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

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