A Brooklyn appellate court has clipped the wings of a putative class action suit from an airline passenger who spent 11 hours on the tarmac waiting for her flight to take off.
“The plaintiff’s intentional tort and fraud claims relate to the provision of airline service and are, therefore, preempted by federal law,” Justice Leonard Austin (See Profile) wrote for a unanimous panel of the Appellate Division, Second Department, in Biscone v. JetBlue Airways, 700140/10.
The ruling also upheld a denial of a motion to reargue a denied bid for class certification. Arguments were heard on Feb. 7, 2012.
In the underlying case, Katharine Biscone, a comedy writer, was bound for Burbank, Calif., from John F. Kennedy International Airport on Feb. 14, 2007. Scheduled to depart at 6:45 a.m., the JetBlue plane left the terminal shortly thereafter. But it stayed on the ground for the next 11 hours. Biscone finally was let off at 5:30 p.m., then waited another two hours to retrieve baggage.
In the first five hours on the tarmac, Biscone kept her seat belt fastened because the crew told the passengers the weather was “holding us up” and the plane could leave on five minutes’ notice.
In the next five hours, the crew told passengers if they wanted to leave and take another flight, they had to inform a crew member.
A passenger allegedly tried to deplane but the “flight attendant bullied and intimidated him to stay on the plane,” telling him that the carrier would not help in finding another flight, and that no flights were available.
Other passengers also allegedly tried getting out, but the airplane personnel said attempts to force oneself off a plane could mean a 20-year prison term pursuant to the Federal Patriot Act.
Small amounts of water and snacks were passed out periodically as the plane’s ventilation was shut down, causing the cabin to become “sweltering.” After 10 hours, the captain told passengers that because the toilet tanks were now full, no one could “do a [number] 2.”
As a result of the ordeal, Biscone said she missed a friend’s film premiere and “important” business meetings that resulted in “lost business opportunities.”
Having undergone shoulder surgery six months earlier, she said she experienced cramping, aches and mental distress. She claimed that resulted in six months of physical pain and treatment for panic and anxiety attacks.
Biscone filed her suit in February 2008. She asserted five cause of action: false imprisonment; negligence and negligence per se; intentional infliction of emotion distress; fraud and deceit; and breach of contract.
Among its arguments for dismissal, JetBlue argued the tort claims were preempted by the 1978 Airline Deregulation Act. That law removed government control over airfare and services, and included a preemption provision preventing states from establishing their own regulation.
The preemption clause barred states from “enact[ing] or enforc[ing] 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.”
In October 2010, Queens Supreme Court Justice Valerie Brathwaite Nelson (See Profile) held the Airline Deregulation Act did not apply to tort claims for personal injury but did apply to other tort claims pertaining to airline service.
As a result, she dismissed the false imprisonment, intentional infliction of emotional distress and fraud and deceit claims. She let the breach of contract claim proceed, along with the negligence claim to the extent it was predicated on personal injury.
On appeal, Biscone said 11-hour confinement on a grounded aircraft was not related to the provision of service contemplated by the federal law’s preemption clause.
She also contended the underlying tort claims were too attenuated from the federal law’s aim of market deregulation.
JetBlue countered that the preemption clause at issue was broad. The dismissed claims, it argued, were “an impermissible attempt to regulate through state law an airline’s operations and practices during ground delays.”
In his decision, Austin observed that the federal deregulation act’s preemption provision—particularly the clause “related to a price, route, or service”—have attracted “considerable attention in the federal courts.”
The U.S. Supreme Court has addressed the provision, and specifically the “related to” phrase, three times, he noted.
In its 1992 ruling Morales v. Trans World Airlines, 504 U.S. 374, the high court held the “related to” phrase expressed “a broad preemptive purpose” but was not limitless.
The Supreme Court has not explicitly addressed the definition of “service,” said Austin, and federal appellate courts have been divided on its meaning as a result.
He noted that the Second Circuit, in striking down New York’s enforcement of a “passenger bill of rights,” in Air Transport Association of America v. Cuomo, 520 F.3d 218, did not specifically define “service.” But the circuit did not have trouble viewing the supply of food and necessities during ground delay as part of a airline’s service, said Austin (NYLJ, March 26, 2008).
Austin observed that a 1994 ruling by then-Southern District Judge Sonia Sotomayor in Rombom v. United Air Lines, 867 F.Supp 214, established a three-part test “generally applied” in the Second Circuit to determine if state law claims relate to “service” as contemplated by the federal deregulation act.
The Rombom test first requires deciding if “the activity at issue in the claim is an airline service.” It then asks, if the activity at issue is a service, “whether the claim affects the airline service directly or tenuously, remotely, or peripherally.” Lastly, if the activity “directly implicates a service” the courts have to decide if the “underlying tortious conduct was reasonably necessary to the provision of the service.”
Rombom said claims should not be preempted where the incident is “outrageous conduct that goes beyond the scope of normal aircraft operations.”
Applying the Rombom test, Austin said Biscone could not show the claims were not subject to preemption.
For example, the fraud and deceit claim failed because it was based on alleged misrepresentations about when the plane would take off.
“The subject statements by airline personnel were directly related to the provision of an airline service. Since the plaintiff’s fraud and deceit cause of action does not allege behavior that is outrageous and beyond the scope of normal airline operations, it is preempted,” said Austin.
The intentional infliction of emotional distress claim also failed because it was rooted in the supply of things like food, water and restroom facilities.
“This conduct expressly relates to airline ‘services,’ as that term is construed by a majority of the federal circuits,” said Austin.
Paul Hudson of Valatie, N.Y. represented Biscone.
JetBlue Airways Corporation was represented by Christopher Kelly, Judith Nemsick and Christine Tramontano of Holland & Knight.
@| Andrew Keshner can be contacted at email@example.com.