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Looking forward to a warm, relaxing Las Vegas vacation, Fairfield, Conn., resident Nicholas A. Caruso Jr. and four other members of his family boarded a jet last April 21 at Newark International Airport at about 11:15 a.m. The America West Airlines plane was packed. Passengers waited for bad weather to clear while engines idled and lavatories received steady use by the 150 people on board. At 4 p.m., the jet taxied back to pump fuel in and sewage out. Back on the runway, airline personnel gave various explanations for the delays. According to a federal lawsuit Caruso filed in U.S. District Court in Hartford, passengers began to suffer claustrophobia, excessive sweating and hysteria. The Carusos used their cell phones to call the airline’s customer service department, and pleaded to be allowed off the plane. In response, they were read the rules for handling unruly passengers. Only around 8 p.m. did the plane finally taxi back to the gate again and allow the passengers to leave. The five members of the Caruso family claimed negligent and intentional infliction of emotional distress and false imprisonment — both state law claims. But in a litigation scenario that’s becoming increasingly common, this “tarmac hold” case is caught in a conflict between state and federal law. If the airline prevails, the passengers’ personal injury claims will never get off the ground. Should the passengers be limited to federal remedies, they may only be entitled to contractual relief, based on their purchase of airline tickets. Steven E. Arnold, of Hartford’s Howard, Kohn, Sprague & FitzGerald, is defending America West on the grounds that the federal Airline Deregulation Act of 1979 pre-empts all state laws that involve airline pricing, routes and service. Arnold, in an Oct. 12 motion to dismiss, says the crux of the plaintiffs’ claim is refusal to transport passengers –”that the airline failed to transport them back to the gate and allow them to disembark.” As such, Arnold argues, the plaintiffs’ claims are clearly within the zone of services, where the Airline Deregulation Act displaces state law. Indeed, the claims relate to airline schedules and “point-to-point transportation of passengers” and any delay therof, and are preempted by the ADA, the defense claims. The Carusos’ attorney, Steven W. Varney of the Glastonbury office of Brown, Paindiris & Scott counters in a Nov. 30 brief that the ADA doesn’t exclude run-of-the-mill torts. Although the U.S. Constitution’s supremacy clause says federal law trumps state law whenever there is a conflict, there has to be a conflict. States have “the concurrent power to enact their own non-conflicting laws” covering health, safety and policing. Both sides agree that the U.S. Supreme Court has not yet spoken on whether the ADA preempts state tort claims, and federal circuit and district court decisions conflict. Plaintiffs’ lawyer Varney writes that the ADA’s saving clause preserves state tort actions. It says, “[n]othing in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies.” But Arnold writes in a footnote that the U.S. Supreme Court has already addressed the saving clause. In Morales v. TWA (1992), he contends, it doesn’t save much: “[W]e do not believe Congress intended to undermine this carefully drawn statute through a general saving clause,” the high court wrote. Although airlines must insure against disasters and are clearly liable for death and physical injuries, an absence of physical injuries should be fatal to the plaintiffs’ case, Arnold contended in an interview. “No one even had a cut finger.”

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