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.”


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.


Airline not liable for refusing to transport customer who lacked required travel documents

March 28, 2011

Reed v. Delta Airlines, Inc. (S.D.N.Y. Mar. 23, 2011).  The plaintiff and her dog, Blondie, arrived at John F. Kennedy International Airport to check in for their flight to Ghana.  Delta personnel informed the plaintiff that she lacked certain documents that Ghana required for Blondie to enter the country.  The plaintiff put Blondie in a cab to her son’s home and reentered the terminal, only to later discover that Blondie had departed with the plaintiff’s passport.  In accordance with Delta’s conditions of carriage, the airline’s personnel refused to transport the plaintiff due to her failure to present a passport, and they rebooked her on a subsequent flight.

The plaintiff sued Delta, claiming that it was liable for refusing to transport her (and Blondie, the co-plaintiff) under breach of contract, implied contract and covenant of good faith and fair dealing causes of action, and under several tort causes of action as well.  The plaintiff requested damages totaling over $1.2 million.

Delta moved for summary judgment on the grounds that it had not breached the parties’ contract, that the plaintiff’s implied contract and good faith and fair dealing claims failed given the existence of an express contract between the parties and that the plaintiffs’ tort claims were preempted by 49 U.S.C. § 41713(b), the preemption provision of the Airline Deregulation Act.  The court agreed.

The court held that the plaintiff’s breach of contract claim failed because Delta had “acted within its rights” under its conditions of carriage, which specifically allowed the airline to refuse to transport the plaintiff for failing to present a passport and to refuse to transport Blondie because the plaintiff lacked certain documents required by Ghana.  The court agreed that the plaintiff’s implied contract and good faith and fair dealing claims failed because the parties had entered into an express contract.

The court then turned to the plaintiff’s various tort claims.  It held that not only were the plaintiff’s tort claims preempted by the ADA because they all “involve[d] Delta’s boarding practice which is an airline service,” but because also they lacked substantive merit, and it analyzed the deficiencies of each claim.


Holders of airline gift cards who did not use them, lost them

February 13, 2011

Restivo v. Continental Airlines, Inc. (Ohio App. Jan. 20, 2011).  Continental sold gift cards for air transportation that were valid for one year after issuance.  Purchasers agreed in writing to the one-year validity period.  When the airline refused to honor expired cards, cardholders commenced a class action lawsuit, alleging that Continental had violated Ohio’s gift card and consumer protection statutes and had been unjustly enriched.

Continental moved to dismiss the statutory claims on the grounds that they were preempted by the Airline Deregulation Act.  The preemption provision of the ADA, 49 U.S.C. § 41713(b)(1), provides in part 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.”  Continental argued that the unjust enrichment claim should be dismissed because the parties had entered into express contracts.  The trial court granted the motion to dismiss and the cardholders appealed.

On appeal, as to their statutory claims, the cardholders argued that a Continental gift card is not a “service” within the meaning of Section 41713(b)(1) but, rather, is simply the equivalent of money.  The court disagreed, holding that because the gift card’s only purpose is to allow the purchase of air transportation from the airline, it is “related to” the airline’s “price, route, or service.”  The court reasoned that “the fact that the gift card postpones the eventual purchase of an airline ticket does not alter that the gift card is still related to the provision of air transportation.”

As to the cardholders’ unjust enrichment claim, the court held that the existence of valid contracts between the parties prevented any recovery under such theory.

Accordingly, the court affirmed the trial’s court judgment.


Court rejects parent’s contention that airline has duty during boarding to ensure compliance with child custody orders

December 12, 2010

Braden v. All Nippon Airways Co., Ltd. (Cal. App. 2nd Dist. Oct. 13, 2010).  In a child custody case, the court had denied the mother’s request to move to Japan with her infant daughter and had ordered that she surrender her daughter’s passport.  Despite the order, the mother, using the passport, took the child with her on an ANA flight from Los Angeles to Japan.  Because Japan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the father had no legal recourse to compel his daughter’s return to the U.S.

The father sued ANA, alleging causes of action for negligence and interference with custodial relations.  He asserted that ANA had violated its duty to him to make the mother prove, as part of the boarding process, that she had his consent to take their daughter out of the country or that she had sole custody of the child.  The trial court sustained ANA’s demurrer to the amended complaint, and the father appealed.

The appeals court affirmed the trial court’s judgment.  First, however, the court rejected the trial court’s ruling that the father’s claims were preempted by 49 U.S.C. § 41713(b)(1), the preemption provision of the Airline Deregulation Act.  That provision states in part as follows:  “[A] State, political subdivision of a State, or political authority of at least 2 States 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 that may provide air transportation under this subpart.”

Following the Ninth Circuit and other California appellate courts, the appeals court adopted a narrow view of the term “service,” and, consistent with that view, held that a claim related to an airline’s boarding procedures is not preempted by the ADA.  The court reasoned that boarding procedures “are not services within the meaning of the ADA” because they have “no impact on prices, schedules, origins, or destinations” and do not represent “a legitimate interest needing protection under the ADA.”

The appeals court then upheld the trial court’s ruling that the father had failed to state a negligence claim.  The court held that ANA did not owe him a duty of care because there was “no authority for the proposition that a common carrier has a duty to ensure that a minor traveling with a custodial parent is not being transported in violation of a court order.”  For the same reason, the appeals court also held that the father’s intentional interference with custodial relations claim failed.

Note:  The First, Second, Fourth, Fifth, Seventh and Eleventh Circuits have held that an airline’s boarding procedures constitute a “service” within the meaning of the ADA, in contrast to the Ninth Circuit’s highly restrictive definition of the term (which the Third Circuit also decided to adopt).  According to Ninth Circuit Judge Diarmuid O’Scannlain, the Supreme Court reversed or vacated Ninth Circuit decisions in 148 of 182 cases during the last nine terms.  Thus, the Ninth Circuit “got it wrong in 81% of its cases that the Supreme Court agreed to hear,” which is a “strikingly poor record.”  According to Judge O’Scannlain, “even more telling than the reversal rate itself, however, is the number of unanimous reversals.  Seventy-two of the 148 Ninth Circuit cases reversed during the period in question were at the hands of a unanimous Supreme Court.”  Harvard Law School, When ‘The Nine’ Overrule the Ninth:  O’Scannlain ponders 10 years of reversals (Sept. 27, 2010).


Federal court slices, dices and dismisses ticket-related complaint on subject matter jurisdiction grounds

August 1, 2010

Onyiuke v. Cheap Tickets, Inc. & Virgin Atlantic Airways Limited (D.N.J. Dec. 31, 2009).  In August 2008, the plaintiff purchased a ticket, through CheapTickets.com, for roundtrip travel from Newark Liberty International Airport to Lagos, Nigeria, connecting in Gatwick Airport.  The first segment was to be on a Continental flight in mid-December 2009, and the connecting flight was on Virgin Nigeria Airways.  The ticket cost $1,563.

In early December, CheapTickets notified the plaintiff that Continental had discontinued service between Newark and Gatwick and offered him the choice of a modified flight arrangement or a full refund.  The plaintiff refused to accept either alternative.  Instead, he purchased a replacement ticket through a different online travel agency for $3,163 and, acting pro se, filed a lawsuit in federal court.

In his 85-paragraph, 25-page amended complaint, the plaintiff asserted diversity jurisdiction under 28 U.S.C. § 1332 and set forth causes of action for breach of contract and conversion against each defendant.  He demanded damages of approximately $127,000 from each defendant, including “mental agony” damages of $25,000 in connection with his contract claims and punitive damages of $80,000 in connection with his conversion claims.

Each defendant moved to dismiss pursuant to Rule 12(b)(1) on the grounds that the court lacked subject matter jurisdiction because the amount in controversy did not exceed $75,000 and, in fact, was limited to the refund value of the plaintiff’s ticket.  In addition, Virgin Atlantic moved to dismiss under Rule 12(b)(6) on the separate grounds that, except for the refund value of his ticket, the plaintiff’s claims were preempted by the Airline Deregulation Act, 49 U.S.C. § 41713(b)(1), because they were based on state law and “related to a price, route, or service” of an airline.

The court agreed that it lacked subject matter jurisdiction.  First, the court struck the plaintiff’s $80,000 punitive damages demands, which the plaintiff had requested in connection with his conversion claims, from the amount in controversy.  The court ruled that the plaintiff had failed to allege any facts indicating that either defendant had acted with “actual malice,” which a plaintiff must prove to recover punitive damages for a conversion claim under New Jersey law.  The court also pointed out that any “actual malice” assertion was undercut by the fact that it was Continental, and not either defendant, which had discontinued the Newark to Gatwick service, and by both parties’ offers to refund the ticket price to the plaintiff.

Next, the court struck the plaintiff’s $25,000 “mental agony” damages demands, which the plaintiff had requested in connection his contract claims, from the amount in controversy.  The court ruled that the plaintiff’s alleged “mental anguish arising from the loss of a bargain,” embarrassment from having to borrow money from friends and relatives and stress and inconvenience did not amount to the “severe emotional distress” required under New Jersey law to establish a claim for emotional distress arising from a contract breach.

After striking the plaintiff’s demands for punitive and mental agony damages, the plaintiff’s claims were below the jurisdictional minimum, so the court dismissed the amended complaint for lack of subject matter jurisdiction.  Because the court dismissed the amended complaint on this basis, it did not reach Virgin Atlantic’s alternative preemption argument.

Update:  On August 23, 2010, the court denied the plaintiff’s motion for reconsideration.  On September 17, 2010, the plaintiff filed a notice of appeal.


Third Circuit upholds summary judgment for airline in overbooking case

June 6, 2010

Kalick v. Northwest Airlines Corp. (3d Cir. (N.J.) Mar. 29, 2010).  Northwest bumped the customer from a flight from Kansas City to Philadelphia.  The customer responded by filing a lawsuit in federal district court, alleging that Northwest had violated 14 C.F.R. § 250.9 by failing to provide him compensation for the bumping and also asserting state common law breach of contract and fraud claims.  The plaintiff demanded compensatory and punitive damages totaling approximately $163,000.

The Third Circuit upheld the trial court’s order granting summary judgment in favor of Northwest on the grounds that the court lacked subject matter jurisdiction over the case.  First, the appeals court held that federal question jurisdiction was lacking because Section 250.9 does not create a private right of action, noting that every other circuit addressing this issue had ruled in the same manner.

Next, the appeals court agreed that diversity jurisdiction was also lacking because the plaintiff had failed to show, by a preponderance of the evidence, that he could recover an amount exceeding $75,000 on his contract and fraud claims.  The plaintiff had demanded compensatory damages of $1,433 and punitive damages of $161,600.  The appeals court, assuming that punitive damages were recoverable (the trial court had – correctly – held that punitive damages were preempted by the federal Airline Deregulation Act), held that the “drastic ratio” between the punitive and compensatory damages demanded by the plaintiff “would almost certainly violate the constitution.”

Finally, the appeals court upheld the trial court’s refusal to exercise supplemental jurisdiction over the plaintiff’s state law claims, holding that the plaintiff had failed to prove the “exceptional circumstances” necessary for the exercise of such jurisdiction.

Update:  On October 4, 2010, the Supreme Court denied the plaintiff’s certiorari petition.


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