Appeals Court Rules in Favor of Southwest Flight 1248 Midway Airport Crash Victims

April 27, 2007

The United States Court of Appeals for the Seventh Circuit issued an important decision today in favor of air crash victims' rights, ruling the claims of those injured in the Southwest Airlines crash at Midway Airport in Chicago on December 8, 2005, must be heard in the court the victims selected instead of the one the airline preferred.

More was at stake in this ruling than meets the eye, according to the attorney who argued the case for all of the victims, David E. Rapoport of Chicago's Rapoport Law Offices, P.C. Mr. Rapoport explained earlier today: "Airlines, their insurers, and other members of the aviation industry have preferred federal courts over state courts for resolving air disaster victim cases for years. In general, they think it will be cheaper for them to resolve these cases in federal court. Pursuing this old agenda, in this case Southwest, Boeing and the City of Chicago, all formidable opponents, cleverly tried to use a recent United States Supreme Court decision involving a real estate tax sale to expand the jurisdiction of the federal court to fit this case. But the Court of Appeals soundly rejected this argument and remanded the cases to Chicago's state court for trial. As the first federal court of appeals to speak to the 'federal question' jurisdiction issue in a plane crash case since the new Supreme Court case was decided, this opinion should chill the aviation industry's efforts to take away air crash victims' rights to choose where their cases will be heard."

On December 20, 2005, the two lead plaintiffs filed lawsuits in the Circuit Court of Cook County, Illinois, against Southwest Airlines, Boeing and the City of Chicago, for negligence, conscious disregard for safety and strict liability for causing the December 8, 2005, Southwest Airlines Flight 1248 to run off Runway 31C and crash-land during a snowstorm.

Rather than attempting to defend the case in state court, the defendants "removed" the passengers' lawsuit to federal court, believing it would provide a more favorable forum for them. They claimed they had the right to remove simply because the case might involve violations of federal aviation regulations. Following federal procedures to challenge this, Bennett and Penn filed a motion to remand their case to state court. Later, as other victims of the airplane crash filed additional lawsuits in state court, these lawsuits followed the same path.

The first judge to decide whether to remand the cases back to state court was United States District Court Judge Charles Kocoras, who denied the motions to remand but certified the question for appeal acknowledging that reasonable persons could differ on the point. Thus, Bennett, Penn and the other victims were granted permission to appeal his ruling, and the Court of Appeals reversed.

In a strongly worded opinion, the Court held that even though federal aviation regulations might apply, this did not mean the claims "arise under federal law." Rather, the claims involve a fact-specific application of rules that "are governed by context-sensitive doctrines such as the law of negligence . . . [and] state issues, such as the law of damages, may well predominate." Therefore, it was improper for the defendants to remove this aviation case to federal court, and the Court of Appeals held it must be remanded back to state court. The Court's opinion affects all SWA Chicago Midway airplane crash cases that were originally filed in Illinois state court.

"This case represents a victory for the rights of victims to choose, in appropriate cases, the court they want to hear their case," said Ronald L. M. Goldman of Baum-Hedlund, a national aviation litigation firm. Rapoport Law Offices, P.C., and Baum-Hedlund together represent a majority of the victims of the airplane crash that have filed lawsuits.

The airplane crash involved a Boeing 737-700 failing to stop on the runway, plowing through a fence and onto a busy street striking several vehicles and landing on top of a car, killing a young boy and injuring his family members. Passengers suffered, among other things, fear, pre-impact terror, distress and physical injuries.

Mr. Rapoport, a lifetime resident of Chicago and the Rapoport firm's lead trial attorney, stated shortly after the crash: "I grew up near Midway and have watched as Southwest has grown and profited, wondering not if, but when, a disaster like this would happen. In the last few years I've prosecuted two airlines in wrongful death cases involving jets that landed, failed to stop on the runway, then ran off crashing into fixed structures and resulting in devastation. This has got to stop, and until it does, we will continue to extend our best efforts to bring those responsible to justice."

For further information about aviation negligence legal services email an attorney, or contact the Rapoport Law Offices, P.C., at 877-216-4213 (toll free) or 312-445-9160.