Elder Abuse Act claim against airline fails in federal district court

Balukjian v. Virgin America, Inc. (N.D. Cal. Mar. 9, 2018).  The passenger/plaintiff was traveling on a red-eye flight from San Francisco to Boston with her 93 year-old father, who had a portable oxygen concentrator with him.  During the flight, the plaintiff’s father felt ill.  He asked her for oxygen, which she attempted to provide using the concentrator.  Later, another passenger and flight attendants performed chest compressions on the plaintiff’s father, and an automated external defibrillator was used on him.  Despite these efforts, her father died during the flight.

The plaintiff’s complaint against Virgin America alleged causes of action for neglect under California’s Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”), Cal. Welf. & Inst. Code §§ 15600 et seq., and for unlawful business practices against a senior citizen under Cal. Bus. & Prof. Code § 17200 et seq. and Cal. Bus. & Prof. Code § 17500 et seq. (“UCL”), among other causes of action.  Virgin America moved to dismiss these two causes of action for failure to state a claim.

The court agreed that the plaintiff had failed to state an Elder Abuse Act claim.  That statute provides remedies for, among other things, neglect of a person 65 years of age or older and defines “neglect” as the “failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.”  The plaintiff argued that she had adequately alleged a caretaking or custodial relationship between the airline and her father because he “was at the mercy of Defendants for basic necessities such as food, water, access to a restroom, and access to emergency medical care.”

The court disagreed with the plaintiff, ruling that she had failed to allege facts indicating that the airline had assumed the required “significant” level of responsibility for attending to her father’s basic needs, noting that the Elder Abuse Act cases the plaintiff cited in her opposition involved elders who were inpatients at nursing care facilities.  The court characterized the airline’s caretaking or custodial role as “circumscribed, intermittent, or episodic” and thus insufficient to state an Elder Abuse Act claim.  Accordingly, the court dismissed this claim without leave to amend.

The court then ruled that the plaintiff could not proceed on her UCL claim to the extent it was based on her Elder Abuse Act claim, but that she could proceed on such claim to the extent it was based on an alleged violation of California Civil Code section 2100.  That statute provides that “[a] carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.”  In making this ruling, the court relied on the “expansive reach” of the UCL and the “absence of any authority barring a section 17200 claim based on a violation of Civil Code section 2100.”

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