Oooh, I’ll be using this one in a legal ethics seminar for sure.
A sicko American Airlines flight attendant (Estes Carter Thompson III, above) allegedly hid a camera under the First Class toilet seat and filmed the nether regions of several little girls between the ages of 7 and 14 during a seven-month span last year. One of the victims, aged 14, spotted a phone’s camera flash underneath the toilet seat, which was covered by tape. She took a cell phone photo of it and showed it to her mother. As you might expect, the girls’ parents were perplexed.
A lawsuit ensued by the parents of another victim, age 9. The American Airlines lawyers came up with a true “Hail Mary” defense theory, stating in court filings, “Any injuries or illnesses alleged to have been sustained by plaintiff, Mary Doe, were proximately caused by plaintiff’s own fault and negligence, were proximately caused by Plaintiff’s use of the compromised lavatory, which she knew or should have known contained a visible and illuminated recording device.”
Yikes. This takes “blaming the victim” to audacious new levels. The girls has suffered from post-traumatic stress disorder, depression, anxiety, insomnia and nightmares, the civil lawsuit says. As for the now ex-flight attendant, investigators found hundreds of explicit images of child pornography on his iCloud account, and the images of the victims he secretly recording using the plane rest room.
The defense’s strategy stunned the young plaintiff’s parents and everyone else who learned about the filing. American Airlines’ PR folks undoubtedly urged the company to throw the lawyers under the bus, or plane, or whatever. “Our outside legal counsel retained with our insurance company made an error in this filing,” American Airlines eventually groveled, adding that the insurance company’s defense “is not representative of our airline, and we have directed it be amended this morning. We do not believe this child is at fault, and we take the allegations involving a former team member very seriously. Our core mission is to care for people – and the foundation of that is the safety and security of our customers and team.”
I would recommend a quick settlement. I would have recommended that before any filings took place at all: the Streisand Effect is strong with this one. The less publicity such a case gets the better, and the quicker it is settled, the less likely the public is to wonder how many other pervs are prowling American airplanes scoping out little girls for their scrap book.
Somebody screwed up badly here, though it is unclear who. Although the insurance company’s lawyers have some duties to the insurers who hire them, the lawyers’ real client is the insured, American. That means the attorneys must keep American informed and advised of how the defense will proceed, and maybe it did, through the airline’s General Counsel and in-house attorneys. If the GC knew about the insurance company’s lawyers’ plans and allowed that ugly filing, then he or she is primarily responsible. If American approved that horrible “It’s the little girl’s fault!” theory, then the insurance company might have a valid lawsuit against American Airlines.
A lawyer is obligated to do what he or she deems is in the client’s interests, and clients have to be included in the decision-making process regarding strategy. If being paid by the insurance company creates a conflict with the insured for an attorney, then the insured must have an independent attorney with no obligations to the insurers at all. Presumably American’s in-house legal staff would fulfill that role in this case. Lawyers also must provide competent advice. How the defense that was offered could be sold to American is beyond my comprehension; the attorneys would have to say, “Now, this is risky, and the public blowback will be fierce. It also is a longshot at best. Are you willing to risk it?” If they didn’t, then it’s a serious ethics violation, as well as malpractice.
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Pointer: Willem Reese
Ethics Alarms 
And myopic. Did they not recognize that such a defense would inevitably be publicized? I would have understood if they’d argued that American Airlines could not have possibly known what the employee was doing, but that a passenger – who should have a reasonable expectation of privacy in the head – should have known a recording device was in there is a ridiculously bad argument from a PR perspective.
A particularly unfortunate omission of the “l” in “public.”
My favorite typo. Fixed.
More seriously, those lawyers need to be named, disbarred, and whipped naked through the streets of Duluth. In February. No rational person could possibly believe that such a strategy could be anything but counter-productive. But I disagree with your argument that they owed American a warning that the ploy might not work. It’s so transparently stupid no such warning ought to be necessary if anyone on the American team had an IQ above room temperature.
I agree. As I was reading this all that was going through my head was that these lawyers should be disbarred. Any stupid incompetent who can produce such a stupid argument in court should not be allowed to practice law.
I tracked down the actual court filing to see if there were any mitigating context:
Microsoft Word – American Airlines Answer to First Amended Petition(296943633.1) (cbsaustin.com)
It appears they are throwing everything, including the bathroom sink, hoping something might stick. I am not a lawyer, but few or none of the “affirmative defenses” seem legally plausible, and offered in order of increasing absurdity.
For the record, the filing was written by:
Actually the defense that respondeat superior is not applicable does make sense. It is likely that the employee planted the device on the planes on which he was an attendant after other airline personnel serviced the lavatories. Taking “upskirt” photos is not in the scope of employment. This criminal act is no different than an employee using a company truck to kidnap a child and sexually abusing the child.
Texas has a variety of affirmative defenses for claims that bar recovery. The lawyers were using them to deny relief to the plaintiff. I would say that the fifth affirmative defense which the one cited (comparative negligence) is both unwarranted and fails to understand how that would play in Peoria. Without additional facts, I cannot determine what damages the child would have suffered if the images collected on the camera were not accessed by the perpetrator.
I am no lawyer but to suggest that the lawyers be disbarred for defending their client by using all available defenses even when the victim is a child is no different than trying to disbar lawyers who represent disfavored politicians.
The more I think about this case I have to ask how does one go about mounting a camera in an aircraft toilet let alone tripping a shutter on a camera that has a flash without it being seen. Flight attendants and ground personnel cannot preposition equipment without risk of other personnel finding it given that they are not always assigned to the same aircraft. Some things just don’t make sense.
“One of the victims, aged 14, spotted a phone’s camera flash underneath the toilet seat, which was covered by tape. She took a cell phone photo of it and showed it to her mother. As you might expect, the girls’ parents were perplexed.
How do you hide even the slimmest of cell phones under a toilet seat in an aircraft? Who tripped the shutter to make the flash go off. More to the point who would not notice a cell phone’s camera lenses sticking out from under the seat even if it could be taped under it. Assuming it goes unnoticed by everyone else taking a cell phone photo requires physically pushing a button. How was that button pushed to trigger the flash.
What did the parents do right then and there? Being perplexed does not answer that question.
Before I come down hard on American or its lawyers I would need more information because some things don’t quite add up.