PHILIPBURG–The death of Gayleen McEwan, a tourist from New Zealand who died after being blown over by the jet blast of a departing aircraft on Wednesday, continues to be a widely discussed topic in the community.
McEwan hit her head on a concrete block behind the Princess Juliana International Airport SXM fence and the incident became international news.
Long-time Attorney Richie Kock of Richie Kock Attorneys followed the news of the accident and decided to give his legal opinion to The Daily Herald on Friday, on the possibility of a court case for anyone who has been affected by jet blast at Maho Bay.
Maho Bay is situated at one end of the Airport runway where the airplanes usually take off. The runway and the bay are separated by a narrow two-way road. The runway and the road are separated by a fence.
Departing airplanes come within very short proximity to the fence. People gather at the fence and try to hold on while the airplane’s engines create a jet blast that can blow a thrill-seekers away from the fence all the way to the beach. The Maho jet blast experience has become a “must” for every visitor to St. Maarten. YouTube has no shortage of videos showing people being blown away by the jet blasts of departing aircraft.
There are sign posted at the fence that read “Danger. Jet blast from departing and arriving aircraft can cause severe physical harm resulting in extreme bodily harm and/or death.” The fence has been extended outward in recent years, to reinforce the fence and/or to expand the distance from the runway.
The recent incident is not an isolated occurrence. In 2012, a young woman landed face first on the pavement after trying to flee the jet blast. The incident was captured on film.
Hartmann vs PJIAE
Kock said that in the year 2000, a Swiss woman named Hartmann was standing at the fence. The jet blast from a KLM airplane caused her to be blown away, after which she landed on a concrete block from which she sustained serious physical injuries.
Hartmann started a civil case against the Airport which eventually ended up in the High Court of the Netherlands (“De Hoge Raad der Nederlanden”). The case Hartmann vs Princess Juliana International Airport (HR 28-05-2004, NJ 2005, 105), also known as “The Jet Blast Decision” became a cornerstone decision in liability cases, specifically regarding the obligation to effectively issue warnings to others regarding potential dangers.
Hartmann argued that the airport was liable for not creating a safe environment. According to Hartmann, the placement of signs which at the time read, “Warning! Low flying and departing aircraft blast can cause physical injury,” was not sufficient to deter people from standing at the fence.
The High Court in the Netherlands introduced a new standard to determine if and when a warning is considered an adequate measure in potentially dangerous situations.
According to the Court verdict, it is essential that the warning (sign) effectively causes people to act (or not to act) in such a way as to avoid the danger. The Court concluded in favour of Hartmann and decided that the signs did not meet the newly introduced safety standard.
“The situation at Maho Bay has changed little since 2000. There are posts with warning signs at the fence. Concrete blocks divide the two-way street and at the far end of the road there is a concrete pavement which separates the road from the beach.
“The centre part of the fence has been reinforced/extended outwardly. People are, however, still allowed to stand at the fence. The concrete blocks on the road greatly contribute to the potential danger,” said the lawyer.
The jet blast causes people to flee to the beach, but to reach the beach they have to jump over the concrete blocks and the pavement. A misstep may easily cause a person to trip and/or fall. The chance of a misstep is further increased by the sandstorm caused by the jet blast, which reduces visibility, he added.
“In my opinion, on the basis of the factors mentioned above it could be argued that the current situation would not meet the safety standard of the Jet Blast Case.
“The current signs seem to have no or very little deterrent effect. People keep flocking to the fence. The current warning signs indicate that the jet blast could cause serious bodily harm; however, it is not the jet blast that causes the harm,” stated Kock. “It creates the dangerous environment, but the concrete blocks on the road and the pavement are the actual culprits. There are no signs that warn against these obstacles.”
The injured party could hold the Airport liable for damages if the current signs do not meet the safety standard. The legal basis constitutes a wrongful act (“onrechtmatige daad”).
“In my opinion, the injured party could also hold Country St. Maarten liable. Under Article 6:178 St. Maarten Civil Code, Country St. Maarten is considered the owner of the concrete blocks and the pavement. If certain conditions are met, Country St. Maarten is liable for the damages resulting therefrom for persons and or property (‘risico aansprakelijkheid’),” stated Kock.
“Country St. Maarten could also be held liable on the basis of negligence. Negligence constitutes a wrongful act. In order to make the environment safer, the concrete blocks could be simply removed and replaced by something less dangerous.
“Accidents happen when people jump or trip over the blocks. They lose their balance and fall on the ground, or worse on the pavement. It is furthermore the responsibility of Country St. Maarten to make the fence strictly off limits, either via legislation or otherwise,” said the lawyer.
The injured party could claim material and bereavement damages. Material damages are the damages due to loss of income, for instance. Bereavement damages are the damages caused by the emotional suffering of the injured party.
In case of death of the injured party, the surviving relatives could claim material damages in the form of funeral cost and loss of income (Article 6:108 CC SXM).
“In regard to the loss of income, the deprivation (‘behoeftigheid’) of the surviving relatives is key. All the financial circumstances of the relatives are thereby taken into account. The damages incurred due to the loss of the financial contribution of the deceased party to the household and the upbringing of the children could be claimed, among others.
“The surviving relatives cannot claim bereavement damages, however. This is not yet possible on the basis of the current Civil Code of the island,” concluded the lawyer.