|By Julie Johnsson, Chicago
TribuneMcClatchy-Tribune Regional News
Dec. 17, 2008 - This is no bar bet, it's a lawsuit. Can you get drunk on a flight, then sue the airline for giving you the booze?
A husband and wife are suing United Airlines for "negligently" overserving alcohol during a flight from Osaka, Japan, to San Francisco, saying the carrier's drinks fueled the domestic violence involving the two shortly after their plane landed.
Fortified with Burgundy wine allegedly supplied at 20-minute intervals by United crew members during the December 2006 trip, Yoichi Shimamoto became so inebriated "that he could not manage himself," according to a lawsuit filed Dec. 5 in U.S. District Court in Tampa.
Shimamoto was arrested, accused of disorderly conduct and battery after he struck his wife, Ayisha, six times, injuring her face and upper lip as they were heading through U.S. Customs in San Francisco, the complaint said.
The lawsuit is highly unusual and will likely hinge on whether Chicago-based United, in effect, operated a flying bar that's subject to the same legal liabilities as earthbound drinking establishments, legal experts said.
At issue: whether laws that hold bars and restaurants responsible for harm caused by intoxicated patrons apply when the bartender and drinker are flying at 40,000 feet across international territory.
"United's first defense will be there's no tort action like this in international airspace," said James Speta, professor at Northwestern University Law School.
Although Yoichi Shimamoto was charged and sentenced to 18 months' probation, the couple contend that United Airlines ultimately was responsible for his violent outburst, according to the lawsuit.
United's "conduct was egregious because it knew or should have known that over-serving a passenger alcohol on an international flight would have negative consequences," the complaint said. United's "conduct was deliberate, reckless, intentional and done with disregard for plaintiffs and all passengers."
Shimamoto, a native of Japan, was prevented from returning to his home country while his case wound through the San Mateo County courts in northern California.
The Shimamotos want United to pick up the $100,000 tab for Yoichi Shimamoto's bail, and defense and Immigration attorneys' fees, as well as the costs they incurred to have his probationary sentence transferred to Florida, where his wife had a home.
They also want the airline to pay for pain, suffering, loss of income and "any other relief that is just and proper."
Responded United spokeswoman Jean Medina: "We believe that a lawsuit that suggests that we are somehow responsible for the consequences of a passenger's physical assault on his own wife is without any merit whatsoever."
Airlines are frequently sued for the acts of drunken passengers, typically by flight attendants or other passengers who suffered harm from an unruly traveler during a flight.
What makes this case a rarity, legal experts said, is that it was brought by a person drinking the airline's alcohol. By filing the lawsuit, the Shimamotos also risk having their private lives exposed by the airline's attorneys.
"The idea that the server should have stopped serving is often accepted when the injury is to a third person, such as in a drunk-driving situation," Speta said. "Generally, the courts have not been receptive to people saying, 'I asked for the drink and you gave it to me.' "
But crafting United's defense will be tricky, legal experts said, because the case involves conflicting international and state law.
Under the Dram Shop Act, which is in place in California, Florida and most states, commercial suppliers of alcohol may be held liable for injuries caused by intoxicated patrons, such as those Ayisha Shimamoto suffered. The threat of such lawsuits has prompted many bars to adopt a policy of not serving anyone who is visibly impaired.
Ayisha Shimamoto's claim that she was harmed as a result of the carrier's negligence, one element of the couple's complaint, would be a likely slam-dunk if United's conduct in question had taken place in a bar, rather than on an international flight, legal experts said.
Because United's alleged over-serving occurred on an airplane crossing the Pacific Ocean, a legal no-man's land, it may be subject to protocols spelled out under the Warsaw Convention, said Bruce Ottley, professor at DePaul College of Law.
The Montreal Protocol of the international treaty limits an airline's liability to damages that took place onboard the aircraft, or as passengers were embarking or disembarking, Ottley said. That is problematic for the Shimamotos because the battery in their case occurred in an area controlled by the U.S. government, not onboard the United jet.
"The airline is liable for serving him alcohol that caused him to get intoxicated," Ottley said. "This occurred out in the middle of the Pacific where U.S. law doesn't apply."
Carl Hayes, a Tampa lawyer representing the Shimamotos, declined to comment on their lawsuit.
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