In a court filing, American Airlines argues that it should not be held legally liable for the conduct of its flight attendant who surreptitiously filmed underage girls in aircraft lavatories. Does AA actually have a point?
American Airlines: Don’t Blame Us For Malicious Acts Of Flight Attendant
Estes Carter Thompson III was arrested by the FBI where hundreds of child porn photos were found on his mobile phone, including images of girls as young as seven years old he captured onboard.
A girl who noticed a cell phone taped to the lavatory toilet lid alerted her parents who alerted authorities. In their lawsuit against American Airlines, one of the families says that American Airlines “knew or should have known” that its flight attendant was engaging in this injurious conduct.
Is that really the case? And should companies be held liable for every crime committed by their employees?
In legalese, vicarious liability or respondent superior (“let the master answer”) is the idea that employers are held liable for the actions of their employees. Here, the claim is that American Airlines should be held responsible for the criminal actions of its flight attendants.
A key question in determining whether an employer is liable is whether the employee acted within the course and scope of employment.
This case is not like a pilot who gets drunk and crashes a plane. Or a flight attendant who punches a passenger during the beverage service. But should American Airlines still be liable even though filming in a lavatory has nothing to do with the duties of a flight attendant?
To answer the question, these three questions are often considered:
- Was the act committed within the time and space limits of the employment?
- Was the offense incidental to, or of the same general nature as, the responsibilities the employee is authorized to perform?
- Was the employee motivated to any degree to benefit the employer by committing the act?
Sexual misconduct is a clear departure from the scope of employment and also from the reasonably foreseeable conduct of a flight attendant onboard a flight. I do have some sympathy for AA’s claim that it cannot be liable for an employee who so grossly steps outside of his role as a flight attendant.
That said, this is just a standard procedural move by AA and it seems clear to me that this case (and the others that will come) is heading for a generous settlement to make it go away. But was AA negligent here? I haven’t seen the evidence for it yet…
Beyond the civil lawsuits, Thompson faces multiple charges from federal prosecutors and may spend the rest of his life in jail. But when you think about whether American Airlines should be liable, think about what it could have done differently? Does AA now need to ask employees to surrender their phones or social media passwords? What could AA have done any differently to prevent this? Sometimes a pervert is going to be a pervert. He should pay…but I’m not convinced AA should.
image: Blue Ridge Regional Jail Authority