JS, I am very sorry for what happened to you and your son. I am happy to hear that he is doing fine.

As an attorney, I find this to be an interesting issue.

Based on your description, I am not sure what the woman did that was wrong (other than leave the scene, which is, it goes without saying, wrong). I guess from your perspective in the window seat, it was difficult to see exactly how she wnet about removing her bag, but from your description, it sounds like she took her bag and, as a result, another one fell on your son.

Leaving aside the issue of leaving the scene (which may make her liable to extra liability under CA law, but I am really not sure, so don't want to speculate), I think you would face an uphill fight if you were to sue her.

First, you would have to find her. If you know her seat number, Delta could likely track her down. The question is whether they would do so without a subpeona. You may have to launch a mini action to find out who she is. If you do not know her exact seat assignment, I think it will be next to impossible. You can probably guess that she was seated near you, but without the knowledge of her exact seat, I doubt Delta can do very much to find her. I doubt you'll be given enough leeway from a court to subpeona every female on the plane (or within a specified number of rows from where you were sitting).

Second, assuming you track her down, this case will have to be in California as that is where the injury occurred. Based on your profil, you live in S.C., which means you will have to deal with the burden of maintaining a lawsuite clear across the country.

Third, you will have to prove your case. Most likely, your cause of action will be common law negligence. While CA might have its own quirky rules on negligence, in most states, negligence involves a four-part prima facia case of:

1 - Duty
2 - Breach
3 - Causation
4 - Injury.

You would first have to prove that she had a duty of care to your son. In general, the duty involved is that one must take care to avoid all foreseeable injuries that can stem from an action. Based on this, I think you can make out a case for duty as a bag falling on someone's head causing injury is a foreseeable risk of removing your bag from an overhead bin (afterall, she was warned of this specific risk).

You will also have an easy time proving the final two elements. There are two parts to causation. The first is that "but for" the negligence, the injury would not have occurred. Clearly, if she was negligent, the bag would not have fallen out and hit your son. Secondly, the bag falling otu must be the proximate cause of the injury. Clearly, it was, since it hit him on the head. The fourth element, injury, is also easy, as you will be able to prove that your son suffered an injury.

This leaves element two, negligence. From what we know, this will be hard. You will have to prove that she disregarded the flight attendant's warning or that something in the way she removed her back was negligent. Negligence is most often judged using a reasonable person test, meaning that the conduct of the plaintiff mus thave deviated from the standard of care that a reasonable person would have used when opening the bin and removing her bag. Did she just throw open the bin? Did she use two hands to remove her bag? Was it obvious before it fell that the second bag was going to fall? You will need to find all this out, which you would normally do by taking her deposition. You could also take the depositions of the other people witness to this incident, provided, of course, you could track them down.

As for suing Delta, all I know is that airlines get sued all the time for this, so I assume a suit is possible, but I do not know how these work (I do know someone who defends Alitalia in these type of actions).

Good luck and be thankful that your son is fine.