Summary
concluding that a flight attendant who "leaned over [a passenger's] seat and said in a low and menacing voice" that the passenger should deplane during a layover and not re-board did not behave in an extreme and outrageous manner
Summary of this case from Swinney v. Frontier Airlines, Inc.Opinion
98 Civ. 7419 (BSJ).
October 5, 2000.
Opinion and Order
This case arises out of a dispute between a passenger and a flight attendant on board a TWA flight from New York to St. Louis by way of Cleveland which resulted in the plaintiff being removed from the airplane. Plaintiff Norman has brought this lawsuit alleging claims of breach of contract against defendant TWA and gross negligence and intentional infliction of emotional distress against TWA and co-defendant flight attendant Leroy Wisdom. TWA and Wisdom move for summary judgment. Plaintiff opposes and cross-moves for partial summary judgment and to strike defendant Wisdom's answer.
Background
Unless otherwise noted, the following facts are either undisputed or as alleged by the plaintiff in her Rule 56.1 statement or deposition testimony. Plaintiff purchased two first class tickets for the June 12, 1998, TWA flight 361 from New York to St. Louis, with a stopover in Cleveland. Plaintiff had missed an earlier, direct flight to St. Louis, and so once she boarded Flight 361, plaintiff attempted to use the onboard telephone at her first-class seat to inform her St. Louis contact of her change in arrival time. The telephone, however, was out-of-order. Plaintiff then asked defendant flight attendant Wisdom to request that the cockpit crew call or radio the plaintiff's St. Louis contact. Wisdom informed the plaintiff that it was not policy to use the Pilot's radio for a passenger's personal communication, but that he would nonetheless pass the plaintiff's request on to the cockpit crew. Wisdom had not yet passed the request on to the cockpit crew when he returned to plaintiff's seat five minutes later. Plaintiff testifies that when she renewed her request to Wisdom, he responded that it was not his fault that she had missed her plane and that he would come back to her seat when she was no longer angry, to which plaintiff responded "don't bother." However, five minutes later Wisdom did return, at which point he leaned over Norman's seat and said in a low and menacing voice that the plaintiff should take a Greyhound bus from Cleveland to St. Louis. Plaintiff then called Wisdom a "stupid fool" or a "silly fool" and told him "you'd better stop before you lose your job." (Norman depo. at 25.)
Norman alleges in her complaint that Wisdom leaned over her in an aggressive and threatening manner" with his "face in menacingly close proximity" to hers. (Cmplt. ¶ 14) In her Rule 56.1 statement she describes this behavior as "physically threatening and verbally abusive." (56.1 Stmt. ¶ 14) However, Norman's deposition testimony does not support these conclusory allegations. Nowhere in her deposition does Norman testify that she was threatened or intimidated by Wisdom's conduct. Rather, her testimony indicates that she was insulted by Wisdom's conduct rather than threatened. See Norman Depo. at 28 "I considered it an insult" at 39 "you're suggesting that I found his behavior offensive. The word offensive does not appear in my statement and does not appear in anything that I had mentioned today" and at 43 "I thought that he was being insulting."
When Flight 361 landed in Cleveland, the plaintiff exited the plane to make her phone call. Wisdom then went to the Captain of the New York to Cleveland leg of the flight and complained "that we have a passenger in the back in first class that's providing derogatory words towards me and in an unruly behavior" (Wisdom depo. at 125) and according to Wisdom the Captain agreed not to allow the plaintiff to continue on the second leg of the flight. However, the cockpit crews changed in Cleveland, and a new captain came aboard. Norman reentered the plane and took her seat for the second leg.
Wisdom, realizing that Norman was back aboard Flight 361, refused to work the second leg of the flight, telling the new Captain, Joseph Thornhill, that "Miss Norman is hampering my flight attendant safety-related duties aboard the aircraft and I could not continue on this flight." Id. at 151. Because of FAA regulations, Flight 361 could not depart without Wisdom or a substitute flight attendant, and there were no other flight attendants available. Captain Thornhill, understandably eager to depart on time and aware of deteriorating weather conditions, attempted to broker a solution with the help of several other TWA employees. Eventually, Norman was asked to leave her seat and meet with Wisdom on the jetway. Norman, at the request of a TWA employee, apologized to Wisdom. Norman testified that Wisdom refused to accept her apology because he deemed it insincere. Thereafter, the Captain decided that due to deteriorating weather conditions at the Cleveland airport, he did not have time for further investigation, and exercised his discretion to refuse passage to the plaintiff both because her conflict with Wisdom might pose a safety risk and because he could not depart without three flight attendants, requiring him to remove Norman in order to ensure the service of Wisdom.
Ms. Norman deplaned, and was advised by a TWA employee that TWA would pay for a hotel room that night and fly her to St. Louis on the first flight the next morning, in time for her concert. Ms. Norman refused this offer and insisted on flying to St. Louis that night. Accordingly, TWA purchased two tickets for a Southwest Airlines flight leaving later that night, and plaintiff took this flight to St. Louis. The following day, Norman gave a performance in St. Louis to a rave review from the St. Louis Post-Dispatch. Indeed, plaintiff testified that her performance went "wonderfully."
Norman subsequently filed this lawsuit, alleging claims of breach of contract against TWA and gross negligence and intentional infliction of emotional distress against both defendants. Both defendants now move for summary judgment in part on the theory that Norman's state law tort claims are foreclosed by § 44902(b) of the Federal Aviation Act; Norman cross-moves for summary judgment and to strike Wisdom's answer.
The claims against flight engineer Michael Goggins, initially named as a defendant in Norman's Verified Complaint, were dismissed pursuant to a stipulation among the parties.
I.
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56 (c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Corp., 369 U.S. 654, 655 (1962)). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). Nonetheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
II.
When Congress passed the Airline Deregulation Act in 1978 it retained statutory provisions granting broad discretion to airlines in making safety-related boarding decisions. See Smith v. Comair, Inc., 134 F.3d at 257-58 (noting that the statutory provision currently codified at 49 U.S.C. § 44902 (b) "recognizes airlines' boarding practices as a specific area of federal concern"). 49 U.S.C. § 44902 (b) provides that an airline has discretion to refuse to transport a passenger who in its estimation poses or may pose a threat to the safety of the flight. "Such a refusal cannot give rise to a claim for damages under either federal or New York law unless the carrier's decision was arbitrary and capricious." Schaeffer v. Cavallero, 54 F. Supp.2d 350, 351 (S.D.N.Y. 1999); see also Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975); Adamsons v. American Airlines, 444 N.E.2d 21 (N.Y. Ct. Apps. 1982).
Despite Norman's contentions to the contrary, Captain Thornhill's decision to remove Norman was not arbitrary and capricious. Norman does not allege that Thornhill's decision was retaliatory or malevolent. See Schaeffer, 54 F. Supp.2d at 351 (noting that a reasonable juror could find that a removal based on a retaliatory motive was arbitrary and capricious). She argues instead that Thornhill should not have relied in removing her upon the information he received from Wisdom, who Norman contends was acting arbitrarily in retaliation for Norman's earlier remarks to him.
Norman's argument is unavailing for two reasons. First, Captain Thornhill was indeed entitled to rely upon Wisdom's representations regarding any potential safety threat posed by his conflict with Norman. Second, Captain Thornhill did not decide to remove Norman solely on the basis of Wisdom's representations; he also removed her based on an FAA safety regulation requiring a minimum number of flight attendants on every flight.
The Court's analysis of whether an airline has properly exercised its discretion to remove a passenger rests upon the facts and circumstances as known by the decision-maker at the time he formed his opinion and whether or not the opinion and decision were arbitrary or capricious in light of those facts and circumstances. The decision is not to be tested by other facts later disclosed by hindsight. See Sedigh v. Delta Airlines, Inc., 850 F. Supp. 197, 201 (E.D.N.Y. 1994) (quoting Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975)); Zervigon v. Piedmont Aviation. Inc., 558 F. Supp. 1305, 1306 (S.D.N.Y.),aff'd, 742 F.2d 1433 (2d Cir. 1983) (pilot vested with "wide discretion" to decide whether to transport passenger in order to protect other passengers)
In making his decision under constraints posed by time and worsening weather, Captain Thornhill was entitled without further inquiry to rely upon Wisdom's representations that his conflict with Norman might distract him from performing his safety-related duties. See, e.g., Sedigh, 850 F. Supp. at 202 (holding that although passenger's remarks were misunderstood by cabin crew, airline acted reasonably in removing him without detailed inquiry); Zervigon, 558 F. Supp. at 1307 (holding that Pilot's reliance on inferential multiple hearsay in removing passenger because of potential hijacking risk was reasonable under the circumstances). Accordingly, any view this Court may hold of the sincerity of Wisdom's representations to Captain Thornhill is irrelevant to the question of whether Captain Thornhill's decision to remove Norman was arbitrary and capricious.
Furthermore, Captain Thornhill's decision to remove Norman was not based entirely on Wisdom's representations regarding the safety threat posed by his conflict with Norman. It is undisputed that pursuant to FAA regulations, Captain Thornhill could not fly without a third flight attendant, and that he determined that due to deteriorating weather conditions he needed to depart as soon as possible. It is also undisputed that no other flight attendants were available to work the flight and therefore in order to comply with FAA regulations, Captain Thornhill needed Wisdom to serve as an attendant on the flight. In order to ensure that Wisdom would serve, Captain Thornhill was forced to remove Norman. Under these circumstances the Court finds that as a matter of law Captain Thornhill did not act arbitrarily or capriciously in ordering Norman removed from the flight.
Because Captain Thornhill's decision was not arbitrary, capricious or unreasonable as a matter of law, § 44902(b) forecloses any claims for recovery based on that decision. Wisdom and TWA are accordingly entitled to summary judgment on Norman's tort claims arising from the decision to remove her from the flight.
III.
To the extent that Norman's third and fourth claims of gross negligence and intentional infliction of emotional distress are premised not upon the decision to remove her from the flight, but upon flight attendant Wisdom's behavior and upon the conduct of TWA distinct from the decision to remove her, those claims are not foreclosed by § 44902(b). Defendant TWA does not dispute that an airline could be liable for tortious conduct incidental to removing a passenger from a flight, such as battery for forcefully removing the passenger or false imprisonment for having the passenger needlessly arrested after she has deplaned.
However, Norman has not sufficiently alleged any conduct on the part of TWA or Wisdom rising to the level of a tort. Norman was not forcefully removed or arrested. She left the plane peacefully, albeit begrudgingly. Norman's tort claims arise instead from the fact that Wisdom was dismissive of her request to ask the cockpit crew to notify her liaisons in St. Louis that she would arrive late and that during their quarrel on the first leg of the flight, Wisdom leaned over Norman's seat and said in a low and menacing voice that the plaintiff should take a Greyhound bus from Cleveland to St. Louis. Norman also alleges that Wisdom's demand for an apology and his refusal to accept her proffered apology caused her injury.
TWA specifically concedes that the Airline Deregulation Act does not immunize it from liability for torts committed outside the scope of its contract of carriage with passengers. (TWA Memo, of Law at p. 2) However, because Norman has presented no legitimate tort claims, the Court need not engage in an analysis of whether those claims would be preempted by the express preemption provision of the Airline Deregulation Act, 49 U.S.C. § 41713 (b)(1). See, e.g., Rombom v. United Airlines, Inc., 867 F. Supp. 214 (S.D.N.Y. 1994).
While Wisdom's actions may have been rude and exasperating, they were not tortious. The Court finds as a matter of law that Norman has failed to provide facts sufficient to make out her claims of intentional infliction of emotional distress and gross negligence. Under New York law, a claim for intentional infliction of emotional distress requires a showing of: (1) Extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. See Howell v. New York Post Co., 612 N.E.2d 699, 702 (N.Y.Ct.App. 1993). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."Id.; also Mariani v. Consolidated Edison Co., 172 F.3d 38 (2d Cir. 1998). Whether conduct is sufficiently atrocious as to permit recovery is a matter for the court to determine in the first instance. See Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). The Court finds that Norman's allegations of Wisdom's conduct do not meet this high threshold.
Nor do Norman's allegations of harm arising from Wisdom's alleged verbal abuse and physical intimidation establish "severe" emotional distress. Norman "`is required to establish that severe emotional distress was suffered . . ., which must be supported by medical evidence, not the mere recitation of speculative claims."Pepe v. Maklansky, 67 F. Supp.2d 186, 187 n. 1 (S.D.N.Y. 1999) (quoting Walentas v. Johnes, 683 N.Y.S.2d 56, 58 (App.Div. 1st Dep't 1999)). Norman has offered no evidence, medical or otherwise, sufficient to substantiate her claim of severe emotional distress. Plaintiff's deposition testimony reveals that she was not menaced or frightened by Wisdom, but rather insulted.See supra, fn. 1. While her deposition testimony indicates that she suffered sleepless nights and feared that her friends and family would be outraged if she told them of the events at issue in this case, Norman also admits that she flies frequently and has never not boarded a plane because of this incident. See Norman Depo. at 85-87. Moreover, she candidly testified that she did not seek medical treatment for her reaction to this incident because
I'm a very strong person. Only a very strong person would have been able to sing a performance on no sleep and no food for an entire day and to have done an incredible job in the process. We have different levels of ability and stamina and determination. I have, for my job, a very high level of determination and professionalism. If that weren't the case, there could have been no way that I could have stood on that stage in St. Louis.Id. at 86-87.
This testimony and the absence of any medical corroboration of her distress belie Norman's claim that she suffered severe emotional distress. Accordingly, defendants' motions for summary judgment on this claim are granted.
Plaintiff has also failed as a matter of law to establish a claim for gross negligence. Under New York law, the difference between gross negligence and negligence is one of fact, not law.See Food Pageant. Inc. v. Consolidated Edison Co., 429 N.E.2d 738, 740 (1981) Gross negligence is "conduct that evinces a reckless disregard for the rights of others or "smacks' of intentional wrongdoing." Colnaghi U.S.A., Ltd. v. Jewelers Protection Servs. Ltd., 611 N.E.2d 282, 284 (N.Y.Ct.App. 1993). It is axiomatic that in order to establish a claim for negligence (and thus for gross negligence) under New York law, Norman must show that Wisdom and TWA owed her a legally cognizable duty and that they breached that duty, thereby causing Norman an injury. Norman, however, has failed to articulate a legally cognizable duty owed to her by Wisdom or TWA beyond the contract of carriage.
When asked at oral argument what duty formed the basis for Norman's gross negligence claim, plaintiff's counsel responded:
The duty is simply to get her from point A to point B. And the duty is to provide service. She asked for a service. The service was offered. The request was responded to favorably, yet it wasn't carried through. Now that's not the breach. The breach then is on top of that. She was abused. She was verbally abused, physically intimidated and then told she could not fly. That is a breach of a service, certainly, your Honor, we contend. She did not contract to be threatened, yelled at and thrown off a plane.
Tr. at 23:6-23:14. The Court is unable to find in Plaintiff's deposition testimony or in this response at oral argument any articulation of an actionable duty sounding in negligence rather than in contract. Claims based on the negligent or grossly negligent performance of a contract are not cognizable under New York law. See City of New York v. 611 West 152nd Street. Inc., 710 N.Y.S.2d 36, 38, 2000 N.Y. Slip Op. 06357 (1st Dep't 2000) Accordingly, Norman has failed to establish an essential element of her gross negligence claim, and TWA and Wisdom are entitled to summary judgment on that claim.
IV.
By denying Norman permission to board, TWA breached its contract with her. However, Norman's remedy for any breach of the contract of carriage between the parties is limited to the remedies set forth in that contract. The contract of carriage, to which the airline's tariff is annexed, exclusively and conclusively governs the rights and liabilities between Norman and TWA. See Guerrero v. American Airlines. Inc., No. 97 Civ. 1948 (SHS), 1998 WL 196199, at *2 (S.D.N.Y. April 22, 1998).
The contract of carriage provision applicable to Norman's claim — TWA Tariff Rule 35, Title 78H — provides that a passenger's remedy for TWA's refusal to transport her is a refund of the fare that she paid, plus applicable tax and charges, for the unused portion of her ticket, upon the passenger's request.
There is no dispute that Norman was refused transportation pursuant to Title 78H. Accordingly, she is entitled to a refund of that portion of the purchase price of her two first class tickets from New York to St. Louis which is attributable to the leg of the flight between Cleveland and St. Louis from which she was removed, minus any applicable offsets.
Although Defendant TWA asks the Court to dismiss Norman's breach of contract claim because Norman has not precisely requested the refund provided for in the contract of carriage, in this case the Court will construe Norman's breach of contract claim as the request which triggers TWA's obligation to provide a refund under the terms of the contract.
Norman may not recover punitive damages. The Supreme Court has specifically held that the Airline Deregulation Act forbids the invocation of state law to enlarge or enhance remedies for breach beyond those provided in the contract. See Wolens v. American Airlines, Inc., 513 U.S. 219, 233 (1995). Furthermore, New York law provides that punitive damages "may not be awarded in breach of contract cases, which involve a private wrong and where no public rights are involved." Durham Indus., Inc. v. North River Ins. Co., 673 F.2d 37, 41 (2d Cir.), cert. denied, 459 U.S. 827 (1982)
Conclusion
For the foregoing reasons, the defendants' motions for summary judgment on plaintiff's gross negligence and intentional infliction of emotional distress claims are granted and Plaintiff's cross motion for summary judgment and motion to strike defendant Wisdom's answer are denied. Judgment is entered against defendant TWA on plaintiff's breach of contract claim. Defendant TWA is instructed to initiate a conference call among the parties and the Court at 9 a.m. on Tuesday, October 10th.