Passenger’s racial discrimination claims based on airline deplaning come up short

October 29, 2014

Mercer v. Southwest Airlines Co. (N.D. Cal. Sept. 19, 2014).  In his amended complaint, the plaintiff, an African American, alleged that he and fiancée boarded the Southwest LAX-IAH flight with two carry-on bags apiece.  The plaintiff stowed his bags in an overhead compartment and then, “as a gentleman,” proceeded to do the same with one of his fiancée’s bags.  A white Southwest flight attendant told him three times that “he was over the 2 limit per person for carry-on luggage,” and he “politely explained” each time that he was assisting with his fiancée’s bag and thus was not over the limit.

According to the plaintiff, a Southwest supervisor deplaned him several minutes later, and his fiancée followed him off the aircraft.  In the gate area, the Southwest supervisor told the plaintiff that he had been deplaned because the captain “did not want plaintiff on the aircraft as he considered plaintiff to be a security threat.”  The plaintiff and his fiancée were rebooked, and traveled, on a Southwest flight to IAH later that day.

The plaintiff’s amended complaint asserted claims for negligence, intentional infliction of emotional distress and violations of 49 U.S.C. § 40127, 42 U.S.C. § 2000a and 42 U.S.C. § 1981.  Southwest moved to dismiss on the grounds that the amended complaint failed to state an actionable claim.

The court granted Southwest’s motion.  The court’s key ruling was that the Federal Aviation Act preempted the plaintiff’s negligence claim.  Noting that the FAA impliedly preempts the field of aviation safety and that 49 U.S.C. § 44902(b), an FAA provision, sets the standard for an airline’s refusal to transport a passenger on safety grounds, the court reasoned that the plaintiff’s negligence claim, which was based on a California statutory standard of care, directly implicated the aviation safety field because, according to the plaintiff himself, safety was the apparent basis for Southwest’s decision to deplane him.  Thus, the court held that the FAA preempted the plaintiff’s negligence claim because its consideration of that claim would have required that it determine whether he did indeed pose a safety threat in order to determine whether the airline’s conduct was justified.  The court held that the FAA preempted the plaintiff’s emotional distress claim for the same reasons.

The plaintiff had argued that the Southwest supervisor’s explanation regarding his removal from the aircraft on security grounds was merely a pretext for racial discrimination and that he never posed a safety threat.  In response, the court pointed out that, for purposes of FAA preemption, the critical issue was not whether the captain was correct in his belief that the plaintiff was a safety threat but that the plaintiff’s tort claims would have impermissibly required that the court evaluate the safety issue under a state law standard of care.

The court then disposed of the plaintiff’s statutory claims.  It noted that the plaintiff had withdrawn his 42 U.S.C. § 2000a claim, and it held that the plaintiff had no private right of action under 49 U.S.C. § 40127 and that he had failed to adequately state a racial discrimination claim under 42 U.S.C. § 1981 because he had not alleged that he was treated differently than similarly-situated white passengers on the flight.  The court granted the plaintiff leave to amend his Section 1981 claim.

Passenger not required to prove violation of regulation in order to establish that “accident” under Montreal Convention occurred

November 13, 2011

Phifer v. Icelandair (9th Cir. (Cal.) Sept. 1, 2011).  While boarding a flight from Minneapolis-St. Paul to Reykjavik, Iceland, the passenger struck her head on an overhead video monitor that was extended in the “down” position.  She sued Icelandair, alleging liability under the Montreal Convention.

Under Article 17(1) of the Convention, “[t]he carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  To establish in a U.S. court that an “accident” under Article 17(1) took place, a plaintiff must prove that the injury was caused by “an unexpected or unusual event” that was “external to the passenger.”

The trial court granted the airline’s summary judgment motion on the grounds that the passenger had failed to establish that her injury was caused by an “accident” within the meaning of Article 17(1) because she had failed to prove that the airline had violated any “FAA requirements” by having the video monitor in the down position during boarding.

The Ninth Circuit, in a brief opinion, reversed and remanded the case.  The appeals court held that, although FAA requirements may be relevant to determining whether an “accident” occurred, proving that an airline violated a government regulation is not “a prerequisite to suit under Article 17.”  According to the appeals court, “[t]he Supreme Court has suggested that a per se rule requiring a regulatory violation would be improper.”

Court holds that airline met applicable standard of care in disabled passenger slip and fall case

October 25, 2008

Elassaad v. Independence Air, Inc. (E.D. Pa. Aug. 20, 2008).  After a domestic flight, the passenger “fell down the airplane’s stairway” while disembarking from the aircraft.  At the time of the fall, the passenger “had an above-the-knee amputation of his right leg and relied on two crutches to walk” but did not use a wheelchair.  The fall caused the passenger to suffer a shoulder injury.

Independence Air moved for summary judgment on the grounds that it had met the applicable standard of care, which it asserted was set forth in 14 C.F.R. § 382.39(a).  That regulation provides as follows:  “Carriers shall provide assistance requested by or on behalf of qualified individuals with a disability, or offered by air carrier personnel and accepted by qualified individuals with a disability, in enplaning and deplaning.”  The airline contended that, under this regulation, it would have been obligated to provide the passenger with assistance only if (i) he had asked for it, or (ii) a flight crew member had offered him assistance and he had accepted such offer.

In opposition to the summary judgment motion, the passenger asserted that the applicable standard of care was set forth in 14 C.F.R. § 91.13(a), a more general regulation that applies only where no specific regulation governs.  Section 91.13(a) provides as follows:  “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”

The court agreed with the airline that the more specific standard of care applied to the facts of the case.  Because the passenger had admitted that, before his fall, he had not asked for assistance in deplaning and had not been offered any assistance, the court held that the airline had met the applicable standard of care.  The court also held that because the passenger did not use a wheelchair, the airline had no obligation to inform him that a ramp and wheelchair were available to transport him from the aircraft.  Accordingly, the court granted the airline’s motion.

Update:  On May 12, 2010, the Third Circuit reversed the trial court’s grant of summary judgment and remanded the case for further proceedings.  The Third Circuit held that state law negligence principles, rather than any federal regulation, provided the applicable standard of care in the case.  The appeals court reasoned that, because there is no indication that Congress or the FAA intended to regulate airlines’ assistance of passengers during disembarkation, federal statutes and regulations did not preempt the state law standard of care.

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

January 29, 2008

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.


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