Opinion
No. 56661-0-I.
July 31, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-32228-6, George T. Mattson, J., entered July 21, 2005.
Counsel for Appellant(s), Mark William Davis, Attorney at Law, 555 W. Smith St, PO Box 140, Kent, WA 98035-0140.
Brie Ann Hopkins, Attorney at Law, 555 W. Smith St, PO Box 140, Kent, WA 98035-0140.
Counsel for Defendant(s), Caryn Geraghty Jorgensen, Mills Meyers Swartling, 1000 2nd Ave Fl 30, Seattle, WA 98104-1094.
Counsel for Respondent(s), M. Owen Gabrielson, Graham Dunn PC, 2801 Alaskan Way Ste 300, Seattle, WA 98121-1128.
Christopher Holm Howard, Schwabe Williamson Wyatt, PC, 1420 5th Ave Ste 3010, Seattle, WA 98101-2339.
Counsel for Other Parties, Mark William Davis, Attorney at Law, 555 W. Smith St, PO Box 140, Kent, WA 98035-0140.
Brie Ann Hopkins, Attorney at Law, 555 W. Smith St, PO Box 140, Kent, WA 98035-0140.
Affirmed by unpublished opinion per Ellington, J., concurred in by Coleman and Dwyer, JJ.
Zella Weitz checked in for a flight at Seattle-Tacoma International Airport (Sea-Tac), and asked to be taken by wheelchair from the check-in desk to the boarding area. The skycap delivered her there safely and seated her in a chair near the boarding desk. She later fell and was injured in the gate area. Because the skycap's duty under these circumstances was to deliver her safely to the boarding gate, we affirm dismissal of her claims against the company responsible for wheelchair transportation.
BACKGROUND
On August 23, 2003, 94-year-old Zella Weitz was scheduled to fly home to Arizona after visiting her daughter in Seattle. She arrived at the Alaska Airlines ticket desk on foot, using a cane to aid her walking. As had been her practice since hip replacement surgery two years before, she requested wheelchair transportation though the airport terminal. In contract with Alaska Airlines, Huntleigh USA Corporation provides wheelchair transportation services to Alaska's passengers in Sea-Tac airport. The Alaska ticket agent completed a "special service advisory" form, indicating that Ms. Weitz had requested wheelchair transport "for distance." Daniel Spies, a Huntleigh employee, arrived with a wheelchair shortly thereafter.
On previous occasions, Ms. Weitz's daughter had been permitted to accompany her mother to the gate and see her onto the plane. This time, however, the daughter was told that only ticketed passengers could pass the security checkpoint, and she was turned away. Spies transported Ms. Weitz to her boarding gate without incident, arriving 90 minutes before the plane was scheduled to board.
Ms. Weitz wanted to stay in the wheelchair so airline personnel would know she needed help to board the plane. She told Spies she was supposed to stay in the wheelchair. Spies has difficulty speaking as a result of an injury, but communicated by speech and hand signals that Ms. Weitz could not remain in the wheelchair. He helped her into a seat close to the ticketing desk. No gate agent was yet working at the desk, and Spies departed without notifying any airline agents of Ms. Weitz's presence at the gate.
It is unclear from the record whether Spies seated Ms. Weitz in the seat closest to the jet way door. At Ms. Weitz's deposition, she indicated that Spies seated her beside the gate agent desk, close enough that Ms. Weitz was unsure whether an agent could have seen her over the high desk. Ms. Weitz then independently stood and walked `a very short distance' to sit beside another passenger. Clerk's Papers at 97. That seat was in the D8 seating area, separated by a metal barricade from the D9 area where Ms. Weitz's plane was scheduled to board.
After sitting at the gate for some time, Ms. Weitz became concerned that airline staff were not aware of her presence or her need for help boarding the airplane. She did not attempt to communicate with other passengers or the gate agents. Instead she moved to a different chair, further from the desk, and seated herself next to another passenger she thought probably needed wheelchair assistance to board the plane.
The flight was scheduled to board at 12:14 p.m. for a 12:44 p.m. departure. At 12:09 p.m., boarding had not begun, no passengers were in line to board at Ms. Weitz's gate, and the passenger beside Ms. Weitz remained seated in her chair. But Ms. Weitz apparently became confused and believed that she heard a final boarding call for her plane. Unfortunately, she stood and attempted to go to the jet way, opting to take a shortcut by ducking under a metal barricade. She lost her balance and fell.
There is some dispute as to the events just before Ms. Weitz's fall. Ms. Weitz declares that no one from Huntleigh or Alaska spoke with her after Spies dropped her off at the gate. However, Alaska's boarding agent for the flight, Judy Stanten, testified that she spoke with Ms. Weitz and the other disabled passenger just moments before Ms. Weitz's fall. The passenger Ms. Weitz moved to sit beside, Patricia Lowe, was deposed, but neither mentioned conversation with the boarding agent nor denied that such a conversation occurred. Nor did she comment whether Ms. Weitz mentioned a concern that they would miss their flight. This disparity in the accounts of the events does not alter our analysis. For purposes of review, however, we accept Ms. Weitz's account and draw all inferences in her favor.
Emergency medics responded immediately. Ms. Weitz required surgery, convalescent care, and physical therapy to recover from injuries caused by her fall.
Ms. Weitz sued Alaska Airlines and Huntleigh for negligence and violation of the Washington Law Against Discrimination. She settled with Alaska. The trial court dismissed her claims against Huntleigh on summary judgment.
The usual standard of review on summary judgment applies here. Appellate courts review of a grant of summary judgment de novo, engaging in the same inquiry as the trial court and viewing the facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Fell v. Spokane Transit Auth., 128 Wn.2d 618, 625, 911 P.2d 1319 (1996). Summary judgment is appropriate where `there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.' CR 56(c).
DISCUSSION
Negligence. The four elements to establish of a negligence claim are duty, beach, causation and damages. Degel v. Majestic Mobile Manor, 129 Wn.2d 43, 48, 914 P.2d 728 (1996). The existence and scope of a duty are questions of law. Id.; Coulson v. Huntsman Packaging Prod. Inc., 121 Wn. App. 941, 943, 92 P.3d 278 (2004), review denied, 153 Wn.2d 1019 (2005). Ms. Weitz contends Huntleigh had a duty to convey her safely to the door of the airplane, which was breached by the following acts or omissions of Spies: (1) forcing her to move from the wheelchair to a stationary seat at the boarding gate area; (2) failure to seat her in the chair closest to the jet way; (3) failure to personally notify a gate agent in the area of her presence; and (4) failure to return to the gate area to check on her during her 90-minute wait.
Ms. Weitz relies upon her own experience on other occasions, when she waited to board planes in transport wheelchairs. She also points to Huntleigh's admission that passengers are sometimes allowed to stay in wheelchairs at the boarding area. But transport arrangements in this and other airports are various, changeable, and, for purposes here, irrelevant. Both Huntleigh's general manager, Theresa Moffat, and the Alaska Airlines representative testified it is standard procedure at Sea-Tac to seat passengers in stationary chairs while they wait for their flights, because the demand for wheelchair transportation in the terminal dramatically exceeds the number of wheelchairs available. Both also testified that Huntleigh employees do not board passengers onto planes or take passengers down the jet way. Alaska's own employees perform that service.
Ms. Weitz next cites the contract between Huntleigh and Alaska. She is not a party to the contract, and does not herself have an enforceable interest in the contract, so it is useful only to the extent it provides evidence of the standard of care as shown by the parties' practice. See Walker v. King County Metro, 126 Wn. App. 904, 909-10, 109 P.3d 836 (2005) (transit company policy rulebook proffered as evidence of the standard of care owed to bus passengers); see also Sheridan v. Aetna Casualty Surety Co., 3 Wn.2d 423, 439, 100 P.2d 1024 (1940) (duty to prevent injuries from elevator arises from common law, not from insurance contract obligating company to inspect and maintain elevator.)
The written contract requires the wheelchair assistant to stay with the passenger until the passenger is "down the jet way or on the aircraft." Clerk's Papers at 140. But in practice, this is not what happens, as both Moffat and the Alaska Airlines representative testified.
The contract also requires the wheelchair assistant to advise gate agents of their presence. Moffat testified that if a gate agent is not present, the skycap might leave the passenger and return to check on them, or notify a gate agent for a different flight. The Alaska Airlines witness stated that if a gate agent is unavailable, the skycap may leave the passenger at the gate in the seat closest to the jet way. Ms. Weitz focuses on the fact that none of these procedures appear to have been precisely followed here. But the undisputed evidence demonstrates that more than one procedure was an acceptable practice, and that the written contract does not accurately reflect the parties' current agreement. The contract therefore does not define their duties, and is of little assistance as evidence of the standard of care.
Further, the only ways the skycap departed from the practices recited in this testimony were in not notifying a gate agent, there being as yet none on duty, and not placing Ms. Weitz in the chair closest to the jet way. But the evidence establishes the gate agent knew of Ms. Weitz's presence, and Ms. Weitz did not remain in the chair she originally took.
The gate agent's manifest showed three passengers needing wheelchair assistance to board. The agent testified she spoke to Ms. Weitz and the woman sitting next to her to inquire whether they needed wheelchair assistance for boarding the plane. Ms. Weitz testified no one spoke to her. However, the evidence is undisputed that the gate agent was aware of Ms. Weitz's presence and her need for assistance in boarding.
Duty of a Common Carrier. For purposes of summary judgment, Huntleigh conceded its status as a common carrier, which means it owes its passengers "the highest degree of care," greater than the duty to exercise ordinary care in operating its vehicles which it owes to the general public. Sweek v. Metropolitan Seattle, 45
Wn. App. 479, 482, 726 P.2d 37 (1986); Walker, 126 Wn. App. at 907-08. This heightened duty of care "includes acting with the care that is `commensurate with [the] passenger's age, size, and physical condition'" of which the carrier has knowledge. Id. at 910 (quoting Brown v. Crescent Stores, Inc., 54 Wn. App. 861, 868, 776 P.2d 705 (1989)) (citing Rice v. Puget Sound Traction, Light Power Co., 80 Wash. 47, 49-50, 141 P. 191 (1914) (streetcar operator's duty expanded to require waiting to see passenger using crutches was safely seated before driving away from curb)).
Thus, where a passenger has a "distinctive physical condition that should have made the [operator] perceive a risk that would require treating her with greater care than other passengers," that condition gives rise to a duty to protect the passenger against the particular threatened risk. Id. at 911. The carrier must have actual knowledge of the passenger's incapacity to care for herself. "`The doctrine of imputed or implied notice has no application to such a case.'" Torres v. Salty Sea Days, Inc., 36 Wn. App. 668, 674, 676 P.2d 512 (1984) (quoting Welsh v. Spokane I.E.R.R., 91 Wash. 260, 267, 157 P. 679 (1916)); see also Sullivan v. Seattle Electric Co., 51 Wash. 71, 78-79, 97 P. 1109 (1908) (common carrier's duty is to render special assistance if passenger's special need is actually known, but not to anticipate passenger's special needs or wants).
The question is whether Ms. Weitz remained Huntleigh's passenger, entitled to a heightened degree of care, at the time of her injury. This is a question of law. Sweek, 45 Wn. App. at 483. We conclude she did not. "`In the absence of any unusual inherent danger, defect or obstruction in the place of alighting, [the carrier/passenger] relation ceases upon the alighting passenger gaining a secure and maintainable footing upon the street.'" Torres, 36 Wn. App. at 674 (quoting Welsh, 91 Wash. at 262)) (alteration in original). Absent actual knowledge that the passenger is incapable of taking care of herself, the individual ceases to be a passenger when she departs the carrier's vehicle. Welsh, 91 Wash. at 266. For example, in Torres v. Salty Sea Days, 36 Wn. App. 668, 674, 676 P.2d 512 (1984), this court held a ferry system's duty to a ferry passenger ended at the dock where the dock was safe and the ferry system had no notice that the passenger was intoxicated or that she planned to drive home, thereby creating a great risk of injury. Similarly, in Shelley v. United Air Lines, 84 Wn. App. 129, 133-34, 925 P.2d 991 (1996), we held that a woman who disembarked from an airplane and arrived safely in the terminal was no longer the airline's passenger when she decided to walk through the terminal rather than wait for a wheelchair to become available. In essence, the question is whether notice that a passenger needs transport through the terminal and assistance in boarding the plane constitutes notice that the passenger is at great risk of injury unless she has a wheelchair while waiting to board. Without further indication of incapacity, the answer is no. It is surely easier for the passenger to remain in the wheelchair all the way to the aircraft door. But as is evident from current practice, most passengers who are transported by wheelchair through the terminal wait for boarding in stationary chairs. Expressing a desire to remain in the chair is not the same as giving notice that any other procedure will result in injury. And here, there was no evidence that Ms. Weitz could not navigate on her own for short distances. In fact, she wanted to stay in the wheelchair as a form of notice to the gate agents, not to avoid injury while waiting. Even viewing these facts most favorably to Ms. Weitz, Huntleigh was not on notice that she was at great risk of injury in the boarding area without a wheelchair. When she alighted safely from Huntleigh's wheelchair and was in no immediate danger, she was no longer Huntleigh's passenger.
There are no material questions of fact as to the negligence claim against Huntleigh.
Disability Discrimination. Ms. Weitz also contends that Huntleigh discriminated against her on the basis of disability, in violation of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. The WLAD bans discrimination on the basis of "any sensory, mental, or physical disability," and provides that freedom from discrimination includes "the right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement." RCW 49.60.030(1)(b). The statute further provides:
It shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, . . . or the refusing or withholding from any person the admission, patronage, . . . presence, . . . staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, . . . regardless of . . . the presence of any sensory, mental, or physical disability.
To make a prima facie case of discrimination in public accommodations on the basis of disability, a plaintiff must show that (1) the plaintiff has a disability recognized under the statute, (2) the defendant's business or establishment is a place of public accommodation, (3) the plaintiff received treatment not comparable to the level of services provided to individuals without disabilities, and (4) the disability was a substantial factor causing the discrimination. Fell v. Spokane Transit Authority, 128 Wn.2d 618, 637, 911 P. 2d 1319 (1996).
Ms. Weitz cannot make out a prima facie claim on either the second or third factors.
A place of public accommodation is defined as: "Any place of public resort, accommodation, assemblage, or amusement" includes, but is not limited to, any place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities, whether conducted for the entertainment, housing, or lodging of transient guests, or for the benefit, use, or accommodation of those seeking health, recreation, or rest, or for the burial or other disposition of human remains, or for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services, or for public conveyance or transportation on land, water, or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls, public elevators, and public washrooms of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, or any public library or educational institution, or schools of special instruction, or nursery schools, or day care centers or children's camps.
RCW 49.60.040(10) (emphasis added).
In Fell v. Spokane Transit Authority, 128 Wn.2d 618, 638-39, 911 P. 2d 1319 (1996), the Washington Supreme Court held that this definition is limited to "places and facilities," and "is not a mandate to provide services." The Fell plaintiffs claimed they were discriminated against when the public transit system shrank the area in which paratransit services were provided. The Washington Supreme Court remanded for a factual determination of what constituted the defendant transit authority's "place" of public accommodation, but held specifically that "a service like paratransit service is not a place or facility." Id. at 638.
Ms. Weitz argues Huntleigh's wheelchair is a place of public accommodation. But pieces of equipment are not places of public accommodation. Though the wheelchairs are "used for conveyance or transportation" through a "terminal," they are neither a place nor a facility, but instead are a service available upon request. They are the equipment used for specialized and individualized transportation, akin to the paratransit bus services discussed in Fell.
An airplane or an airport is a place of public accommodation within the statutory definition, but neither Alaska Airlines nor the Port of Seattle is a defendant here. To the extent Ms. Weitz contends she was denied equal access to the jet way, her complaint was resolved in her settlement with the airline. Further, because her claim arises out of a service provided to accommodate her limited mobility, she has not shown that she was treated less favorably than persons without her disability.
A claim for physical injury suffered by a customer with a disability is a tort claim, not a claim under the WLAD, and is appropriately addressed by a negligence action. WAC 162-26-110(6) ("Law other than the law against discrimination governs liability for injury to customers with a disability. The law against discrimination affects tort liability only insofar as it includes persons with a disability within the public for which public accommodations must be made safe.").
There is no cause of action for discrimination on these facts. Summary judgment was proper.
CONCLUSION
These are distressing facts. But the claim against the wheelchair provider is without foundation, and we affirm its dismissal.
DWYER and COLEMAN, JJ., Concur.