Opinion
CIVIL ACTION No. 01-2385-KHV, CIVIL ACTION No. 01-2386-KHV
January 7, 2004
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs' Response To The Court's Order To Show Cause (Doc. #173) filed September 25, 2003. Defendant Southwest Airlines Co.'s Second Supplemental Motion In Limine And Supporting Memorandum (Doc. #175) filed September 26, 2003, and Defendant Southwest Airlines Co.'s Motion For Summary Judgment On Plaintiff Fuller's Negligent Training Claim (Doc. #178) filed October 15, 2003. For reasons stated below, the Court overrules defendant's motion in limine, sustains its motion for summary judgment and dismisses Fuller's common law negligence claim.
Procedural Background
On September 10, 2003, plaintiffs filed their proposed amendment to the pretrial order to state a negligence claim by Grace Fuller. Plaintiffs' Proposed Amendments To The Pretrial Order (Doc. # 164). On September 17, 2003, the Court sustained Fuller's motion to amend the pretrial order, and in response to the amendment, on September 26, 2003, Southwest filed its own amendment to the pretrial order. (Doc. #174). On September 17, 2003, however, the Court directed Fuller to show cause in writing why — based on the factual allegations in paragraph five of the amendment — defendant was not entitled to judgment as a matter of law under Kansas law, the Restatement (Second) of Torts § 314A, and the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1).Order To Show Cause (Doc. #167). The parties informed the Court that they required additional time to prepare their respective responses and replies to the order to show cause, and defendant sought leave to file a motion for summary judgment on Fuller's negligence claim. On September 25, 2003, the Court continued the trial, set new deadlines for the parties to respond to the Court's order to show cause and granted defendant leave to file a supplemental motion for summary judgment.Order (Doc. # 172).
I. Response To Order To Show Cause
As noted, the Court sustained Fuller's motion to amend the pretrial order but noted that the amendment raised a serious question whether the Airline Deregulation Act of 1978 ("ADA"), 49 U.S.C. § 41713(b)(1), preempted her common law negligence claim. The Court therefore ordered Fuller to show cause why defendant is not entitled judgment on her state law negligence claim.
A. Plaintiffs' Factual Allegations
In paragraph five of the amendment to the pretrial order, Fuller alleges the following facts:
In late 1996, Dr. Charles Whitcomb observed Southwest billboards in San Jose, California which displayed the phrase "eenie, meenie, minie, moe." He recognized the phrase as a reference to a racist nursery rhyme, and he called Southwest to complain. The Southwest marketing manager for the San Jose area informed Dr. Whitcomb that she would pass along his complaint to an advertising department official and that someone would call him back. In the meantime, Dr. Whitcomb sent a letter to Southwest which explained his complaint. Edward Stewart, the Southwest director of public relations, later called Dr. Whitcomb to discuss the complaint. Stewart told Dr. Whitcomb that (1) he was aware of the history of the phrase and knew that "eenie, meenie, minie, moe / catch a nigger by the toe" was offensive and (2) it was important for Southwest to develop greater sensitivity to issues such as the one that Dr. Whitcomb had raised. Stewart also indicated that Southwest would provide sensitivity training to its employees regarding this phrase and other things that could be offensive to African Americans.
After he spoke to Dr. Whitcomb, Stewart spoke with Patricia Furstenberg, the Southwest director of advertising. Stewart told Furstenberg about his conversation with Dr. Whitcomb and gave Furstenberg a history lesson about the racist origins of the "eenie, meenie, minie, moe" phrase. Furstenberg reported Dr. Whitcomb's complaint and explained Stewart's history lesson to Joyce Rogge, vice president of marketing.
In response to Dr. Whitcomb's complaint, Southwest took down 30 billboards in the San Jose area. It did not instruct its employees to stop using the phrase, however, in any aspect of its business.
Fuller, an African American woman, is epileptic and unable to work. Southwest is a major United States airline and a common carrier. Early in 2001, plaintiff purchased tickets and boarded Southwest's aircraft, thus becoming business invitees and common carrier passengers. Specifically, on February 12, 2001, plaintiffs flew from Las Vegas, Nevada to Kansas City, Missouri on Southwest flight 524. As standby passengers, plaintiffs boarded the aircraft after all non-standby passengers.
Jennifer Cundiff, the lead flight attendant, stood at the front of the plane when plaintiffs boarded. Cundiffwas aware that the flight was full and that a non-revenue flight attendant was in a seat reserved for paying customers near the back of the plane. Plaintiffs did not find seats when they boarded and were therefore standing in the aisle. As they searched for seats, Cundiff said over the intercom "eenie, meenie, minie, moe, pick a seat, we gotta go." Plaintiffs recognized the reference to a racist nursery rhyme. Many passengers snickered and directed their attention to plaintiffs, who were still standing in the aisle. Sawyer eventually found a seat. A second flight attendant, Paige Triola, told the non-revenue flight attendant to give up her seat for Fuller.
Southwest's conduct humiliated, angered and alienated plaintiffs and caused them to worry that it would cause Fuller to have a seizure. As she sat on the aircraft, Fuller became more angry and embarrassed. At some point during the flight Fuller noticed that her hands were shaking. She took her epilepsy medication in an attempt to calm down but suffered one or more petite mal seizures during the flight. After the aircraft landed in Kansas City, Sawyer also noticed that Fuller's hands were shaking. When she got home, Fuller laid down. Despite her preventative efforts, Fuller suffered a grand mal seizure which caused her severe physical injury and trauma. Fuller was bed-ridden for three days.
Fuller alleges that Southwest's conduct amounted to negligent infliction of emotional distress under Kansas law and seeks monetary relief along with a court order that Southwest "take reasonable and necessary steps, including . . .[mandatory] sensitivity training and racial and cultural diversity training for all of its employees . . . to ensure that Southwest will not engage in similar conduct in the future."Pretrial Order (Doc. #77) filed November 15, 2002 ¶¶ 8-9; see also Plaintiffs' Proposed Amendments To The Pretrial Order (Doc. #164) at 8.
Fuller variously characterizes her claim as one for negligent infliction of emotional distress or one for negligent training and supervision of flight attendants by Southwest. Her response to Southwest's motion for summary judgment disavows any negligent training claim, but her amendments to the pretrial order and her response to the Court's order to show cause both refer to a negligent training claim. There, plaintiff alleges that Southwest breached common law duties to her when it:
1. directed the EMMM Phrase at Ms. Fuller when Ms. Fuller was standing in the aisle and unable to find a seat;
2. failed to train its employees regarding the EMMM Phrase and its racist origins and history;
3. failed to train and/or instruct its employees not to use the EMMM Phrase onboard its aircraft;
4. failed to train and/or instruct its employees not to direct the EMMM Phrase at African Americans;
5. failed to properly supervise its employees, and, thereby, failed to learn that its employees used the EMMM Phrase onboard its aircraft; and/or
6. failed to take appropriate preventive or remedial action to end its employees' use of the EMMM Phrase onboard its aircraft.Plaintiffs' Proposed Amendments To The Pretrial Order (Doc. #164) at 6;Plaintiffs' Response To The Court's Order To Show Cause (Doc. #173) at 13. Plaintiff also states that her negligence claims allege that Southwest "failed to properly train, instruct, and/or supervise its flight attendants," and that its "negligent conduct did not occur on an aircraft during the provision of any service; rather, it occurred at its headquarters, where it negligently failed to train its employees."Plaintiffs' Reponse To The Court's Order To Show Cause, at 3, 16. In her response to Southwest's motion for summary judgment, however, plaintiff argues that she "has not brought a `negligent training claim' in this case." Plaintiffs' Response To Defendant's Motion For Summary Judgment On Plaintiff Fuller's Negligent Training Claim (Doc. #180) at 1.
Whether Fuller's claim is characterized as one for negligent training or supervision, or negligent infliction of emotional distress, is irrelevant All such theories sound in negligence and are subject to the identical preemption analysis.
B. Airline Deregulation Act
Before 1978, the Federal Aviation Act of 1958 ("FAA"), 49 U.S.C. § 1301 (current version at 49 U.S.C. § 40101), authorized the Civil Aeronautics Board ("CAB") to regulate the interstate airline industry. See Am. Airlines v. Wolens, 513 U.S. 219, 222 (1995). The FAA contained a savings clause which provided that "nothing . . . in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." 49 U.S.C. § 1506. Thus, before 1978, states were allowed to regulate interstate air travel. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992).
In 1978, Congress amended the FAA by enacting the ADA. The "clear and manifest" purpose of the ADA is to achieve economic deregulation of the airline industry by promoting "maximum reliance on competitive market forces." Wolens, 513 U.S. at 230. The ADA did not repeal or alter the FAA savings clause, see Morales, 504 U.S. at 379, but to ensure that the States do not undo federal deregulation, the ADA includes a preemption provision 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." 49 U.S.C. § 41713(b)(1). The purpose of preemption was to maintain uniformity and avoid the confusion and burdens that would result if interstate and international airlines were required to respond to standards of individual states. Trans World Airlines, Inc. v. Mattox, 897 F.2d 773 (5th Cir. 1990). Claims that have "a connection with, or reference to" airline prices, routes or services are therefore preempted. Morales, 504 U.S. at 384. The ADA preempts even general statutes, when specifically applied to the airline industry. Smith V. Comair, Inc., 134 F.3d 254, 257 (4th Cir. 1998) (citing Morales, 504 U.S. at 384). State actions which affect airline prices, routes or services in too tenuous, remote or peripheral a manner, however, are not preempted. See Morales, 504 U.S. at 390; Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995); Peterson v. Cont'l Airlines, Inc., 970 F. Supp. 246, 249 (S.D.N.Y. 1997).
Here, the issue is whether the ADA preempts Fuller's negligence claim. Fuller argues that her claim is not preempted because (1) the ADA only preempts state regulation of such matters as the frequency and scheduling of transportation and the selection of markets; and (2) the ADA does not preempt run-of-the-mill tort claims because they do not "relate to" or "significantly impact" deregulation or airline service. Plaintiffs' Response To The Court's Order To Show Cause (Doc. #173) filed September 25, 2003 at 2. Southwest replies that airline boarding and seating procedures are "services" under the ADA, and that state negligence law is therefore preempted. Defendant Southwest Airline Co.'s Reply to Plaintiffs' Response To The Court's Order To Show Cause (Doc.#177) filed October 10, 2003 at 1.
1. Preemption Of State Law Relating To Airline "Service"
As noted, the ADA expressly prohibits the States from enforcing any law related to a "price, route, or service" of an air carrier. 49 U.S.C. § 41713(b)(1). The ADA does not define "service" and the Supreme Court has discussed the scope of the ADA preemption clause on only two occasions, in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), and American Airlines v. Wolens, 513 U.S. 219(1995).
In Morales, the Supreme Court held that the ADA preempted Air Travel Industry Enforcement Guidelines adopted by the National Association of Attorneys General. Seven states, including Texas, sought to enforce the guidelines — which contained detailed requirements regarding the content and format of airline advertising. Morales, 504 U.S. at 379. Trans World Airlines brought suit in the Western District of Texas, claiming that the ADA preempted state regulation of fare advertisement through Texas consumer protection statutes. The district court enjoined enforcement of the Texas statutes and the Fifth Circuit affirmed. Id. at 380. On appeal, the Supreme Court focused on the fact that the preemption clause prohibits the states from enacting or enforcing any law "relating to" a price, route or service. The Supreme Court broadly construed the ADA to preempt "State enforcement actions having a connection with, or reference to, airline rates, routes, or services." Id. at 383-86 (quotations omitted). It rejected the contentions that the preemption clause only preempted direct regulations of a price, route or service, and laws aimed specifically at the airline industry. Id. at 384-86. The Supreme Court concluded that the obligations imposed by the guidelines would impact airline fares and marketing ability and held that the ADA preempted Texas law because they had a "forbidden significant effect" on an airline price, route or service, primarily because they restricted fare advertising that related to ticket price. Id. at 388-89, 391.
The Supreme Court also found that the FAA savings clause, which the ADA did not repeal, did not supersede the ADA's specific substantive preemption provision. Morales, 504 U.S. at385. Specifically, it did not believe "Congress intended to undermine this carefully drawn statute through a general saving[s] clause." Id.
In Wolens, members of the frequent flyer program for American Airlines brought a state court class action for breach of contract and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, challenging retroactive changes in the program. The trial court denied defendant's motion to dismiss. The court of appeals affirmed the denial of the motion to dismiss but determined that federal law preempted the claim for injunctive relief. The Illinois Supreme Court affirmed On appeal, the United States Supreme Court focused on the fact that the ADA prohibits states from "enacting" or "enforcing" laws related to a price, route or service. 513 U.S. at 224-26. As with the state regulation inMorales, it held that the Illinois consumer fraud statute "serve[d] as a means to guide and police the marketing practices of the airlines," and that the ADA therefore preempted plaintiffs' consumer fraud claims. Id. at 228. As to plaintiffs' breach of contract claims, however, the Court held that the ADA did not shield airlines from suits seeking recovery solely for breach of the airlines' self-imposed undertakings. Id.
Southwest contends that its allegedly negligent conduct occurred in connection with an airline "service" under the ADA. Plaintiff counters that Cundiff's remark was not part of airline "service" and urges the Court to follow the Ninth and Third Circuits, which have held that airline "service" encompasses "the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail," but not the "provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities." Duncan v. Northwest Airlines, Inc., 208 F.3d 1112, 1114-15 (9th Cir. 2000) (quoting Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir. 1998)); Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d 186, 194 (3d Cir. 1998) (quoting Charas, 160 F.3d at 1261).
The Tenth Circuit has not defined the scope of "service" under the ADA, but it has recognized that the Supreme Court has interpreted 49 U.S.C. § 41713(b)(1) broadly to preempt "all State enforcement actions having a connection with or reference to airline rates, routes, or services." Arapahoe County Pub. Airport Auth. V.F.A.A., 242 F.3d 1213, 1222 (10th Cir. 2001) (quotations omitted, citing Morales, 504 U.S. at 383-84). Further, it has recognized that elements of air carrier service include such items as ticketing, boarding procedures, provision of food and drink and baggage handling, and transportation itself. Id. (citing 49 U.S.C. § 40101(4) and 40101(13), and Hodges, 44 F.3d at 336). Three Courts of Appeals have likewise adopted a broad definition of "service." See Hodges, 44 F.3d at 336 (defining "services" by contractual features of air transportation, including ticketing, boarding procedures, provision of food and drink and baggage handling); Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998) ("Undoubtedly, boarding procedures are a service rendered by an airline") (citing Hodges, 44 F.3d at 336); Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996) (adopting Hodges definition): see also Chukwu v. Bd. of Dirs. British Airways, 889 F. Supp. 12, 13 (D. Mass. 1995) (same), aff'd, 101 F.3d 106, 1996 WL 662466 (1st Cir. 1996).
Here, Fuller complains about Southwest boarding procedure, i.e. the fact that as plaintiffs searched for seats, Cundiff said over the intercom "eenie, meenie, minie, moe, pick a seat, we gotta go." The Court holds that boarding procedure, including passenger direction and assistance in the boarding process, is clearly an airline service and that Fuller's claim has an inarguable connection with, or reference to, that service. The Court must therefore determine whether Fuller's claim affects the service directly or only "tenuously, remotely, or peripherally," so as to escape preemption. Lewis v. Cont'l Airlines, Inc., 40 F. Supp.2d 406, 414 (S.D. Tex. 1999) (citing Rombom v. United Air Lines, Inc., 867 F. Supp. 214, 222 (S.D.N.Y. 1994) and Peterson v. Cont'l Airlines, Inc., 970 F. Supp. 246.250 (S.D.N.Y. 1997)); Galbut v. Am. Airlines, Inc., 27 F. Supp.2d 146, 152 (S.D.N.Y. 1997).
2. Preemption Of State Tort Claims
Fuller argues that the ADA does not preempt run-of-the-mill negligence claims, such as hers, which do not relate to or significantly impact deregulation or airline service. Southwest responds that if a state is allowed to regulate flight attendant speech through negligence law, every airline will be required to make a substantial investment in research and training, which will have significant economic impact on it and all other airlines.
Although Cundiff's remark occurred in Nevada, the parties stipulate that Kansas law applies to Fuller's negligence claim. Pretrial Order (Doc. # 77) filed November 15, 2002 at 2. For purposes of this order, the Court accepts that stipulation.
As noted, Fuller challenges the manner in which Cundiff guided passengers through the boarding process. In addition to damages, Fuller seeks a court order that Southwest "take reasonable and necessary steps, including . . . [mandatory] sensitivity training and racial and cultural diversity training for all of its employees" and that "Southwest instruct its employees to immediately stop using the phrase `Eenie, meenie, minie, moe' in the scope of their employment." Obviously, such an order would have a direct economic effect on Southwest service, if not rates. Even if the Court did not require mandatory diversity training and direct Southwest to prevent its employees from using the phrase, the prospect of liability in 50 different states, under 50 different bodies of law with respect to negligence, could force Southwest (and other airlines) to research and train every employee on a limitless dictionary of potentially offensive words, rhymes, songs and phrases. The economic burden of such research and training could be enormous, given the diverse sensitivities of the many ethnic, religious, geographic, political, racial, age and other demographic groups throughout the United States. Although the ADA may permit state regulation which only remotely, tenuously or peripherally affects airline service, the Court is convinced that the ADA does not empower each state to independently regulate the commercial speech of airline employees to ensure that such speech comports with local standards of political correctness for all constituent groups of airline travelers. The Court therefore holds that the ADA preempts Fuller's negligence claim. Contrary to Fuller's argument, this holding does not leave her without a remedy. The Court has already held that 42 U.S.C. § 1981 provides the appropriate frame of analysis for plaintiffs' claims.
II. Southwest's Second Supplemental Motion In Limine
Southwest asks the Court to exclude all evidence related to the San Jose billboards, arguing that it is not relevant to Cundiff's intent, Rule 401, Fed.R. Evid, and that it is more prejudicial than probative, Rules 402 and 403, Fed.R.Evid. Southwest also argues that evidence of a prior complaint is admissible only if the circumstances surrounding it are substantially similar to those involved in the present case. Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987); Karns v. Emerson Elec. Co., 817 F.2d 1452, 1460 (10th Cir. 1987). Defendant Southwest Airlines Co.'s Second Supplemental Motion In Limine And Supporting Memorandum (Doc. #175) filed September 26, 2003.
As stated above, Fuller's negligence claim is preempted by the ADA. Thus, plaintiffs' claim for intentional racial discrimination under 42 U.S.C. § 1981 is the only remaining claim. The issue in this regard is whether Southwest, through Cundiff, intentionally discriminated against plaintiffs on the basis of race. Pretrial Order (Doc. #77) filed November 15, 2002 at 10-13. Southwest's corporate intent may be relevant to the extent that it trained or did not train Cundiff and thus permitted or encouraged her to engage in racially offensive conduct.
Throughout this case, Southwest has denied that the phrase "eenie, meenie, minie, moe" is racist or potentially offensive to African Americans. See Defendant Southwest Airlines Co.'s Memorandum In Support Of Motion For Summary Judgment (Doc. #81) filed November 15, 2002, at 18; Defendant Southwest Airlines Co., Inc.'s Reply Memorandum In Support Of Motion For Summary Judgment (Doc. #90) filed January 21, 2003, at 26-28; Defendant Southwest Airlines Co.'s Amendment To The Pretrial Order (Doc. #174) filed September 26, 2003 at 2. To the extent Southwest maintains that position at trial, plaintiffs are entitled to discredit it through prior inconsistent statements and actions of Southwest employees. See Rule 613, Fed.R.Evid. Evidence regarding the San Jose billboards is not more prejudicial than probative with regard to Southwest's knowledge and notice on this point. Rule 403, Fed.R.Evid
To the extent that Cundiff's training and instruction is relevant, such evidence is also germane. The prior complaint shows that Southwest was on notice that the phrase is offensive to some African Americans, and it may also have some bearing on whether plaintiffs took reasonable offense at Cundiff's comments. Plaintiffs' evidence is not more prejudicial than probative on these points, and the Court therefore overrules Southwest's motion in limine.
III. Southwest's Motion For Summary Judgment On Fuller's Negligent Training Claim
Southwest seeks summary judgment on Fuller's negligence claim, arguing that Fuller cannot prove that Southwest was negligent, that she suffered reasonably foreseeable injuries or that her injuries resulted from negligence by Southwest. Southwest also argues that Fuller's claim is barred by the applicable two-year statute of limitations, preempted by the ADA and barred by the First Amendment of the Constitution. As stated above, the Court agrees that the ADA preempts Fuller's negligence claim. Southwest's motion for summary judgment is therefore sustained on that issue.
IT IS THEREFORE ORDERED that Defendant Southwest Airlines Co.'s Second Supplemental Motion In Limine And Supporting Memorandum (Doc. #175) filed September 26, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that Defendant Southwest Airlines Co.'s Motion For Summary Judgment On Plaintiff Fuller's Negligent Training Claim (Doc. #178) filed October 15, 2003 be and hereby is SUSTAINED. Grace Fuller's common law negligence claim is preempted by the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1), and is therefore DISMISSED.