Passenger’s racial discrimination claims based on airline deplaning come up short

October 29, 2014

Mercer v. Southwest Airlines Co. (N.D. Cal. Sept. 19, 2014).  In his amended complaint, the plaintiff, an African American, alleged that he and fiancée boarded the Southwest LAX-IAH flight with two carry-on bags apiece.  The plaintiff stowed his bags in an overhead compartment and then, “as a gentleman,” proceeded to do the same with one of his fiancée’s bags.  A white Southwest flight attendant told him three times that “he was over the 2 limit per person for carry-on luggage,” and he “politely explained” each time that he was assisting with his fiancée’s bag and thus was not over the limit.

According to the plaintiff, a Southwest supervisor deplaned him several minutes later, and his fiancée followed him off the aircraft.  In the gate area, the Southwest supervisor told the plaintiff that he had been deplaned because the captain “did not want plaintiff on the aircraft as he considered plaintiff to be a security threat.”  The plaintiff and his fiancée were rebooked, and traveled, on a Southwest flight to IAH later that day.

The plaintiff’s amended complaint asserted claims for negligence, intentional infliction of emotional distress and violations of 49 U.S.C. § 40127, 42 U.S.C. § 2000a and 42 U.S.C. § 1981.  Southwest moved to dismiss on the grounds that the amended complaint failed to state an actionable claim.

The court granted Southwest’s motion.  The court’s key ruling was that the Federal Aviation Act preempted the plaintiff’s negligence claim.  Noting that the FAA impliedly preempts the field of aviation safety and that 49 U.S.C. § 44902(b), an FAA provision, sets the standard for an airline’s refusal to transport a passenger on safety grounds, the court reasoned that the plaintiff’s negligence claim, which was based on a California statutory standard of care, directly implicated the aviation safety field because, according to the plaintiff himself, safety was the apparent basis for Southwest’s decision to deplane him.  Thus, the court held that the FAA preempted the plaintiff’s negligence claim because its consideration of that claim would have required that it determine whether he did indeed pose a safety threat in order to determine whether the airline’s conduct was justified.  The court held that the FAA preempted the plaintiff’s emotional distress claim for the same reasons.

The plaintiff had argued that the Southwest supervisor’s explanation regarding his removal from the aircraft on security grounds was merely a pretext for racial discrimination and that he never posed a safety threat.  In response, the court pointed out that, for purposes of FAA preemption, the critical issue was not whether the captain was correct in his belief that the plaintiff was a safety threat but that the plaintiff’s tort claims would have impermissibly required that the court evaluate the safety issue under a state law standard of care.

The court then disposed of the plaintiff’s statutory claims.  It noted that the plaintiff had withdrawn his 42 U.S.C. § 2000a claim, and it held that the plaintiff had no private right of action under 49 U.S.C. § 40127 and that he had failed to adequately state a racial discrimination claim under 42 U.S.C. § 1981 because he had not alleged that he was treated differently than similarly-situated white passengers on the flight.  The court granted the plaintiff leave to amend his Section 1981 claim.


Court upholds airline’s right to deplane feisty, drunk-acting passenger

October 12, 2014

Lozada v. Delta Airlines, Inc. (S.D.N.Y. June 17, 2014).  The 69-year-old plaintiff eased the pain of a JFK-MIA flight delay by enjoying alcoholic drinks at two airport bars.  The plaintiff alleged that she boarded the aircraft without incident, but Delta disagreed.  According to airline personnel, the plaintiff appeared intoxicated and loudly demanded, in the gate area and on board, free drinks for the passengers as compensation for the delay.  In her seat, the plaintiff repeatedly pushed the call bell and was slurring her speech.  Delta personnel repeatedly instructed the plaintiff to calm down, to no avail.  The cabin crew notified the captain, who instructed that they request that the airport police deplane the plaintiff. The airport police removed her from the aircraft but did not charge her with any crime.

The plaintiff sued Delta in state court, alleging negligence.  After removing the case to federal court and conducting discovery, Delta moved for summary judgment.  Delta contended that the plaintiff’s claim was preempted by the Airline Deregulation Act and the Federal Aviation Act and that, even if her claim were not preempted, she had failed to state a claim for negligence under New York law.

The ADA preempts state common law negligence and most other state law claims that relate to an airline’s “service.”  The FAA grants an airline the right to “refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”  The plaintiff’s primary argument in opposition to Delta’s motion was that the airline was required “to demonstrate as a matter of law that the Plaintiff was intoxicated” but that it had not presented any “real proof at all of Plaintiff’s purported intoxication,” such as the result of a Breathalyzer test.

The court granted Delta’s motion.  First, the court held that the ADA preempted the plaintiff’s negligence claim because the airline’s deplaning of the plaintiff related to its fundamental “service” of deciding whether to transport a passenger and that such removal was not outrageous or unreasonable, particularly given that the plaintiff herself admitted during her deposition that she may have been acting like “a brute or something.”  Next, the court held that the FAA also preempted the plaintiff’s negligence claim because the plaintiff’s drunk-appearing conduct gave Delta’s personnel “reason to believe” that she was intoxicated and thus posed a safety risk.  The court ruled that it was “ultimately irrelevant” whether the plaintiff “was actually intoxicated.”


Court rejects passenger’s “principal and permanent residence” argument in subject matter jurisdiction dispute

February 13, 2014

Razi v. Qatar Airways Q.C.S.C. (S.D. Tex. Feb. 6, 2014).  A passenger traveling on a roundtrip ticket for transportation originating in Pakistan alleged she was burned by a hot beverage served by a flight attendant during a flight from Doha, Qatar, to Houston.  The passenger filed a lawsuit in a Texas state court, which the airline removed to federal court.

Qatar Airways then moved to dismiss on the grounds that the court lacked subject matter jurisdiction under the Montreal Convention.  Pursuant to Article 33 of the Convention, a plaintiff may bring an action for damages in the United States against a carrier only when the United States is (i) “the domicile of the carrier,” (ii) the “principal place of business” of the carrier, (iii) the place where the carrier has a “place of business through which the contract has been made,” (iv) “the place of destination,” or (v) in cases involving the death or injury of a passenger, the “principal and permanent residence” of the passenger at the time of the accident.

The passenger’s only possible shot at defeating the motion was proving that the United States was her “principal and permanent residence,” which the Convention defined as her “one fixed and permanent abode,” at the time of the incident.  She had alleged in her complaint that she resided in Houston, but the court found that, at the time of the incident, she was a citizen of Pakistan, was traveling to the United States under a “Five-Year Multiple-Entry Visa” and had intended to stay in the United States for only three and a half months.  Based on these findings, the court ruled that the passenger’s “one fixed and permanent abode” was Pakistan, not the United States, and granted the airline’s motion.

Note:  Qatar Airways successfully used a similar subject matter jurisdiction argument in a Maryland case (Alemi v. Qatar Airways) in 2012.


“Million Mile Flyer” unable to go the distance in challenge to frequent flyer program changes

February 9, 2014

Lagen v. United Continental Holdings, Inc. (N.D. Ill. Jan. 23, 2014).  As with many, if not all, frequent flyer programs, United’s MileagePlus program rules have always expressly allowed United to change or eliminate the program’s benefits.  In an attempt to get around these rules, and the many opinions upholding an airline’s right to enforce similar rules, the plaintiff contended that United had entered into an additional and separate “Million Mile Flyer” contract with him, and the members of a proposed class, under which the airline was obligated to provide them with certain irreducible “lifetime benefits,” including certain upgrades, bonus miles and seating priority.

In January 2013, the court partially granted United’s motion to dismiss, dismissing the plaintiff’s claims for breach of the implied covenant of good faith and fair dealing and unjust enrichment, leaving only his breach of contract claim.  In its opinion regarding the motion to dismiss, the court warned that, ultimately, the plaintiff would have the burden “to prove (not plead) that a contract exists between Plaintiff’s proposed Million Miler class and United that differs from the Mileage Plus contract United argues is the contract Plaintiff seeks to enforce.”  The case proceeded through discovery, but the plaintiff was unable to prove the existence of a separate Million Mile Flyer contract.  Accordingly, the court granted United’s summary judgment motion.


Conditions of carriage withstand tort claims by delayed passengers

February 1, 2012

Lavine v. American Airlines, Inc. (Md. Special App. Dec. 1, 2011).  Using aa.com, the plaintiffs bought two American Airlines tickets for roundtrip transportation originating and terminating at Reagan National Airport, with an intermediate stop at Key West International Airport.  Their outbound itinerary included a connecting flight from Miami International Airport to Key West.  They received an email confirmation that referred to, incorporated, and contained a link to, American’s Conditions of Carriage.

According to the plaintiffs, American personnel at DCA informed them that the flight to MIA was delayed.  The plaintiffs claimed that they requested seats on another flight or a refund and that they only boarded the delayed flight after having been assured by American personnel that, despite the delay, the airline “would provide” them with the connecting flight to Key West.  The plaintiffs alleged that, upon arrival at MIA, American personnel informed them that they only had 15 minutes to reach the gate for the connecting flight.  The plaintiffs asserted that they ran through the airport, inhaling construction debris along the way, but that American did not permit them to board the connecting flight because they had arrived too late.  American obtained and paid for a hotel room for the plaintiffs and gave them a stipend for dinner and breakfast.  The plaintiffs traveled to Key West on an American flight the next day.

In their lawsuit against American, the plaintiffs alleged five counts based on common law theories of negligent and intentional misrepresentation and demanded $10,000 in compensatory damages and $10,000 in punitive damages.  The plaintiffs appealed after the trial court granted the airline’s motion for summary judgment.

The appeals court affirmed the trial court’s judgment.  First, the appeals court held that American was entitled, under 49 U.S.C. § 41707 and 14 C.F.R. Part 253, to incorporate the Conditions of Carriage by reference, that the airline had in fact done so and that the plaintiffs’ allegation that they had not seen, or agreed to, the Conditions of Carriage did not create a genuine dispute of material fact.

The court then held that the Conditions of Carriage operated to prevent the plaintiffs from being able to prove the “false statement” and “reliance” elements of their negligent and intentional misrepresentation claims.  The court held that the plaintiffs could not prove the “false statement” element due to the limitation of liability clauses of the Conditions of Carriage, which provided as follows:  “American is not responsible for or liable for failure to make connections, or to operate any flight according to schedule, or for a change to the schedule of any flight.  Under no circumstances shall American be liable for any special, incidental or consequential damages arising from the foregoing.”

Next, the court held that the plaintiffs had failed to prove reliance on any alleged verbal representations by American personnel because Mr. Lavine, as “an experienced attorney licensed to practice law in Maryland,” could not have justifiably relied on any such representations in view of the limitation of liability clauses in the Conditions of Carriage and a clause providing that “times shown in timetables or elsewhere are not guaranteed and form no part of this contract.”

The court then held that the plaintiffs had failed to establish the proximate cause element of the causes of action because “it is not foreseeable that [appellants] would inhale construction debris and sustain personal injury as a result of an airline scheduling delay.”

Finally, even if the plaintiffs had been able to establish the elements of their causes of action, their claims would not have made it past 49 U.S.C. § 41713(b)(1), the preemption provision of the Airline Deregulation Act, which provides that “a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.”  The court held that this provision preempted the plaintiffs’ tort claims because they were “related to” American’s boarding procedures, which constituted a “service” provided by the airline.

Note:  This opinion has generated interest among non-aviation business litigators and transactional attorneys in Maryland.  In holding that the Conditions of Carriage were part of the parties’ contracts, the court rejected the plaintiffs’ argument that, even if the Conditions were part of the contracts, there was a dispute of fact because American personnel, by their verbal statements at the airport, had modified the Conditions.  The court relied on the “non-modification” clause of the Conditions in rejecting this argument; that clause stated that “[n]o agent, employee or representative of American has authority to alter, modify or waive any provision of the Conditions of Carriage unless authorized in writing by a corporate officer of American,” and the plaintiffs had not offered proof of a corporate officer’s written modification.  Some commentators have opined that this decision appears to conflict with prior Maryland decisions holding that, despite a contractual requirement that any modifications be written, parties can nevertheless verbally modify contracts.  It appears that the more rigorous “corporate officer” written modification requirement gave the court comfort to enforce the non-modification clause in this case.


Ejected passenger’s claims fall, and fail, under Montreal Convention

December 12, 2011

Rogers v. Continental Airlines (D. N.J. Sept. 21, 2011).  The passenger and her daughter boarded the aircraft for a flight from Newark, New Jersey, to Cancun, Mexico, and stood in the forward galley while flight attendants tried to sort out their seat assignments.  While waiting, the passenger answered a call on her mobile phone.  When a flight attendant told her to end the call, she replied that “the pilot didn’t announce not to be on your phone and I’m talking to my Mom” and continued her conversation.  Unimpressed by the passenger’s asserted “mom call” exception to 14 C.F.R. § 91.21, Continental personnel requested that the passenger deplane.  After some resistance by the passenger, and after an airline employee allegedly threw some of her carry-on items from the aircraft onto the jetway, she deplaned.

Continental rebooked the passenger and her daughter on a later flight, and they arrived in Cancun “several hours later than originally scheduled.”

The passenger filed a lawsuit against Continental in state court, alleging claims for intentional infliction of emotional distress, negligent infliction of emotional distress and breach of contract.  The airline removed the case to federal court.

After discovery, the airline moved for summary judgment on the grounds that the Montreal Convention exclusively governed the passenger’s claims and that she had failed to state a viable claim under the Convention.  Under Article 17(1) of the Convention, “[t]he carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

In opposition to the motion, the passenger resisted the application of the Convention, arguing that her injuries had occurred in the terminal after she had deplaned.  The court disagreed, finding that the passenger had admitted, in her complaint and during her deposition, that her injuries had occurred on board the aircraft and while disembarking in the jetway.  Thus, the court concluded, the Convention applied.

The court then analyzed whether the passenger had alleged facts sufficient to support a viable “bodily injury” claim under Article 17(1).  The court found that, although the passenger had complained of “physical manifestations of emotional and mental anguish” in her complaint, she had admitted during her deposition that she had, in fact, not sustained any physical injury as a result of the incident at issue.  Accordingly, the court held that her tort and contract claims failed as a matter of law and granted the airline’s motion.


Passenger not required to prove violation of regulation in order to establish that “accident” under Montreal Convention occurred

November 13, 2011

Phifer v. Icelandair (9th Cir. (Cal.) Sept. 1, 2011).  While boarding a flight from Minneapolis-St. Paul to Reykjavik, Iceland, the passenger struck her head on an overhead video monitor that was extended in the “down” position.  She sued Icelandair, alleging liability under the Montreal Convention.

Under Article 17(1) of the Convention, “[t]he carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  To establish in a U.S. court that an “accident” under Article 17(1) took place, a plaintiff must prove that the injury was caused by “an unexpected or unusual event” that was “external to the passenger.”

The trial court granted the airline’s summary judgment motion on the grounds that the passenger had failed to establish that her injury was caused by an “accident” within the meaning of Article 17(1) because she had failed to prove that the airline had violated any “FAA requirements” by having the video monitor in the down position during boarding.

The Ninth Circuit, in a brief opinion, reversed and remanded the case.  The appeals court held that, although FAA requirements may be relevant to determining whether an “accident” occurred, proving that an airline violated a government regulation is not “a prerequisite to suit under Article 17.”  According to the appeals court, “[t]he Supreme Court has suggested that a per se rule requiring a regulatory violation would be improper.”


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