Ninth Circuit: Traveler Can Sue for Damages for Inadequate Airline Treatment

In a recent federal appellate court ruling, the court upheld the dismissal of a passenger’s Americans with Disabilities Act claim against United Airlines but permitted the passenger’s state tort law claim to proceed against an air carrier for alleged violations of the Air Carrier Access Act. In this case, a passenger alleged that United treated her hostilely and did not provide her with adequate wheel chair assistance as she traveled through several airports.

In Gilstrap v. United Air Lines (No. 11-55271; March 12, 2013), the U.S. Ninth Circuit Court of Appeals determined that the Air Carrier Access Act preempts state standards of care for the assistance air carriers must provide to passengers with disabilities in moving through the airport; does not preempt any state remediesthat may be available when air carriers violate those standards; and does not preempt state-law personal-injury claims involving howair-carrier agents interact with passengers with disabilities who request assistance in moving through airport terminals.

In Gilstrap, the passenger alleged that United’s treatment was not as required by DOT regulation, and that, as a result, she suffered physical and emotional injuries. The passenger sued United and alleged several causes of action under state tort law and a violation of Title III of the ADA.

The court held, first, that the ACAA and its implementing regulations pre-empt state standards of care with respect to the circumstances under which air carriers must provide assistance to passengers with disabilities in moving through an airport terminal but do not preempt any state remedies that may be available when air carriers violate those standards.  Second, the court held that the ACAA and its implementing regulations do not pre-empt state-law personal-injury claims involving how air-carrier agents interact with passengers with disabilities who request assistance in moving through an airport.  Third, the court held that the portion of an airport terminal controlled by an air carrier is not a place of public accommodation under Title III of the ADA.  Fourth, the Court declined to address the question of whether the ACAA may be enforced through private lawsuits.

As background, the ADA includes three main sections:  Title I, which concerns employment discrimination (42 U.S.C. §12111 et seq.); Title II, which governs access to public-entity services (§12131 et seq.); and Title III, which governs access to privately-operated public accommodations and services, such as restaurants and retail stores (§12181 et seq.).  Because Title III expressly excludes aircraft from coverage, the Court noted that the Department of Justice, which implements the ADA, interprets Title III as not covering any portion of an airport that is under the control of an air carrier and specifies that such areas are covered by the ACAA, not the ADA, and thus under the regulatory jurisdiction of the Department of Transportation. (See 28 C.F.R. Part 36 App. C).

The DOT implementing regulation for the ACAA (14 C.F.R. Part 382) requires air carriers to provide assistance in transporting a passenger with a disability from the terminal entrance through the airport to the aircraft and from the aircraft through the airport to the terminal entrance, including providing assistance in areas such as ticket counters and baggage claim. (§382.91(a)-(b)).  The DOT regulation provides that air carriers are “deemed to comply” with their ACAA obligations to make airport terminals accessible if the facilities meet requirements applying to places of public accommodation under DOJ regulations implementing Title III of the ADA. (14 C.F.R. §382.51(a)(1)).   Concomitantly, privately operated places of public accommodation (such as restaurants, shops, lounges, or conference centers) located within airport terminals, but not under the control of air carriers, are covered by Title III of the ADA.

The court, in evaluating federal preemption under the ACAA, established a two-part framework.  The first question is whether the particular area affected by the lawsuit is governed by pervasive federal regulations.  If so, then any applicable state standards of care are preempted.  However, this scope-of-field preemption extends only to the standard of care.  Local law could still govern the other negligence elements (breach, causation, and damages) as well as the choice and availability of remedies.

In this case, the plaintiff’s negligence and breach-of-duty claims challenged United’s failure to provide her with assistance in traversing the terminal before, between, and after flights.  The court held that the ACAA and its implementing regulations establish the standard of care, or duty, that air carriers owe and the assistance air carriers must provide to passengers with disabilities in moving through the airport and so preempt any different or higher standard of care that may exist under state tort law.  However, the court held that the ACAA does not preempt any state remedies that may be available when air carriers violate the ACAA standard of care.  In such a case, a plaintiff may rely upon state tort law to prove the other elements of the claim -- breach, causation, damages, and remedies.  In other words, if an air carrier provides a passenger with all the assistance required under the ACAA and its implementing regulations, then the air carrier has met its standard of care and cannot be held liable under state law for failing to do anything further.  However, if an air carrier falls short of compliance with the ACAA and its implementing regulations, then whether a passenger may recover for any injuries caused by the air carrier’s breach of its standard of care will depend upon the degree to which state tort law recognizes the ACAA standard of care.

In the plaintiff’s state law claim for negligent and intentional infliction of emotional distress, the plaintiff alleged that United agents were repeatedly hostile to her requests for assistance. The court found that this state law claim does not implicate pre-emption because the ACAA regulations say nothing about how air-carrier agents should interact with passengers with disabilities. Therefore, because the ACAA is not implicated, the court concluded plaintiff could proceed with her start law claim of negligent and intentional infliction of emotional distress.

Contact ACI-NA’s James Briggs for more information.