Petteway v. Miami Air International Airport, Inc. 2022 WL 4076577.D. Fla. 2022)

Consolidated action by passengers as to a flight in May 2019 from the Naval Station at Guantanamo Bay Cuba to the Naval Air Station in Jacksonville Florida. When the aircraft attempted to land in Jacksonville it veered off the runway and crashed into rock wall and landing in a nearby river. The claimant passengers asserted bodily jury, pain and suffering and mental anguish. The novel issue presented was whether the Montreal Convention or state law controlled which turned on whether the flight constituted a "domestic flight" or "international carriage" under the Convention given the unique status of Guantanamo Bay.

The Court held that the Convention applied to the flight.

The Court analyzed the issue by stating that Article 1(2)'s definition of "international carriage" focuses on the locations of the places of departure and arrival, requiring that such places be "situated" "within" the territories of the State Parties. Guantanamo Bay is situated within the country of Cuba, a State Party. The United States does not own Guantanamo Bay; rather, it leases the land comprising Guantanamo Bay from Cuba for its "coaling and naval stations." The Court confirmed that the United States' operation of a military base in a foreign country generally does not render that land a territory of the United States and that, as such, under the plain understanding of the word "territory" in the Convention, Guantanamo Bay is not a part of the United States.

Under Article 57(a) of the Convention, a State Party may reserve from the Convention any international air carriage performed directly by the State Party for non-commercial purposes. Pursuant to Article 57(b), a State Party may also reserve any chartered international air carriage leased by that State Party for its military authorities. Accordingly, a State Party can exempt from the Convention international flights performed by the State Party or privately chartered flights for its military. The United States reserved the first exception, but not the second.

The claimant passenger argued that the flight operated as a "common carrier for hire engaged in the transportation of charter airline passengers in both domestic and international air travel," which Miami Air dispatched and thus did not constitute transportation conducted by the United States in its official capacity, and therefore, is not exempt under Article 57 from the Montreal Convention. It was noted that the flight could have potentially qualified as a chartered flight leased by the United States for its military (although more information would be needed for that determination); but it was not material as the United States chose not to exempt such flights from the Convention. Accordingly, it was held that the flight remained within the Convention's ambit under a plain reading of the text as a commercial flight from one United States' military base in Cuba to another in the United States.

While the Court noted the numerous historical facts about Guantanamo Bay that make it unique, it nonetheless held that even under the descriptions of "territory" in the Warsaw Convention and The Hague Protocol, Guantanamo Bay still constituted a territory of Cuba, not the United States. It also found that the holding that the Convention applied to the flight was consistent with the uniformity goals underlying the Convention. To accomplish this uniformity, Article 57 limits the reservations available to State Parties to only two circumstances of international carriage and expressly precludes State Parties from making other exceptions. One of those reservations—for flights commercially chartered by the military—might well have applied to the flight but the United States did not choose that reservation. Further, the Convention's use of the word "territory" without further elaboration (including not incorporating the prior definitions in the Warsaw Convention and The Hague Protocol) indicates the intention to ascribe the simplest meaning possible. Guantanamo Bay is situated within Cuba. The United States holds rights to occupy it as a tenant. Although the history of Guantanamo Bay demonstrates a complex and fraught landlord-tenant relationship, the Lease Agreement between the countries and related case law make clear that Cuba still owns and retains sovereignty over Guantanamo Bay. Accordingly, it was held that under the Convention Guantanamo Bay is a territory of Cuba, which made the flight "international carriage" subject to the Convention.

On the issue of preemption, the Court confirmed that pursuant to Article 29, the Convention was the exclusive mechanism of recovery for personal injuries suffered on board an aircraft or in the course of embarking or disembarking from an airplane. As such, "[f]or all air transportation to which the Montreal Convention applies, if an action for damages falls within one of the treaty's damage provisions, then the treaty provides the sole cause of action under which a claimant may seek redress for [his or her] injuries." Preemption applied and any recovery was limited to the terms of the Convention and not state law.


Furuta v. Hawaiian Airline Inc., 2022 WL 3645764 (D. Hawaii 2022)

Passenger brought action under the Montreal Convention for alleged injuries sustained in flight from Japan to Hawaii alleging that the airline was negligent in its failure to avoid the turbulence that caused the injuries. The facts before the Court on the airline's motion for summary judgment included that the plaintiff passenger was returning to his seat after using the restroom and when the fasten seatbelt sign illuminated; when at his seat he tried to fasten his seatbelt but failed to so; that the turbulence lifted the plaintiff-passenger out of his seat and caused him to hit the ceiling of the plane; five other passengers were "affected" by the turbulence and suffered injuries; and the plane itself suffered damage from the incident.

Airline asserted passenger had no right to recover under Article 17 contending: (1) that turbulence preceded by a warning to the passengers to fasten their seatbelts is not "unusual or unexpected"; (2) that Plaintiff's injuries could only be attributed to his internal reaction — his failure to fasten his seatbelt — rather than any external event; and (3) that even if an accident occurred, it did not cause Plaintiff's injuries.

The Court held it was a matter for a jury/factfinder to determine whether the airline was liable under Article 17.

The Court rejected the contention that "there is nothing objectively unusual or unexpected about turbulence that is preceded by a warning" and that the airline failed to prove as a matter of law that the turbulence that occurred on the flight in question was not unusual or unexpected as a reasonable factfinder could conclude that the turbulence was unusually strong or unexpected. It noted the paucity of case law addressing turbulence and Article 17 but that the consensus was that turbulence was not exempt from the definition of accident under the Convention and that it is usually a question of fact whether the turbulence the flight experienced was unexpected or unusual particularly here given that the passenger-plaintiff was ejected from his seat and then fell to the floor during the turbulence suggesting a degree of turbulence greater than that experienced during most flights; some of the flight attendants onboard characterized the turbulence as "severe" in their incident reports; and the turbulence injured multiple passengers and damaged the aircraft. Accordingly, the Court could not say as a matter of law such an occurrence was within the normal, usual, or expected course of air travel.

The Court likewise rejected the airline's contention that it was entitled to full exoneration under Article 20 because Plaintiff's failure to fasten his seatbelt was negligent and caused his injuries. The question of whether Plaintiff's negligence was the sole or the greater cause of his injuries was deemed to be for the factfinder.

As to the airline's argument that it was entitled to limit its liability under Article 21(2) as there was no evidence of negligence; that FAA preemption applied to the standard of care; and that plaintiff-passenger had failed to identify any specific FAR that the airline violated, the Court disagreed stating that Convention places the burden as to negligence on the airline (i.e. non-negligence) and that plaintiff had an expert and that there was a factual dispute as to whether the airline operated the aircraft in a "careless or reckless manner" which was deemed the applicable standard under the FAR. The Court noted that the plaintiff had proffered through an expert the position that the airline failed to avoid a known area of bad weather; that the pilot chose not to deviate from the flight plan despite "radar returns [that] showed echos [sic] from heavy rain that nearly reached to the flight level," and that "choosing a flight route that passes through squall lines of active thunderstorms whose tops neared the flight level at the time of the accident, was not consistent with best practices."


Klein v. Lufthansa AG, 2022 WL 3586568 (E.D. N.Y. 2022)

Passenger claimants brought action under federal and state law (New York) that the airline prevented them from boarding a flight because they were Jewish.

Passengers-claimants' flight was between New York and Germany with a connection to Hungary for purposes of attending a memorial pilgrimage. Airline had a policy at the time for all passengers to wear masks during flights. Although plaintiffs wore masks the entire first flight, other members of their group, as well as unrelated passengers, did not. Flight attendants on that first flight became frustrated by the lack of compliance with the mask requirement, as well as with some Jewish passengers who were blocking the aisles to pray. It was alleged that as to the connecting flight in Germany, the airline desk agents after calling passengers' names to board, only permitted non-Jewish passengers to board. It was alleged that the gate staff rejected persons with Jewish-sounding names or appearances, including plaintiffs. Plaintiffs were told that this was because of their group's non-compliance with the mask requirement, even though (1) plaintiffs had complied with the mask requirement; and (2) the desk agents permitted non-Jewish passengers who had not complied with the mask requirement to board. Ultimately, plaintiffs and the other Jewish passengers were informed that "the remaining travelers would not be included on the flight and the travelers were banned from the airline for the day."

The Court dismissed the action finding the state and federal claims preempted under the Convention. The Court noted that even where a plaintiff cannot "maintain an action under Article 17 for non-bodily injuries stemming from [] discriminatory bumping," such claims are still "preempted if [they] arose from events that took place during embarkation." It proceeded to reject the passenger-plaintiffs' contention that they were not in the process of embarkation because, among other reasons, they were not actually on the plane itself finding that the four controlling factors, i.e., ("(1) the activity of the passengers at the time of the accident; (2) the restrictions, if any, on their movements; (3) the imminence of actual boarding; (4) the physical proximity of the passengers to the gate)" compelled the conclusion that they were in the process of embarkation triggering the application of the Convention.


Barry v. Royal Air Maroc, 2022 WL 3215050 (S.D.N.Y. 2022)

Passenger-claimant brought state court action seeking damages for lost luggage with the airline seeking an order to limit claim to the 1,288 Special Drawing Rights under Article 22(2) of the Montreal Convention with the Court finding the action untimely.

The flight in questions was between New York and Cairo, Egypt with a stopover in Casablanca with the luggage allegedly lost following the flight from Casablanca to Cairo. Plaintiff did not file his action until after the two-year presentment requirement of Article 35. The Court noted its consideration of New York State's Executive Order 202.8 enacted at the start of the COVID-19 pandemic providing tolling holding that the two-year period set forth in article 35 of the Convention was not subject to tolling and that the Executive Order applied to "any specific time limit for the commencement, filing, or service of any legal action ... prescribed by the legal laws of the state" (emphasis added), and thus did not apply to actions governed by the Convention which is an international treaty not state law.


Berlin v. JetBlue Airways Corp., 2022 WL 1423695 (E.D. NY. 2022)

Passenger-claimant asserted various claims (12 counts) against airline claiming he was assaulted by airline staff on a flight between Mexico City and Orlando, Florida. The crux of the assertion was: (a) he was assaulted without provocation and/or (b) the airline personnel used excessive force after passenger-claimant had a purported medical event.

The airline sought the entry of judgment as a matter of law contending that: (1) the passenger-claimant interfered with the crewmembers as a matter of law; (2) no "accident" transpired within the meaning of the Convention; and (3) the airline's compliance with its security program is an absolute defense to liability under the Tokyo Convention and the Aviation and Transportation Security Act.

The Court held that the passenger-claimant failed to meet his burden of showing that his alleged injuries were caused by an article 17 "accident." The Court found that the passenger-claimant had failed to provide sufficient evidence that he was assaulted without provocation to survive a motion for summary judgment as he produced no corroboration whatsoever for his own assertions, despite the fact that the alleged assault occurred on an international flight carrying over 140 passengers and as the passenger-plaintiff's own position had been contradictory. The contradictory assertions were noted to include the position in the complaint that he recalled being assaulted when crew members mistakenly understood him to be invoking the name of a global terrorist organization; his deposition wherein he abandoned that assertion entirely stating he "collapsed" once; and in a later declaration reporting to have blacked out twice, including at the critical moment (in the lead-in to the alleged assault) and which declaration he acknowledges a total lack of recall of the surrounding events. The Court held that given the passenger-claimant position was predicated only on his own testimony, and that his testimony suffered from important gaps, contortions and reversals, he could not overcome summary judgment.

As to the excessive force claim, the Court held that the claim was potentially precluded by the Tokyo Convention which allows crew members on international flights to use "reasonable measures including restraint" when necessary to ensure "the safety of the aircraft, or of persons or property therein," or "to maintain good order and discipline on board." The Tokyo Convention thus authorizes reasonable force. However, it noted that even if the passenger-claimant's conduct warranted the crew members' efforts to restrain him, he nevertheless may have been the subject of an accident and the crew may not have been protected by the Tokyo Convention — if the force applied in response exceeded the bounds of reasonableness. The claim nonetheless was found to fail as a matter of law due to the lack of memory of the claimant and his considerable contradiction.

The Court noted that whether the restraints employed were unreasonable is, by the Tokyo Convention's definition, a function of the conduct in response to which those restraints were imposed. Given that the passenger-claimant failed meaningfully to contest the airline's evidence that he put his hand on the aircraft door handle, yelled various threats associated with terrorists, claimed to have a bomb, and behaved violently enough that it took four people, multiple pairs of handcuffs, and two seatbelt extensions to restrain him, he cannot establish unreasonable force.


Moore v. British Airways, PC, 32 F.4th 110 (1st Cir. 2022)

Passenger-claimant flew from Boston to London with the airline using a mobile staircase to disembark passengers as the normal jet bridge was inoperable. All passengers began to disembark which was calm and orderly; with no jostling or other untoward behavior; with the stairs clean and free from debris or foreign substances and the weather clear. According to plaintiff-passenger's companion, as she proceeded down the mobile staircase, she "was surprised at the last step being a little further than a normal cadence of a staircase" and, thus, "the bottom step didn't arrive when I thought it would." She nonetheless kept her balance and then "turned around to tell [the plaintiff] to watch her step," only to discover that the plaintiff had taken a tumble. In describing her fall, the plaintiff testified that when she reached the last step "it was further down than I was expecting," which "threw] off my balance and both of my ankles turned and I went down."

The First Circuit rejected airline's contention that it was entitled to judgment as matter of law under the Convention for lack of an "accident." The Court noted that the Saks formulation as to an Article 17 "accident" simply does not confine the inquiry to whether the event was unusual; it also requires the court to ask whether the event was unexpected. It likewise noted that the Saks formulation is silent as to whether the unusual and unexpected inquiry is from the airline or passenger perspective. Based on the text of the Convention, case law both foreign and domestic, and the purposes of the Convention, the Court held that the standard was from the perspective of a reasonable passenger with ordinary experience in commercial air travel. It otherwise made clear that an individual passenger's subjective beliefs do not inform the question of whether an event is unexpected and that the appropriate inquiry is an objective one.

The Court proceeded to find that it was for a jury or fact-finder whether the event was unexpected and unusual under the objective standard of a reasonable passenger with ordinary experience in commercial air travel based on the assertion that: (a) there were no airline employees at the bottom of the stairs and no one warned the passengers about the height of the final step; (b) post incident investigation confirmed that the distance from the bottom step to the ground was "noticeably slightly different" than the distance between the steps themselves; (c) plaintiff had a proffered expert who opined that there was "excessive riser height" exposing users to a misstep and did not conform to industry standards; (c) passenger-claimant's companion testified that she was "surprised" because "the bottom step didn't arrive when [she] thought it would" thus permitting a jury take the testimony as a proxy for the ordinary passenger; (d) a jury could find that the passengers were not warned of the bottom step's elevated riser height; and (e) the standards cited by the plaintiff's expert could supply a reasonable jury with grounds for an inference that using such a staircase was unexpected.

The Court further held that while there was contrary evidence which would permit a jury to conclude that there was nothing unusual or unexpected with the use or condition of the mobile staircase where there is a conflict it as for a jury.


Wilson v. Caribbean Airlines, inc., 2022 WL 2716223 (E.D. N.Y. 2022)

Passenger-claimant alleged that airline negligently handled his baggage, allowing more than two kilograms of cocaine to be planted inside it without his knowledge. Airline moved for summary judgment asserting the claims were barred by the Airline Deregulation Act of 1978 ("ADA"). The Court agreed and the claims were found preempted by the ADA.

The Court applied the three-part analysis as to ADA preemption set out in Rombom v. United States Air Lines, Inc., 867 F. Supp. 214 (S.D.N.Y. 1994). Under that analysis, "[t]he threshold inquiry ... is to define whether the activity at issue in the claim is an airline service." Passenger-claimant argued that the relevant activity was "securing passengers' baggage from drug trafficking" and "protecting passengers' luggage from having drugs planted in it." The Court rejected the contention stating that baggage handling is, "without question," an airline service and complained of acts "were part and parcel" of the airline's bargained-for agreement to transport passenger-claimant's luggage. It likewise rejected the argument that the claim only affected the airline service tenuously stating that the claim directly impacted the airline's baggage handling procedures.


Day v. Sky West Airlines, 2022 WL 3581541 (10th Cir. 2022)

Passenger brought action against airline to recover for injuries she allegedly sustained when flight attendant carelessly struck her with beverage cart. Court held that claimant-passenger's negligence and breach of contract claims were not preempted by the ADA.

The Court looked to the definition of "services' under the ADA adopted by the Fifth Circuit which defines "services" to include items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself" as well as the Supreme Court's "connection with or reference to" test in the ADA context which provides that a state law has an impermissible "reference to" airline prices, routes, or services if the law "acts immediately and exclusively" upon airline prices, routes, or services, or if "the existence of" airline prices, routes, or services "is essential to the law's operations." It likewise confirmed a state law that does not "refer to" airline prices, routes, or services under this test may nevertheless be preempted as impermissibly "connected with" them if the law (1) governs a central matter of an airline's prices, routes, or services; (2) interferes with uniform national policies regarding airline prices, routes, or services; or (3) will have acute economic effects that effectively limit airlines' choices regarding their prices, routes, and services. In applying this test, a state law is not preempted if it "has only a 'tenuous, remote, or peripheral' connection with [airline prices, routes, or services], as is the case with many laws of general applicability.

The Court held that the negligence and breach of contract claims pertaining to the beverage cart incident were not preempted under the "reference to" part of the test because the state laws invoked by the passenger-claimant did not refer to airline prices, routes, or services. Rather, Utah's common-law negligence and contract causes of action are laws of general applicability that apply to any individuals or corporations whose actions may foreseeably injure others or who enter into contractual arrangements. It further found that Utah's negligence and contract causes of action were akin to "generally applicable background regulations that are several steps removed from prices, routes, or services, such as prevailing wage laws or safety regulations, [which] are not preempted, even if employers must factor those provisions into their decisions about the prices that they set, the routes that they use, or the services that they provide." It otherwise noted that finding the airline liable for its allegedly negligent infliction of personal injuries during its beverage service would not force the airline to remove, add, or modify any of its prices, routes, or services; it would simply hold the airline to the same general obligations of due care and contractual fealty that apply to other companies.


Taito v. Federal Express Corp., 2022 WL 2392573 (W.D. Tenn. 2022)

Action brought against federal express based on assertion of an implied contract where a customer, without a FedEx account, purchases shipping services at a FedEx ship center or office store. Customers who have FedEx accounts are required to assent to FedEx's terms and conditions, which outline the process for obtaining a refund and contain an agreement not to sue as a class plaintiff. Action was brought after package was not delivered within one day as purchased.

Court held that the claimants had failed to plausibly allege that the delivery date was a term of any implied-in-fact contract between the Parties or that Fed Ex assented to a delivery date as being a term of such a contract. As such, plaintiffs' delay of delivery argument did not plausibly allege breach of the terms of the implied-in-fact contract and is instead an alleged unjust enrichment or breach of other common law consumer protection doctrines that are pre-empted by the ADA. Court noted the general principle that ADA preemption applies to contract claims where it seeks to impose a non-contracted for unconditional obligation.

PASSENGER REMOVAL-49 U.S.C. § 44902(b).

Daulatzai v. State of Maryland, 2022 WL 2078284 (D. Maryland)

Passenger filed state court action against state and airline asserting claims for battery and negligence after she was forcibly removed from plane without her consent.

Court held that the complaint failed to sufficiently or plausibly allege that the pilot's decision to remove passenger was arbitrary and capricious. The Court confirmed the broad discretion under 49 U.S.C. 44902(b) which allows airlines the broad authority to decline to carry passengers where it is thought or believed that the passenger "is, or might be, inimical to safety." While a section 1981 (discrimination) claim can be brought challenging a removal, it must be shown that the decision to refuse to transport the passenger was "arbitrary and capricious." The Court reaffirmed the understanding that: (1) the "r]eview of a decision to refuse transport by the Captain is restricted to what information was actually known by the decisionmaker at the time of the decision"; (2) "The Captain (or other decisionmaker) is entitled to accept at face value the representations made to him by other air carrier employees"; and (3) "[t]he biases of a non-decisionmaker may not be attributed to the decisionmakers."

The Court found the complaint insufficient as the allegations that the airline evinced a concern as to passenger-claimant's allergy including repeatedly engaging her on the topic which then "escalated" to the point where the flight attendants purportedly threatenedd the aircraft's Captain with an unauthorized wildcat strike if he did not order the removal of the plaintiff did not set a plausible capricious and arbitrary claim. The Court noted that the plaintiff failed to explain why it was arbitrary or capricious of the Captain to privilege the views of his entire flight crew over Plaintiff's "maintained" position. As to the claim of racial animus, the Court found that the complaint failed to plausibly allege that racial animus was the but-for cause of the Captain's decision to remove her from the flight as required to state a 1981 claim as there were no allegations supporting any racial animus by the Captain. The Court rejected the assertion that the allegations that the Captain "spoke down to her in an aggressive and abusive tone [,]" and "after takeoff, the Captain demanded that each flight attendant meet with him individually in the cockpit 'to discuss the matter" were insufficient to establish any racial animus motivation by the Captain.


Ebbotuka v. JetBlue Airways Corp., 2022 WL 1518943 (W.D. Tex. 2022)

Action for negligence, breach of contract, and under Texas Deceptive Trade Practices Act brought against airline by niece on behalf of plaintiff-passenger (aunt) as to a flight between Nigeria and Austin, Texas. Allegations included the assertion that during a seven-hour layover at JFK, the aunt was left at her gate for fifteen hours without assistance. The aunt did not speak English, used a wheelchair, and had various medical conditions such as high blood pressure and an eye condition. Airline staff eventually transported the aunt to her gate, and she subsequently arrived in Austin. It was alleged that the aunt was in "a state of catatonic shock, "confused and soiled herself upon arrival. It was otherwise alleged that the aunt suffered "great pain and suffering, starvation, distress, hopelessness, high blood pressure and sever eye-pain and physical weakness and loss of her dignity." The aunt received an apology letter after complaining to the airline.

The breach of contract claims was based on the assertion that there was a valid contract with the airline to provide assistance including a wheelchair and to ensure the aunt made it to her connecting flight. The Court found that the source of the purported contractual obligation to provide assistance, explain flight schedule, ensure timely embarkation on her connecting flight, and protect the aunt's dignity was "unclear." It found that neither the letter to the aunt explaining wheelchair assistance or the aunt's itinerary was a binding, enforceable contract and even if they were the claimant had failed to identify any provision or term that was breached. Similarly, and as to the Texas Deceptive Trade Practices Act, the complaint was found to have failed to meet the heightened pleading standard that applied to such claims. The plaintiff failed to provide sufficient details as to the alleged misrepresentation. The Court entered summary judgment for the airline on both the breach of contract and deceptive trade practices claims.


Chalom v. United Airlines, Inc., 2022 WL 1284720 (D. N.J. 2022)

Claimant who was member of an airlines' mileage program brought various stated based claims after airline terminated the claimant's mileage account and cancelled his accrued miles. The airline did so asserting that the claimant had violated the Contract of Carriage by making multiple reservations for the same day and/or flights and relying on the Rule 2 of the mileage program which allowed the airline to terminate a member's participation in the Program and cancel accrued mileage when it finds "[a]ny abuse of the [MP] Program or failure to follow the ... Contract of Carriage."

After finding a number of the state law claims preempted under the ADA including a claim under a state consumer fraud statute, the court addressed the breach of contract claim finding it failed as a matter of law. It initially held that the breach of contract claim was not preempted under the ADA as it was based on the "parties' [self-imposed] bargain, with no enlargement or enhancement based on state laws or policies external to the agreement." The Court construed the allegations as predicating the breach of contract claim on a disagreement about whether the airline had a basis to terminate the mileage account and cancel the accrued mileage. As the claimant had admitted to reserving seats on concurrent flights for the convenience of later cancelling the reservations for planes he did not prefer, the claimant used his mileage account to make "reservations ... for the same passengers on flights traveling on or about the same date between one or more of the same or nearby origin or destination cities" and "reservations with connections that depart before the arrival on the inbound flight" which was a violation of the Contract of Carriage. The Court further found that no reasonable juror would find that the claimant's conduct was not an "abuse" under Rule 2 of the program which justified terminating his account. As there was no contractual obligation that was breached, the breach of contract claim failed.


Henry v. Southwest Airlines Inc., 2022 WL 3924285 (E.D. Louisiana 2022)

Action arose from an incident at the Louis Armstrong International Airport in which claimant who was disabled and requested wheelchair assistance but was not provided any suffered injuries after falling while attempting to board the plane without a wheelchair.

The Court held that the disability discrimination claim under the American with Disabilities Act which claim asserted disability discrimination in a place of public accommodation failed as a matter of law. The Court noted that Title III of the ADA enumerates twelve categories of "private entities" that are places of "public accommodation" which" includes "a terminal, depot, or other station used for specified public transportation." It likewise noted that the ADA further defines "specified public transportation" as "transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis."

The Court held that these statutory provisions clearly established that airplanes and terminals used for air travel are excluded from coverage under Title III of the ADA. The Court rejected the contention that since the disability discrimination took place at the airport, the claim was viable as airport terminals are included in the exemption under Title III of the ADA.


Ilczszyn vv. Southwest Airlines, Inc., 80 Cal.App.5th 577 Court of Appeal, First District, Division 1, California. (2022)

Spouse and children of airline passenger, who died after he went into cardiac arrest on airplane, brought wrongful death action against airline and flight crew, including pilots and flight attendants, alleging that crew's failure to provide medical assistance caused passenger's death. Trial Court entered judgment on jury's special verdict for the airline finding that the airline's negligence was not substantial factor in causing passenger's death.

Passenger suffered a pulmonary embolism while locked inside an airplane lavatory during the final stages of a domestic flight. The action was premised on the assertion that the flight crew perceived the passenger to be a security threat and as a result did not receive medical care until after the flight landed and all other passengers had disembarked. An issue at trial and on appeal was the immunity provision in the Aviation and Transportation Security Act (ATSA) that immunizes from civil liability air carriers and carrier employees who make voluntary disclosures of suspicious transactions and whether it extends to conduct that arises from security threat disclosures. The airline argued that the immunity (49 U.S.C. 44941) immunized the airline from any liability including for any act or omission after the flight crew decided to treat the passenger's medical emergency as a security threat. The claimants contended that the immunity was inapplicable because the gravamen of the claim was based solely on the flight's crew's negligent failure to identify the medical emergency and provide aid.

The Court held that the immunity under the statute was not limited to disclosures or to defamation or other reputation-based torts. The Court found that the text of the ATSA itself makes clear there is immunity for reporting "any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism" and that the legislators who enacted the ATSA undoubtedly believed that "the safety and security of the civil air transportation system is critical to the security of the United States and its national defense." In noting that under section 44941, airline employees are relieved of the responsibility of confirming whether an actual threat exists in order to "encourage air carriers and their employees, often in fast-moving situations and with little time to fine-tune their diction, to provide the TSA immediately with information about potential threats," the importance of the statutory immunity could not be "overstated" and otherwise extended to the conduct that arises from security threat disclosures.

The Court proceeded to uphold the entry of the post-jury verdict judgment for the airline. As the immunity applies not just to the disclosure of a security threat but also to conduct occurring in conjunction with the disclosure, plaintiff's causation theory (i.e., passenger would have survived had the airplane been met by medical personnel upon arrival instead of law enforcement) failed as a matter of law as "the delay in treatment was inextricably entwined with the flight crew's report of the security threat and the sheriff's deputies' decision to deplane the aircraft."

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.