Nine people were hurt early Friday morning when Avianca Flight 42, an Airbus A320 flying overnight from Medellín, Colombia to New York’s JFK, hit severe turbulence somewhere north of Cuba and diverted to Miami. One passenger went to a trauma center. Our thoughts are with the injured and with the three flight attendants who were injured doing their jobs.
The flight departed Medellín at about 11:20 pm Thursday, October 8. Roughly two and a half to three hours into the flight, cruising at about 35,000 to 36,000 feet after crossing Cuba, it encountered what the crew reported to air traffic control as severe turbulence. The diversion to Miami was logged at 2:46 am about 150 miles southeast of the airport, and the airplane landed at 3:26 am. Miami-Dade Fire Rescue took eight people to hospitals, one as a trauma alert; Avianca says six passengers and three crew members were affected. Video from the cabin shows passengers holding ice packs to their heads. Avianca called the turbulence “unexpected” and said the diversion was precautionary. The FAA is investigating.
The Narrative Was Initially Incorrect
Several outlets report that the airplane “dropped 25,000 feet in minutes.” To be clear, the aircraft did not fall 25,000 feet. That figure is the descent from cruise altitude to the approach into Miami after the crew decided to divert, a descent that took about forty minutes and was flown under control. An airplane in severe turbulence typically changes altitude by tens of feet, occasionally a few hundred.
What injures people is not the altitude change but the vertical acceleration: for a second or two the airplane moves down faster than the people inside it, and anyone not strapped to a seat continues upward into the ceiling, the overhead bins, or the galley. That is why head injuries and neck injuries dominate, and why the three injured crew members matter to the story. Flight attendants are the people most often standing when turbulence hits. The NTSB’s 2021 study of turbulence injuries found that flight attendants account for the large majority of serious injuries in U.S. air carrier turbulence events, and that most of the injured passengers were not wearing seat belts even when the sign was on.
Additionally, Avianca’s use of the word “unexpected” deserves careful investigation. “Unexpected” is a word that will be tested, and the publicly available weather data gives the airline less room than that word suggests. We reviewed the satellite and radar imagery and the flight’s track for the hours around the event. There was no significant weather along the route. The one feature in the area was an isolated thunderstorm cell near Cabo Cruz on the southeastern tip of Cuba.
The flight track of Avianca 42 depicting ordinary weather along the route of flight,
with one cell over Cabo Cruz, Cuba, and another slightly off shore.
Aviation Law Group Attorney’s Christopher Rusing and Brendan Keegan have flown this corridor many times at night, and an isolated cell off the Cuban coast in October is ordinary. Isolated cells such as the one depicted on the radar imagery show plainly on the airplane’s weather radar from well over a hundred miles away and crews route around it as a matter of course. Whether Flight 42 passed near that cell, and whether the turbulence came from it, is something the airplane’s recorded data will show.
Some early coverage has pointed at Hurricane Isaias. The storm’s center, and even the outermost of its feeder bands, were more than 500 miles from the airplane’s track at the time. Hurricanes make flying rough inside their bands and in the outflow at their tops; they do not reach across 500 miles of clear air. Based on what is publicly available, it is highly unlikely that Isaias had anything to do with the severe turbulence experienced by Avianca Flight 42.
That leaves the questions the investigation will actually answer: what the forecasts, pilot reports from aircraft ahead, and the airline’s own turbulence tools showed; whether the seat belt sign was on; whether the cabin crew was up serving or securing the cabin; and what the airplane’s recorded data says about how hard the jolt was and how long it lasted. None of that is public yet, and we do not pretend to know it
If You Were Hurt on Avianca 42
Flight 42 was an international flight between two countries that have signed the same treaty, the Montreal Convention. That one fact decides almost everything about an injured passenger’s rights, so it is worth taking slowly.
You do not have to prove the airline did anything wrong. For injuries caused by turbulence, the treaty makes the airline responsible automatically, up to about $205,000 per passenger. You have to show that you were hurt and that the turbulence caused it. You do not have to show that the pilots flew into weather they should have avoided, or that the seat belt sign should have been on. The law treats being thrown into the ceiling of an airliner as exactly the kind of event the airline answers for.
Above that amount, the airline has to prove it was not at fault. If your injuries are serious enough that your losses exceed roughly $205,000, the burden flips. The airline can escape paying more only by proving that nothing it did or failed to do contributed to the injury. For a turbulence case, that means Avianca would have to explain, with its own data, why the seat belt sign was off if it was, why cabin service was underway if it was, and why it was in that air at that moment. In most turbulence cases the airline cannot carry that burden, which is why these claims usually settle.
What counts. Medical bills, lost wages, future care, and the pain and limitation of the injury itself all count. A concussion, a neck injury, a broken bone from hitting an overhead bin, a back injury from landing hard in a seat: these are the injuries the treaty was written for.
You can only sue the airline under the treaty. You cannot go around it by filing an ordinary negligence lawsuit in state court. The treaty replaces those claims. That is not a disadvantage in a turbulence case, because the treaty’s rules are better for passengers than ordinary negligence law would be.
Where you can sue. The treaty lets you file in only a few places: Colombia, where Avianca is based; the country where you bought your ticket; the country your ticket said you were going to, which for this flight is the United States; or the country where you live, if Avianca flies there. For almost everyone on Flight 42 who was headed to New York, a United States court is available and almost certainly more favorable to an injured Plaintiff than Colombian courts. The fact that the airplane landed in Miami does not by itself make Florida the place to sue; where you live and where you bought the ticket matter more. Which court you choose can change what your claim is worth, so it is the first thing a lawyer will ask.
What Injured Passengers Should Do Now
Seek medical care for any potential injuries. Even for a bump on the head that seems minor; concussions and cervical injuries declare themselves over days, and the record of the first visit matters. Keep the boarding pass, the ticket receipt, and the booking confirmation, because they establish the contract of carriage and the place of purchase that drive jurisdiction. Write down your seat number, whether the seat belt sign was on, whether you were belted, what the crew was doing, and the names and contact information of passengers around you, while it is fresh. Photograph your injuries. And do not sign anything or accept a payment from the airline or its insurer before you have spoken with a lawyer. Airlines frequently offer quick payments after turbulence events; under the Convention those payments may be credited against a later recovery, and a release signed in exchange for one can end the claim.
About Aviation Law Group
Aviation Law Group’s attorneys are all pilots or aircraft mechanics, and some are both. The firm’s practice centers on airline liability under the Montreal Convention, including turbulence, in-flight injury, and international incident claims against foreign and domestic carriers, and we have resolved Convention claims involving carriers from South America, Europe, and Asia. Attorney’s and Airline Pilots Christopher Rusing and Brendan Keegan have flown this route and this airplane in airline service.
Aviation Law Group maintain offices in Seattle, South Florida, and Hawaii, with attorneys licensed in Washington, California, Florida, Hawaii, Alaska, Texas, New Mexico, and Vermont, and we represent passengers throughout the United States and internationally through association with local counsel where required. Our South Florida office is a short drive from the hospitals where Friday’s passengers were treated. If you or a family member was aboard Flight 42, we would be glad to explain your rights, confidentially and without obligation.