What Do You Think?
The exclusivity rule immunizes employers from most personal injury lawsuits. But it does not save them from having to initially use their legal resources to try and get a personal injury lawsuit dismissed. A case involving a flight attendant injured by toxic fumes highlights why employers should be proactive in addressing dangers that could repeat themselves.
A Frontier flight was en route from San Diego when the attendant smelled something bad — as if someone were painting their nails. Or, it could have been the smell of dirty feet, she said. It turned out that there had been a “fume event,” in which the engine released toxic chemicals into the cabin.
The pilots made an emergency landing and called for medical assistance. But the attendant had to wait for six hours on the tarmac before help arrived.
It turned out that the airline had had prior fume events. In fact, there had been a fume event previously on the very same plane.
The attendant sued Frontier, alleging that the company was grossly negligent because it knew of past fume events, but failed to protect her.
Under the exclusivity rule, workers’ compensation is generally an injured employee’s soul remedy. However, an employee can get around that rule if she can show that the employer intentionally injured her.
Could the flight attendant sue Frontier for negligence?
A. No. She didn’t show that Frontier deliberately failed to fix the plane or delay her medical attention.
B. Yes. Frontier knew she might be injured because the same plane had a prior fume event.
If you selected A, you agreed with the court in Kilkenny v. Airbus Americas, Inc., No. 24-cv-04062-PAB-SBP (D. Colo. 05/08/26), which concluded that the exclusive remedy rule barred the claim.
How does exclusive remedy work in your state? Simply Research covers it.
The court acknowledged that the attendant claimed that Frontier had had recent fume events, including one on the same airplane. But even if the airline was grossly negligent, gross negligence is not an exception to the exclusivity rule. The attendant’s allegations were not enough to show that Frontier deliberately intended to injure her.
Because the exclusivity rule applied to her claim, the attendant could not sue her employer for personal injuries. The court dismissed the case.
