United States District Court, D. Colorado
EMILY FRANCE, individually and as the mother and guardian of O.F., a minor child, a minor, Plaintiffs,
TRANS STATES AIRLINES, LLC; and UNITED AIRLINES, INC., Defendants.
REPORT AND RECOMENDATION ON DEFENDANTS' MOTIONS
TO DISMISS NEGLIGENCE PER SE CLAIM (DKT. #25 &
Reid Neureiter United States Magistrate Judge
a negligence lawsuit arising out of allegations that the
defendant airlines, Trans States Airlines (“Trans
States”) and United Airlines (“UAL”),
(collectively, the “Defendant Airlines”),
negligently allowed the temperature inside a passenger plane
delayed on the Denver International Airport tarmac to rise to
a dangerous level, causing an infant child to overheat and
suffer physical injuries. The Defendant Airlines have moved
to dismiss Plaintiffs' negligence per se claim,
largely on the ground that regulations issued by the Federal
Aviation Administration do not create a private right of
October 23, 2019, I heard argument on the Defendants
Airlines' Partial Motions to Dismiss Plaintiffs claim for
negligence per se (Dkt. ##25 & 27) based on
alleged violations of federal airline regulations. After
argument, reviewing some of the authorities cited by the
Parties raised in my mind the legal question whether
Plaintiffs' claims are preempted by the Airline
Deregulation Act of 1978 (“ADA”). See 49
U.S.C. § 41713(b)(1). The briefing on that question was
not adequate. Therefore, on October 30, 2019, I gave the
Parties the opportunity to brief that issue, ordering them to
file simultaneous briefs by November 11, 2019. See
Dkt. #49. The Parties submitted supplemental briefs.
See Dkt. ##50 & 52.
considered the Defendant Airlines' Motions,
Plaintiffs' Opposition, the oral arguments, and the
supplemental briefs submitted consistent with my order of
October 30. Considering all this information and the relevant
authorities, I recommend that Defendants' Motions to
Dismiss Plaintiff's negligence per se claim be
Background Facts as Alleged in the Amended Complaint
lawsuit is filed by Emily France, both individually and as
mother/guardian of her infant child, O.F. Ms. France's
and her child's claims arise from the operation of United
Flight 4644 from Denver, Colorado, to El Paso, Texas on June
22, 2017. Flight 4644 was being flown by Trans States under
the brand name “United Express.” Ms. France
alleges that the Defendant Airlines together
“operated” the flight. Dkt. #20 ¶ 14. Ms.
France and her infant child were on round-trip tickets to El
Paso. Ms. France's child, O.F., being only four months
old, was issued a ticket as a lap infant. Id. ¶
15. When Plaintiffs boarded the flight, it was extremely hot
and only hot air would blow out of the cabin's air
conditioning system. Ms. France nursed her son to keep him
hydrated in the extreme heat. Id. ¶ 16.
on Flight 4644 then announced there would be a lengthy delay
to add additional fuel but the passengers would not be
allowed to leave the plane. Id. ¶ 17. The
extreme heat continued to build in the cabin. The infant
child's face began to turn red and he became agitated in
the extreme heat. A flight attendant was informed of the
concern for the child's condition due to the heat and the
flight attendant apologized for the temperature and brought
some ice in a plastic bag. Id. ¶ 18. The cabin
doors were opened to permit air circulation to alleviate the
extreme heat. Ms. France was “drenched in sweat,
” began to feel sick to her stomach, and was concerned
for her own well-being as well. Officials on the flight
advised nothing could be done about the heat until the plane
was in the air. Id. ¶ 19.
an hour, officials said the passengers could leave the plane,
but would have to remove all their belongings to do so. Ms.
France initially stayed on the plane because she did not feel
she could remove her belongings. Id. ¶ 20. When
Ms. France and her child were finally directed off the plane,
they were sent to a first-floor loading area that was still
hot and did not permit her or her child to cool off.
Id. ¶ 21. Twenty minutes later, Ms. France and
her child were directed back on the place, and the cabin was
even hotter than before. The cabin doors were closed, but it
was announced that there was still no timetable for takeoff.
Ms. France's child's condition deteriorated. He was
hot, his body was red, and he was inconsolable. Id.
France asked that she be allowed to leave the plane. The
plane's doors were opened but the request to deplane was
denied. Passengers began to advise Ms. France to strip her
son's clothes off. The child became limp and
unresponsive. Ms. France requested an ambulance, but the
plane remained stationary. A flight attendant yelled for
stairs to be brought to the door, but that was not done.
Eventually, the plane's doors were closed so that the
aircraft could return to the gate. During this time, flight
attendants rubbed ice cubes on the child. Id. ¶
23. When Flight 4644 returned to the gate, Ms. France and her
child finally left the aircraft to be met by EMTs inside the
terminal. The child was listless and his hands and feet were
splotchy. He was taken by ambulance to Children's
Hospital where he received emergency medical treatment for
altered consciousness brought on by heat exhaustion.
Id. ¶ 24. Plaintiffs claim that as a result of
these traumatic events they suffered physical injuries and
Ms. France suffered extreme emotional distress from having
witnessed her child experiencing heat exhaustion.
Id. ¶ 25.
Claims for Relief
France and her child assert two claims for relief. First,
they sue in negligence, alleging that the Defendant Airlines
negligently, carelessly, and recklessly, breached their duty
of care to Plaintiffs by “failing to safely maintain,
operate, equip, manage Flight 4644 and/or by failing to
properly and safely train, teach, educate, prepare, inform,
alert, monitor, guide or tutor its pilots, crew and other
personnel to operate a passenger aircraft and failing to
abide by policies that would have safely responded to or
prevented the emergency situation.” Id. ¶
Plaintiffs sue in negligence per se, alleging that
the Defendant Airlines violated certain FAA regulations which
are intended to protect against the kinds of injuries or
losses that Plaintiffs sustained. Specifically, it is alleged
that in violation of federal regulations, the Defendant
Airlines (1) operated flight 4644 with excessive and
life-threatening cabin air temperature; (2) failed to
adequately cool the plane even thought they should have known
of the risk of the lengthy tarmac delays; (3) failed to
provide “adequate medical attention” in
contravention of a specific regulation; and (4) failed to
adhere to their federally required “Tarmac Delay
Contingency Plan” by failing to ensure adequate medical
attention or commit sufficient resources to the Plan.
Id. ¶¶ 31-47.
noted, the Defendant Airlines have moved to dismiss the
negligence per se claim. They have not yet formally
moved to dismiss the straight negligence claim. But
notwithstanding the lack of a formal motion to dismiss the
negligence claim, in their supplemental submission (Dkt.
#52), the Defendant Airlines urged that both the negligence
per se and negligence claims be dismissed as
preempted by the ADA.
Legal Standard for Motion to Dismiss
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “The court's function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiffs
complaint alone is legally sufficient to state a claim for
which relief may be granted.” Dubbs v. Head Start,
Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations
and quotation marks omitted).
court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir.1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a
motion to dismiss, means that the plaintiff pleaded facts
which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. The Iqbal evaluation
requires two prongs of analysis. First, the court identifies
“the allegations in the complaint that are not entitled
to the assumption of truth, ” that is, those
allegations which are legal conclusions, bare assertions, or
merely conclusory. Id. at 679-81. Second, the court
considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 679.
the Court need not accept conclusory allegations without
supporting factual averments. S. Disposal, Inc., v. Texas
Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
Moreover, “[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does the
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of ‘entitlement to
relief.''” Id. (citation omitted).