The delay or cancellation of a flight does not constitute presumed moral damages (in re ipsa) – moral damages for flight delay – and therefore compensation will only be due if some extraordinary fact that has caused psychological distress to the consumer is proven.
The Third Panel of the Superior Court of Justice (STJ) reaffirmed this understanding in analyzing the appeal of a passenger who faced a delay of a little more than four hours on a flight – without, however, presenting evidence of the alleged moral damages.
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The consumer filed a compensation action after the cancellation of a domestic flight. He was to board in Juiz de Fora (MG) bound for São Paulo at 6:45 a.m., but was placed on another flight of the company around 11 a.m. of the same day and arrived in the capital of São Paulo at 2:40 p.m.
The court of first instance and the Court of Justice of Minas Gerais (TJMG) denied the claim for moral damages. In the special appeal, the consumer alleged that moral damages in such hypotheses dispense with proof, since they would be presumed (damages in re ipsa).
Parameters
According to the rapporteur at the STJ, Justice Nancy Andrighi, in such cases it is necessary to verify the time the airline took to solve the problem; whether it offered alternatives to better serve the passengers; whether clear and precise information was provided, in order to ease the discomforts inherent to the situation; whether material support was offered, such as food and lodging; and whether the passenger, due to the delay, missed an unpostponable commitment at the destination.
Nancy Andrighi pointed to rulings of the STJ in which there was proof of the damage suffered and, consequently, the granting of the claim for compensation. However, she emphasized that, in the case analyzed, no elements were submitted that would demonstrate the possible moral damages caused to the consumer.
“In the hypothesis, no extraordinary fact was invoked that has offended the core of the appellant’s personality. As a consequence, there is no way to speak of indemnifiable moral distress”, she concluded.
Considerations
The Justice emphasized that it is not disputed that liability for the delay, pursuant to article 14 of the Consumer Defense Code, lies with the airline, but such finding does not mean the automatic recognition of indemnifiable moral damages.
She mentioned decisions of the STJ from 2009 to 2014 in which moral damages, in the hypothesis of flight delays, were considered in re ipsa. However, in 2018, in adjudicating the REsp 1,584,465, the Justice promoted a new interpretation on the subject, taking the case to the collegiate judgment of the Third Panel.
The rapporteur explained that the allegation of presumed moral damages requires considerations, “notably because the construction of said premise leads to the conclusion that a commonplace situation in most – if not all – of the Brazilian airports would give rise, outright, to moral damages to be compensated, regardless of the proof of any psychological distress eventually endured”.
According to the Justice, the characterization of presumed damages cannot be stretched to the point of removing the need for its effective demonstration in any situation.
Source: STJ
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