Gressett et al v. Southwest Airlines Company
Filing
40
ORDER AND REASONS granting 11 Motion for Summary Judgment dismissing all of the plaintiff' claims against Southwest Airlines Company. The plaintiffs' case is dismissed with prejudice. Signed by Judge Martin L.C. Feldman on 10/20/16. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BAM GRESSETT, ET AL.
CIVIL ACTION
V.
NO. 16-1272
SOUTHWEST AIRLINES COMPANY, ET AL.
SECTION F
ORDER AND REASONS
Before the Court is Southwest Airlines Co.’s motion for
summary judgment on all claims.
For the reasons that follow, the
motion is GRANTED.
Background
The plaintiffs in this litigation are suing, both literally
and metaphorically, over peanuts.
On February 14, 2014, Andrew
Gressett, Bam Gressett, and their minor son A.G. were the first
passengers to pre-board Southwest Flight No. 3006, set to depart
from New Orleans to Los Angeles with a brief stop in Houston.
The
Gressetts were planning to visit Legoland in celebration of A.G.’s
1
birthday before traveling down coast to San Diego to visit with
family friends. 1
Upon embarking, Andrew Gressett began searching for a row of
seats that would accommodate his recent back injury while allowing
him to sit with his family.
He found three suitable seats in the
second row only to allegedly discover a flight attendant identified
only as “Kelly” sitting in the center seat, eating and reading a
magazine.
According to the plaintiffs, Kelly “stormed off” in a
huff as they approached the row.
Kelly purportedly told another
flight attendant, “I guess I need to move before he [Mr. Gressett]
runs me over.”
As Mr. Gressett placed his family’s carry-on
luggage in an overhead bin, the plaintiffs assert, Kelly again
“stormed” to the front of the aircraft and told the passenger
behind the plaintiffs, “You can come in if this person [Mr.
Gressett] moves out of the aisle.”
Mr. Gressett retorted that he
and his family would already have been seated had Kelly not been
sitting in their chosen row.
The plaintiffs thereafter settled
1
In support of its motion, Southwest has included a Statement
of Uncontested Facts drawn from the original complaint, deposition
testimony, pleadings, and documents introduced by the plaintiffs.
Because the plaintiffs present no objections to Southwest’s
Statement, the Court may and will rely on the Statement to set
forth the facts of this case. Fed. R. Civ. P. 56(e)(2).
2
into their seats, with Mr. Gressett taking the aisle, Mrs. Gressett
sitting in the middle, and A.G. opting for the window seat.
Once in the air, Kelly began distributing bags of peanuts to
passengers.
The plaintiffs allege that when Kelly reached their
row, she “forcefully pushed” bags of peanuts into Mr. Gressett’s
hands before throwing “four to six” bags at his face and torso.
Mr. Gressett then complained to his wife of Kelly’s “Southwest
White Trash Professional Behavior.”
When she heard this remark, Kelly warned the plaintiffs, “If
you don’t watch your language, security will be waiting for you
when you land.”
Although the plaintiffs’ original complaint
characterizes Kelly’s warning as a loud proclamation, they later
admitted that she leaned in and spoke to them quietly, as if to
prevent other passengers from eavesdropping.
Neither of the
plaintiffs could confirm that anyone else heard Kelly’s comment.
The plaintiffs assert that, on at least two other occasions
during the flight, Kelly bumped Mr. Gressett with her hip.
During
their depositions, however, neither Mr. nor Mrs. Gressett could
testify with certainty that Kelly intended the contact. 2
2
Mr.
Deposition testimony furnished no evidence that A.G. was
aware of the tumult involving his parents and Kelly. Mrs. Gressett,
in fact, testified that A.G. was watching a movie with headphones
on during the entire ordeal.
3
Gressett even realistically acknowledged that inadvertent contact
with flight attendants “inevitably” occurs on crowded flights.
Although the rest of the flight proceeded without incident,
the
plaintiffs
claim
that
the
fear
of
arrest
and
detention
engendered by Kelly’s threat beset them until they landed and
disembarked in Los Angeles.
The vacation unfolded as planned, but
residual distress from the incident on the flight apparently
prevented Mr. and Mrs. Gressett from enjoying themselves. They
claim to have been upset for as many as 10 days after the flight.
But neither Mr. Gressett nor Mrs. Gressett sought medical treatment
for their alleged emotional anguish.
A.G. suffered no discernible
effects of the flight that so tormented his parents.
On March 19, 2015, Mr. Gressett wrote to Southwest President
Gary Kelly urging him to investigate the flight attendant Kelly’s
behavior and threatening litigation.
In its response on March 31,
2015, Southwest commented that its reports differed from the
plaintiffs’
internally.
lawsuit,
allegations,
but
pledged
to
handle
the
situation
On February 13, 2016, the plaintiffs filed this
invoking
this
Court’s
jurisdiction under 28 U.S.C. § 1332.
diversity
subject
matter
The complaint alleges that,
within the course and scope of her employment with Southwest, Kelly
engaged in intentional and negligent conduct which resulted in
4
severe emotional distress.
According to the plaintiffs, Kelly’s
peanut hurling, hip checking, and threat of arrest constituted
assault and defamation.
of
direct
negligence
The complaint further accuses Southwest
in
failing
to
prevent
the
incident
or
intervene, as well as in its hiring, training, and supervision of
Kelly.
Finally, the complaint seeks to hold Southwest liable for
“any and all other acts of negligence and/or carelessness” that
come to light.
Southwest now seeks summary judgment dismissing
the plaintiffs’ claims.
Discussion
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine
dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The
mere argued existence of a factual dispute does not defeat an
5
otherwise properly supported motion.
See id.
Ultimately, "[i]f
the evidence is merely colorable . . . or is not significantly
probative," summary judgment is appropriate. Id. at 249 (citations
omitted); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007)(internal
quotation
marks
and
citation
omitted)
(“[T]he
nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of a claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
regard,
the
non-moving
party
must
adduce
competent
See
In this
evidence,
including but not limited to sworn affidavits and depositions, to
buttress his claims.
See Donaghey v. Ocean Drilling & Exploration
Co., 974 F.2d 646, 649 (5th Cir. 1992).
However, affidavits or
pleadings which contradict earlier deposition testimony cannot
create a genuine issue of material fact sufficient to preclude an
entry of summary judgment.
See S.W.S. Erectors, Inc. v. Infax,
Inc., 72 F.3d 489, 495 (5th Cir. 1996); Thurman v. Sears, Roebuck
& Co., 952 F.2d 128, 137 n. 23 (5th Cir. 1992).
In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most favorable
6
to the nonmoving party.
(citations omitted).
Scott v. Harris, 550 U.S. 372, 378 (2007)
Although the Court must "resolve factual
controversies in favor of the nonmoving party," it must do so "only
where there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts."
Antoine v. First
Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation
marks and citation omitted).
II.
A.
Southwest first seeks summary judgment on the plaintiffs’
intentional
infliction
of
emotional
distress
claim.
The
plaintiffs insist that Kelly’s “threatening and bullying” behavior
sullied the Gressetts’ long-awaited family vacation and resulted
in severe mental anguish, rendering Southwest 3 liable for damages.
As a matter of law, the plaintiffs’ claim must be dismissed.
In White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991),
the Louisiana Supreme Court outlined the three elements a plaintiff
must
establish
intentional
in
order
infliction
to
of
successfully
emotional
bring
distress
a
claim
(IIED)
for
under
Louisiana law: (1) extreme and outrageous conduct by the defendant;
Southwest does not contest, and this Court assumes, that Kelly
acted within the course and scope of her employment when
interacting with the plaintiffs.
7
3
(2) severe emotional distress suffered by the plaintiff[s]; and
(3)
the
intent
by
the
defendant
to
inflict
severe
emotional
distress or the knowledge that severe emotional distress was
certain or substantially certain to result from the defendant’s
conduct. Failure to prove any of the three foregoing elements is
fatal to an IIED claim.
(1)
See id.
Extreme and Outrageous Conduct
The Supreme Court in White defined extreme and outrageous
conduct as that which is “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious and utterly intolerable in a
civilized community.”
that
“mere
insults,
Id.
Significantly, the Court clarified
indignities,
threats,
annoyances,
petty
oppressions, or other trivialities” do not give rise to a valid
intentional infliction claim.
demanding one for plaintiffs.
Id.
The conduct element is a
See id. at 1210-11 (finding that
work supervisor’s one-minute tirade against employees did not meet
outrageousness requirement); see also, e.g., Murungi v. Texas
Guaranteed, 693 F. Supp. 2d 597, 608 (E.D. La. 2010) (holding that
loan collector’s initiation of wage garnishment proceedings and
“harassing and embarrassing” phone calls to plaintiff, though
“perhaps obnoxious,” were not extreme or outrageous); Mederos v.
8
St. Tammany Par. Gov’t, No. 2015-CA-1602, 2016 WL 3683478, at *6
(La. App. 1 Cir. July 11, 2016) (finding that supervisor’s alleged
micromanagement and overworking of employee did not meet the White
standard for outrageousness).
According
to
the
Statement
of
Uncontested
Facts,
Kelly
allegedly complained about Mr. Gressett “run[ning] over” her;
ridiculed Mr. Gressett taking too long to load his family’s luggage
into the overhead bin; opted for an uncourteously hostile method
of peanut delivery; and quietly warned Mr. Gressett, after he
referred to her as “White Trash,” that security would be waiting
at the Houston gate if he failed to clean up his language.
No
rational trier of fact could conclude that this behavior qualified
as anything more than regrettably rude and off-putting.
Even
accounting for the “unique and sensitive conditions” of commercial
air travel, as the plaintiffs insist this Court must, Kelly’s crass
alleged behavior amounts to the kinds of affront that would at
best annoy reasonable people.
Kelly’s alleged actions, in fact,
epitomize the “mere insults” the White Court and others have
specifically
characterized
as
too
trivial
to
intentional infliction for emotional distress claim.
support
an
See White,
585 So. 2d at 1209, 1210-11; Murungi, 693 F. Supp. 2d at 608;
Mederos, 2016 WL 3683478, at *6.
Accordingly, as a matter of law,
9
the plaintiffs cannot establish that Kelly engaged in sufficiently
extreme or outrageous conduct.
(2)
Severe Emotional Distress
The Court’s analysis of the “extreme and outrageous” element
suffices to dismiss the plaintiffs’ emotional distress claim on a
motion for summary judgment.
However, because the degree of the
plaintiffs’ alleged emotional harm bears on each of their remaining
claims, the Court addresses that issue here.
Recovery on an IIED claim under Louisiana law requires a level
of distress beyond a reasonable person’s endurance.
So. 2d at 1210.
White, 585
Genuine humiliation, anxiety, confusion, upset,
worry and the like are typically insufficient.
See Nicholas v.
Allstate Ins. Co., 765 So. 2d 1017, 1030 (La. 2000); see also Pate
v. Pontchartrain Partners, LLC, No. 13-6366, 2014 WL 5810521, at
*4 (E.D. La. Nov. 7, 2014)(holding that humiliation and dismay
over employment termination during pregnancy did not meet severity
requirement); Deville v. Robinson, 132 So. 3d 1277, 1281 (La. App.
3 Cir. 2/26/14) (dismissing IIED claim when plaintiff suffered
series of anxiety attacks, some of which may have borne no relation
to the defendant’s conduct).
Some symptoms of severe emotional
distress include “neuroses, psychoses, chronic depression, phobia,
and shock.”
Pate, 2014 WL 5810521, at *4 (quoting Aronzon v. Sw.
10
Airlines, No. Civ.A. 03-394, 2004 WL 57079, at *6 (E.D. La. Jan.
9, 2004)).
Although failure to seek medical treatment for the
emotional distress sustained does not by itself doom a claim for
emotional
distress
damages,
it
hampers
plaintiff was beset by severe anguish.
any
argument
that
a
Pate, 2014 WL 5810521, at
*4 (quoting Aronzon, 2004 WL 57079, at *6).
Despite asserting that residual anxiety and distress from
their
encounters
plaintiffs
activities.
with
admittedly
Kelly
“ruined”
participated
in
their
all
of
vacation,
their
the
planned
The Court notes that the plaintiffs never sought
medical attention or treatment for their alleged distress.
The
plaintiffs’ endurance of the California vacation and forgoing of
medical treatment, they explain, stems from their decision to “live
their lives, instead of setting aside responsibilities in order to
maximize their claims by ‘living their case.’”
And so, the
plaintiffs undermine the merits of their own case.
That the
plaintiffs even could enjoy a lavish 10-day vacation and “live
their lives” illustrates that their emotional suffering fell well
within the range of reasonable human endurance.
So. 2d at 1030; White, 585 So. 2d at 1210.
See Nicholas, 765
No matter how authentic
their consternation over the in-flight fiasco, the plaintiffs have
failed to create a triable issue of fact as to whether they
suffered the kind of debilitating emotional fallout needed to
11
support
an
IIED
claim. 4
Summary
judgment
dismissing
the
plaintiffs’ IIED claim is patently warranted.
B.
Southwest also asks this Court to dismiss the plaintiffs’
claim that Kelly assaulted them by threatening to call security in
response to Mr. Gressett’s “White Trash” comment.
This claim must
also be dismissed as a matter of law.
An assault occurs when an intentional threat of battery, or
harmful
or
offensive
contact,
places
one
in
reasonable
apprehension of receiving an injury. See McVay v. Delchamps, Inc.,
707 So. 2d 90, 93 (La. App. 5 Cir. 1/14/98); Castiglione v. Galpin,
325 So. 2d 725, 726 (La. App. 4 Cir. 1976); State in re Cortez,
319 So. 2d 496, 497 (La. App. 4 Cir. 1975).
The law clearly
provides for a colorable assault claim only when the threat is one
Because the plaintiffs’ failure as a matter of law to establish
either of the first two elements of an IIED claim is dispositive,
the Court will forego examination of Kelly’s intent to inflict
severe emotional harm. To the extent the plaintiffs allege that
Kelly negligently inflicted severe emotional distress, the Court’s
holding that the plaintiffs’ emotional anguish was not severe
effectively defeats that claim. See Moresi v. Dep’t of Wildlife &
Fisheries, 567 So. 2d 1081, 1095 (La. 1990) (“[I]f the defendant's
conduct is merely negligent and causes only mental disturbance,
without accompanying physical injury, illness or other physical
consequences, the defendant is not liable for such emotional
disturbance.”); Bonnette v. Conoco, Inc., 837 So. 2d 1219, 12235
(La. 2003) (holding that emotional distress must be “genuine and
serious” for plaintiff to recover in absence of physical injury).
12
4
of physical violence.
defendant
plaintiffs.
committed
In Castiglione v. Galpin, for example, the
assault
by
325 So. 2d at 726.
pointing
a
shotgun
at
the
In State in re Cortez, the
defendant assaulted a fellow student by threatening him with a
knife. 319 So. 2d at 497.
No evidence suggests that, in responding to Mr. Gressett’s
crass language, Kelly manifested an intent to threaten him or his
family with harmful or offensive contact.
Nor do the plaintiffs
allege that Kelly’s warning that she would enlist security’s help
placed them in fear of physical injury.
Instead, they suggest
that the power Kelly wielded as a result of the “deference”
afforded airline employees in the name of security and safety
augmented the Gressetts’ panic over being arrested and separated
from A.G.
They further offer the risible assertion that they
“would have preferred a threat of a knife or shotgun” to the
possibility of being detained by security in Houston, a statement
as breathtaking in its absurdity as in its disingenuousness. 5
Clearly, the apprehension of eventual arrest and detention here—
and the Court would strain to even regard that apprehension as
reasonable—is not the sort giving rise to a valid assault claim.
The plaintiffs’ claim that Kelly’s warning constituted an assault
5
And in itself borders the fringes of 28 U.S.C. § 1927.
13
defies law and common sense. The defendant is entitled to judgment
as a matter of law dismissing the assault claim.
C.
The plaintiffs additionally contend, in cursory fashion, that
Kelly assaulted and battered Mr. Gressett by 1) pelting him with
peanuts and 2) bumping into him with her hip at least twice. Both
claims are without merit.
Even
assuming
Kelly
forcefully
shoved
peanuts
onto
Mr.
Gressett, he suffered no physical injury. Furthermore, the summary
judgment record (including the Statement of Uncontested Facts,
deposition testimony and the plaintiffs’ own pleadings) signify
that the plaintiffs’ alleged fear of arrest and detention from
Kelly’s
warning,
rather
than
the
trauma
from
Kelly’s
attacks, led to the plaintiffs’ emotional distress.
peanut
The source of
the anguish notwithstanding, its lack of severity also defeats the
plaintiffs’ assault and battery claims in the absence of physical
injury. Therefore, as a matter of law, Kelly neither assaulted nor
battered
Mr.
Gressett
with
her
delivery of the peanut packages.
14
allegedly
aggressive
form
of
The
same
is
true
of
Kelly’s
alleged
hip-bumping. 6
In
addition, as Southwest points out, the plaintiffs admitted in their
deposition testimony that they could not determine with certainty
whether Kelly intentionally bumped Mr. Gressett.
Given that the
plaintiffs admit to an inability to prove intent, no reasonable
finder of fact could conclude that Kelly intended to contact Mr.
Gressett on this evidence.
Summary judgment for the hip-related
assault and battery claims is thus appropriate.
D.
In
their
original
complaint,
the
plaintiffs
also
assert
claims for defamation, negligent training and supervision, and
mental injury to A.G., the Gressetts’ minor son.
Because the
plaintiffs renounced or largely ignored these claims in their
opposition, the Court will summarily explain their dismissal here.
After initially accusing Kelly of defamation, the plaintiffs
acknowledge in their opposition papers that their defamation claim
“may lack the full complement of elements necessary to prevail.”
Indeed, defamation in Louisiana consists of a false or defamatory
statement, publication to a third party, negligence on the part of
The Court takes judicial notice that other passengers as well as
staff are guilty of aisle hip bumping on flights, which many
travelers find annoying.
15
6
a publisher, and actual injury, none of which occurred in this
case. See Fitzgerald v. Tucker, 737 So.2d 706, 715 (La. 1999).
Accordingly, the plaintiffs’ defamation claim is dismissed as a
matter of law.
The original complaint also charges Southwest with “failing
to properly train, screen, monitor, supervise
prevent
the
improperly
hiring
trained
or
of . . . their obviously
and/or
unprepared
otherwise
unstable
employee.”
and
In their
opposition papers, the plaintiffs strip their direct negligence
back to a few fleeting mentions of Southwest’s failure to “train
and control” Kelly.
The plaintiffs point to nothing regarding
Southwest’s training methods or Kelly’s alleged instability.
They
further conceded in their sworn deposition testimony that Kelly
uttered her warning of security’s involvement quietly and that
they could not confirm that other Southwest employees witnessed
enough of her conduct to intervene.
Because the plaintiffs cannot
prove essential elements of their claim, the direct negligence
claims
against
Southwest
are
therefore
dismissed.
The plaintiffs also sought damages for the “actual mental
injury and upset” to A.G. in their original complaint.
The
opposition papers refer only to Mr. and Mrs. Gressett’s fear of
A.G. sustaining mental injury and upset.
Uncontested
Facts
indicates,
the
16
As the Statement of
plaintiffs
present
nothing
regarding their child’s suffering or even becoming aware of his
parents’ confrontation with Kelly. The only mental anguish alluded
to is that of the parents, which this Court has already determined
falls well below the threshold of “serious” under Louisiana law.
Accordingly, the defendant is entitled to judgment as a matter of
law dismissing any claim for mental anguish damages brought on
behalf of A.G.
E.
Finally, in their opposition papers, the plaintiffs introduce
for the first time in this case claims for breach of contract,
third-party witnessing of injury to a spouse, and “Lost Vacation
Enjoyment.”
Insofar as the plaintiffs have attempted to amend
their original pleadings well past the pleading deadlines without
good cause, the Court does not consider them.
See Fed. R. Civ. P.
15(a); Fahim v. Marriott Hotel Serv., Inc., 551 F.3d 344, 347-48
(5th Cir. 2008); Scheduling Order dtd. 4/19/16.
Even assuming that the plaintiffs had properly pleaded these
claims,
none
would
have
merit.
In
asserting
that
Southwest
committed “the tort of breach of contract,” the plaintiffs neglect
to reference any contract between the parties or explain how
Southwest breached any terms of such contract.
17
They merely rehash
their emotional distress claims under the guise of asserting a
claim for breach of contract.
The plaintiffs’ new claim for third-party witness damages
under Article 2315.6 of the Louisiana Civil Code betrays ignorance
of that Code provision’s applicability. Article 2315.6 permits
recovery to claimants who suffer severe emotional distress as a
result of witnessing their spouse incurring a serious, visible
physical injury. See Trahan v. McManus, 728 So.2d 1273, 1277-79
(La. 1999). As has been established, Mr. and Mrs. Gressett neither
suffered severe emotional distress nor witnessed the other spouse
sustain a serious physical injury.
Although they style it as a claim “Lost Vacation Enjoyment,”
the plaintiffs’ final argument in their opposition papers is really
one
for
Louisiana
nonpecuniary
Civil
Code
damages
Article
of
a
1998.
breach
Such
of
contract
damages
are
under
only
recoverable when the contract breached was, by its nature, designed
to gratify a nonpecuniary interest. La. Civ. Code art. 1998.
Again, the plaintiffs neither reference any contract nor explain
how Southwest has breached that contract.
In Vick v. National
Airlines, Inc., 409 So. 2d 383, 385-86 (La. App. 4 Cir. 1982), to
which the plaintiffs cite approvingly, the court allowed a couple
to recover mental anguish damages from an airline after the airline
18
breached its obligation to fly the plaintiffs non-stop to Miami.
In this case, by contrast, Southwest Flight No. 3006 timely took
the plaintiffs to their ultimate destination, where they proceeded
with their vacation as planned.
Conclusion
For the foregoing reasons, summary judgment dismissing all of
the plaintiffs’ claims against Southwest is appropriate. Viewing
the evidence in the light most favorable to the plaintiffs, even
assuming Kelly engaged in the alleged poor conduct, the plaintiffs’
frivolous and seemingly vindictive claims have no legal remedy as
a matter of law.
Accordingly, the defendant’s motion for summary
judgment is hereby GRANTED.
The plaintiffs’ case is dismissed
with prejudice.
New Orleans, Louisiana, October 20, 2016
________________________
MARTIN L.C. FELDMAN
U.S. DISTRICT JUDGE
19
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