III. AIR CARRIER AND LIABILITY DEFENSES

A. Preemption

1. Airline Deregulation Act (ADA) of 1978

1. Preemption Of Personal Injury Claims.
   1. Federal law prohibits certain state actions.

      Section 1305(a)(1) bars "state or political subdivisions" from enacting or enforcing laws "relating to rates, routes or services" of any air carrier.

   2. Breadth of ADA: "some connection"

      In Morales v. Trans World Airlines, Inc. , 112 S. Ct 2031 (1992), the Supreme Court held that the term "relating to" as used in the ADA is extremely broad, and extends to state statutes or actions that have some connection with or reference to "airline rates, routes or services," and would preempt state statutes and regulations that have this effect, even if unintended.

   3. The trend is to preclude personal injury claims from the ADA

      Since Morales, most courts have taken consistent approaches in resolving peremption questions in personal injury actions, by concluding that preemption does not exist. See, E.G., Romano v. American Trans Air, 56 Cal. Rptr. 2d 428 (Ct. App. 1996)(State law personal injury claims against airlines not preempted by ADA).

   4. Necessity for an "economic impact."

      In Doricent v. American Airlines, No. CIV-A. 91-12084Y, 1993 WL 437670 (D. Mass. 1993), the court determined that Congress intended the preemptive effect of the ADA to be applicable to those cases where the state action has an economic impact on airline rates. It let stand a passenger's state law claim for assault and battery and emotional distress caused by his forced removal and subsequent beating by airport security in Haiti.

   5. Ordinary premise liability claims excluded.

      In Stagle v. Delta Airlines, Inc., 849 F. Supp. 179 (E.D.N.Y. 1994), rev'd, vacated, remanded, 52 F.3d 463 (2d Cir. 1995), the Second Circuit held that a claim based on a slip and fall injury in a baggage claim area was not preempted, concluding that federal preemption was not meant to apply to ordinary premises liability claims.

   6. Preemption based upon economic competition between air carriers.

      In Sedigch v. Delta Airlines, 850 F. Supp. 197 (E.D.N.Y. 1994), the court held that state tort claims of false imprisonment, breach of contract, slander, assault and emotional distress were not preempted because the common law claims were not addressed to matters about which the airlines were or are likely to compete.

   7. Service related injuries not excluded.

      In Kay v. U.S. AIR, Inc., No. 93-4856, 1994 WL 406548 (E.D. Pa. 1994), a case involving a slip and fall injury incurred while disembarking an airplane, the Court held it to be "inconceivable that Congress would have intended Section 1305(a)(1) . . . to act as a grant of total immunity to the airlines for any and all service-related negligence."

   8. Exclusion has been found for injuries occurring during the flight by the Fifth Circuit.

      A line of cases, however, has found preemption where the personal injury occurs during the flight itself or otherwise more directly involves airline services. See, e.g., Baugh v. Trans World Airlines, 915 F.2d 693 (5th Cir. 1990).

      1. But 5th Circuit courts have sought to distinguish this line, holding for example that ground transportation services or an air carrier's procurement of ground transportation services for its customers are not air carrier services. See, e.g., Chouest v. American Airlines, Inc., 839 F. Supp. 412 (E.D. La. 1993).

      2. In Hodges v. Delta Airlines, Inc., 4 F.3d 350 (5th Cir. 1993), the court clarified that only "elements of the air carrier service bargain, such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself, qualify as services warranting broad protection from state regulation under section 1305."

2. Preemption Of Air Carrier Business Practice Claims
   1. Advertising of fares is not a preempted service.

      In Burke v. Northwest Airlines, 819 F. Supp. 1352 (E.D. Mich. 1993), a plaintiff brought state deceptive advertising claims alleging that the airline had falsely advertised it was a safe and reliable airline. The court rejected defendant's preemption claim, stating that the claim was based on "non-rate" aspects of defendant's advertising.

   2. Frequent flyer programs are not preempted.

      In Wolens v. American Airlines, Inc., 626 N.E.2d 205 (1993), the plaintiff alleged state law claims for breach of contract and violation of a state consumer protection statute relating to the airline's retroactive modification of its frequent flyer program. The State Supreme Court held that such programs are peripheral to, rather than essential to, airline operations, and therefore, are not preempted.

   3. Taxes on airfares are preempted.

      In Johnson v. American Airlines, Inc., 633 N.E.2d 978 (Ill. App. Ct. 1994), the court affirmed a determination that a class action suit based on the airline's retention of the federal tax portion of tickets in refunds directly related to rates and was precisely the type of action Congress intended to preempt.