Opinion
93-CV-4246(JMA).
May 23, 1996
MORTON POVMAN, P.C., FOREST HILLS, NEW YORK, ATTORNEY FOR PLAINTIFF.
NEIL H. ANGEL, ESQ., QUIRK AND BAKALOR, P.C., NEW YORK, NEW YORK, ATTORNEY FOR DEFENDANT.
MEMORANDUM AND ORDER
By order dated September 15, 1993, the above referenced matter was referred to the undersigned by the Honorable Reena Raggi, United States District Judge. By stipulation dated November 18, 1994, the parties agreed to have this case heard by the undersigned for all purposes.
Plaintiffs allege that an employee of defendant American Airlines, Inc.'s (hereinafter "American") negligently closed a jetway door causing plaintiff, Marilyn Lanza, to sustain personal injuries. In addition, plaintiff Patrick Lanza, sues for loss of services and consortium. Defendant American has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, For the reasons set forth below, defendant's motion for summary judgment is denied.
BACKGROUND AND FACTS
Plaintiffs Marilyn Lanza and Patrick Lanza instituted the present lawsuit as a result of injuries allegedly sustained on June 27, 1992 by plaintiff Marilyn as she, Patrick and their nephew, Thomas simone, attempted to board American Airlines Flight No. 32 for service from Los Angeles International Airport (hereinafter "LAX") to John F. Kennedy International Airport (hereinafter "JFK"). It is undisputed that plaintiffs and their nephew possessed valid airline tickets, boarding passes and preassigned seats for that flight.Plaintiffs allege that upon arriving at the boarding gate they attempted to board the flight, but that a gate agent, later identified as "A. MacAdam," informed them that they would have to "get over to the right [of the boarding area until they were instructed to board the airplane.]" (Deposition of Marilyn Lanza at 52). Approximately five to ten minutes later, plaintiff Patrick allegedly approached the same gate agent and inquired about boarding. Again, the agent repeated that they would have to "stand off to the right." Id. at 55.
The record does not indicate that defendant A. MacAdam has filed a notice of appearance in this action or that service of process of the complaint upon her has been effectuated.
After several passengers boarded the airplane, the gate agent walked towards the door to the jetway. The plaintiffs and their nephew followed the agent until plaintiff Marilyn stood in the doorway. Id. At 62. Plaintiff Marilyn again requested an explanation for the delay and for a third time, the gate agent informed them that no additional passengers would be allowed to board and instructed them to leave the doorway area. Id. at 63. Plaintiff Marilyn avers that although she stood in the doorway, the agent proceeded to shut the gateway door. Plaintiff Marilyn contends that she raised her left hand in a defensive position, palm faced up, to block the door as it closed but nevertheless, it allegedly hit the left side of her body, causing injury to her wrist, arm and knee. Id. at 66-73.
Within moments, plaintiffs and Simone were permitted to board the airplane only to discover that their three reserved seats were given to passengers who had boarded ahead of them. Id. at 76. After other seats were located for them, plaintiff Marilyn explained to an unidentified flight attendant the events that had transpired a few moments earlier. Id. at 78. Plaintiffs also repeated their account of the incident to two other flight attendants. Plaintiffs requested the name of the gate agent and were later provided with a list from Valerie that indicated that the gate agent was named "A. MacAdam." Id. at 86-9. Upon landing in New York, plaintiffs neither reported the incident nor filed any complaints with any American Airlines officials, personnel or attendants in the terminal.
Plaintiffs filed their complaint on August 13, 1993 in the Supreme Court of New York, Queens County. On September 14, 1993, defendant American removed this action on the basis of diversity, 28 U.S.C. § 1332. Subsequently, defendant American interposed an answer on September 23, 1993 and raised numerous affirmative defenses including: contributory negligence, preemption by the Federal Aviation Act, equitable share liability, and collateral source indemnification. Plaintiff Marilyn seeks damages in the amount of $2,000,000 and plaintiff Patrick demands $500,000.
Defendant American presently moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. American contends that it is entitled to summary judgment because plaintiffs' negligence claims are preempted by the Federal Aviation Act as modified by the Airline Deregulation Act. In addition, defendant alleges that plaintiffs' claim should be dismissed because its gate agent performed her job in accordance with governing federal laws and that, in any event, the airline's actions must be judged under an arbitrary or capricious standard.
This Court finds that plaintiffs' claim is not preempted by Federal Aviation laws, that defendant's remaining arguments are meritless and that factual disputes exist sufficient to warrant denial of defendant's motion for summary judgment.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where "no genuine issue as to any material fact [exists] and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The initial burden of demonstrating the absence of a genuine issue of material fact rests with the party moving for summary judgment.Celotex Corp, v. Catrett, 477 U.S. 317, 323 (1986). The burden shifts to the non-movant to set forth specific facts that demonstrate that a genuine triable issue exists. Id. at 324, 106 S.Ct. at 2553. A genuine issue of fact exists if sufficient evidence shows that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). To satisfy this burden, the non-movant must procure specific facts that go beyond the pleadings, affidavits, depositions, interrogatory answers, and admissions on file.Celotex, 477 U.S. at 324.
In considering a motion for summary judgment, the Court must resolve all ambiguities and draw all inferences in favor of the non-moving party since granting summary judgment deprives a plaintiff of his day in court. Gibson v. American Broadcasting Co. Inc. 892 F.2d 1128, 1132 (2d Cir. 1989).
II. FEDERAL PREEMPTION
Defendant has filed a motion for summary judgment arguing,inter alia, that plaintiffs' negligence claim is pre-empted by the Airline Deregulation Act, 49 U.S.C.A. § 41713 (1995) (formerly 49 U.S.C. § 1305) (hereinafter "ADA"). Defendant claims that 49 U.S.C. § 41713 expressly preempts any state law claim relating to airline prices, routes or services.
The issue in the instant motion is the scope of preemption under the ADA. Specifically, whether a common law tort claim that arises out of an airline's allegedly negligent act, closing a jetway door and striking plaintiff, is preempted by the ADA. Defendant argues that the plaintiffs' injuries arose while the airline was performing a "service" i.e. the boarding of the aircraft and therefore plaintiff's claim is preempted by the ADA Thus, this Court must determine whether defendant, in restricting physical boarding of the aircraft, was indeed providing a "service" to the plaintiffs as the term is used in 49 U.S.C. § 41713(b)(1) and whether plaintiff's claim sufficiently "relates to" that service. If the gate agent's actions sufficiently relate to the provision of a service, then plaintiffs' state common law claim is preempted.
As a general matter, state law is preempted by federal law in the following three situations, when: (1) Congress explicitly preempts state law, Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983); (2) Congressional intent to preempt is inferred from the pervasiveness of the federal regulatory scheme, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); and (3) state law conflicts with federal law or hampers the achievement of Congress' goals, Florida Lime Avocado Growers. Inc. v. Paul, 373 U.S. 132 (1963).
A. History of the ADA and applicable Supreme Court precedent
Analysis begins with a brief history of the ADA. In 1938, Congress enacted the Civil Aeronautics Act (hereinafter "Act") which, in turn, created the Civil Aeronautics Board (hereinafter "CAB"). Congress granted the CAB the authority to "regulate entry into the interstate airline industry, the routes that airlines could fly, and the fares that they could charge consumers."Morales v. Trans World Airlines, Inc., 504 U.S. 374, 422, 112 S. Ct. 2031, 2056 (1992) (Stevens, J., dissenting). In creating the Act, Congress restricted the CAB's power by providing a "savings clause" that did not eliminate common law and statutory remedies. 15 U.S.C. § 1106 (1938), 52 Stat. 1027.
In 1978, Congress discontinued federal regulation over the interstate airline industry. To implement deregulation and foster competition within the industry, Congress enacted the ADA to provide "efficiency, innovation . . .low prices, and to determine the variety, quality, and price of air transportation services." H.R. Conf. Rep. No. 95-1779, p. 53 (1978), U.S. Code Cong. Admin. News 1978, 3737. To prevent the states from entering the economic regulatory field and thereby frustrating Congress' goal, a preemption provision was enacted providing as follows:
"Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least two 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."49 U.S.C. § 41713(b)(1) (formerly 49 U.S.C. § 1305(a)(1)). Significantly, however, the Act retained the savings clause that had existed in the Act prior to passage of section 41713(b)(1):
In July 1994 Congress repealed, revised, and recodified the Federal Aviation Act. In so doing, Congress enacted 49 U.S.C. § 40101, et seq. (1995), which replaced 49 U.S.C. § 1305, et seq. (1994) without substantial change. The revisions were minor and the substance of the section was retained. The legislative history reveals that Congress intended to "restate in comprehensive form, without substantive change, certain general and permanent laws related to transportation and . . . to make other technical improvements in the Code." H.R. Rep. No. 180, 103rd Cong., 2nd Sess. 1 (1993) reprinted in 1994 U.S. Code Cong. and Admin. News at 818.
"Additional remedies. — A remedy under this part is in addition to any other remedies provided by law."49 U.S.C.A. § 40120(c) (1995) (formerly 49 U.S.C.A. § 1506).
The Supreme Court, in interpreting the language of the ADA, has held that all "[s]tate enforcement actions having a connection with or reference to airline `rates, routes, or services' are preempted." Morales, 504 U.S. at 384. In Morales, several state attorney generals sought to enforce airline fare advertising guidelines through general consumer protection statutes. Id. at 379. The Court concluded that the guidelines were intended to govern "the content and format of airline advertising, the awarding of premiums to regular customers (so-called `frequent flyers'), and the payment of compensation to passengers who voluntarily yield their seats on overbooked flights." Id. Under its analysis, the Court found that the ADA preempts state regulation of fare advertisements through enforcement of general consumer protection laws because "it is clear as an economic matter that state restrictions on fare advertising have the forbidden significant effect upon fares." Id. at 338. Further, "compelling or restricting `[p]rice advertising surely `relates to' price.'" Id. at 389 (citing Illinois Corporate Travel v. American Airlines, Inc., 889 F.2d 751, 754 (7th Cir. 1989), cert. denied, 495 U.S. 919 (1990)).
The Court was presented with the prior version of 49 U.S.C.A. § 41713, 49 U.S.C.A. § 1305, which contained the words "rates, routes, or services" instead of the present text of "prices, routes, and services." In making this change, Congress did not intend any substantive modification. H.R. Rep. No. 180, 103rd Cong., 2nd Sess. 1 (1993) reprinted in 1994 U.S. code Cong. and Admin. News at 818.
To arrive at a definition of "relating to" rates, routes, or services the Court referred to similar language contained within the Employee Retirement Income Security Act of 1974 (ERISA). Id. at 384. ERISA provides that state laws will be preempted "insofar as they . . . relate to any employee benefit plan." 29 U.S.C. § 1144(a). Based upon an earlier ruling in Shaw v. Delta Air Lines. Inc., 463 U.S. 85 (1983), the Morales Court defined "relating to" as meaning "a connection with or reference to airline `rates, routes, or services.'" Morales, 504 U.S. at 383.
Despite this expansive reach, however, the Court explicitly recognized that "`[s]ome state actions may affect [airline rates, routes or services] in too tenuous, remote or peripheral a manner' to have a pre-emptive effect." 504 U.S. at 390 (citingShaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21 (1983)). Significantly, the Court noted that its decision "does not give airlines carte blanche to lie and deceive consumers." Id. at 390.
In dissent, Justice Stevens pointed to the CAB for support for his contention that Congress did not intend to limit the airlines' common law tort liability under Section 41713 (formerly section 1305). Justice Stevens noted the CAB's explanation that,inter alia, this section was intended to prevent states from "interfer[ing] with the services that carriers offer in exchange for their rates . . . [and accordingly,] Preemption extends to all of the economic factors that go into the provision of the quid pro quo for [a] passenger's fare, including flight frequency and timing, liability limits, reservation and boarding practices, insurance, smoking rules, meal service, entertainment, bonding and corporate finance. . . ." Morales, 504 U.S. at 423 (Stevens, J., dissenting) (citing 44 Fed. Reg. 9948, 9950-9951 (1979) (emphasis added).
The Supreme Court further elucidated Morales in American Airlines, Inc. v. Wolens, ___ U.S. ___, 115 S.Ct. 817 (1995). InWolens, the Court faced a challenge to proposed changes in American Airlines' frequent flyer program. Plaintiffs argued that their mileage credits were devalued as a result of modifications to the program and specifically, the retroactive application of those modifications. Id. at 822. The Court ruled that section 1305 preempted plaintiff's consumer fraud claim, since the Illinois Act effectively "police[d] the marketing practices of the airlines." Id. at ___, 115 S.Ct. at 823.
The Court, however, also held that certain obligations like contract claims were not preempted by the ADA. Id. at 825-26. The Court noted, inter alia, that several factors compelled such a conclusion. First, the Court accepted the United States' argument that "terms and conditions airlines offer and passengers accept are privately ordered obligations and thus do not amount to a State's enact[ment] or enforce[ment] [of] a law, rule, regulation, standard or other provision having the force and effect of law' within the meaning of [§] 1305(a)(1)." Id. at 825 (quoting Brief for United States as Amicus Curiae 9). Second, the Court rejected American's argument that the Department of Transportation (hereinafter "DOT") is the exclusive competent monitor of an airline's undertakings because of regulations that mandate the filing of a performance bond conditioned on the airline's "making appropriate compensation" for failure to perform air transportation services in accordance with prior agreements. Id. Specifically, the Court found that not only did the DOT's predecessor agency, the CAB, never construe or apply, this provision as displacing courts as adjudicators in air carrier contract disputes, but that Congress did not provide the DOT with the administrative apparatus to superintend contract disputes. Id. Finally, the Court observed that upholding the continued viability of contract claims in airline cases "makes sense" of Congress' retention of the FAA's saving clause, § 1106, 49 U.S.C. App. § 1506. Id. at 826.
Many of the factors that led the Supreme Court to uphold judicial enforceability of contract actions between airlines and passengers in Wolens, compels the same conclusion in personal injury tort cases such as the one at bar. Just as there are no non-judicial adjudicatory mechanisms for the resolution of contract disputes, Congress failed to provide any such mechanisms for resolution of tort claims. See Rombom v. United Airlines, 867 F. Supp. 214, 221 (S.D.N.Y. 1994); Torraco v. American Airlines, Inc., 1996 WL 6560, *6 (N.D.Ill. Jan. 4, 1996). Therefore, passengers who have tort claims against an airline would be left with virtually no remedy.
Even if American were found to have violated the ADA, the only types of relief the agency could provide are civil penalties of no more than $1,000, criminal penalties and injunctive relief.Torraco, 1996 WL at *6 (citing Margolis v. United Airlines, 811 F. Supp. 318, 323 (E.D.Mich. 1993)).
Moreover, as the Court in Wolens recognized, Congress retained section § 40120(c) (formerly 49 U.S.C.A. § 1506), the savings clause in the Act, thereby indicating that it did not intend to preempt common law tort and contract claims. See Wolens, 115 S.Ct. 826; Von Hundertmark v. Boston Professional Hockey Assoc, Inc., 1996 WL 118538 (E.D.N.Y. March 7, 1996) (rejecting preemption argument and noting that "legislation amending the [ADA] conspicuously declined to repeal" the savings clause); Sedigh v. Delta Airlines, Inc., 850 F. Supp. 197 (E.D.N.Y. 1994) ("[the retention of the savings clause] suggest[s] caution before construing `relating to' so broadly as to prohibit common law remedies having little or no effect on competition"); Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1442 (10th Cir.) (retention of the savings clause "shows that Congress did not intend to occupy the field of airplane safety to the exclusion of . . . state common law"), cert denied, 114 S.Ct. 291 (1993); Kay v. USAir, Inc. CCAIR, Inc., 1994 WL 406548, *2 (E.D.Pa. July 28, 1994) ("[i]t is inconceivable that congress would have intended section 1305(a)(1) . . . to act as a grant of total immunity to the airlines from any and all service-related negligence"); Margolis v. United Airlines. Inc., 811 F. Supp. 318, 323-24 (E.D. Mich. 1993) ("[p]reemption under section 1305 was not intended to be an insurance policy for air carriers against their own negligence").
Inconveniently for the purposes of defendant's position in this case, in oral argument before the Supreme Court in Wolens, American Airlines' did not argue that the ADA preempts personal injury claims related to airline operations. In fact, American's Counsel acknowledged that "safety claims" would "generally not be preempted." Id. at n. 7.
Consequently, neither Congress's intent in passing the ADA nor application of relevant Supreme Court precedent supports defendant's motion.
B. Precedent in the Eastern District
Although the Second Circuit has not directly spoken to this issue, several Eastern District cases have concluded that the ADA does not preempt common law state tort actions. In Sedigh v. Delta Airlines. Inc., 850 F. Supp. 197 (E.D.N.Y. 1994) (Nickerson, J.), the court granted defendant's summary judgment motion, see infra, but rejected defendant's argument that a passenger's tort and breach of contract claims were preempted by the ADA. Instead of focusing on whether a claim related to prices, routes or services, the court held that the proper inquiry should be whether "the specific common law action addresses matters about which the airlines wish or are likely to compete." Id. at 200. Consequently, the court found that tort actions alleging unlawful imprisonment, assault, intentional infliction of emotional defense, slander and loss of comfort were not preempted. Id. at 200-01.
Similarly, Stagl v. Delta Air Lines. Inc., 849 F. Supp. 179 (E.D.N.Y. 1994) (Bartels, J.), rev'd on other grounds, 52 F.3d 463 (1995) lends further support to the proposition that common law tort claims are not preempted by the ADA. In Stagl, the plaintiff asserted that her personal injuries stemmed from defendant's negligence in failing to control crowds in the baggage claim area. The court concluded that plaintiff's claim was not pre-empted by the ADA because it invoked elements of traditional tort law and lacked any ties to economic regulation of the airline industry. In addition, the court noted that the plaintiff's claim resembled other claims that were held not to be preempted in other courts such as design defects, state negligence action based on injuries as a result of a plane crash, and common law personal injury claims based on negligent deflation of aircraft tire during flight. Id. at 182. Relying upon Butcher v. City of Houston, 813 F. Supp. 515, 518 (S.D.Tex. 1993), the Stagl Court reasoned that Congress could not have intended to excuse all air carriers from liability for negligently maintaining their "building or terminal space so as to avoid or minimize the risk of harm to . . . passengers and nonpassengers . . . who daily use those premises." Id.
More recently, Chief Judge Sifton ruled that a common law claim of negligence asserted against an airline for failing to exercise due care in providing alcohol to a hockey team was not preempted by the ADA. Von Hundertmark v. Boston Professional Hockey Assoc., Inc., 1996 WL 118538 (E.D.N.Y. March 7, 1996). In Von Hundertmark, plaintiff, a flight attendant, sued the Boston Professional Hockey Association (hereinafter BPHA) for incidents that occurred on a flight from Pittsburgh to Boston. Plaintiff alleged that during that flight several hockey players became intoxicated and assaulted her. Id. at *1. BPHA brought a third party complaint against USAIR alleging, inter alia, failure of USAIR to supervise, control, and train its employees in that those employees failed to restrict the amount of alcohol consumed by the hockey players., Id. USAIR moved to dismiss BPHA's claim arguing that in-flight conduct of the aircraft's crew, including the provision of alcohol, were directly related to the service provided by the airline and were thus preempted under the ADA. Id. at *5-6.
In rejecting USAIR's preemption argument, Chief Judge Sifton noted that in cases where plaintiffs have invoked "traditional elements of tort law, suing for personal injuries sustained in airport terminals, during flights or at the hands of airline employees" the courts have almost uniformly resolved against federal preemption. Id. at *6 (citing Stagle, supra). Rather, Chief Judge Sifton relied, in part, on the reasoning outlined inSedigh, supra, that focuses inquiry on whether the specific common law action impacts the competitive position of the airline. Von Hundertmark, 1996 WL at *6.
This Court is not convinced and defendant does not sufficiently argue, that imposition of state law tort claim in this case would work to stifle competition within the airline industry. Whereas the speed with which an airline boards its passengers could be a competitive strategy employed by an airline, it is difficult to envision a competitive strategy that stresses an airline's willingness to engage in tortious conduct gainst troublesome passengers in order to insure swift boarding. Unlike a state law that mandates advertising regulations or bumping procedures, activities that are directly related to an airline's costs or competitive position, imposition of tort liability merely insures that an airline acts with due care to its passengers. Indeed, this is a duty that attaches to all persons and businesses in all jurisdictions thereby uniformly and equally disadvantaging all airlines nationwide and thus, substantially reducing or eliminating any diminishment of an airline's competitive position.
Oddly, defendant recommends that this Court adopt the reasoning in Rombom v. United, 867 F.Supp. 214 (S.D.N.Y. 1994). Rombom, however, does not significantly support defendant's argument and, at best, merely provides a handy framework in which to consider a preemption claim. In Rombom, two passengers sued United Airlines for "great mental and physical distress" that allegedly resulted from the flight crew's removal of plaintiffs from the plane and the crew's "malicious" request to have plaintiffs arrested. Id. at 217. Judge Sotomayor found that the ADA does not preempt all state tort actions and that whether or not a claim is preempted "requires a careful, case-by-case analysis" but that "[i]f the tortious act did not occur during the service . . . or . . . did not further the provision of a service in a reasonable manner, then the state tort claim should continue." Id. at 220-21. Therefore, Judge sotomayor held that the claims asserted by plaintiffs that were based on rude and unprofessional service and on the pilot's decision to return to the gate were preempted by the ADA. Id. at 223-24.
In reaching this conclusion, Judge Sotomayor set forth a tripartite test for preemption. Under this analysis, the Court must first determine whether the activity at issue in the claim is a service. If the activity is deemed to be a service, the court must then ascertain whether the claim affects the airline service directly or tenuously, remotely, or peripherally. Finally, the Court must determine whether the underlying tortious conduct was reasonably necessary to the provision of the service. 867 F. Supp. at 222.
Even assuming that defendant was providing a service within the meaning of section 41713 (as plaintiffs unwisely concede, Plaintiff's Response at 11), defendant's argument still fails. Defendant contends that plaintiff's claims "directly relates to the activity at issue" that is the gate agent's decisions as to who was authorized to board the aircraft and when and how to close the door. Defendant's Brief at 6. At some point, however, the minutia that comprises a boarding practice become too peripheral to the provision of a service to be preempted. Such is the case here. Whereas general boarding practices such as seat selection and bumping practices are services, the manner and speed with which an agent closes a door is simply "too tenuously connected" to the service of boarding to warrant preemption. See Morales, 504 U.S. at 390. See also, Smith v. America West Airlines, Inc., 44 F.3d 344, 347 (5th Cir. 1995) ("service" of boarding limited to the economic decisions concerning boarding, e.g., overbooking or charter arrangements, and contractual decisions whether to board particular ticketed passengers); West v. Northwest Airlines, Inc., 995 F.2d 148 (9th Cir. 1993) ("boarding practices" refers to procedures such as overbooking and "bumping," not actually embarking on aircraft), cert. denied, ___ U.S. ___, 114 S.Ct. 1053 (1994); Stewart v. American Airlines, Inc., 776 F. Supp. 1194 (S.D.Tex. 1991) (airline service of "boarding" pertains to question of whether to board passenger or not, not actual event).
Finally, with regard to the third prong of Judge Sotomayor's test, whether the gate agent's conduct was reasonably necessary to the provision of the airline service, defendant's arguments also fail. Under this prong, if the service was provided in a manner that "falls within the spectrum of reasonable conduct" then the claim is preempted. Rombom, 867 F. Supp. 222. However, if the conduct was "outrageous" and went beyond the scope of normal operations then the claim is not preempted as "it would be illogical to assume that Congress intended to preempt a subsequent tort suit where a flight crew member performs a service in an unreasonable and unnecessary manner." Id. As alleged by plaintiffs and contested by defendant, there exists a factual dispute concerning the nature and necessity of the gate agent's conduct in relation to Ms. Lanza's actions. Such questions must be left for the jury.
C. Precedent in other jurisdictions
Courts in other jurisdictions have reached similar conclusions regarding the preemptive scope of the ADA. Recently, for example, in two en banc decisions overruling a 1989 decision finding preemption of state common law tort actions, the Fifth Circuit held that most personal injury tort actions are not preempted by the ADA. Smith v. America West Airlines, Inc., 44 F.3d 344, 347 (5th Cir. 1995); Hodges v Delta Airlines, Inc. 44 F.3d 334 (5th cir. 1995). In reaching this conclusion, the Fifth circuit noted that "enforcement of tort remedies for personal physical injury ordinarily has no `express reference'" to airline services. Id. at 339. An exception to this general rule is where a passenger sues for wrongful removal from an aircraft. In that case, the passenger's tort claim would be preempted because to do otherwise would "result in significant de facto regulation of the airline's boarding practices" and would interfere with federal law that grants airlines substantial discretion to refuse to carry passengers. Hodges, 44 F.3d at 339.
Contrary to lengthy argument from defendant, plaintiffs' claims do not implicate this exception to the general rule of no preemption in personal injury cases. In this case, there is no claim that plaintiff was wrongfully removed from the aircraft or was wrongfully restricted from entering the aircraft. Indeed, plaintiffs cannot make such an argument as they were allowed to board the aircraft and successfully traveled to their destination. Rather, plaintiff's claim is that in the course of restricting access to the aircraft the gate agent inflicted personal injuries on plaintiff. As noted above, whether the gate agent acted reasonably in the manner, force and speed with which she closed the jetway door is a matter of fact that must be left for the jury.
In addition to the Fifth Circuit, the vast majority of courts decline to preempt common law tort claims, See Cleveland Piper Aircraft Corp., 985 F.2d 1433 (10th Cir.), cert denied, 114 S.Ct. 291 (1993); Torraco, 1996 WL 6560 (N.D.Ill. Jan. 4, 1996); Dudley v. Business Express, Inc., 882 F. Supp. 199 (D.N.H. 1994); Kay 1994 WL 406548 (E.D.Pa, July 28, 1994); Margolis v. United Airlines, Inc., 811 F. Supp. 318 (E.D. Mich. 1993); Stewart v. American Airlines, Inc., 776 F. Supp. 1194 (S.D.Tex. 1991).
In contrast to the great weight of authority, the Ninth Circuit is one of the few courts to conclude that the ADA preempts tort actions. Harris v. American Airlines, Inc., 55 F.3d 1472 (9th Cir. 1995). In Harris, the court held that the ADA preempts common law and statutory based tort claims arising out of abusive and racist comments of one passenger directed at another passenger when those comments were made following the service of alcohol to the abusive passenger. Id. Defendant's concede, however, that Harris did not address instances where the plaintiff alleges personal physical injuries. Consequently, defendant recommends that this court follow the holding in Costa v. American Airlines, 892 F. Supp. 237 (C.D.Cal. 1995). In Costa, the court, reluctantly, found that Harris preempted a passenger's claim for personal injuries sustained when another passenger opened an overhead bin and luggage fell onto the plaintiff. Id. at 238. In preempting plaintiff's claims, the Costa court noted that "[i]t seems unlikely either Congress or the Supreme Court would have intended this broad result or the impact it may have on bodily injury claims arising from other kinds of airline services . . . [h]owever, all of the acts and omissions complained of in this case fall within the broad Harris definition." Id.
From these two cases, which defendant characterizes as a "trend," defendant asks this Court to grant its motion. This court, however, joins other courts in declining to adopt the Ninth Circuit's reasoning. See, e.g., Von Hundertmark, 1996 WL at *6; Torraco, 1996 WL at *6.
Thus, defendant's motion for summary judgment is denied.
III. COMPLIANCE WITH FEDERAL REGULATIONS
Similarly unavailing is defendant's argument that the gate agent's conduct was proper, pursuant to federal airport security regulations, and a necessary response to plaintiff's "unlawful interference" with the gate agent's duties. Defendant's Brief at 10, 14. In support of its argument, defendant contends that regulations that include prohibitions on unauthorized access to restricted areas and interference with the duties of crew members, see 14 C.F.R. §§ 91.11, 108.13, 159.89, authorized the gate agent to close the door. The fact that plaintiff was injured, maintains defendant, was solely a product of her own actions and not that of the gate agent. Defendant's arguments are unconvincing.
Defendant does not cite a single case in support of its argument. Defendant has not offered any law that demonstrates that an airline employee, while executing her duties, may injure a passenger without civil legal consequences. Rather, defendant argues that the facts show that plaintiff interfered with the gate agent's duties and that therefore, plaintiff is responsible for her own injuries. This Court is troubled that it must remind defendant that a motion for summary judgment can only be granted when there are no material issues of fact in dispute between the parties. Celotex Corp, v. Catrett, 477 U.S. 317, 323 (1986). As plaintiff asserts that she was injured while protecting herself from the sudden closing of the jetway door, a significant issue of fact is in dispute. As such, this factual issue must be decided by the jury and defendant's motion must be denied.
The only caselaw cited by defendant relates to an airline's discretion in granting or denying transport to a passenger. See, e.g., O'Carroll v. American Airlines, 863 F.2d 11 (5th Cir.) (ejection of unruly passenger), cert. denied, 490 U.S. 1106. Plaintiffs' claims, however, do not implicate this area of an airline's discretion.
Although not specifically articulated by defendant in making its argument concerning the gate agent's compliance with federal regulations, defendant asks this Court to find that compliance with federal regulations will automatically render a state common law tort claim nugatory. In effect, defendant argues that state common law claims are impliedly preempted upon an airline's compliance with these federal regulations. This Court cannot make such a conclusion. The supreme court has instructed that there is no need to infer congressional intent to preempt state laws when Congress included an express preemption clause in the legislation that a litigant's implied preemption argument relies upon.Rombom, 867 F. Supp. at 225 (citing Cipollone v. Liggett Group. Inc., ___ U.S. ___, 112 S.Ct. 2608, 2618 (plurality opinion)). As section 41713 is entitled "preemption" and the regulations cited by defendant are "either part of, or intimately intertwined, with the Federal Aviation Act" then this court cannot extend preemption beyond that set forth in section 41713. Rombom, 867 F. Supp. at 225.
Finally, in its reply brief, defendant argues that the gate agent's actions should be judged under an arbitrary, capricious or irrational standard. In support of its argument, defendant cites 49 U.S.C. § 44902(b) (formerly section 1511) which grants an air carrier the right to refuse transport to a passenger deemed inimical to safety. Once again, defendant's argument is unavailing.
In support of its argument, defendant points to Judge Nickerson's decision in Sedigh, supra. Whereas Judge Nickerson did not find that plaintiff's claims were preempted, he dismissed plaintiff's claims based on section 44902(b) (formerly section 1511). Unfortunately for defendant, the circumstances in Sedigh, and this case are entirely different. In Sedigh, plaintiff was traveling from JFK to Istanbul, Turkey with a change of planes in Frankfurt, Germany. While the connecting flight was on the ground in Frankfurt, plaintiff requested a change in seat assignment. The flight attendants noticed, however, that plaintiff was "agitated" and "nervous." After changing seats, plaintiff went to the lavatory twice, stayed there for a long time, and set off the lavatory's smoke alarm. When confronted by the flight attendant about smoking in the lavatory, plaintiff became more upset and several passengers heard plaintiff muttering, "kill all the Jews." Sedigh, 850 F. Supp. at 198. Thereupon, the captain of the aircraft requested that the nine armed U.S. Sky Marshals assigned to that flight evaluate the situation.
After plaintiff made another trip to the lavatory and continued muttering threatening statements, the captain and the sky marshals concluded that plaintiff posed a security risk and plaintiff was removed from the. plane. Thereafter, plaintiff was detained and allegedly beaten by the German authorities. Id. Plaintiff sued Delta alleging unlawful imprisonment, assault, intentional infliction of emotional distress, slander, loss of comfort and breach of contract.
In dismissing the plaintiff's claims, Judge Nickerson noted that the criteria for determining whether an airline properly exercised its discretion to deny transport must be based on facts as known by the airline at the time it formed its opinion and made its decision. Sedigh, 850 F. Supp. at 201 (quoting Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975)). such a decision must merely be rational and reasonable and not arbitrary or capricious. Id.
None of the circumstances present in Sedigh exist in the case at bar. Unlike Sedigh, plaintiff does not allege that defendant failed to board her or ejected her from the aircraft. Indeed, none of the torts that plaintiff alleges center around defendant's failure to provide air transportation. Rather, plaintiffs' tort claims center on the gate agent's negligent closing of the door.
Moreover, it is opportunistic and disingenuous for defendant to argue at this juncture that safety related concerns justified the gate agent's actions. There is no indication that the gate agent ever considered plaintiff a security risk. Whereas plaintiff may have been overly persistent and may have interfered to some degree with the gate agent's boarding duties, the security concerns raised in Sedigh, simply did not exist. There is no mention in the record that any security personnel were called to the gate, that the captain of the craft was ever notified or that any other personnel were alerted to a security danger at the jetway door. If plaintiff truly represented a security risk, then plaintiffs and their nephew should not have been allowed to board the aircraft and travel to their destination. At the very least, if plaintiff ever posed a danger to the aircraft then defendant should have a record of an incident at that gate or defendant should be able to more accurately identify the gate agent at the jetway door.
In short, none of defendant's arguments concerning the gate agent's conduct, applicable federal regulations or purported security concerns warrant summary judgment.
CONCLUSION
For the reasons enumerated above, defendant American's motion for summary judgment is denied.
SO ORDERED.