TORTS (INTENTIONAL TORT & FRAUD) & AVIATION / Intentional tort and fraud claims to recover damages allegedly resulting from the confinement of commercial airline passengers in an airplane remaining on a tarmac outside of a terminal for several hours without affording passengers food, water, clean air, and toilet facilities was preempted by the Airline Deregulation Act of 1978.

Federal preemption cut off all state law tort claims. Lengthy coverage of various case law to reach this conclusion. Gist of the opinion – at great length – went to Airline Deregulation Act of 1978 providing for federal preemption of terms of service. 

Biscone v. Jetblue Airways Corp., 2012 WL 6684688 (New York State Supreme Court, Appellate Division, Second Department, December 26, 2012). Free copy available here.

Who is affected? Passenger airlines and their passengers.

“… For the reasons that follow, we find that the plaintiff’s intentional tort and fraud claims relate to the provision of airline services and are, therefore, preempted by federal law.”

Disposition of state tort claims by trial court:

“In an order entered October 12, 2010, the Supreme Court granted certain branches of JetBlue’s motion to dismiss the amended complaint, while denying others. First, the court addressed the express preemption provision of the ADA, which, the court stated, “does not apply to tort claims for personal injury, … but … does apply to other types of tort claims merely pertaining to the service provided by an airline,” such as fraud, intentional infliction of emotional distress, and false imprisonment (citations omitted). The court concluded that “all of the plaintiff’s tort claims, with the exception of negligence causing physical injury, are closely related to the provision of services” by an airline:

“The supply of ‘food, water, electricity, and restrooms to passengers during lengthy ground delays does relate to the service of an air carrier’ ( Air Transp. Assn. of Am., Inc. v. Cuomo, 520 F3d 218, 223 [2d Cir2008] ), and, thus, tort claims which rest on allegations of insufficient supply have been preempted. Boarding and deboarding from flights also pertain to the provision of services, and the plaintiff’s tort claims based on [JetBlue's] actions in that regard have been preempted ( see Hirsch v. American Airlines, 160 Misc.2d 272 [Civ Ct, N.Y. County 1993]; Williams v. Express Airlines I, Inc., 825 F Supp 831 [WD Tenn 1993] ).”

“Accordingly, the court granted those branches of JetBlue’s motion which were to dismiss, as preempted, the causes of action alleging false imprisonment, intentional infliction of emotional distress, and fraud and deceit, and so much of the cause of action alleging negligence as was not predicated on personal injury, and denied those branches of the motion which were to dismiss, on preemption grounds, so much of the cause of action alleging negligence as was predicated on physical injury, and the cause of action alleging breach of contract.”

Core of opinion on federal preemption of state tort claims by Airline Deregulation Act of 1978: 

“A. Preemption Principles

“A fundamental principle of the Constitution” is that the Supremacy Clause grants Congress the power to preempt state law ( Crosby v. National Foreign Trade Council, 530 U.S. 363, 372; see U.S. Const, art VI, cl 2; State of New York ex rel. Grupp v. DHL Express [ USA ], Inc., 19 NY3d 278, 283; People v. First Am. Corp., 18 NY3d 173, 179, cert denied sub nom. CoreLogic, Inc. v. Schneiderman, ––– U.S. ––––, 132 S Ct 1929). “[W]ithin Constitutional limits Congress may preempt state authority by so stating in express terms” ( Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 203). In the absence of explicit statutory language, preemption can be implied under field preemption where a review of federal legislation indicates that Congress intended federal law to fully occupy that field, or pursuant to conflict preemption where a state law is in conflict with federal law so that it would be impossible for a party to comply with both ( see English v. General Elec. Co., 496 U.S. 72, 79; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230; Doomes v. Best Tr. Corp., 17 NY3d 594, 601).

“Whatever the form, “the purpose of Congress is the ultimate touchstone in every pre-emption case” ( Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 [internal quotation marks and brackets omitted]; see California Fed. Savs. & Loan Assn. v. Guerra, 479 U.S. 272, 280; People v. First Am. Corp., 18 NY3d at 179 [in undertaking a federal preemption analysis, “a court's sole task is to ascertain the intent of Congress”] [internal quotation marks omitted] ). As such, a court must begin, as “in any exercise of statutory construction with the text of the provision in question, and move on, as need be, to the structure and purpose of the Act in which it occurs” ( New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655), “as revealed … through the reviewing court’s reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law” ( Medtronic, Inc. v. Lohr, 518 U.S. at 486).

“In recognition of the independent sovereignty of the States, the United States Supreme Court has “long presumed that Congress does not cavalierly pre-empt state-law causes of action” ( id. at 485). Accordingly, in “all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied,” it is presumed “that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress” ( id. [internal quotation marks and citations omitted] ).

“These appeals require us to focus our analysis solely on implied preemption or field preemption, which occurs when:

“[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it … [o]r the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject” ( Rice v. Santa Fe Elevator Corp., 331 U.S. at 230 [citations omitted] ).

“B. The ADA Preemption Provision

”Prior to 1978, the FAA authorized the Civil Aeronautics Board to regulate interstate airline fares and to take administrative action against deceptive trade practices ( see Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378). The FAA did not expressly preempt state regulation and contained a “ ‘saving clause’ “ providing that “ ‘nothing … in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies’ “ ( id., quoting 49 USC former § 1506).

“In 1978, Congress amended the FAA by enacting the ADA, reflecting its determination that “maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety and quality of air transportation” ( Morales at 378 [internal quotation marks omitted]; see 49 USC § 40101[a][6], [12] ). “To ensure that the States would not undo federal deregulation with regulation of their own, the ADA included a pre-emption provision” ( Morales at 378). In its current form, the preemption provision states, with certain exceptions inapplicable here, that

“a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart” (49 USC § 41713[b][1] ).

Core of opinion: Is lawsuit “related to a price, route or service” under Airline Deregulation Act of 1978?

“The ADA’s express preemption provision and its language “related to a price, route, or service” have garnered considerable attention in the federal courts. The United States Supreme Court has addressed the provision on three occasions, each time focusing on the phrase “related to.” In Morales, the United States Supreme Court interpreted the phrase “related to” as expressing “a broad pre-emptive purpose” and held that state laws “having a connection with or reference to airline ‘[prices], routes, or services’ “ are preempted under the ADA ( Morales at 383–384). Under this standard, the Court held that the ADA preempted application of states’ general consumer protection statutes to enforce a set of guidelines composed by the National Association of Attorneys General purporting to regulate deceptive airline advertising, because those guidelines bore express “reference to” airline fares or prices and, “as an economic matter,” they had a “forbidden significant effect upon fares” ( id. at 388). The Court noted, however, that the ADA’s preemptive scope was not limitless, stating that state actions affecting airline prices, routes, and services “in too tenuous, remote, or peripheral a manner” may not be preempted, such as state laws regulating gambling and prostitution as applied to airlines ( id. at 390 [internal quotation marks omitted] ).

”Similarly, in American Airlines, Inc. v. Wolens (513 U.S. 219, 226–228), the United States Supreme Court held that the ADA preempted claims challenging an airline’s changes to its frequent flyer program as violative of the Illinois Consumer Fraud Act because the claims related to rates and services. However, the Court also held that the ADA’s preemption clause did not “shelter airlines from suits … seeking recovery solely for the airline’s alleged breach of its own, self-imposed undertaking[ ]” ( American Airlines, Inc. v. Wolens, 513 U.S. at 228), although breach of contract claims are limited to the terms of the contract, and any “enlargement or enhancement based on state laws or policies external to the agreement” would be preempted ( id. at 233).

“In Rowe v. New Hampshire Motor Transp. Assn. (552 U.S. 364), the United States Supreme Court addressed a similarly worded provision in the Federal Aviation Administration Authorization Act of 1994 (hereinafter the FAAAA) that sought to preempt state regulation of trucking ( see 49 USC § 14501[c][1] ) and its effect on two sections of a Maine statute regulating the delivery of tobacco. The Court reiterated its determinations from Morales in construing the ADA that, inter alia, “[s]tate enforcement actions having a connection with, or reference to carrier rates, routes, or services are pre-empted,” “such pre-emption may occur even if a state law’s effect on rates, routes or services is only indirect,” and “pre-emption occurs at least where state laws have a significant impact related to Congress’ deregulatory and pre-emption-related objectives” ( Rowe v at 370–371 [citations and internal quotation marks omitted] ). The Court also noted that “ Morales said that federal law might not pre-empt state laws that affect fares in only a ‘tenuous, remote or peripheral … manner,’ such as state laws forbidding gambling,” but explained that the Morales Court “did not say where, or how, ‘it would be appropriate to draw the line,’ for the state law before it did not ‘present a borderline question’ “ ( id. at 371, quoting Morales at 390).

“In evaluating Maine’s efforts to regulate the delivery of tobacco in order to prevent minors from obtaining cigarettes, the United States Supreme Court held that federal law preempted the two statutory provisions at issue. The first provision required tobacco retailers to use a “delivery service” that provided a recipient-verification service ( Rowe at 368). The Court concluded that this provision’s focus on “delivery service” created “a direct connection with motor carrier services” ( id. at 371 [internal quotation marks omitted] ). Moreover, the Court found that the provision had “a significant and adverse impact” on the FAAAA’s preemption objective because it would “require carriers to offer a system of services that the market does not now provide” and “would freeze into place services that carriers might prefer to discontinue in the future,” thereby impermissibly allowing Maine to “direct substitution of its own governmental commands for competitive market forces in determining (to a significant degree) the services that motor carriers will provide” ( id. at 371–372 [internal quotation marks omitted] ).

“The second provision of the Maine statute forbade any person from “knowingly” transporting a tobacco product to anyone unless the sender or receiver had a Maine tobacco license ( id. at 369 [internal quotation marks omitted] ). It further provided that a person is “deemed to know” that a package contains tobacco when it is marked as originating from a Maine-licensed retailer or is sent by anyone identified as an unlicensed tobacco retailer on a list distributed by Maine’s Attorney General ( id. [internal quotation marks omitted] ). The Court determined that this provision applied even more directly to motor carrier services because, by imposing civil liability on carriers for the failure to sufficiently examine every package, carriers were required “to check each shipment for certain markings and to compare it against the Maine attorney general’s list of proscribed shippers, … thereby directly regulat [ing] a significant aspect of the motor carrier’s package pickup and delivery service” ( id. at 372–373). Furthermore, according to the Court, “[a]s with the recipient-verification provision, the ‘deemed to know’ provision would freeze in place and immunize from competition a service-related system that carriers do not (or in the future might not) wish to provide,” which “could easily lead to a patchwork of state service-determining laws, rules, and regulations” that “is inconsistent with Congress’ major legislative effort to leave such decisions, where federally unregulated, to the competitive marketplace” ( id. at 373).

“The Court rejected Maine’s argument that an implied exception from preemption should be recognized for state laws protecting the public health ( see id. at 373–375). Although the Court noted that the FAAAA’s preemption provision did not apply generally to state public health regulation, the state law at issue “[was] not general, it [did] not affect truckers solely in their capacity as members of the general public, the impact [was] significant, and the connection with trucking [was] not tenuous, remote, or peripheral” ( id. at 375). In the end, the Court concluded that, “from the perspective of pre-emption, this case is no more ‘borderline’ than was Morales ” ( id. at 376, quoting Morales at 390 [internal quotation marks omitted] ).

“While the United States Supreme Court has expounded on the meaning of the phrase “related to” in Morales, Wolens, and Rowe, it has never explicitly interpreted the meaning of “service” as used in the ADA’s preemption provision. In this interpretive vacuum, the federal Courts of Appeal have divided on the meaning of the term “service.” The Ninth and Third Circuits have adopted a narrow interpretation of that term. In Charas v. Trans World Airlines, Inc. (160 F3d 1259, 1261), the Ninth Circuit held that the term “service” refers to “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail,” and did not include “an airline’s provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities” ( accord Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F3d 186, 193–195 [3rd Cir.1998] ).

”In contrast, the courts of several other Circuits have defined the term “service” more broadly. In Hodges v. Delta Airlines, Inc. (44 F3d 334, 336), the Fifth Circuit concluded that the term “ ‘[s]ervices’ generally represent[s] a bargained-for or anticipated provision of labor from one party to another” and, in the airline context, “include[s] items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself.” The Seventh and Eleventh Circuits have adopted this definition ( see Branche v. Airtran Airways, Inc., 342 F3d 1248, 1256–1257, cert denied 540 U.S. 1182; Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F3d 1423, 1433). In Smith v. Comair, Inc. (134 F3d 254, 259), the Fourth Circuit, citing Hodges, determined that “boarding procedures are a service rendered by an airline.”

“In Air Transport Assn. of America, Inc. v. Cuomo (520 F3d at 220), the Second Circuit considered a challenge, on ADA preemption grounds, to New York’s enforcement of its Passenger Bill of Rights (Executive Law §§ 553[2][b]-[d]; General Business Law §§ 251–f, 251–j; hereinafter the PBR), enacted in the wake of “a series of well-publicized incidents during the winter of 2006–2007 in which airline passengers endured lengthy delays grounded on New York runways.” Among other things, the PBR required airlines to provide passengers boarded on aircraft and delayed more than three hours with “electric generation service to provide temporary power for fresh air and lights,” “waste removal service,” and “adequate food and drinking water and other refreshments” ( id.). The Second Circuit expressly rejected the narrow interpretation of “service” adopted by the Ninth Circuit in Charas, finding that it was inconsistent with the Supreme Court’s decision in Rowe, where “the Court necessarily defined ‘service’ to extend beyond prices, schedules, origins, and destinations” ( id. at 223). Without specifically endorsing a definition of “service,” the court had “little difficulty concluding that requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays relates to the service of an air carrier” ( id. at 222). As such, the Second Circuit held that the PBR was preempted by the ADA, noting that it was “indistinguishable” from the Maine law the Supreme Court held preempted in Rowe in that “[i]t substitute[d] New York’s commands for competitive market forces, requiring airlines to provide the services that New York specifies during lengthy ground delays and threatening the same ‘patchwork of state service-determining laws, rules, and regulations’ that concerned the court in Rowe( id. at 223–224, quoting Rowe at 373). The Second Circuit also noted that Rowe foreclosed the argument that the PBR was shielded from preemption because it protected the public health and safety or involved “a matter of basic human necessities,” since “[o]nboard amenities, regardless of whether they are luxuries or necessities, still relate to airline service and fall within the express terms of the preemption provision” ( Air Transport Assn. of America, Inc. v. Cuomo, 520 F3d at 224).

”Despite the lack of consensus among federal courts as to the specific meaning of “service,” there is a general understanding that the ADA’s preemption provision does not preempt all state-law tort claims. The United States Supreme Court suggested as much in a footnote in Wolens. The Court cited the former FAA provision, currently codified at 49 USC § 41112(a), that requires airlines to obtain insurance policies “for bodily injury to, or death of, an individual or for loss of, or damage to, property of others, resulting from the operation or maintenance of the aircraft,” and noted that the airline did not claim that “the ADA preempts personal injury claims relating to airline operations” ( Wolens at 231 n 7).

“Some courts have narrowly defined the term “service,” finding that state-law tort claims are not preempted ( see Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F3d at 194–195 [Third Circuit held that travel agency's defamation claim against Delta based on letters advising passengers that tickets bought through the agency are considered stolen is “ ‘too tenuous, remote, or peripheral’ to be subject to preemption, even though Delta's statements refer to ticketing, arguably a ‘service,’ “ because “(a)pplication of state law in these circumstances does not frustrate Congressional intent, nor does it impose a state utility-like regulation on the airlines”]; Charas v. Trans World Airlines, Inc., 160 F3d at 1266 [Ninth Circuit stated that Congress “did not intend to immunize the airlines from liability for personal injuries caused by their tortious conduct,” and held that negligence claims based on such activities as “pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need or like functions” were not preempted] ).

“Even when federal courts apply a broader definition of “service,” some state law tort claims have been allowed to proceed against airlines. In Hodges, the Fifth Circuit identified a distinction between common-law actions that related to services of an airline, which were therefore preempted, and “state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft,” which it held were not preempted, including a passenger’s negligence claim that she was injured by a case of rum that fell from an overhead bin ( Hodges v. Delta Airlines, Inc., 44 F3d at 336). The Fifth Circuit relied, inter alia, on the statutory requirement that airlines obtain insurance coverage for personal injuries and property damage “resulting from the operation or maintenance of aircraft” and the fact that “neither the ADA nor its legislative history indicates that Congress intended to displace the application of state tort law to personal physical injury inflicted by aircraft operations, or that Congress even considered such preemption” ( id. at 338).

“In Travel All Over the World, Inc. v. Kingdom of Saudi Arabia (73 F3d at 1433), the Seventh Circuit held that a travel agency’s claims alleging slander and defamation arising from an airline’s allegedly false statements were not preempted because the statements were not services within the meaning of the ADA, and the claims did not expressly refer to or have a significant effect on airline rates, routes, or services. The court also held that claims to recover damages for tortious interference with business opportunities, intentional infliction of emotional distress, and fraud were not preempted to the extent that they were based on the slanderous and defamatory statements, but were preempted to the extent that they were based on the airline’s cancellation of confirmed tickets ( see id. at 1434–1435).

”In Smith v. Comair, Inc. (134 F3d 254), the plaintiff boarded a flight to Cincinnati in Roanoke, Virginia, without being asked for proof of identification. Upon trying to make a connecting flight in Cincinnati, the airline refused to let the plaintiff board, providing a false reason for doing so, and causing the plaintiff to have to remain at the airport for several hours before the airline informed him that he was actually refused permission to board because airline representatives in Roanoke did not ask for identification ( see id. at 256). Since the plaintiff had left his driver’s license in his car at the airport in Roanoke, the airline gave him a ticket back to Roanoke. While waiting to board, he directed an angry comment at an airline representative, who asked a security guard and a police officer to remove him. Upon being restrained, the plaintiff explained the situation to the police officer, who convinced the airline representative to let the plaintiff board the flight back to Roanoke. The plaintiff then commenced an action against the airline to recover damages for, inter alia, false imprisonment and intentional infliction of emotional distress ( see id. at 256–257).

“The Fourth Circuit held that the plaintiff’s intentional tort claims were preempted to the extent that they were premised on the airline’s refusal to permit him to board the connecting flight, because the claims involved an airline service relating to boarding procedures ( see id. at 259). However, the claims alleging false imprisonment and intentional infliction of emotional distress were not preempted to the extent that they were based on conduct distinct from the airline’s conduct in refusing permission to board the flight. “Suits stemming from outrageous conduct on the part of an airline toward a passenger will not be preempted under the ADA if the conduct too tenuously relates or is unnecessary to an airline’s services. If, for example, an airline held a passenger without a safety or security justification, a claim based on such actions would not relate to any legitimate service and would not be preempted” ( id., citing Rombom v. United Air Lines, Inc., 867 F Supp 214, 222, 224). The Fourth Circuit dismissed the plaintiff’s intentional tort claims for failure to state a claim to the extent that those claims were not preempted ( see Smith v. Comair, Inc., 134 F3d at 259–260).

“The case of Rombom v. United Air Lines, Inc. (867 F Supp 214), cited by the Fourth Circuit in Smith, is the source of a three-part test articulated by then-District Judge (now Justice) Sotomayor that has been generally applied by district courts in the Second Circuit to determine whether a state-law claim relates to a “service” within the meaning of the ADA ( see Farash v. Continental Airlines, Inc., 574 F Supp 2d 356, 363, affd 337 Fed Appx 7 [2d Civ]; In re JetBlue Airways Corp. Privacy Litigation, 379 F Supp 2d 299, 315–316). Under the Rombom test, a court must first determine “whether the activity at issue in the claim is an airline service” ( Rombom v. United Air Lines, Inc., 867 F Supp at 221). If it is not a service, “the preemption inquiry ceases, and the state law claims are actionable” ( id. at 222). Second, “if the activity in question implicates a service, the court must then determine whether the claim affects the airline service directly or tenuously, remotely, or peripherally” ( id.). If the “specific state tort claim has only an incidental effect on a service, there is no preemption” ( id.). Third, if “the activity in question directly implicates a service,” the court must determine “whether the underlying tortious conduct was reasonably necessary to the provision of the service” ( id.). Where the activity represents “outrageous conduct that goes beyond the scope of normal aircraft operations,” the claims should not be preempted ( id.). For example, if a flight attendant deals with a boisterous passenger by shooting the passenger, the state-law tort claim would not be preempted; if, however, the flight attendant acted in a rude or unprofessional manner in telling the passenger to be quiet, the state-law tort claim would be preempted ( see id. at 222–223).