United States: State Law Negligence Claim Against Delta For Denied Boarding Preempted By Federal Regulation

Plaintiff Judith Pipino, a ticketed passenger on a Delta Airlines, Inc. ("Delta") flight from Vermont to Florida via New York's LaGuardia Airport, was denied boarding at LaGuardia by Delta employees because she appeared to be intoxicated. Although Pipino denied being intoxicated, she admitted that it was possible that she smelled of alcohol after having three drinks (over a period of about five hours), and that a chipped tooth (which affected her speech) and a foot injury made her "appear inebriated." While eventually being escorted from the terminal, Pipino told a Delta employee that she was having a panic attack and requested medical assistance. The employee radioed in that Pipino was having a panic attack, requested medical assistance, and the Port Authority was notified. Pipino either declined or did not respond to a Port Authority's offer of medical assistance, and she received none.

Pipino brought a state-law negligence claim against Delta, asserting that the carrier was negligent in not allowing her to board because it failed to discern that she was not actually inebriated, and in failing to obtain medical assistance. Although Pipino alleged that she suffered panic attacks as a result of being denied boarding, she admitted that she did not suffer a physical injury at the airport at the time of the incident.

Delta moved for summary judgment, arguing that the standard for Pipino's state law "refusal to board" negligence claim was preempted by a federal safety regulation, promulgated under the Federal Aviation Act of 1958, which provides that "No certificate holder [such as Delta] may allow any person to board any of its aircraft if that person appears to be intoxicated." See 14 C.F.R. § 121.575. The district court held that "[t]he regulation thus preempts any state law that conflicts with an airline's authority to determine that a person is intoxicated based solely on that person's appearance." In so doing, the court applied a conflict preemption analysis and rejected Pipino's arguments that Delta had a duty to further investigate whether Pipino actually was inebriated. As Pipino appeared inebriated (a fact that she conceded), the court held that "federal law required Delta not to allow Pipino to board the plane and any state law to the contrary is preempted under principles of conflict preemption."

Having ruled that the federal regulation preempts any contrary state law, the court next addressed how that regulation should be interpreted in the context of Pipino's liability claim. In that regard, Pipino argued that Delta could be held liable if its determination was arbitrary or capricious. Since, however, Pipino conceded that she may have appeared inebriated, the court held, as a matter of law, that Delta's actions could not be considered arbitrary or capricious.

The court also held that Pipino's other negligence claims (including her claim that Delta failed to obtain medical assistance for her) in which she sought emotional distress damages were barred by Florida's "impact rule." Florida's impact rule bars claims for emotional distress or mental damages caused by a defendant's negligence unless: "(1) the plaintiff sustained a physical impact from an external source, (2) the claim arises from a situation in which the 'impact' requirement is relaxed and the plaintiff manifests a significant discernible physical injury or illness as a result of the emotional trauma, or (3) one of the narrow exceptions to the impact rule applies rendering the rule inapplicable."

With respect to the first exception, the court determined that, although the physical impact or touching need not cause physical injury and may be "slight", Pipino did not present evidence that Delta employees actually touched her when they moved her from the gate area and from seat to seat after denying her boarding. The court did not accept plaintiff's argument that, even if she was not touched by the Delta employees, she suffered an "internal physical impact" based upon her panic attack that satisfied the exception.

With respect to the second exception, the court determined that it was unlikely that plaintiff's claim involved a situation in which the impact rule is relaxed. In Champion v. Gray, 478 So. 2d 18 (Fla. 1985), the Florida Supreme Court modified the impact rule in that it does not require a physical impact if the plaintiff suffered "death or significant discernible physical injury, when caused by psychological trauma resulting from a negligent injury imposed upon a close family member within the sensory perception of the physically injured person." The court found it "is unlikely that Pipino's claim arises from a situation in which the requirement of an impact is relaxed. It does not appear that Champion's modification of the impact rule extends beyond the bystander situation, where the plaintiff witnesses or otherwise is within the sensory perception of a direct injury to a third party." In any event, the court held that Pipino still would not be able to take advantage of this modification of the impact rule because the panic attack suffered by Pipino was not the requisite physical injury.

The court also determined that Pipino's claim did not fall into any of the other narrow exceptions to the impact rule under Florida law. Accordingly, Delta's summary judgment motion was granted. Pipino v. Delta Air Lines, 2016 WL 3878468 (D.C. Fla. July 18, 2016).

State Law Negligence Claim against Delta for Denied Boarding Preempted by Federal Regulation

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions