As people venture out after the lock down in England, a man in Windsor, England has a cautionary tale. The man decided to take in the sun in his backyard when, according to news reports, he and his entire yard were covered in human waste dumped by a passing plane. That is not the end to this rather obnoxious situation.
We have previously discussed falling objects including frozen poop from planes. It does raise a curious question, if the heightened liability of a “common carrier” extended to falling poop.
In England, common carriers were liable under strict liability for the loss of goods. Rich v. Kneeland, Hob. 17, Eng. Rep. (K.B. 1613). In both the United Kingdom and the United States, a heightened duty applied for personal injuries. This was explained in Philadelphia & R. R.R. v. Derby, 55 U.S. (14 How.) 468 (1852):
“When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of ‘gross.'”
This personal injury was, of course, to a pedestrian but would certainly constitute a “gross” tort.
In Chesapeake Ferry Co v. Cummings, 158 Va. 33, 164 S.E. 281 (Va. 1932), the Virginia Supreme Court described the duty of a common carrier as “the duty to use the highest degree of care for their safety known to human prudence and foresight, and is liable for the slightest negligence against which human care and foresight may guard.”
What was curious however was this line: “According to the Maidenhead Advertiser, the Windsor resident was unable to claim any insurance from the ordeal as the cost of the damage was relatively low.”
Putting aside the contamination of human waste, the line seemed to indicate that the man could not recover for his personal injuries. In the United States, absent some statutory immunity, dumping human waste on an individual would be a cause for not just negligence liability but the negligent infliction of emotional distress. In using a recklessness claim, it could even be alleged to be a form of battery.
It could also be a case for the application of res ipsa loquitur. As Dean Prosser explained, the doctrine is used when “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”
One would hope that dumping a load of raw human waste on a person is an accident “of a kind which ordinarily does not occur in the absence of someone’s negligence.” As for exclusivity of control, the waste was certainly in the control of various third parties but was deposited in the exclusive control of the airline.
The cases reminds one of that of Pillars v. R.J. Reynolds Tobacco (Mass. 1918) where a human toe was found in chewing tobacco. The Court remarked: “We can imagine no reason why, with ordinary care human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that somebody has been very careless.”
It is not clear which airline is responsible. Some slogans however are not just menacing but potentially incriminating:
American Airlines – “Something Special in the Air”
Air New Zealand – “The World’s Warmest Welcome”
Continental Airlines – “We move our tail for you”
Malaysia Airlines – “Going Beyond Expectation”
Southwest Airlines – “How do we love you? Let us count the ways”
Austrian Airlines – “Like a smile in the sky”