ATSA immunizes airline and employee from liability to customer who made bomb reference and disparaged TSA

September 30, 2015

Baez v. JetBlue Airways Corporation (2d. Cir. July 16, 2015).  The plaintiff checked baggage for her JetBlue flight from JFK to Austin, Texas.  However, she appeared at the gate late, after the aircraft’s door had been closed, so the gate agent refused to let her board.  The plaintiff admitted that she then made what the Second Circuit described as a “cryptic reference to the possibility of a bomb in her luggage”:  “Isn’t it a security risk to let a bag go on a plane without a passenger, what if there was a bomb in the bag?”  The plaintiff alleged that the agent responded, “TSA agents would know if there was a bomb in the bag,” to which the plaintiff replied, “TSA–my ass,” and walked away.

The gate agent reported the conversation to her supervisor, who alerted the airline’s security personnel and TSA.  JetBlue rerouted the aircraft as a security measure and searched all the checked baggage after it landed.  The plaintiff’s bag did not contain a bomb.  But it did contain marijuana residue.  The plaintiff was charged under 49 U.S.C. § 46507(1) with making a false bomb threat.  The government dropped the charge, and the plaintiff pleaded guilty to charges based on the marijuana residue found in her bag.

The plaintiff sued JetBlue for “a host of claims,” including negligent supervision, retention, training and hiring, defamation, false arrest and intentional infliction of emotional distress.  She sued the gate agent as well.

The district court granted summary judgment to the defendants on the ground that they were immune from suit under the Aviation and Transportation Security Act, 49 U.S.C. § 44941.  Among other things, ATSA immunizes airlines and their employees from any liability for reporting “any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism” to a law enforcement officer.  Immunity is not provided for reports that are “materially false.”  A report is materially false if an accurate report regarding the “suspicious transaction” at issue would have had a different effect on the mind of a “reasonable security officer,” i.e., if an accurate report would have caused such officer to decide not to investigate the report.

Before the Second Circuit, the plaintiff argued that the district court had erred by deciding whether the gate agent’s statements were materially false at the summary judgment stage, as that issue should been decided by a jury.  The appeals court disagreed and affirmed the district court.  It concluded that the gate agent’s report was not materially false because “a reasonable officer would necessarily have followed up on the statements Baez admitted she made,” i.e., such officer would have investigated the “report of a disgruntled passenger who adverted to a bomb in luggage and deprecated the agency responsible for detecting such bombs.”

Conditions of carriage withstand tort claims by delayed passengers

February 1, 2012

Lavine v. American Airlines, Inc. (Md. Special App. Dec. 1, 2011).  Using, 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.

Race discrimination claim preempted by Warsaw Convention

March 8, 2011

Sewer v. LIAT (1974) Ltd. (D. Virgin Islands Feb. 16, 2011).  The plaintiff had purchased a ticket for a LIAT flight from the British Virgin Islands to Antigua.  The flight was overbooked, so airline personnel informed the plaintiff that he would have to take a later flight.  Undeterred, the plaintiff (and the other waiting would-be passengers) pushed past the airline’s gate personnel and boarded the aircraft.  Airline personnel asked the plaintiff to leave the aircraft because he did not have a seat, and he did so.  An off-duty police officer arrested and handcuffed the plaintiff, who was briefly detained in an airport holding cell and released without being charged with any crime.

The plaintiff filed suit against the airline, asserting claims of race discrimination, defamation and intentional or negligent infliction of emotional distress, although the plaintiff only pursued the discrimination claim.  The court described the plaintiff as “a black West Indian with dreadlocks in his hair who believes in the underlying tenets of Rastafarianism.”

LIAT moved for summary judgment, and the court granted the motion.  The court agreed with the airline that the plaintiff’s discrimination claim was preempted by the Warsaw Convention, citing King v. American Airlines (written by now-Justice Sotomayor) and several other cases.  The court also held that the plaintiff had no claim under the Warsaw Convention because bumping is a well-established airline industry practice and, thus, is not an “unexpected or unusual event” constituting an “accident” under Article 17.  Finally, the court held that, even if the bumping had constituted an “accident,” the plaintiff’s claim still failed because his injuries, bruised and swollen wrists, were caused by the off-duty police officer in the airport, not by airline personnel on the aircraft.

Note:  Plaintiff filed the case in 2002, and LIAT filed its summary judgment motion in 2009.  Cases seem to move at a leisurely pace in the Virgin Islands, in both federal and state courts.

Airline not liable to customer for trip and fall in TSA-controlled area

December 20, 2010

Narvaez v. American Airlines, Inc. (S.D.N.Y. Dec. 13, 2010).  After checking her baggage at American’s ticket counter at John F. Kennedy International Airport, the plaintiff proceeded to the security checkpoint.  After presenting her passport to a TSA employee at the checkpoint, but before going through the metal detector, the plaintiff tripped over the upturned corner of a rug and fell forward, her arms, forehead and knees striking the floor.  The plaintiff was taken by ambulance to a hospital, but she returned to JFK and took a flight later that same day.

The plaintiff sued American in state court, alleging that her injuries resulted from American’s negligence.  The airline removed the case on diversity grounds and, after discovery, moved for summary judgment.  American contended that it did not owe the plaintiff a duty of care in the area in which she fell because there was no genuine issue as to the fact that it did not occupy or control such area.  In support, American presented deposition testimony of its Manager of Passenger Services at JFK establishing that TSA, not American, exclusively occupied and controlled the security checkpoint area in which the plaintiff fell and that American did not own the rug at issue.

In opposition, the plaintiff argued that one could infer that American exercised control over the area at issue because airline personnel allegedly assisted TSA personnel in rolling up the rug and placing it in a corner after the plaintiff fell.  The court ruled that, even if American personnel did help move the rug, such act did not create a genuine issue of fact regarding the airline’s control over the area at issue, as its control could not be inferred simply because its personnel provided assistance after the incident.  Accordingly, the court granted American’s motion.

Massachusetts judges part ways on scope of ADA preemption in skycap tips cases

August 16, 2009

Travers v. JetBlue Airways Corporation (D. Mass. July 23, 2009).  According to the plaintiff skycaps, JetBlue diverted tip revenue to itself by imposing a $2 fee for each bag checked by a passenger at the curbside.  The skycaps claimed that their compensation, most of which took the form of tips, had decreased substantially because few passengers gave them tips after paying the airline’s $2 curbside check-in fee.

In their amended complaint, the skycaps sought damages and injunctive relief under the federal Fair Labor Standards Act, the Massachusetts Minimum Wage Law, the Massachusetts Tips Law and various state common law tort doctrines.  JetBlue moved to dismiss the state statutory and common law claims on the grounds that they were preempted by the Airline Deregulation Act, 49 U.S.C. § 41713(b)(1), 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 that may provide air transportation under this subpart.”

The court granted JetBlue’s motion.  In its ruling, the court relied on New Hampshire Motor Transport Ass’n v. Rowe, 448 F.3d 66 (1st Cir. (Me.) 2006), aff’d, 128 S.Ct. 989 (2008), for support of the proposition that the ADA preemption analysis must focus “on the effect that the state law has on airline operations,” not on “the state’s purpose for enacting the law.”  The court in Travers held that because a verdict for the plaintiffs on their state law claims would have a significant effect on the “price” of JetBlue’s curbside check-in “service,” such claims were preempted as “related to a price, route, or service of an air carrier.”

In making his ruling, the judge in Travers disagreed with a decision by another U.S. district judge in Massachusetts, who had ruled in favor of the skycaps on the same ADA preemption issue two years before in a case against a different airline.  In DiFiore v. American Airlines, Inc., 483 F. Supp.2d 121 (D. Mass. 2007), the judge held that the ADA did not preempt the skycaps’ claims, reasoning that the relationship between employee claims and an airline’s “price, route, or service” is “too tenuous to support preemption.”  The judge in Travers disagreed with the judge’s reasoning in DiFiore, ruling instead that a court’s ADA preemption analysis must focus on the effect of the state law on the airline’s prices and services, not on the identity of the particular plaintiff in the case.

Note:  In 2008, a jury in the DiFiore case awarded the skycaps damages exceeding $325,000 on their state statutory and common law claims.

Legacy carriers battle over New York sales employee

June 16, 2009

American Airlines, Inc. v. Imhof and Delta Airlines, Inc. (S.D.N.Y. June 3, 2009).  After 22 years as an American employee, the managing director of the airline’s New York Sales Division resigned to accept a similar job with Delta.  During the weeks before he resigned, he copied various documents relating to American’s business, including a PowerPoint presentation involving New York passenger sales, from American’s computers to his personal possession.  He did so by downloading some documents to his personal (and newly-purchased) external hard drive and by emailing other documents to his “family e-mail address.”  He even bought a BlackBerry for the purpose of “transferring the contacts on his American-issued BlackBerry to his own.”

After the employee had started work for Delta, American discovered that he had copied the documents and promptly filed a lawsuit seeking an injunction barring him from continuing to work for Delta and for other relief.  Delta claimed that it had not received any of American’s documents from the employee, who offered to return the documents to American or destroy them.

The court granted American’s motion for a temporary restraining order but denied its motion for a preliminary injunction, primarily on the grounds that American had failed to prove that it was likely to suffer “irreparable injury” in the absence of the injunction.  In support of its ruling as to “irreparable injury,” the court found that there was “no material risk” that the employee would retain copies of the downloaded documents, “much less that he would disclose them to Delta,” that, in any event, the documents contained public information and “fluff” rather than “competitively sensitive information” and that American had failed to prove that it was likely to suffer any “material effect” from the employee’s use of sensitive company information that he may have memorized.

In the final paragraph of its opinion, the court suggested that the lesson of this case is that an employer should get an employee to sign a noncompete agreement to prevent the employee from going to work for a competitor rather than attempt to rely on a court to impose, in essence, “the substantial equivalent by judicial decree without paying for it.”  It seems, however, that American’s primary complaint was not that the employee had departed to work for a competitor, but that he had secretly stuffed his pockets with American’s trade secrets as he was on his way out the door to join the competitor.

Update:  On July 28, 2009, American filed a motion requesting that the court dismiss the case without prejudice, with each party to bear his or its own costs and fees.