Several decisions of United States courts during the last year have touched upon the traditionally controversial topic of the liability of a tortfeasor to pay damages in a fatal accident case for the mental anguish of its victim or the latter’s close relatives. Although this is of course not an issue restricted to aviation cases, the circumstances of a mass catastrophe airliner accident can cast the subject into sharp focus.

The facts surrounding the loss of the American Airlines DC. 10 at Chicago Airport on 25th May 1979 are well known. Upon lifting off from the runway but unbeknown to the crew, one of the wing-mounted engines separated from the structure. Some 31 seconds later the aircraft impacted the ground in a stalled condition at a near 90-degree angle. Among other more or less relevant issues given prominence in the Press was the fact that the aircraft passenger cabin was fitted with a television monitor providing passengers with a forward view from the flight deck.

A number of the resultant death suits brought against American Airlines and the manufacturer included a count for pre-impact pain and suffering of the deceased—a demand for damages for the terror of the experience and the impending awareness of catastrophe. One of these suits concerned the death of 29-year-old Lloyd Shatkin, who was killed along with his wife. Shatkin was employed as a buyer for a home furnishing company and was survived by his 66-year-old widowed mother. In a damages only trial before a jury sitting in the Federal District Court for the Southern District of New York the plaintiff received, inter alia, an award of U.S. $87,500 for conscious pain and suffering experienced prior to death. This award was contested and the Second Circuit Court of Appeals handed down its decision on the appeal on 26th January 1984.1

The court carefully reviewed the known details of the last flight of the DC. 10. It was established that the deceased was in seat 24H on the right-hand side, it in fact being the left-hand engine which fell from the airframe. According to analysis of the flight data recorder, the aircraft climbed initially with apparent smoothness to 325 ft., despite the loss of one engine. At first, this climb was effected with a slight left wing down tendency but the crew corrected for the wing drop and at some 20 seconds into the flight the aircraft was in an apparently stable wings level climbing attitude. At this point it began to roll slightly to the left. Eight seconds later it had dropped to a 90-degree angle. Impact occurred three seconds after that. An eyewitness on the ground some distance from the scene asserted in evidence that she had seen the aircraft tilt from side to side and descend nose down shortly before the accident.