William & Mary Business Law Review


COVID-19 nearly wiped out demand for commercial air travel in 2020, driving down passenger traffic by a jaw-dropping 94.3% from the previous year. The airline industry thus understandably lobbied for a government bailout to manage what was nothing short of an existential crisis, with losses exceeding $35 billion. Less worthy of sympathy, however, were the ad hoc policies airlines unhelpfully put in the path of their customers even while securing for themselves $25 billion in payroll grants together with a similar sum in low-interest loans. For example, carriers refused to provide refunds or liquidate travel credits in a straightforward way for those whose travel was impacted during the pandemic. These consumer practices spawned a number of class action “refund cases” around the nation—nearly all of which were doomed to fail at the earliest stages of litigation under the terms of the Airline Deregulation Act of 1978, which expressly requires courts to dismiss lawsuits related to airline prices, routes, and services.

But should the law recognize a pandemic exception and allow consumer tort claims to proceed against airlines arising from the transmission of infectious diseases? For that matter, could or should airlines be liable for crew-to-passenger or passenger-to-passenger transmission of infectious diseases? This Article argues no even if the risk of epidemics and pandemics are happening more regularly over the last few decades. Notwithstanding numerous examples of despicable and infuriating airline policies and practices related to the pandemic that would be remediable by operation of law if undertaken by other businesses, the exceptional legal immunity airlines have with respect to general consumer torts promote important and stabilizing economic policies that should not be undone by courts. What is more, courts should bar negligence suits against airlines arising from the alleged transmission of infectious diseases lest they become immersed in hopeless evidentiary and administrative problems.

In all, as a normative and practical matter, courts should have a minimal role in the enforcement of consumer protection issues under the explicit terms of the Airline Deregulation Act. And, when presented with controversies implicating airline deregulation, courts should construe existing national and international aviation service and safety laws as preempting lawsuits against airlines for consumer claims and torts connected to the transmission of infectious microorganisms on commercial aircraft. To be clear, while this Article bemoans undesirable consequences of the Airline Deregulation Act relative to passenger claims arising from public health crises now and in the future, it argues that any policy changes that should or might occur must do so by lawmakers alone.