France v. Trans States Airlines, LLC

          REPORT AND RECOMENDATION ON DEFENDANTS' MOTIONS TO DISMISS NEGLIGENCE PER SE CLAIM (DKT. #25 & #27)

          N. Reid Neureiter United States Magistrate Judge

         1. Introduction

         This is 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 action.

         On 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.

         I have 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 DENIED.

         2. Background Facts as Alleged in the Amended Complaint

         This 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.

         Officials 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.

         After 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. ¶ 22.

         Ms. 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.

         3. Claims for Relief

         Ms. 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. ¶ 29.

         Second, 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.

         As 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.

         4. Legal Standard for Motion to Dismiss

         Federal 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).

         “A 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.

         However, 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).

         5. The ...