Previously, I have written two different blog entries dealing with the Air Carrier Access Act. In the first, I talked about whether a private cause of action existed. In the second, I talked about whether the Air Carrier Access Act regulations being so pervasive preempted state laws. This entry concerns a slightly different issue. That is, assuming preemption exists, does that mean the preemption applies to the standards what does it mean the preemption applies to the remedies for both?
A recent case from the Ninth Circuit, Gilstrap v. United Airlines,_F.3d_, 2013 WL 930170 (9th Cir. March 12, 2013), addresses this very question. In this case, the plaintiff had difficulty walking due to a collapsed disc in her back, a knee replacement, another knee in need of replacing, and osteoarthritis. Id. at *1. In August 2008, she flew on United from Los Angeles to Calgary, from Calgary to Chicago, and from Milwaukee back to Los Angeles via Denver. Id. In December 2009, she flew from Burbank, California to Madison, Wisconsin by way of Denver. Id. When she booked both flights, she requested that United provide her with wheelchair assistance for moving through the airport. Id. During both trips, United repeatedly failed to provide the plaintiff with the assistance that she requested. Id. In particular: at one airport, she had to locate a wheelchair on her own; at another airport she only obtained a wheelchair from United after prolonged assistance and up to 45 minutes of waiting; and still at other airports she was never able to locate a wheelchair at all and had to walk. Id. Further, she alleged that a United agent yelled at her, expressed skepticism that she actually needed a wheelchair, and on two occasions, directed her to stand in line, which she was not able to do because of her disabilities. Id. At one point, a United agent from whom she asked for assistance, unilaterally revoked her ticket and booked her for a later flight after telling her that that is what she got for refusing to stand in line. Id. She sued United in tort alleging several different causes of action under California law including: negligence, negligent misrepresentation, breach of duty of a common carrier, intentional infliction of emotional distress, and negligent infliction of emotional distress. Id. She also alleged that United Air Lines violated title III of the ADA as well. Id. She did not sue alleging violations of the Air Carrier Access Act, rather the claim was that the Air Carrier Access Act was relevant to establishing negligence on the theory of negligence per se. Id.
Before proceeding further, a brief comment is in order about negligence per se. Negligence per se is a legal concept that basically says that violation of one statute can be used as a means of saying that the defendant was negligent. It is basic black letter law that everybody learns in law school. Many states, such as California and Georgia to name just two, have a statute that says violation of a statute, ordinance, or regulation can be used as a means to establishing negligence. The state statutes vary in their wording. They also vary in what happens once you show that the statute, ordinance, or regulation is violated. Basically, what can happen might vary from winning your case if you can show that the statute was violated and the person alleging the violation of the statute, regulation, ordinance was meant to be protected by that ordinanceVal D’Aosta v. Cross, 526 S.E.2d 580, 585 (Ga. App. 1999), to creating a rebuttable presumption of failure to exercise due care. See Gilstrap at *1.
The court had several potential issues before it. First, are the remedies under the Air Carrier Access Act exclusive. That is, do those remedies preclude other remedies? Second, if the remedies are not exclusive, what role does the extensive regulations implementing the Air Carrier Access Act play in any subsequent state law-based negligence suit? Third, does the Air Carrier Access Act provide for a private cause of action? Fourth, does the ADA apply to airline terminals?
With respect to the first issue, the Ninth Circuit found that the remedies in the Air Carrier Access Act are not exclusive. That is, the Air Carrier Access Act does not preclude other kinds of causes of action such as those lying in tort. The court found it extremely significant that the Federal Aviation Act, of which the Air Carrier Access Act is an amendment to, specifically says that any remedy under the Federal Aviation Act is in addition to any other remedies provided by law, and it also says that Department of Transportation certified air carriers have to maintain liability insurance sufficient to cover bodily injury, death, loss of property, or damage to property resulting from the operation or maintenance of the aircraft. Id. at *5. Therefore, the Federal Aviation Act on its face explicitly anticipated that other remedies besides those under the Federal Aviation Act may be utilized. Also, the court found that no conflict existed between federal and state liability standards in this case nor did allowing causes of action lying in tort frustrate the objective of the federal law. Id. at *11.
With respect to the second issue, the regulations are indeed extensive and pervasive. The court said in that kind of case, where the statute clearly says that the remedies are not exclusive, but you do have extensive and pervasive federal regulations, what happens is that those extensive and pervasive federal regulations establish the standard of care for the state law cause of action. Id. at **8-9.
With respect to the third issue, the court noted that there are opinions out there, which we have also discussed in another blog entry, that say the Air Carrier Access Act, does not give rise to a private cause of action. Id. at *5. However, since the plaintiff did not sue under the Air Carrier Access Act, the court said that that was a question they did not have to reach. Id.
With respect to the final issue, as we have also discussed in a prior blog entry, the court found that the Americans with Disabilities Act was quite explicit that title III does not apply to airport terminals. Id. at *14. However, in a footnote, the court said that the implementing regulations under title II of the ADA do note that airports operated by public entities are covered by title II of the ADA, but since the plaintiff did not make any claims under title II it wasn’t necessary to visit that question. Id. at n. 11.
So what does this all mean?: First, the Air Carrier Access Act does not preempt both standards and remedies because the Federal aviation act, of which the Air Carrier Access Act is a part of, allows for other remedies, and allowing for other remedies does not conflict with the purpose of the Federal aviation act. Second, while remedies under the Air Carrier Access Act are not exclusive, the standards contained in the regulations implementing the Air Carrier Access Act are the standards that will have to be used in any subsequent state law cause of action alleging injuries from violation of the Air Carrier Access Act regulations. Third, while this case doesn’t address the question of whether a private cause of action exists, for reasons mentioned in another blog entry, it probably doesn’t. Third, it is quite clear from the cases that title III of the Americans With Disabilities Act does not apply to airport terminals, but it may be possible that title II of the ADA applies to airport terminals.
Plaintiff/Defendant think: On the plaintiff’s side, this case is a real positive jolt for plaintiffs. A person with a disability who is not properly accommodated during their time in an airport is quite likely to have those disabilities aggravated in some way or have some new injury result. This case gives plaintiffs a real opportunity to redress violations of the federal regulation that aggravated and/or caused additional injuries. On the defense side, it means that airlines are going to have to make sure that their staff are fully trained on all the regulations and that steps are taken to minimize the risk of violations of any of the regulations. In short, if a client comes into a plaintiff personal injury law firm to talk about a situation where they were injured in an airport as a result of the Air Carrier Access Act regulations not being followed, the plaintiff’s attorney would want to seriously think about filing state law tort claim lawsuits using the Air Carrier Access Act as the standards for liability. Since many airports are publicly owned, the plaintiff attorney may also want to consider bringing a cause of action under title II of the Americans with Disabilities Act as well. On the defense side, if the plaintiff alleges a violation of title III, a likely successful argument is that title III of the ADA does not apply to airport’s terminals. If the plaintiff brings suit under the Air Carrier Access Act, another likely successful argument is that a private cause of action does not exist under that act. If a plaintiff brings suit under title II of the ADA, the defense would want to argue that title II applies to public entities and the airlines are not public entities. Finally, if there is a personal injury suit based on state law claims, the defendant first would want to argue that the Air Carrier Access Act preempts state law remedies as well (but as we have seen in this case, that argument may not be successful). Second, the defense would need need to be prepared to deal with the Air Carrier Access Act regulations as the basis for liability.
So where does this case go? Whenever a U.S. Court of Appeals decides a case, a person losing would have two options. First, ask for a rehearing en banc. Considering that this is the Ninth Circuit and considering the nature of this case, it is hard to say whether such a rehearing request would be granted (a majority of the entire Ninth Circuit judges would have to agree to do that). The other option of course is to appeal the case to the United States Supreme Court. In that situation, at least four justices would have to agree to hear the case. With respect to whether the judges would agree to hear the case, it would help if a conflict between the circuits exist. There is a theoretical conflict between the circuit with respect to whether a private cause of action exists under the Air Carrier Access Act, but this particular case does not address that question because the plaintiff did not sue under that act. Also, since the Supreme Court decision in Alexander v. Sandoval, the circuits have not split on the question of whether the Air Carrier Access Act has a private cause of action component (they have all found that it does not). With respect to the other issues in Gilstrap, it would take further research but this case doesn’t seem to suggest that a conflict among the circuits exists with respect to those other issues. Finally, even if the U.S. Supreme Court were to take this case for some reason, I wouldn’t want to hazard a guess as to whether the United States Supreme Court would hold that the remedies under the Air Carrier Access Act where exclusive, especially considering the act’s explicit discussion of other remedies being in play and the insurance requirements. I do think it would probably be likely that the United States Supreme Court would decide that title III of the ADA does not apply to airport terminals and, if the question were before it, would also decide per Alexander v. Sandoval that the Air Carrier Access Act does not have a private cause of action component to it.