Originally Posted by
DL-Don
This is likely only applicable when two parties are negotiating a contact not with a contract of adhesion where the contract terms are written exclusively by one party and "imposed" on the other.
Originally Posted by
richarddd
That was my first thought. More specifically, if both parties are in an industry and the industry has an accepted usage, then that usage controls. But even in a negotiated contract, if the two parties legitimately have different interpretations of the same term, what controls? Airline usage because it concerns air travel? Construe against the drafter? Is it even clear UA defines a person in a seat as still in the process of boarding?
Well so as usual you just have an interpretive dispute that the court would have to resolve. My money would be on industry usage, on the theory the parties incorporated that usage when they contracted for air travel.
I'm mostly just reacting here to supposedly definitive statements of the law that fail to account for the intricacy of legal analysis or the process for determining legal disputes.
Originally Posted by
richarddd
I wonder if the Supreme Court's Ginsberg v. Northwest case affects the any of the legal analysis.
The airline is pretty much always going to raise a preemption defense.
Originally Posted by
Rdenney
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3308&context=californialaw review
Note especially the discussion of Lockwood vs. New York Central Railway Company, which went to the supreme court and is held as applicable in all common carrier cases. Such cases are marked by the customer being at a severe bargaining disadvantage when making the contract, and thus cannot be held to have consented to relinquish their rights to damages in the case of negligence. This may have been superseded, but I rather doubt it. I'm happy to be educated, however.
I was responding to the broad statement that negligence can't be waived. It most certainly can, and we do it all the time.
I'm not saying UA is not exposed here. I think they would have definite exposure based on the acknowledgement the flight was not overbooked and the foreseeability that calling in the cops to remove Dr. Dao would result in avoidable harm.