IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
CATHERINE RAY, individually and on
behalf of all others similarly situated PLAINTIFF
v. Case No. 08-5025
AMERICAN AIRLINES, INC DEFENDANT
MEMORANDUM OPINION
This matter is before the Court on Defendant’s motion for
summary judgment (Doc. 69) and supporting documents (Docs. 70-
71); and Plaintiff’s response (Doc. 83) and supporting brief
(Doc. 84). Also before the Court is Plaintiff’s Motion for
Continuance of Defendant’s Summary Judgment Motion (Doc. 85) and
Defendant’s Motion to Strike (Doc. 91).


For the reasons set forth herein, Defendant’s motion (Doc.
69) is GRANTED and Plaintiff’s Complaint is DISMISSED with
prejudice. Further, Plaintiff’s Motion for Continuance (Doc.
85) and for Class Certification (Doc. 62) and Defendant’s
Motions to Strike and to Stay Discovery (Docs. 66, 91, 96, 102
& 107) are DENIED AS MOOT. Plaintiff’s Motion for Joinder of
Parties (Doc. 105) is also DENIED.


STANDARD OF REVIEW

Summary judgment is appropriate only where there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R.Civ. P. 56(c). The burden
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of proof is on the moving party to set forth the basis of its
motion. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The Court
must view all facts and inferences in the light most favorable to
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574 (1986). “The non-moving party, however, must still
“present evidence sufficiently supporting the disputed material
facts that a reasonable jury could return a verdict in [their]
favor.” Pope v. ESA Services, Inc., 406 F.3d 1001, 1003-4 (8th
Cir. 2005) (quoting Gregory v. City of Rogers, Ark., 976 F.2d
1006, 1010 (8th Cir. 1992)). Summary judgment is appropriate
where a plaintiff fails to present evidence sufficient to create
a jury question as to an essential element of his claim. Turner
v. Honeywell Fed. Manuf. & Tech., 336 F.3d 716 (8th Cir. 2003).


BACKGROUND

Plaintiff, Catherine Ray, brought this action based on the
experiences on a December 29, 2006, American Airlines flight from
Oakland to Dallas-Fort Worth airport (“DFW airport”), which was
diverted to Austin, Texas (“Austin”) because of weather conditions
at DFW airport. Plaintiff alleged that she was confined to the
aircraft against her will and forced to endure deplorable
conditions on the ground in Austin for approximately nine and onehalf
(9 ½) hours by the Defendant.

Plaintiff originally sought compensatory and punitive damages
for false imprisonment, outrage or intentional infliction of
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emotional distress, negligence, breach of contract, and fraud or
deceit. Plaintiff contends that Defendant’s actions or failures
to act serve as the basis for her claim, including Defendant’s
failure to cancel or delay flights due to bad weather; Defendant’s
refusal to permit passengers to leave the airplane while it was
on the runway in Austin; Defendant’s failure to “supply the parked
aircraft with essentials of water, food, sanitary waste removal,
light, and breathable or fresh air at normal temperatures” while
stranded on the runway in Austin; Defendant’s failure to unload
checked baggage when it finally allowed the passengers off the
airplane in Austin at 9:30 p.m.; Defendant’s refusal to provide
overnight lodging, meals, ground transportation, telephone or
other passenger expenses and losses caused by its diversion and
stranding; and Defendant’s refusal to allow some passengers to
board their connecting flights in Dallas upon arrival the
following morning.


Plaintiff alleged that the delays resulted from Defendant’s
“intentional or negligent lack of personnel, equipment, and
planning for ordinary weather disruptions.” (First Amended
Complaint ¶ 28). Further, Plaintiff alleged that Defendant’s
decision to keep the passengers on the plane during the delays was
to “avoid expenses and lawful obligations to passengers associated
with strandings, diversions, and canceled flights and for
[Defendant’s] and its officers, employees, agents and stockholders
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own pecuniary gain at the expense of Plaintiff and other
passengers.” (First Amended Complaint ¶ 29).


The Court previously ruled that Plaintiff’s claims involving
compensation for lodging, meals, ground transportation and other
expenses were preempted by the Airline Deregulation Act (“ADA”),
47 U.S.C. § 41413(b)(1), but that Plaintiff’s claims, which were
not controlled by specific regulations, were not preempted (Doc.
54, p. 26). Plaintiff’s claims which are based on Defendant’s
decision to re-route her flight due to safety concerns and the
FAA’s decision to close the DFW airport for bad weather are
preempted by the Federal Aviation Act (“FAA”). (Doc. 54, p. 27)
However, the Court found there were no regulations in place to
address the health and safety of air carrier passengers during
lengthy delays on the ground (Doc. 54, p. 28). Therefore,
Plaintiff’s claims which are based on Defendant’s actions after
the flight was diverted and on the ground in Austin are not
preempted. Id. The Court dismissed Plaintiff’s breach of
contract and fraud claims for failure to state a claim.
Accordingly, Plaintiff’s claims for negligence, false imprisonment
and intentional infliction of emotional distress remain.
Defendant moves for summary judgment on Plaintiff’s remaining
three claims based upon Plaintiff’s pleadings and deposition
testimony; her husband, Paul Heap’s, deposition testimony, and the
affidavit of John Terrell which authenticates the “American
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Airlines Conditions of Carriage.”


ARGUMENT

Choice of Law

Defendant contends that Texas law is applicable to
Plaintiff’s claims. Despite the fact that Plaintiff argues that
the law of the diversion states should apply in her motion for
class certification, she contends in her summary judgment
response, that Arkansas law should apply to her individual claims.
In determining which state’s law should apply, this Court
applies the choice of law principles followed by the forum state -
Arkansas. St. Paul Fire and Marine Ins. Co. v. Building Const.
Enterprises, Inc., 526 F.3d 1166, 1167 (8 Cir. 2008). Under the th
doctrine of lex loci delicti, the law of the place where the wrong
took place is the proper choice of law. Ganey v. Kawasaki Motors
Corp., U.S.A., 234 S.W.3d 838 (Ark. 2006). However, in Wallis v.
Mrs. Smith’s Pie Co., 550 S.W.2d 453 (Ark. 1977), the Arkansas
Supreme Court adopted a test involving the five choice-influencing
factors promulgated by Dr. Robert A. Leflar. Those factors are
:(1) predictability of results, (2) maintenance of interstate and
international order, (3) simplification of the judicial task, (4)
advancement of the forum’s governmental interests, and (5)
application of the better rule of law. Id. In Schubert v. Target
Stores, Inc., 201 S.W.3d 917 (Ark. 2005), the Arkansas Supreme
Court addressed the proper choice-of-law analysis. In Schubert,
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the court concluded the case had significant contacts with
Arkansas, and as a result, applied the substantive law of
Arkansas.


The first factor, predictability of results, favors Texas
law. Assuming this is certified as a class action as Plaintiff
proposes, the Court has two alternatives: (1) to apply the
substantive law of the six different states to which the planes
in question were diverted or (2) to apply the law of each
passenger’s state of domicile, resulting in the application of
virtually every state law in the country. The second factor,
maintenance of interstate order, also favors Texas law.
Defendant’s headquarters is in Texas, and the tortious acts are
alleged by Plaintiff to have occurred in Texas. Third,
simplification of the judicial task does not favor either law.
It is no more difficult for this Court to apply Texas tort law as
opposed to Arkansas law. Fourth, advancement of the forum’s
governmental interests does not favor either state. While
Arkansas obviously has an interest in protecting its residents;
Texas, too, has an interest in protecting residents of all states
who travel inside its borders. Fifth and finally, the application
of the better rule of law, does not favor either state.
The Court finds that Texas has a more significant
relationship to the parties and subject litigation and that
Leflar’s five factors also favor Texas law. While Plaintiff may
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reside in Arkansas, the allegations supporting Plaintiff’s claims
involve actions/inactions that occurred in Texas.
Intentional Infliction of Emotional Distress (IIED)
Defendant seeks summary judgment on Plaintiff’s IIED claim
as (1) IIED is a gap-filler tort that can only be maintained when
no other traditional common law or statutory causes of action
cover the alleged facts; (2) Plaintiff did not suffer “severe”
emotional distress; and (3) Defendant’s alleged acts do not rise
to the level of extreme and outrageous conduct.
To recover on a cause of action for intentional infliction
of emotional distress, a plaintiff must show that (1) the
defendant acted intentionally or recklessly, (2) the defendant’s
conduct was “extreme and outrageous”; (3) the defendant’s actions
caused the plaintiff emotional distress; and (4) the resulting
emotional distress was severe. Hoffmann-La Roche, Inc. v.
Zeltwanger, 144 S.W.3d 438 (Tex. 2004). However, the Supreme
Court of Texas has described the tort of intentional infliction
of emotional distress as:

[f]irst and foremost, a gap-filler tort, judicially
created for the limited purpose of allowing recovery in
those rare instances in which a defendant intentionally
inflicts severe emotional distress in a manner so
unusual that the victim has no other recognized theory
of redress. The tort’s clear purpose...was to
supplement existing forms of recovery by providing a
cause of action for egregious conduct that might
otherwise go unremedied. We cautioned, however, that
the tort was a gap-filler tort that should not be
extended to circumvent the limitations placed on the
recover of mental anguish damages under more
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established tort doctrines.


Id. citing Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d
62 (Tex. 1998)(internal citations and quotations omitted). The
court further explained that “[i]n creating the new tort, we never
intended that it be used to evade legislatively-imposed
limitations on statutory claims or to supplant existing common law
remedies.” Id. A plaintiff cannot recover on a claim for
intentional infliction of emotional distress that “is merely
incidental to the commission of some other tort.” Standard Fruit
& Vegetable Co., 985 S.W.2d at 68. Even where the plaintiff is
unable to recover on his primary claim, he cannot maintain an
action for intentional infliction of emotional distress where the
“gravamen” of his complaint may be addressed by an existing
statutory or common-law remedy. Hoffmann-LaRoche, Inc., 144
S.W.3d at 447-48.

The Court finds that the gravamen of Plaintiff’s claims are
for negligence and false imprisonment; therefore, she is not
entitled to an IIED claim under Texas law. Further, even if so
entitled, the Court would still grant summary judgment as she
cannot show that Defendant’s conduct was “extreme and outrageous”
or that she suffered “severe” emotional distress.

False Imprisonment

Defendant moves for summary judgment on Plaintiff’s claim of
false imprisonment contending: (1) Plaintiff and Mr. Heap admitted
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that Defendant twice offered them the choice to deplane, however,
they elected not to do so; and (2) Plaintiff never revoked her
consent to remaining on the aircraft. Plaintiff contends that
Defendant “deceived” Plaintiff into remaining on the airplane,
therefore, her detention was without consent.
Pursuant to Texas law, the elements of false imprisonment are
(1) willful detention, (2) without consent, and (3) without
authority of law. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d
502 (Tex. 2002). Under the facts of this case, the Court finds
that Plaintiff’s claim that she was falsely imprisoned must fail.
First, Plaintiff cannot show that the detention was without
consent. In her deposition, Plaintiff testified that she was twice
offered a chance to deplane but that she was told she would “be
on [her] own”, and she did not want any further expenses, such as
a car rental. (Doc. 84-1, pp. 3-4, 13). Plaintiff further stated
that she never told the pilot or the flight attendants that she
wanted to deplane (Doc. 84-1, p. 12-13); therefore, the detention
cannot be considered willful on behalf of Defendant.
It is Plaintiff’s position that she did not revoke her
consent to remain on the airplane as Defendant deceived her into
remaining on the airplane. Plaintiff stated that she remained on
the airplane because the pilot continued to express, every thirty
or forty minutes, that they would continue their flight to Dallas,
as soon as the weather cooperated. (Doc. 84-1, pp. 3, 8).
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However, Plaintiff’s husband, Paul Heap testified that it was his
understanding that, at some point during the delay, the pilot was
restricted from continuing the flight to Dallas due to FAA
regulations regarding flight hours, but that they could not get
the airplane to a gate as the ground crew could not operate due
to lightning in the area. (Doc. 69-2, pp. 7-8). Plaintiff
confirmed that about midway through the delay, there was “a lot
of rain”, “some wind” and lightning in Austin. (Doc. 84-1, p.
12). Therefore, it appears that Plaintiff understood why the
pilot could not permit the passengers to deplane on the tarmac and
was unable to deliver them to a gate. Finally, even if Plaintiff
had communicated her wish to withdraw her consent and to deplane,
Defendant was justified in its detention of the passengers absent
some exigent circumstances. See Abourezk v. New York Airlines,
Inc., 895 F.2d 1456 (D.C. Cir. 1990)(noting the “special concerns
that attend the incredibly busy and dangerous business of common
carrier air transport”). While the Court is sympathetic to
Plaintiff and the other passengers’ position, and believes that
Defendant could and should have handled this situation
differently, the facts do not support a claim of false
imprisonment.
Negligence

Defendant moves the Court to grant summary judgment on
Plaintiff’s negligence claim as (1) Plaintiff suffered no injury
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or damages in relation to Defendant’s alleged negligence; (2)
Defendant owed no duty to Plaintiff; and (3) Defendant did not
breach any alleged duty owed to Plaintiff. To establish a
negligence claim, Plaintiff must prove that (1) Defendant owed a
duty to her; (2) Defendant breached that duty; and (3) Plaintiff
suffered damages proximately caused by the breach. Kroger Co. v.
Elwood, 197 S.W.3d 793 (Tex. 2006). Whether a duty exists is a
threshold inquiry and a question of law, and liability cannot be
imposed if no duty exists. Id. citing Van Horn v. Chambers, 970
S.W.2d 542, 544 (Tex. 1998). Under Texas law, if a defendant’s
conduct violates a contractual duty, rather than a duty
independently imposed by law, there is no negligence claim. See
DeWitt County Elec. Cooperative, Inc. v. Parks, 1 S.W.3d 96, 105
(Tex. 1999)(a contract which “spells out the parties’ respective
rights,” governs any dispute, not common-law negligence).
Defendant contends it owed no duty to Plaintiff. In her
First Amended Complaint (Doc. 1-1, p. 19), Plaintiff contends
Defendant owed Plaintiff a duty “to use best efforts to bring
passengers safely to their destinations, to plan for weather
related disturbances in its flight operations, and to refrain from
mistreatment of them with unjustified involuntary confinement,
deprivation of passengers’ baggage and stranding in remote
locations.” (Doc. 1-1, ¶51). Of these alleged duties, only the
failure to plan for weather related disturbances and stranding in
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remote locations are potentially actionable here. It is
undisputed that Plaintiff arrived safely at her destination and
was never deprived of any baggage (Doc. 84-1, pp. 21-23).
Further, the Court previously found that Plaintiff’s confinement
was justified under the circumstances.
American Airlines’ Conditions of Carriage constituted a
contract between Plaintiff and Defendant. It provides, in
pertinent part:

American will endeavor to carry you and your baggage
with reasonable dispatch, but times shown in timetables
or elsewhere are not guaranteed and form no part of
this Contract... Schedules are subject to change
without notice. American is not responsible for or
liable for failure to make connections, or to operate
any flight according to schedule, or for a change to
the schedule of any flight. Under no circumstances
shall American be liable for any special, incidental or
consequential damages arising from the foregoing.
AA may, in the event of a force Majeure Event, without
notice, cancel, terminate, divert, postpone or delay
any flight...

AA..will provide...timely and frequent updates
regarding known delays, cancellations and diversions
and will strive to provide the best available
information concerning the duration of delays and to
the extent available, the flight’s anticipated
departure time. We are not responsible for any
special, incidental or consequential damages if we do
not meet this commitment.

In the case of extraordinary events that result in very
lengthy onboard delays, AA...will make every reasonable
effort to ensure that essential needs of food (snack
bar such as a Nutri-Grain), water, restroom facilities
and basic medical assistance are met. We are not
responsible for any special, incidental or
consequential damages if we do not meet this
commitment.

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If a flight is adversely affected by events beyond our
control, you are responsible for your own overnight
accommodations, meals and incidental expenses.
In extreme circumstances, it is possible that a flight
will cancel while on the ground in the city to which it
was diverted. When this happens: You will be rerouted
on the next AA...flight with available seats or...If we
are unable to reroute you, reasonable overnight
accommodations will be provided....
(Doc. 8-1, pp. 9, 42-43, 50-51).

Plaintiff must establish both the existence and the violation
of a duty owed to her by Defendant to establish liability in tort.
El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987). It appears
that Plaintiff does not complain of any duty of care owed by
Defendant separate and apart from the Conditions of Carriage.
Therefore, Plaintiff is limited to an action for breach of
contract. See Continental Airlines, Inc. v. Kiefer, 920 S.W.2d
274 (Tex. 1996) citing Southwestern Bell Tel. Co. v. DeLanney, 809
S.W.2d 493 (Tex. 1991).

Even if Plaintiff’s allegations could be construed as a duty
separate and apart from the contract, Defendant had no duty to
provide Plaintiff with a stress-free flight environment. See
Farash v. Continental Airlines, Inc., 574 F.Supp.2d 356 (S.D.N.Y.
2008). A common carrier is not an insurer of the safety of its
passengers but owes them that high degree of care that a very
cautious, prudent, and competent person would use under the same
or similar circumstances. Slentz v. American Airlines, Inc., 817
S.W.2d 366 (Tex. App. - Austin 1991)(citations omitted). Further,
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Plaintiff must prove that Defendant’s breach of such duty was a
proximate cause of damages suffered by her. Assuming Defendant
owed a duty to Plaintiff, Defendant contends it did not breach
such duty, and, even if it did, Plaintiff suffered no injury or
damages from the breach.

Plaintiff stated although she was provided with sodas and
granola bars, she was hungry and thirsty, but never felt
dehydrated and did not ask the flight crew to assist her (Doc. 84-
1, pp. 7, 24, 26-27). Plaintiff testified that after
approximately six hours on the tarmac, she went to the restroom,
and the toilet was not flushing properly and there was no water
to wash her hands (Doc. 84-1, p. 9), however, she did not notify
a flight attendant or attempt to use another restroom. Plaintiff
stated the airplane was “stuffy”, “smelly” and she was
“exhausted”, but she was not too hot or too cold (Doc. 84-1, pp.
17, 28). According to Plaintiff, one passenger argued with the
flight attendants and yelled at the pilot, and it was “pretty
tense.” (Doc. 84-1, p. 10).

Plaintiff contends she suffered from “a mild case of
claustrophobia”, but never received any treatment and that it was
stressful to see passengers getting upset and for paramedics to
twice board the plane. (Doc. 84-1, pp. 13-14). Plaintiff stated
she had an upset stomach the next morning, which she attributed
to not being able to wash her hands (Doc. 84-1, p. 22).
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The only potential damages suffered by Plaintiff for
Defendant’s alleged negligent actions while on the ground in
Austin are emotional distress and an upset stomach she attributes
to not being able to wash her hands. The general rule is that
expert testimony is needed to establish causation outside common
knowledge and experience of jurors. Guevara v. Ferrer, 247 S.W.3d
662 (Tex. 2007)(citations omitted). See also, Kaster v. Woodson,
123 S.W.2d 981 (Tex.Civ.App.-Austin 1938, writ ref’d)(“What is an
infection and from whence did it come are matters determinable
only by medical experts”). Further, Defendant had no duty to
provide Plaintiff with a stress-free flight environment. See
Farash, supra. Accordingly, Plaintiff cannot show that she
suffered any injuries that were proximately caused by Defendant,
and her negligence claim must fail.
Additional Discovery

Plaintiff claims the motion for summary judgment should not
be decided at this time as additional discovery is warranted.
Additional discovery is not necessary as the key facts necessary
for resolution of Plaintiff’s claims are undisputed. Plaintiff
submitted an affidavit of her counsel, Paul Hudson, stating he
believes discovery will produce evidence sufficient to survive the
motion for summary judgment based upon:
(1) admissions to the court by the defendant and its
representatives; (2) public statements of defendant’s
managers as reported in the media; (3) reports,
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investigations, and Congressional testimonies of the
Inspector General of the U.S. Department of
Transportation on the incident and on defendant’s
longstanding lack of contingency planning for weather
related disruptions of its flight schedule; (4) reports
on other stranding incidents by defendant as reported
in the media and by the nonprofit organization, the
Coalition for an Airline Passengers’ Bill of Rights;
(5) conversations with and written statements or
affidavits from over a dozen passengers directly
involved in the incident; (6) defendant’s policies,
practices and patterns of behavior regarding the
incident and other similar incidents of stranding and
confinement of passengers for lenghty periods of time
in aircraft on the ground, often with inadequate water,
food, temperature and air quality, or rest room
facilities; (7) documents produced by Kathleen Hanni
pursuant to a subpoena duces tecum of the defendant and
by Catherine Ray; and (8) the deposition testimony of
Catherine Ray, Paul Heap and Kathleen Hanni.
(Doc. 85-1). Much of the information Plaintiff states she is
seeking is related to her desire to certify this action as a class
action claim. That information is not necessary to a resolution
of the motion for summary judgment on Plaintiff’s individual
claims currently before the Court. Further, much of the
information is public information, according to Plaintiff, that
may be obtained by avenues other than discovery from Defendant.
Further, the Court has considered the deposition testimony of
Catherine Ray and Paul Heap. The Court assumes Mr. Hudson
possesses any information provided by Kathleen Hanni as he
represents her in an identical action in the Northern District of
California. Finally, there is no motion to compel currently
pending before this Court. Accordingly, Plaintiff’s Rule 56(f)
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Motion for Continuance (Doc. 85) is DENIED and Defendant’s Motion
to Strike Portions of the Affidavit of Paul S. Hudson (Doc. 91)
is DENIED AS MOOT.
After Plaintiff’s Motion for Class Certification and
Defendant’s Motion for Summary Judgment were fully briefed and
ripe for the Court’s review, Plaintiff moved to amend her
complaint to add two Plaintiffs (Doc. 105). Plaintiff seeks to
add Michelle Mann and Mark Vail whose flights were diverted to
Little Rock, Arkansas; and Austin, Texas, respectively. The Court
finds that good cause to amend does not exist at this stage of the
proceedings. The Court has determined that Plaintiff may not
maintain a class action, as summary judgment is appropriate on her
individual claims. Accordingly, Plaintiff’s Motion (Doc. 105) is
DENIED.
CONCLUSION
For the reasons reflected above, Defendant’s motion for
summary judgment (Doc. 69) is GRANTED and Plaintiff’s Complaint
is DISMISSED WITH PREJUDICE. Further, Plaintiff’s Motions for
Continuance (Doc. 85) and for Class Certification (Doc. 62) and
Defendant’s Motions to Strike and Stay Discovery (Docs. 66, 91,
96, 102 & 107) are DENIED AS MOOT. Plaintiff’s Motion for Joinder
of Parties (Doc. 105) is also DENIED.
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IT IS SO ORDERED this 2nd day of April, 2009.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge