Safety in Flight.Pdf

SAFETY IN FLIGHT WHEN CAN COMMERCIAL AIRLINE PILOTS REMOVE PASSENGERS WHO MAY BE A THREAT? By Oliver Beiersdorf and Catherine E. Kiernan ISTOCK.COM/OSTILL © PHOTO BY: PHOTO BY: Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. n May 2018, a woman was removed from a Spirit Air- FAA: Rights of Air Carriers to Exclude or Refuse lines flight from Atlanta to Las Vegas because she to Accept Passengers allegedly ran past a gate attendant after being told she Congress’s purpose in enacting the FAA was “to pro- was too late to board, refused to leave the plane when mote safety in aviation and thereby protect the lives of Iasked by the flight crew, and screamed profanities at the persons who travel on board aircraft.”4 To help accom- flight crew.1 Ultimately, all of the other passengers had plish that goal, 49 U.S.C. § 44902(b) of the FAA, to deplane before officers could escort the woman off known as “permissive refusal,” provides pilots with broad of the plane. All of this occurred while the pilots were authority to remove passengers: focusing on completing preflight checks and preparing the aircraft for takeoff to ensure a safe flight. This inci- (b) Permissive refusal.—Subject to regulations of the dent, like many others where passengers are removed Under Secretary, an air carrier, intrastate air carrier, or from commercial flights, was recorded, posted on social foreign air carrier my refuse to transport a passenger or media, and highlighted by various news organizations. property the carrier decides is, or might be, inimical to The woman removed from the Spirit Airlines flight safety.5 streamed the entire event via “Facebook Live,” and the video has been viewed more than 4.5 million times on In other words, the pilot in command stands in the role Facebook alone. of the air carrier and can decide whether to remove a With heightened social awareness regarding the passenger from a flight for safety reasons. This discre- safety of commercial flight as well as evolving airline tion is critical for a pilot in command, who is, according regulations, it is critical that a pilot in command have to the Code of Federal Regulations, “during flight time, in the authority and discretion to remove passengers command of the aircraft and crew and is responsible for who may be a threat to safety. An airplane in flight is the safety of the passengers, crewmembers, cargo, and a unique environment with special risks, and a pilot the airplane.”6 in command often must make quick decisions based Implied preemption of state tort claims. State tort solely on information relayed from other crew mem- claims relating to a passenger’s removal from an aircraft bers. While the public may be able to watch a video for safety reasons are preempted by § 44902(b). While of a situation on a plane that results in a passenger’s the FAA does not contain an express preemption pro- removal multiple times and consider alternatives and vision, § 44902 impliedly preempts state tort claims outcomes in hindsight, pilots and flight crew have to because it is a federal standard directly on point and react in real time to ensure the safety of all passengers constitutes pervasive federal regulatory control in that in an enclosed environment while flying thousands of area. This was recently reaffirmed by the U.S. District feet in the air. Court for the Southern District of California in Regis- Congress, by statute, explicitly gave safety the high- ter v. United Airlines, Inc., in which the court dismissed est priority in air commerce,2 and the Federal Aviation the plaintiff’s state tort causes of action, including false Act (FAA) includes a provision providing the pilot imprisonment, intentional infliction of emotional dis- in command with broad authority to remove passen- tress, negligence, and negligent infliction of emotional gers that are or may be a threat to safety.3 The Tokyo distress, allegedly arising from the plaintiff’s removal Convention provides pilots in command with similar from an airplane due to a confrontation with a flight discretion on international flights, although the limited attendant.7 The court held that “[t]he FAA preempts case law interpreting the Tokyo Convention provides a all state law impinging upon the circumstances under less deferential standard. which an air carrier may remove a passenger from a This article discusses (1) the rights of air carriers to flight for safety reasons.”8 exclude or refuse to accept passengers on domestic and “Arbitrary or capricious” standard. Given the def- international flights under § 44902(b) of the FAA, (2) erential standard in § 44902(b), the majority of courts preemption of claims under § 1305(a)(1) of the FAA hold that the removal or refusal to transport a passenger (commonly known as the Airline Deregulation Act), cannot give rise to a claim for damages unless the car- and (3) the rights of air carriers to exclude or refuse to rier’s decision was “arbitrary or capricious.”9 The U.S. accept passengers on international flights under the Court of Appeals for the First Circuit in Cerqueira v. Tokyo Convention. American Airlines, Inc. clarified that “[t]he arbitrariness 57 TORT TRIAL & INSURANCE PRACTICE SECTION THE BRIEF ■ SUMMER 2018 Published in The Brief, Volume 47, Number 4, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. TIP Under the FAA, a pilot’s or capriciousness standard here safety of the aircraft, the pilot does any “discriminatory animus for her decision to is not the same as reasonableness not have an obligation to make a removal from the flight,” instead 10 remove a under a negligence standard.” thorough inquiry into the informa- insisting that she was not a threat to domestic Some courts, including the First tion received or the sources of that safety and that the flight attendants airline and Eleventh Circuits, have gone a information or to conduct an inde- arbitrarily removed her from the air- 14 20 passenger step further and have interpreted § pendent investigation. This is true craft. The court held that cannot give 44902 as an “affirmative grant” of even if it is later determined that rise to a permission to the air carrier, thus the crew exaggerated or made false [s]uch conclusory statements and damages creating a presumption that the statements to the pilot concerning bare assertions that [the plain- claim unless pilots’ decisions and actions were the events leading up to the passen- tiff’s] behavior was not inimical 15 the decision reasonable and placing the bur- ger’s removal. to safety—despite her admitted was arbitrary den on the plaintiffs to show that § In Mercer v. Southwest Air- failure to comply with safety regu- or capricious. 44902 is inapplicable.11 lines Co., the Northern District of lations—do not plausibly support To determine whether a pilot’s California clarified that a plain- a claim that her removal from the decision to remove a passenger was tiff cannot avoid the preemptive flight was arbitrary or capricious.21 arbitrary or capricious, courts con- effect of § 44902 by alleging that sider the facts and circumstances the pilot’s belief that the plain- In support of its holding, the court known by the pilot at the time she tiff was inimical to the safety of the reaffirmed that formed her opinion.12 This includes flight was factually inaccurate.16 consideration of (1) the limited The captain in Mercer ordered that [t]here is no duty on the part of facts known by the pilot at the time, the plaintiff be removed because he the captain to investigate recom- (2) the time constraints in making was believed to be a security threat mendations by flight attendants the decision, and (3) the general based on representations made by for removal of a passenger, and the security climate surrounding the the flight attendants. The plain- captain is entitled to take repre- events.13 Because the pilot often has tiff sued, alleging that § 44902(b) sentations of flight attendants at to make rapid decisions to ensure did not apply to his claims because face value.22 the comment that he was a “security threat” was merely a pretext for A plaintiff may, however, prove Oliver Beiersdorf is a partner at racial discrimination.17 The court that a decision by an air carrier to Reed Smith and is based in New disagreed, holding that remove or refuse a passenger was York City. He represents foreign and arbitrary or capricious if she can domestic airlines, manufacturers [p]laintiff misses the point. Defen- show that no responsible decision and distributors, ship owners and dant has it right that whether or maker would credit the information operators, and other corporate not the captain was correct in his provided.23 clients in federal and state courts belief that Plaintiff posed a secu- For example, in Cordero v. Cia throughout the United States. rity threat, the fact that the safety Mexicana de Aviacion, S.A., the Beiersdorf’s experience includes of the flight was in question at the Ninth Circuit reinstated the jury representing clients in multidistrict time Defendant acted is what is verdict in favor of the plaintiff, mass tort and other high-stakes relevant to this analysis.18 holding that there was ample evi- litigation.

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