffering from the prank to the pilots or their families but rather loss of reputation to the airline. Since the news programs were streaming images of a burned out plane with the company’s logo, it is hard to see how the prank was a major source of reputational loss. A lawsuit against the NTSB is reportedly also being contemplated.

The station insists that it confirmed the names from the NTSB and merely aired the official report. That fact that it did not get the obvious joke clearly shows a humor-impaired staff. However, the embarrassment factor actually helps the station. They clearly did not want to fall for a prank but this was not a case where a faux NTSB employee fed the false information to the station. It received information from an agency and aired the information. The case comes down to negligence in being humor-impaired or a type of chump tort. Is a station expected to look at information from an agency and screen it for a possible prank from your government?

The agency admits that the intern gave its information to that station and promised that “we are reviewing our policies and procedures to determine where we might be able to strengthen them so that this kind of situation doesn’t happen again.”

The station did offer an apology on the air that contained statements of negligence that might be cited in the lawsuit. The station said that it failed to confirm the position of the person and departed from its usual practices. That is a concession that is likely to be repeated in the lawsuit.

It is not clear if the intern was the prankster or merely passed along an insensitive joke unwittingly. However, some reports state that the intern simply did not get the joke –any more than the television staff spotted it.

The agency says that the intern is no longer in its employ.

There is obviously negligence at both the agency and station, but did the prank actually lower the reputation of the airline beyond the devastating loss of reputation due to the crash? After all, many probably were as clueless as the anchor in hearing the names. Moreover, the prank was quickly discovered. Finally, these are racially insensitive remarks directly at the pilots. It would seem that they would have the better claim and even that claim could be subject to the many of the same questions.

Generally “disparagement” lawsuits deal with agricultural products as with the lawsuit against Oprah by the beef people. California allows for lawsuit by businesses for economic losses due to false and disparaging statements. However, the company must show not only that the statements was false (easy here) but that that the defendant’s libelous or slanderous statements caused monetary damage to the business. Specific damages must be shown. See 4 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 27:99 (4th ed. 2004) (defining elements of common law product disparagement as (1) publication, (2) of a false and disparaging statement of fact about the product of plaintiff, (3) made with either knowledge of falsity or with reckless disregard of its truth or falsity, (4) with intent to harm plaintiff’s interest, and (5) specific damages). Special damages require a showing that disparaging statements were a substantial factor in causing specific injury to plaintiff. Ira Green, Inc. v. J.L. Darling, Corp., 2012 U.S. Dist. LEXIS 145496 citing 42 A.L.R. 4th 318 § 13 (1985); Restatement (First) of Torts § 632 (1938).

Absent an allegation of fraud or dishonesty for a per se business defamation claim, the airline would need to show a loss of business due to this brief publication of names. The vast majority of coverage was exposing or laughing at the prank rather than repeating the names as true and correct.

Do you believe such a chump tort can be maintained?


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40 thoughts on “Chump Tort? Asiana Airlines To Sue Bay Area TV Station Over Fake Names Of Pilots In Crash”

  1. The suit sounds in defamation. But only the defamed have standing to sue for defamation. That would be the people not the Asiana Airline. The corporation is not defamed. Motion For Failure To State A Claim For Which Relief May Be Granted. There is a lawyer in that town by the name of Jack Mehoff who would be good to represent the news outlet. There is a Judge on the Bench there named Buster Cherry who would be good for this case. Jack works for a firm called Dewey, Cheatem and Howe.

  2. There is a book in our outhouse called: Three Steps To The Outhouse, by Who Flung Foo.

  3. Although I have no opinion about this as a legal issue, which is main point of this blog entry, the use of these fictitious names as puns, is more than an “insensitive joke,” Mr. Turley, they are racially insensitive, to say the least.

  4. the first three names are kinda funny, but the fourth sounds like they ran out of things to say.

  5. Asiana really should have run this by their crisis communications consultants first. They need to be coming off as sympathetic and worried about their victims. Instead they have presented themselves as litigious. And, the jurors in the inevitable wrongful death cases might well say, “What damages did Asiana seek from that duped TV station? Well, for this dead teenage girl, how about a thousand times that?”

  6. When I first read about this lawsuit, my first reaction was to laugh. The airline must think distraction will detract from the real issues in this tragedy. When I saw the first video of the approach and crash, I realized what probably happened. Since then I have seen many more still pictures and video. In a major crash, the NTSB investigation often takes many months. There will be a preliminary finding in a few months, followed by a final report later.

    I am always in favor of letting the investigators investigate, and leaving speculation to others. However, based on what I have seen, the debris trail begins at water’s edge, and airplane parts are strewn in a trail up the runway to the main body of the wreckage. At least one eyewitness claimed one or both main landing gear snagged the rocks at water’s edge. Some witnessed described the plane as “cartwheeling,” but what it actually did was careen up toward one wingtip, then smack back down on its belly. That suggests one of the landing gear struts hit the rocks harder than the other, pulling the plane sideways.

    Some have said the plane was flying “too slow,” but it is almost impossible for a distant observer to judge aircraft speed. A big airplane will look as if it almost hanging in the air, when in truth the airspeed may be in excess of 200 knots. The plane may very well have been too slow, but it will be up to the flight data recorder to tell exactly what the speeds were.

    SFO is an airport with special operating requirements, requiring training. The approach to runways 28R and 28L are over an open expanse of water.. The R and L refers to right and left parallel runways. The runway number is the compass heading of the runway; that is, 280 degrees on the compass. Water takes away depth perception. The more glassy and smooth the water, the harder it is to know where the surface is.

    A normal glideslope angle is about three to five degrees, depending on the airport. This airplane appeared to be flying almost level, suggesting they were below the glideslope. Judging by the debris field, they were way below normal glideslope.

    Having said all that, all indications so far point toward pilot error. We will not know exactly what went wrong in that cockpit for months, but in the meantime, look for a lot of attempted distractions. This lawsuit is probably only the first.

  7. randyjet, Just finished reading Bowden’s book, Killing bin Laden. The Seal team picked were picked for that same reason of experience. The young guys are quicker, stronger, etc. This Seal Team had guys in their 40’s. They had dealt w/ plans going awry and desperate emergencies many times. Indeed, the first chopper crashed in the compound, an auspicious start. The chopper pilot was a veteran and “cool as the other side of the pillow.” He put the chopper down w/ NO injuries, something every man in that chopper said was unbelievable. Plans change, things go wrong, every man chosen for this mission had dealt w/ this and that was part of what they loved. That’s why I always look for those gray hairs or bald heads in the cockpit when I fly.

    1. I just finished one book and that sounds like a good one to start on. I will remember where I was and what I was doing when I first heard about 9/11. I will always remember the same when I heard Bin Laden was dead. They did an incredible job and you are right that experience counts the most when the chips are down. Or as we oldsters say, age and treachery beats young and strong every time.

  8. Isn’t their any sort of editor at the news station that might have seen there had to be something wrong here?

    I guess it is just easier to blindly accept facts provided by gov’t agencies.

  9. And I think Gladwell writes about that UA crash. Was it on the west coast?

    1. NS The UA crash as I said was at Portland OR. I used to fly out of there. The FE all the time that they were working the landing gear problem was calling out their critical fuel status. After they headed back to the airport, the FE said TOUGH, we don’t have enough fuel to make it. They almost made it, instead they took out the approach lights, but almost does not count in aviation. At least most people survived that one. I don’t know if the careers of the crew did.

  10. randyjet, You should read Outliers. Gladwell also talks about that Avianca crash in NYC and the pilot being too deferential to the Air Traffic Controller. The pilot was on fumes and needed to land immediately. You would know better than I, but growing up near NYC I think you can yell @ an Air Traffic Controller there w/o getting feathers too ruffled. They may yell back, but so what? They need to get the message.

    1. NS I read about that crash, and the captain was incompetent since he totally screwed up his first ILS approach and had to go around. He further compounded that mistake by not declaring a fuel emergency which would give him a position next in line for another one.

      This is why I like the US system of training pilots since after getting thousands of hours flying as PIC, the incompetents tend to weed themselves out without killing too many people. The foreign airlines train pilots themselves or hire them with very low hours so that the first time the captain has a real emergency in his career is with hundreds of people on board. We all screw up the first time we have emergencies for real, since that is human nature. After you get a few under your belt, then it becomes far less impressive.

  11. Yet another example of BS lawsuits with no grounds. What needs to be done with such frivilous lawsuits is charge a large fine for wasting the courts time. Futhermore the attorney who filed it should receive a strike. After 3 such frivilous filings they should be disbarred

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