After 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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This is not unprecidented in the airline industry. Take the case of two men who were paged at an Heathrow Airport.
Mykollig Jesvahted and Levdaroum DeBahzted.
Hey Asiana Airlines…. If you don’t want to be made fun of…….. Don’t put UNTRAINED Pilots on your Airplanes, that then crash and cause the deaths of your passengers!!!.. Now just STFU………………
SlingTrebuchet wins today’s Internet.
And “Stay classy, San
DiegoFrancisco!”Malcolm Gladwell wrote about culture and airline crashes in his book, Outliers. He found there was an amazing correlation between how deferential a culture is, and how many of that culture’s planes crash. The more deferential, the more crashes. Korean Airlines[Asiana’s competitor], realizing this fact made fundamental changes. Many airline crashes are caused by pilot miscommunication w/ co-pilots and navigators. Korean Airlines studied the black boxes of crashes and saw just how much of a problem this was. In several accidents it was clear the co-pilot and navigator were being too deferential to the pilot who was making an obvious error. They would make meek and humble suggestions, or none @ all, to the pilot when being forceful was critically important. Korean Airlines made fundamental changes in the cockpit culture to avoid accidents due to miscommunication. From preliminary reports, the culture of deference may have played a part in this crash. Asiana is clueless in bringing a suit against this tv station. They need to be working on preventing accidents.
NS I could not agree more. That is why United Airlines initiated the CRM concept after the PDX crash of one of their DC-8s which ran out of fuel. I had an instance where I was at CLE early morning in the dark taxiing out. We had been cleared to the runway and were cleared to cross other runways. My F/O looked up and saw we were about to cross a runway and hit his brakes and stopped us short of the intersecting runway. He said we were not cleared to cross it, so i told him to confirm it with the tower. Turns out we were cleared to cross it and I was right.
Rather than berating him for not paying attention to our clearance, I praised him for taking an action when he thought we were possibly violating the rules. He was wrong that one time, but next time, it might save our butts since I despite my beliefs, am not infallible.
I think that the intern probably heard the names, thought it was a prank, and as the person was rolling on the floor laughing so hard, they probably said, Yeah those are the names! RIGHT! That this is a FAUX news station is the final icing on this cake. It makes it even funnier.
Sling, You lead off this thread w/ a homer!!
Sue whatever station in SF they want the station in question is in Oakland, Calif. and is owned by COX Broadcasting.
Do not sue the TV station. It would be cruel to sue them for their innocence.
Seamus,
Good to see you posting again…. More regular….
I suppose his defense counsel in the crash was Po Mei…..
In addition, those fake names “sound” Chinese, not Korean.
From a Korean standpoint, that would be pretty insulting, implying that the pilots were Chinese (“We can crash our own airplanes — we don’t need help from China to do it, thank you very much.”) or that Koreans and Chinese are pretty much the same. Given that Koreans have been dealing with Chinese hegemony for a couple thousand years and that South Koreans are staunchly anticommunist, that may be the most insulting part.
South Korean corporations have not learned much about the U.S. constitution evidently.
Their lawyers have not informed them either.
The are so Americanized aren’t they?
As far as I can see there is no grounds for this suit against the station. There is no way to prove damages, or that the Station should have used more care. What it does expose is that the NTSB seems to have some “gallows” humor infecting it, with racial overtones. All in all though a tempest in a teapot.
I remember a few years ago when a Chinese fighter jet went off course and collided with an American radar plane. The name of the Chinese pilot…wait for it…Wong Wei.
And the Judges name is DuWi Hung Tu…..
That was funny….. A little humor in a bad situation….
What need follow-up is the story about the NTSB intern. On the face of it that sounds so unlikely that an investigation and explanation is called for. Did they really have an untrained intern handling media inquiries? Do TV stations not have a list if official PR contacts?
I smell a put-up job. No one could see the list of names without realizing it is a joke. Maybe the airline is suing because they think there is more to the story.
This is an incredibly bad business decision to press the law suite. Don’t they have enough problems with what appears to be a perfectly normal plane landing short and the ensuing crash and fire? Not smart, not smart at all.
I think you pointed out the most obvious flaw here. How could a joke–albeit a stupid, insensitive and really BAD joke –harm their reputation any more than the sight of a crashed plane burning on the runway with their logo clearly showing on it’s side. The suit is just another bad joke.
I really don’t see the damages, here.
lol … can’t top that
The lawyer representing the airline is Sue Yue