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

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).


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