Afoa v. Port of Seattle, 421 P. 3d 903 (Wash. 2018)

Baggage handler, who was severely injured while driving luggage vehicle for cargo company at airport, brought action against airport owner, alleging that it failed to maintain safe premises and violated common law and statutory duties to maintain safe workplace. The theory as to the Port was that it retained sufficient control over the work to have duty to provide claimant a safe place to work. The Port argued that several airlines that were not parties to the lawsuit were at fault. A jury found claimant suffered $40 million in damages and apportioned fault between, the Port, and the airlines. The airlines were non-parties having been previously dismissed by summary judgment but otherwise listed on the jury verdict for apportionment purposes.

The primary issue on appeal was whether the Port was liable for both its portion and the airlines’ portion of the judgment or just its own proportionate share. It was noted that under state law, tortfeasors are usually liable only for their proportionate share of the damages they cause. It was argued in response, however, that the Port owed a “non-delegable” duty and that the airlines were the Port’s “agents.” The Port did not contest that it owed a non-delegable duty but that the non-party airlines did also.

The Court held there was no error by the trial court in allowing the jury to allocate fault to the non-party airlines. Under Washington law, the trial court has discretion to allow a jury to allocate fault to the empty chair parties (i.e. non-party airlines). As to whether any exception applied to Washington’s rule that liability is proportionate, the Court found that the Port’s non-delegable duty did not give rise to joint and several liability with the non-party airlines. It disagreed that the Port’s non-delegable duty to provide a safe work-place made it vicariously liable for the fault of the airlines. It stated that the liability for breach of a non-delegable duty does not alter or undermine the fault allocation required under state law as lawmakers did not intend to minimize the responsibility of the nonparty airlines that had a concurrent non-delegable duty. “Simply because the Port cannot delegate its responsibility does not mean it must adopt the responsibility of another.”

The Court also rejected the contention that there was error in the apportionment due to the Port having “agency” control over the airlines. While the Port could be vicariously liable for the non-party airlines because of their concurrent non-delegable duties if the Port retained control over the airlines justifying vicarious liability and non-proportionate liability, it was held that the claimant had not asked to find that the Port retained control over the airlines or make any agency arguments until after the verdict. As such, the argument had been waived. 


Kyowa Seni Co., Ltd v. ANA Aircraft Technics, Co. Ltd., 60 Misc. 3d 898 (New York July 5, 2018)

Japanese aircraft seat cover manufacturer brought action against Japanese airline and subsidiaries seeking to recover damages for fraud. Defendants moved to dismiss and for sanctions. Court found no jurisdiction and awarded airline attorney’s fees.

In rejecting the existence of any general jurisdiction, the Court stated the general rule that Courts may exercise general jurisdiction over a foreign corporate defendant either in the forum where the corporation is incorporated or has its principal place of business, or in an “exceptional case,” where the corporation’s ties with the forum are so constant and pervasive “as to render [it] essentially at home in the forum State.” It otherwise noted that there is no basis for general jurisdiction where a defendant “is not incorporated in New York and does not have its principal place of business in New York.”

It was argued that general jurisdiction existed because the defendants were both entities registered in New York and had expressly appointed the Secretary of State as their agent for service of process. The Court found, however, that this “consent by registration” theory of general jurisdiction was not the law in New York. The defendants were incorporated and headquartered in Japan and while they derived some revenue from their New York flight operations, it was “plainly insufficient” for general jurisdiction as they were not “essentially at home” in New York. The Court also found that the defendants’ registration in New York was an insufficient grounds for general jurisdiction.

The Court likewise rejected any specific jurisdiction under New York’s law arm statute. The claimant argued that long arm jurisdiction existed because the defendant and its successor had continuously transacted business and conducted their airline operations in New York and contracted for services including for maintenance, and hired employees, and contracted to fly passengers to and from New York, and purchased goods and supplies in New York since on or about January 11, 1988.” It was also argued that long arm jurisdiction existed under New York law “because between 1998 and sometime after March 2013, on a daily basis, [defendants] had been flying passengers to and from New York on airplanes with seat covers that [defendants] fraudulently caused to be labeled with “TSO C127a” mark intending to evidence that the seat covers were manufactured in compliance with the FAA safety standards to defraud the United States authorities and the public.”

The Court found that there was no long arm jurisdiction as “[i]t is not enough that a non-domiciliary defendant transact business in New York to confer long-arm jurisdiction.”  Absent an “articulable nexus” or “substantial relationship” with the defendant’s transaction of business, there can be no jurisdiction. The underlying transaction involved Japanese parties who negotiated and signed an MOU in Japan with the performance pursuant to the MOU to take place in Japan as well. Thus, although the complaint stated that the defendants’ passenger plane “destinations in the United States include inter alia John F. Kennedy International Airport, located within the City of New York and the State of New York,” it failed to state a specific “articulable nexus” between New York and the claims arising out of the MOU’s termination and the alleged misrepresentations/fraud regarding the TSO C127a labels.

The Court rejected the argument that long arm jurisdiction existed because a tortious act was committed in New York. It found that the complaint failed to allege any tortious act that the defendants committed in New York with the alleged misrepresentations transpiring in Japan, the manufacture of the seat coverings occurring in Japan, and any alleged harm to claimant occurring in Japan.

The Court proceeded to award attorney’s fees to the airlines as sanctions. It found the action to be “meritless and without a good faith basis,” stating that there was “no basis for a New York court to assert jurisdiction over a dispute between Japanese entities, a dispute which has no specific connection to New York or its citizens. Moreover, [claimant] commenced this second litigation in New York even though the dispute was already fully litigated in Japan.”


Meyer v. United Airlines Inc., 2018 WL 3203142 (Ohio App. June 29, 2018)

Ohio appeals court affirmed trial court’s entry of summary judgment for airline in suit by passenger alleging injuries after being struck by luggage from an overhead bin. The Court found that the airline did not breach duty of care to verify carry-on baggage aboard its flight was safely stowed and restrained prior to takeoff.

The Appeals Court noted that federal regulation 14 C.F.R. §121.589 provided the standard of care for purposes of securing carry-on luggage. The duty imposed included the obligation to verify carry-on baggage aboard the flight is safely stowed and restrained prior to takeoff and that such stowing duty includes “so as to prevent movement.”

Claimant asserted that after he and his wife boarded the plane, an unidentified passenger opened the bin above his seat and inserted the incident bag. Claimant testified the bin did not appear to be entirely closed after the passenger loaded the bag, but that he took no action and did not inform the flight attendants about the opened bin. Claimant stated he did not take action because he expected the flight attendants to check the bin before takeoff, but that he did not notice any attendants check or close the bin. The evidence at summary judgment included the undisputed fact that the last person to touch the bin before the bag fell was an unidentified passenger. There was also testimony that a flight attendant closed the incident bin and verified it was secure before the unknown passenger reopened it.

Court agreed with airline that there was no dispute or question, based on the evidence, that flight attendant closed the incident bin and verified it was secure before takeoff and before the unidentified passenger placed his or her bag in the bin. It also agreed with airline that verification that bins are secure can be satisfied by a visual inspection, and that there was no evidence in the record to show appellee violated any duty or regulation. The Appeals Court agreed with trial court that claimant offered no “evidence or authority to dispute [flight attendant’s] testimony that the required verification may be completed visually and that a manual verification is not required.”


Spencer v. American Airlines, Inc., 2018 WL 319720 (Miss. App. Ct. App. June 29, 2018)

Missouri Appeals Court affirmed in part and denied in part a summary judgment ruling in favor of airline and defendant passenger in claim by another passenger that her knee was injured when the defendant passenger in front of her forcibly lunged his seat.  Court agreed that airline and its employees did not have a duty to protect the passenger and could not have reasonably anticipated before the flight that defendant passenger sitting in front of claimant passenger would be a danger to her and they could not have anticipated that passenger’s behavior on the plane would have caused claimant’s injury.

The allegations were that prior to boarding and while in the gate area, the claimant (and  her husband) saw the defendant passenger and his companion “loudly talking and exhibiting body language indicating they were having an argument.” There was no profanity or any physical altercation. The behavior was noted to have “alarmed” the claimant and cause another family to change seats. All passengers later boarded with the defendant passenger and his companion sitting in the aisle in front of the claimant.

After the flight reached its cruising altitude and the captain turned off the fasten-seat belt sign, the defendant passenger was alleged to have exhibited body language intended to get his companion’s attention, but the companion ignored him. The defendant passenger then unfastened his seatbelt, stood up, and put one knee on his seat and “got so angry [ ] his partner would not acknowledge him[ ] that he motioned forward, and then lunged back as hard as he could in the seat, which then crunched [claimant’s] knee” and immediately caused claimant to be in pain.

Neither the claimant nor her husband attempted to report the behavior of the defendant passenger and his companion to a flight attendant. Further, while there was a flight attendant somewhere in the gate area when the defendant passenger and his companion were arguing before they boarded a plane, there were no flight attendants in the area when part of defendant passenger’s seat allegedly hit claimant’s knee on the plane because the attendants were elsewhere in the aircraft getting ready to begin snack service.

The evidence was that the seat was manufactured and installed in compliance with designs approved by the FAA, and the seat has a reclining mechanism. At the time of the incident, the seat was fully operable and had no mechanical defects. The passenger seat itself does not move or slide forwards or backwards or move up or down when the reclining mechanism is engaged by the passenger. At the time claimant claimed to have been injured, the defendant passenger was permitted to recline his seat back because the aircraft was not taking off or landing.

The Court noted that under Missouri law there is a “special relationship” between a common carrier and its passenger imposing a “duty to exercise the highest degree of care to safely transport its passengers and protect them while in transit.” The duty is not one of strict liability. “Instead, a common carrier only has a duty ‘to exercise the highest degree of care to protect its passengers from all dangers that are known or by the exercise of the highest degree of care ought to be known[,] … includ[ing] the actions of third parties over whom the carrier has no control[,] when injury reasonably could have been anticipated by the carrier or its employees.’”

Court found that even if heightened duty of carrier applied while passengers were in gate prior to the flight, there was no evidence that the airline was on notice of the reported unruly behavior before boarding with claimant admitting that no report was made to the airline and that there were no airline personnel in the area at the time. The Court also noted that although the behavior of the defendant passenger and his companion caused claimant to feel “alarmed” and another family to move seats in the gate area, the airline could not have reasonably anticipated a prospective passenger such as defendant passenger, who was merely loudly talking and exhibiting body language, would be a danger to claimant or other prospective passengers on the plane.

The Court reversed summary judgment as to the claim against the defendant passenger. It found that the defendant passenger owed a duty of reasonable care to the claimant. Court noted that while there was evidence to support a conclusion that there was not a foreseeable likelihood an airline passenger who reclines a seat back in a relatively careful manner would cause harm or injury to a passenger sitting behind him, the evidence permitted a possible conclusion that the defendant reclined his seat in a forceful manner.


Eaglemed LLC v. Travelers Ins., 2018 WL 2994339 (Ka. App. Ct. June 15, 2018)

Kansas Appeals Court held that a fee dispute involving an air ambulance service provider was preempted by the Airline Deregulation Act and, as such, the issue of whether a Medicare fee schedule applicable to air ambulance transport services should be applied to non-Medicare patients receiving services from an air ambulance provider was not a question to be answered by a state agency or state courts.

Court found that Eagle-Med was an air carrier as defined by federal law as it was authorized to operate as an “air carrier” by the Federal Aviation Administration. It agreed with a number of other courts that have found Eagle-Med and other air ambulance providers to be air carriers subject to the preemption provision of the ADA.

Court also found that as to air ambulance services, the 2012 fee schedule provided that fees “will be limited to usual and customary charges as per 49 U.S.C., Section 41713(b) of the Federal Aviation Act.” However, 49 U.S.C. § 41713(b) (2012) offers no guidance in determining the “usual and customary” amount to be charged for air ambulance services. A determination of the “usual and customary” amount to be charged for the services provided in the air ambulance industry falls within the type of matters related to the price of air carriers that Congress intended to expressly preempt.


Tarkov v. Frontier Airlines, Inc., 2018 WL 418209 (N.D. Ill. August 31, 2018)

Federal District Court in Illinois entered summary judgment for airline in passenger claim for compensatory damages based on asserted delay in flight from Punta Cana.
Claimants were passengers on round trip flight between Chicago and Punta Cana (Dominican Republic). The original return flight from Punta Cana to Chicago was cancelled due to an outage in the radar system at the Punta Cana Airport, which was not within Frontier’s control. The airline contended that it was impossible to operate the original return flight without a working radar system and that it was required by law to cancel the flight because of the radar outage. Following the cancellation, the airline rebooked claimants on next available flight to Chicago, which was scheduled to leave and did leave Punta Cana the next day as soon as the radar system was operational.

Claimants asserted that as to the original flight they personally observed another airplane departing the Punta Cana airport. They otherwise claimed two separate delays under Article 19 and that they incurred financial losses as a result of the delays, including the cost of a hotel, taxi fares, food, phone charges, unused pre-paid theater tickets, and lost wages.

Court awarded summary judgment to airline as there was no evidence that the original flight from Chicago to Punta Cana was delayed. The evidence showed flight arrived ahead of scheduled arrival time with no other contradictory evidence.

As to the second flight, evidenced established that airline took all reasonable measures to minimize the damages due to the delay. Under Article 19, an air carrier is not liable for damages caused by a delay if the carrier took all measures that could reasonably be required to avoid the damage or if it was impossible to take such measures. Court applied rule that an air carrier is entitled to summary judgment on an Article 19 claim if it presents enough evidence such that no reasonable juror could find that it was possible to avoid the damages caused by the delay.

Court restated general principle that an airline need not show that it took every possible precaution, it need only show that “it took all precautions that, in sum, were appropriate to the risk.” Evidence submitted by airline established that delay in return flight was due to radar control issues. The claimants’ rebuttal that they saw another plane depart Punta Cana was not sufficient to create any triable issue. According to the Court, no additional details about the observation were provided including whether the observed plane took off before or after the flight was cancelled or whether the plane seen was a commercial plane and subject to the same air traffic control requirements as their flight. The bare fact that claimants witnessed an unidentified plane take off from the Punta Cana Airport at some unspecified time was not sufficient to dispute—or even to permit a reasonable inference contrary to—airline’s evidence that the airport radar system was not operational at the time the return flight was scheduled to depart.


Zubko v. Aeromexico, 2018 WL 3732688 (N.D. Ill.)(Aug. 6, 2018)

Claimants’ flight from Chicago to Mexico was delayed several hours causing claimants to miss connecting flight. Claimants arrived 24 hours later than scheduled and asserted economic damages related to loss of their pre-planned and pre-paid vacation. Return flight was also delayed causing the loss of one day of work. Claimants also sought redress for discomfort, exhaustion, fatigue, stress and inconvenience.

Court found that there was no dispute that Article 19 of the Montreal Convention applied which permitted recovery for economic damages up to the limits under the Convention. Court agreed with carrier that Article 19 does not permit compensation for non-economic damages.

Court addressed Article 22(6) which provides that “the limits presented in Article 21 and in this Article shall not prevent the Court from awarding, in accordance with its own law, in addition, the whole or part of court costs and of the other expenses of the litigation incurred by the plaintiff, including interest.” It held that the Convention does not create an independent basis for recovery of attorney’s fees which is otherwise controlled by the applicable domestic law. Since the United States follows the American Rule –i.e., that each side bears its own costs absent a statute or contract, no such claim could be made..


Monaghan v. Aeroflot Russian Airlines, 2018 WL 3682482 (E.D. N.Y.)(Aug. 2, 2018)

On a flight between Moscow and New York, passenger/claimant sliced his thumb on something sharp attached to the bottom of his seat. Passenger/claimant was later diagnosed with a severed tendon resulting in permanent injury. Both airline and passenger had experts opining differently as to whether there was anything with the seat that was sharp and could cause claimed injury.

Court held that there were sufficient facts to survive airlines’ motion for summary judgment as to whether there was an “accident” under Article 17 as claimant’s expert opined that injury could have resulted from inadequate cut “zip” tie. Court did not find controlling fact that both experts in their respective inspections of the seat at issue did not find any hanging zip tie ends as plaintiff’s expert found in nearby seat an incompletely cut zip tie sharp enough to cut skin. Court noted it was required to “flexibly” construe the need for “accident” under Article 17. Court also noted that it was a question of fact for trial whether incident arose out of normal arrangement and operation of aircraft seats.


Indemnity Ins. Co. of N.A. v. Agility Logistics Corp., 2018 WL 3084060 (S.D. N.Y.)(June 21, 2018)

Defendant was a shipping company and was asked to transport a jet engine from Florida to Germany. The defendant arranges for the transportation logistics relying on other contractors to perform the transportation. The jet engine was transported in the wrong type of truck on one of the legs of the transport. Upon arriva, the engine was inspected and several defects were discovered but all were unrelated to the transport with there no evidence that the transport on the wrong type of truck caused any damage. At issue was the $180,000 charge and cost of the inspection.

Court held claim was controlled by the Montreal Convention with the issue whether the inspection costs were covered by Article 18. It was found that the event which purportedly caused the harm and inspection was when the engine was loaded on an improper truck at the airport with the Convention applying as it governs a loss while the cargo is in the air or on the ground but within the confines of the airport boundaries.

Court went on to hold that the Montreal Convention did not provide for any inspection costs in the absence of actual harm related to the transfer. The Convention provides for destruction, loss or damage to cargo saying nothing about right to recovery for inspection costs of undamaged cargo. Court stated while such inspection costs would likely be recoverable in a breach of contract case, it is the terms and provisions of the Montreal Convention that control. The express terms of Article 18 requires that there must be damage, destruction or loss of the actual cargo. Court found analogy to Article 17 which precludes recovery for non-bodily injury unless it was caused by underlying bodily injury. Court noted the anomaly that had even “one screw” been found damaged due to transport, the inspection costs would have been recoverable.


Schneberger v. Air Evac EMS Inc., 2018 WL 4183460 (10th Cir. August 31, 2018)

Claimants, on behalf of themselves and a putative class of similarly situated individuals, brought action against air-ambulance operators in Oklahoma, alleging that the defendants charged exorbitant rates for air-ambulance services. It was claimed there was a breach of implied contract as well as unjust enrichment because the parties did not agree on a particular price before services were provided and thus there was an agreement or obligation to transport plaintiffs and their family members for a “reasonable price.” Tenth Circuit affirmed Federal District Court’s finding that all claims were preempted under Airline Deregulation Act (“ADA”), 49 U.S.C. § 41713.

The Tenth Circuit, in affirming preemption under the ADA, agreed that an Oklahoma state-law claim that requires a court to determine a reasonable price for air-ambulance services “self-evidently” affects the price of those services requiring preemption. It also found that claimants did not make a sufficient showing that the narrow Wolens exception to ADA preemption (i.e., “voluntary undertaken” contractual obligations) applied emphasizing that the exception applied to common-law contract doctrines but only insofar as the doctrines serve “to effectuate the intentions of parties or to protect their reasonable expectations,” rather than to protect “community standards of decency, fairness, or reasonableness.”  Claimants’ state claims were premised on concepts of fairness and reasonableness outside the four corners of the applicable contract. As such, the claims were not calculated “to effectuate the intentions of parties or to protect their reasonable expectations.” 


Cintron v. JetBlue Airways Corp., 2018 WL 3912250 (D. Mass. Aug. 15, 2018)

Pro se claimant brought intentional infliction of emotional distress claim against airline claiming she was wrongly removed from airplane prior to departure. Claimant had hearing and vision impairments due a brain tumor and subsequent surgery. She claimed she was removed from the flight after she did not hear the flight attendant’s safety instructions and then touched his back to get his attention. It was claimed that, without listening to her explanation, the flight attendant complained to the captain, and she was removed from the aircraft. Claimant was rebooked on another flight of the airline at no extra cost the next day. Claimant otherwise claims she was humiliated and suffered emotional distress.
District Court allowed motion to dismiss based a failure to state a claim.

Court held that since the incident took place during the explanation of safety requirements for passengers seated in an exit row, prior to leaving the gate and her removal, and was directly related to a flight attendant’s attempt to explain those requirements, it arose out of a “boarding procedure,” which falls under the broad definition of “service” under the ADA and as proclaimed by the First Circuit. Court stated further that although the claim for intentional infliction of emotional distress is similar to a personal-injury claim, which generally would not be preempted, the alleged distress arose from the determination of the flight attendant, and then of the captain, that she was a safety risk.

Court otherwise relied upon 49 U.S.C. §44902(b) which permits airlines to refuse boarding to a passenger when it determines passenger is “inimical to safety.” According to the Court, to allow a state-law claim based on the flight attendant’s behavior to go forward under the circumstances would create the type of situation that Congress was attempting to prevent by deregulating airlines—a patchwork of additional state restrictions on boarding decisions that are governed by federal law.

The Court went on to hold that even if the claim was not preempted, the airline would be immunized from liability under 49 U.S.C. §44902(b) which provides that: “Subject to regulations of the Under Secretary, an air carrier, interstate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”  It was  noted that while “inimical to safety” is not defined by the statute, courts have otherwise and generally granted broad discretion to the airline when making the determination of what behavior meets the standard. The authorization extends to situations in which a passenger or property “might be” inimical to safety, and the airline is not required to make a complete or accurate factual investigation before making a decision.

Court stated that the statute provides an affirmative privilege to an airline and protects even mistaken decisions as long as they are not arbitrary or capricious. It went on to reject contention by claimant that there was no safety concern. The Court noted that it was undisputed that claimant tapped the flight attendant on the back, and that the captain told her that the reason he decided to remove her was that the flight attendant had not liked that. Accordingly, the Court held that even viewing the facts in the light most favor to claimant she could not establish that the airline’s decision to remove her was arbitrary and capricious. The Court stated: “Even though the flight attendant’s conduct may have been callous and unprofessional, and even though he may have exaggerated or misrepresented facts to the captain, the captain was allowed under the statute to take the flight attendant’s words at face value. Although perhaps some basic decency and patience might have cleared up the misunderstanding, the extreme deference given to the captain by law effectively ties the Court’s hands. In short, the Court cannot conclude that the captain’s decision to remove her, even if it was unwise or unfair, was so arbitrary or capricious as to subject the airline to liability.”


Grimwood v. American Airlines, Inc., 2018 WL 3913173 (E.D. Mich. Aug. 16, 2018)

Passenger brought negligence claim against airline after she broke fibula following a fall on a jet-bridge as to a flight between Chicago and Kalamazoo. Claimant asserted that the jet-bridge’s floor had a protruding strip of metal small enough to escape her detection but big enough to snag her flip-flop and send her falling to the ground. Court entered summary judgment for airline.

As to claimant’s argument that Illinois not Michigan law applied, Court held Michigan law applied. As to the choice of law issue, claimant argued that although she filed suit in Michigan, Illinois law applied because the incident happened on a jet-bridge owned by the City of Chicago and thus Illinois had an interest in seeing its jet-bridges properly maintained. The Court noted that in a diversity action, the Court applies Michigan’s choice-of-law rules which required that the Court “apply Michigan law unless a ‘rational reason’ to do otherwise exists.”  The “rational reason” framework requires a two-part analysis: first determine whether another state has an interest in having its law applied and then, if so, whether Michigan’s interests nonetheless “mandate” the application of Michigan law.

Court determined that Chicago neither owned nor operated the jet-bridge but that Illinois would at least have some interest in regulating private property, like jet-bridges, to ensure public safety. Nonetheless, the interests of Michigan required that Michigan law apply. Claimant was a Michigan resident and Michigan’s “choice of law provisions favor allowing Michigan residents to bring suit in Michigan courts under Michigan law.” Further, while claimant fell in Illinois the bulk of her medical care—including multiple surgeries and months of physical therapy—occurred in Michigan. Michigan’s interest thus justified application of Michigan law over Illinois.

Court proceeded to find that airline did not have either actual or constructive notice of the asserted half-inch to an inch gap in the jet-bridge floor. Court rejected contention that there was factual issue as to constructive notice based on argument that it was for the jury as to whether a reasonable inspection of the metal plates in the jet-way should or would have discovered the condition. Court noted that, unlike Illinois law, Michigan “has never required a defendant to present evidence of a routine or reasonable inspection … to prove a premises owner’s lack of constructive notice of a dangerous condition on its property.” Rather, constructive notice will be found [only] where the unsafe condition “is of such a character or has existed a sufficient length of time that [the proprietor] should have had knowledge of it.”

Court concluded that that there was no evidence as to either actual or constructive notice. There was no evidence that the gap was “of such a character” that airline should have known about it. According to the claimant, the gap was “unobtrusive,” was something you “could not visibly see,” and was no more than one-inch wide. There was likewise no evidence showing or revealing when the gap arose or how long it existed. As such, there was no evidence to show the gap in the floor was of such a character or lasted long enough that the airline should have known about it.