Court denies passenger recovery against airline for loss of itinerant robot head

Hanson v. America West Airlines, Inc. (C.D. Cal. Mar. 29, 2008).  Sometimes the truth is stranger than fiction or even science fiction.  The passenger in this case, a roboticist, sued the airline for the loss of “an artistically and scientifically valuable robotic head modeled after famous science fiction author Philip K. Dick.”  According to the court, “Dick’s well-known body of work has resulted in movies - such as Total Recall, Blade Runner, Minority Report, and A Scanner Darkly, and a large group of admirers has grown following his death in Orange County, California, in 1982.”

The passenger was traveling from Texas to San Francisco with a connection in Las Vegas.  He lost his head by leaving it in an overhead compartment when he departed the aircraft in Las Vegas to catch his flight to San Francisco.  According to the passenger, the airline found the head and promised to deliver it to him San Francisco, but the head never showed up.  The passenger claimed that he and his head have never come face to face again.  As damages, the passenger sought the value of the head, which he put at $750,000.

The airline moved for summary judgment on the grounds that its contract of carriage, which provided that the airline “assumes no responsibility or liability for baggage, or other items, carried in the passenger compartment of the aircraft,” barred any recovery by the passenger.  The court agreed with the airline, rejecting the passenger’s arguments that (i) the airline materially deviated from the original contract of carriage, and (ii) the airline employee who promised the passenger that the head would be delivered to him in San Francisco had altered the original contract of carriage, causing the airline to become liable for the loss of the head.  The court also held that even if the airline employee had had the authority to alter the contract of carriage, the passenger had presented no evidence that the airline had breached the altered contract, pointing out that the airline “may have done everything as promised, only to fall victim to a head hunting thief or other skullduggery.”

Obviously having fun, and clearly unable to restrain himself, the judge concluded the opinion as follows:  “The Court must GRANT Defendant’s Motion.  But it does so hoping that the android head of Mr. Dick is someday found, perhaps in an Elysian field of Orange County, Dick’s homeland, choosing to dream of electric sheep.”

Court holds that no implied ACAA private right of action exists

Wright v. American Airlines, Inc. (E.D. Mo. Mar. 3, 2008).  The plaintiff filed suit for herself and her minor son against American, alleging that her son was injured because he was denied accommodations for his disability, osteogenesis imperfecta, also known as “Brittle Bone Disease,” while traveling on American’s flights.  She alleged a cause of action under the federal Air Carrier Access Act, 49 U.S.C. § 41705, which prohibits airlines from discriminating against disabled persons, as well as various state law causes of action.  According to the plaintiff, DOT had determined that American had violated the ACAA with respect to its treatment of her son by failing to provide timely lift assistance and accurate information as to the aircraft’s accessibility.

American moved to dismiss the ACAA count on the grounds that an individual has no private right of action to enforce the ACAA.  The ACAA does not expressly provide a private right of action.  American contended that the ACAA’s comprehensive administrative enforcement scheme, which gives DOT the power to force compliance with the ACAA, to revoke an airline’s carrier certificate and to impose fines, indicates that Congress did not implicitly intend to provide individuals with a private right of action to enforce the ACAA.

The court agreed with American.  Although the Eighth Circuit had concluded in a 1989 case that an implied private right of action to enforce the ACAA did exist, the Supreme Court had adopted a new test in Alexander v. Sandoval, a 2001 case, that restricted the circumstances under which a court may determine that a implied private right of action exists under a federal statute.  Siding with other post-Sandoval cases, the court held that the ACAA does not provide a private right of action, reasoning that the statute’s extensive administrative enforcement scheme suggested that Congress “intended to preclude alternative means of enforcing the statute.”  Accordingly, the court dismissed the ACAA count.

Airline obtains reversal of passenger jury verdict in refusal to transport case

Cerqueira v. American Airlines, Inc. (1st Cir. (Mass.) Jan. 10, 2008).  As previously reported, in December 2003, American Airlines removed three passengers, a man of Portuguese national origin and two Israelis seated nearby, from an aircraft at the departure gate in Boston for questioning by state police officers.  After the questioning, the airline declined to rebook them on another flight to Ft. Lauderdale.

The passenger of Portuguese national origin filed a lawsuit against the airline.  He alleged that airline personnel removed him from the aircraft and then refused to provide him service solely because of his perceived national origin, in violation of Title VI of the Civil Rights Act and a Massachusetts antidiscrimination statute.  The airline alleged that the passengers had been removed for questioning and then refused service solely due to security concerns based on their alleged unusual behavior before and during the boarding process.

After a six-day trial, the jury returned a verdict in favor of the passenger, assessing compensatory damages of $130,000 and punitive damages of $270,000.  After the trial court denied American’s motions for a JNOV and a new trial, American appealed.

Only two months after the appeal was argued, the First Circuit issued an opinion reversing the trial court’s judgment and remanding the case to the district court with instructions to enter judgment for American.  The First Circuit’s opinion centered on 49 U.S.C. § 44902, entitled “Refusal to transport passengers and property,” which provides in section (b) as follows:  “Permissive Refusal. – Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”

American had requested that the trial judge give a series of jury instructions regarding section 44902(b), including the well-established standard for liability that the jury must return a verdict for the airline unless its actions with respect to the passenger were “arbitrary or capricious.”  The judge refused to give the requested instructions.  The First Circuit held that the omitted instructions “were essential to the case” and the trial court had erred by refusing to give them.

The First Circuit also held that the instructions that were given were erroneous.  The most serious error was that the trial judge had instructed the jury that American had the burden of proving that its reasons for removing the passenger were legitimate.  The appeals court held that, in a section 44902(b) case, it is the passenger who has the burden of proof, and the passenger must prove that the airline’s conduct was arbitrary or capricious.

Update:  On February 29, 2008, the First Circuit denied the passenger’s petition for rehearing en banc.  Two judges dissented from the denial of the petition.

Court partially grants airline motion to dismiss injured passenger’s complaint

Levy v. Continental Airlines, Inc. (E.D. Pa. Oct. 1, 2007).  During a flight from Houston to Philadelphia, the passenger was injured when a large ceramic bowl fell from a broken or improperly closed overhead compartment and struck her head.  The passenger filed a lawsuit against the airline, alleging that it had negligently violated duties of care established by Pennsylvania statutory and common law and by federal regulations.

Continental moved to dismiss on the grounds that the passenger’s state law claims were preempted by the Federal Aviation Act and that the federal regulations she cited were not applicable to the case.  The court granted part, and denied part, of the motion.  The court agreed that the Federal Aviation Act preempted the state laws pled by the passenger because the Act completely preempts state standards of care in the field of aviation safety.

As to the passenger’s claims based on federal regulations, the court held that the complaint contained sufficient factual allegations to state a cause of action for violation of the standards established in 14 C.F.R. §§ 121.589 and 125.589, which deal with carriage of cargo in the passenger cabin and crewmember training.  But the court dismissed the passenger’s claims based on 14 C.F.R. §§ 25.787 and 25.853, which establish aircraft design and manufacturing standards of care, because the airline only operated the aircraft and had nothing to do with its design or manufacture.

Court considers “single operation” issue in baggage case

Gerard v. American Airlines, Inc. (Conn. Super. July 12, 2007).  After the passenger filed a lawsuit against American for lost baggage damages, the airline moved for partial summary judgment on the grounds that its damages were limited by the Montreal Convention.  The passenger argued that his damages were not limited by the Convention because the flight at issue, from Los Angeles to New York (following a flight from Tokyo to Los Angeles on a different airline earlier the same day), constituted domestic travel rather than “international carriage” covered by the Convention.

Article 1 of the Convention addresses the scope of its application.  Article 1(1) provides that the Convention “applies to all international carriage of persons, baggage or cargo performed by aircraft for reward,” as well as “to gratuitous carriage by aircraft performed by an air transport undertaking.”

Article 1(2) defines “international carriage” as “any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party.  Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.”

Article 1(3) provides that “[c]arriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State” (emphasis added).

To decide the question of whether the flight at issue was governed by the Convention, the court attempted to determine if the parties had regarded it as part of a “single operation.”  To do this, the court tried to analyze the ticket at issue and the passenger’s overall itinerary as “objective” evidence of the parties’ intent.  However, the court was unable to do so because neither party had submitted authenticated copies of the ticket or evidence regarding American’s awareness of the passenger’s international itinerary at the time he bought his ticket.  Accordingly, the court denied American’s motion for partial summary judgment.

Note:  How does a court determine whether an airline “regarded” a passenger’s carriage as a single operation?  One way is through the passenger’s travel agent, if one was used.  The agent’s knowledge of the passenger’s “travel intentions” is “imputed to the carrier.”  Robertson v. American Airlines, Inc. (D.C. Cir. 2005).

DOT considering whether to increase denied boarding compensation

Way back in 1978, the CAB increased to $400 the maximum amount of compensation due from an airline that involuntarily denies a passenger boarding due to overbooking.  At the time of the increase, Jimmy Carter was president and the most popular TV show in the U.S. was “Laverne & Shirley” (followed closely by “Happy Days” and Three’s Company”).  On July 10, 2007, DOT issued an advance notice of proposed rulemaking seeking comment on whether it should increase the $400 limit, as well as make its denied boarding compensation regulations apply to aircraft seating 30 to 60 passengers, which are currently exempt from such regulations.

The regulations regarding “oversales” are set forth in 14 C.F.R. Part 250.  They apply to both domestic and foreign airlines but only to flights originating in the U.S. (and utilizing aircraft with more than 60 seats).  If a flight is oversold, the airline is required to seek volunteers willing to accept compensation in exchange for their seats.

If the airline needs to bump passengers, each bumpee is entitled to compensation “at the rate of 200 percent of the sum of the values of the passenger’s remaining flight coupons up to the passenger’s next stopover, or if none, to the passenger’s final destination, with a maximum of $400.  However, the compensation shall be one-half the amount described above, with a $200 maximum, if the carrier arranges for comparable air transportation, or other transportation used by the passenger that, at the time either such arrangement is made, is planned to arrive at the airport of the passenger’s next stopover or if none, at the airport of the passenger’s destination, not later than 2 hours after the time the direct or connecting flight on which confirmed space is held is planned to arrive in the case of interstate air transportation, or 4 hours after such time in the case of foreign air transportation.”  The bumped passenger is also entitled to a refund of the unused portion of the ticket.

A passenger is ineligible for denied boarding compensation under certain circumstances, most notably when “the passenger does not comply fully with the carrier’s contract of carriage or tariff provisions regarding ticketing, reconfirmation, check-in, and acceptability for transportation.”

Last year, the 18 largest U.S. airlines bumped at a rate of 1.01 passengers per 10,000 enplanements, resulting in a total of 55,828 bumped passengers.  Comments to DOT are due by September 10, 2007.

Note:  As one commenter on this post correctly pointed out, if a bumped passenger declines the airline’s payment of denied boarding compensation, “the passenger is entitled to ’seek to recover damages in a court of law or in some other manner’ under 14 C.F.R. § 250.9(b), which language is universally regarded as permitting a claim for contract damages which may exceed the amount of compensation offered by an airline.”  Stone v. Continental Airlines (N.Y. City Civ. Ct. 2005).  Section 250.9(b) also provides that acceptance of the denied boarding compensation “may relieve [the airline] from any further liability to the passenger caused by its failure to honor the confirmed reservation.”

DOT increases baggage liability limit for domestic air travel

On January 29, 2007, the U.S. Department of Transportation issued a Final Rule increasing the minimum limit of an airline’s liability for baggage lost, damaged or delayed during domestic travel from $2,800 to $3,000 per passenger.  The change takes effect on February 28.  Thus, for domestic travel beginning that date, “an air carrier shall not limit its liability for provable direct or consequential damages resulting from the disappearance of, damage to, or delay in delivery of a passenger’s personal property, including baggage, in its custody to an amount less than $3,000 for each passenger.”  See 14 CFR sec. 254.4.

Federal regulations require that DOT periodically revise the baggage liability limit to reflect changes in the Consumer Price Index.

Airline summary judgment motion denied in jetway incident case

Gunther v. AirTran Holdings, Inc. (S.D.N.Y. Jan. 24, 2007).  The passenger sustained injuries when she fell out of the motorized wheelchair she was operating on a jetway used for boarding a flight at LGA.  She brought a negligence action against the airline, which moved for summary judgment.

The airline’s first argument was that it did not owe the passenger a duty of care because it did not “own, lease, occupy, maintain or control” the jetway.  The court rejected this argument, holding that the airline, as a common carrier, owed a “well-settled” duty arising under New York law to provide prospective passengers with a “reasonably safe” entrance onto its aircraft.

The airline then argued that it did not breach its duty of care (assuming it had one) and that the passenger was solely responsible for causing her injuries.  The court held that summary judgment on these issues was improper given the parties’ many factual disputes, including as to the number of airline employees escorting the passenger along the jetway, the slope of the jetway and the speed of the passenger’s wheelchair.

Jury returns verdict for passenger in refusal to transport case

Cerqueira v. American Airlines, Inc. (D. Mass. Jan. 12, 2007).  In December 2003, the airline removed three passengers, a man of Portuguese national origin and two Israelis seated nearby, from an aircraft at the departure gate in Boston for questioning by state police officers.  After the questioning, the airline declined to rebook them on another flight to Ft. Lauderdale.

The passenger of Portuguese national origin filed a lawsuit against the airline.  He alleged that airline personnel removed him from the aircraft and then refused to provide him service solely because of his perceived national origin, in violation of Title VI of the Civil Rights Act and a Massachusetts antidiscrimination statute.  The airline alleged that the passengers had been removed for questioning and then refused service solely due to security concerns based on their alleged unusual behavior before and during the boarding process.

After a six-day trial, the jury returned a verdict in favor of the passenger, assessing compensatory damages of $130,000 and punitive damages of $270,000.  The passenger had also requested that the court enter an injunction ordering the airline to take steps “to prevent similar occurrences in the future,” but the court did not take such action.

Update:  As reported here, in January 2008 the First Circuit reversed the trial court’s judgment in this case.

Airline summary judgment motion granted in boarding discrimination case

Dasrath v. Continental Airlines, Inc. (D. N.J. Dec. 22, 2006).  Three months after September 11, an airline captain had three passengers removed from the aircraft during boarding due to his security concerns.  One of the passengers, a U.S. citizen of West Indian national origin, filed a lawsuit against the airline alleging discrimination in violation of federal and state statutes.

The airline moved for summary judgment on the grounds that it was immune from liability under 49 U.S.C. 44902, which “gives airline personnel broad, but not absolute, discretion to remove passengers purportedly for safety reasons” as long as their decisions “have a rational basis in safety.”

The court granted the airline’s motion.  It held that the captain had acted rationally in removing the passenger because there was undisputed evidence linking him to two passengers (who were also removed) who had been repeatedly moving luggage from one overhead bin to another and changing seats, and that the captain had acted solely for security reasons and not due to the passenger’s race.