Yost et al v. US Airways, Inc.

Filing 11

///ORDER granting, without prejudice 7 Motion to Dismiss Counts II and III of Plaintiffs' Complaint. So Ordered by Magistrate Judge Landya B. McCafferty. (gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Janice Yost and
Christian Yost
v.

Case No. 11-cv-48-LM

US Airways, Inc.

O R D E R
Janice and Christian Yost have sued US Airways, Inc. in
four counts for injuries Janice allegedly sustained when she
slipped in a puddle of liquid and fell while boarding a US
Airways passenger plane.

Specifically, plaintiffs assert claims

for: negligence (Count I), violation of the New Hampshire
Consumer Protection Act (Count II), negligence per se (Count
III),1 and loss of consortium (Count IV).

Before the court is US

Airways‟ motion to dismiss Counts II and III.
object.

Plaintiffs

For the following reasons, US Airways‟ motion to

dismiss is granted.
The Legal Standard
A motion to dismiss for “failure to state a claim upon
which relief can be granted,” Fed. R. Civ. P. 12(b)(6), requires
1

While Count III is titled “Violation of Federal Aviation
Regulations,” plaintiffs have subsequently explained that the
claim they are asserting therein is for negligence per se.

the court to conduct a limited inquiry, focusing not on “whether
a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.”
Rhodes, 416 U.S. 232, 236 (1974).

Scheuer v.

That is, the complaint “must

contain „enough facts to raise a reasonable expectation that
discovery will reveal evidence‟ supporting the claims.”

Fantini

v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
When considering a motion to dismiss under Rule 12(b)(6), a
trial court “accept[s] as true all well-pled facts in the
complaint and draw[s] all reasonable inferences in favor of
plaintiffs.”

Plumbers‟ Union Local No. 12 Pension Fund v.

Nomura Asset Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011)
(quoting SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010)).
But, “naked assertions devoid of further factual enhancement
need not be accepted.”

Plumbers‟ Union, 632 F.3d at 771 (1st

Cir. 2011) (quoting Maldonado v. Fontanes, 568 F.3d 263, 266
(1st Cir. 2009)).

Moreover, “[a] pleading that offers „labels

and conclusions‟ or „a formulaic recitation of the elements of a
cause of action will not do.‟”

United Auto., Aero., Agric.

Implement Workers of Am. Int‟l Union v. Fortuño, 633 F.3d 37, 41
(1st Cir. 2011) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009)).

2

“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.”
633 F.3d at 40 (citation omitted).

United Auto. Workers,

On the other hand, a Rule

12(b)(6) motion should be granted if “the facts, evaluated in
[a] plaintiff-friendly manner, [do not] contain enough meat to
support a reasonable expectation that an actionable claim may
exist.”

Andrew Robinson Int‟l, Inc. v. Hartford Fire Ins. Co.,

547 F.3d 48, 51 (1st Cir. 2008) (citations omitted).

That is,

“[if] the factual allegations in the complaint are too meager,
vague, or conclusory to remove the possibility of relief from
the realm of mere conjecture, the complaint is open to
dismissal.”

Plumbers‟ Union, 632 F.3d at 771 (citation

omitted).
Background
The relevant facts, drawn from plaintiffs‟ complaint, are
as follows.

While boarding a US Airways flight in Philadelphia,

Pennsylvania, Janice Yost (“Yost”) was greeted by a flight
attendant who was standing in the vestibule/galley area of the
plane, in a puddle of liquid.

The flight attendant‟s greeting

diverted Yost‟s attention from the surface on which she was
walking.

As a consequence, Yost stepped in the puddle, slipped,

fell, and broke her hip.

This suit followed.
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Discussion
US Airways moves to dismiss Counts II on grounds that
plaintiffs have not alleged any conduct on its part that is
proscribed by the New Hampshire Consumer Protection Act (“CPA”).
It moves to dismiss Count III on grounds that the federal
aviation regulation cited in Count III does not provide a
private right of action.

The court considers each cause of

action in turn.
A. Count II
In Count II of their complaint, plaintiffs assert the
following claim:
Pursuant to R.S.A. 358-A Defendant engaged in the
following unfair or deceptive acts including but not
limited to, passing off goods or services as those of
another; caused likelihood of confusion or
misunderstanding as to the source of services;
represented services as having characteristics,
ingredients, uses, and benefits that they did not have;
represented that services were of a particular standard,
quality or grade that they did not possess; advertised
services with the intent not to deliver them; and
advertised services with the intent not to supply
reasonably expectable public demand, by indicating to the
public that its aircraft were safe and devoid of
hazardous conditions.
Compl. ¶ 28.
US Airways argues that Count II should be dismissed because:
(1) this case is nothing more than an ordinary negligence action;
(2) plaintiffs have failed to allege the level of rascality
necessary to state a claim under the CPA; and (3) plaintiffs have

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failed to allege how US Airways made any of the misrepresentations
on which Count II is based.

Plaintiffs counter that the rascality

test is met by their allegation that the US Airways flight
attendant who greeted Yost did so while standing in the puddle of
liquid that caused Yost to lose her footing.

In response to US

Airways‟ argument about the insufficiency of the allegations
concerning representations about the safety of its aircraft,
plaintiffs assert that “it is common knowledge that [t]he Defendant
in its web-based advertising and marketing along with its print and
electronic media advertising and marketing repeatedly emphasizes
the safety of its aircraft.”

Pls.‟ Obj. (doc. no. 9) ¶ 5.

On that

basis, plaintiffs ask the court either to take judicial notice of
US Airways‟ advertising, or to allow them to amend their complaint.
To the extent that Count II is based on passing off or
likelihood of confusion, it must obviously be dismissed for lack of
facial plausibility.

See United Auto. Workers, 633 F.3d at 40.

The claims based on US Airways‟ representations and/or advertising
fare no better.

Plaintiffs identify no actual representations by

US Airways that it would prove at trial to support Count II‟s vague
statement about US Airways‟ indications of safety.

See Plumbers‟

Union, 632 F.3d at 771 (noting that meager and vague factual
allegations are proper grounds for dismissal).

Plaintiffs tacitly

acknowledge as much in their objection to US Airways‟ motion to
dismiss, by asking the court to take judicial notice of the content

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of US Airways‟ advertising.

The lone reference to conduct by US

Airways in Count II, that US Airways indicated to the public that
its planes were safe and devoid of hazardous conditions, is much
more a label or conclusion than a factual allegation.

See id.

(noting that conclusory allegations are proper grounds for
dismissal); United Auto. Workers, 633 F.3d at 41 (explaining that
pleadings offering “labels and conclusions . . . will not do”).
When the vague and conclusory factual allegation in Count II is
disregarded, nothing remains of the claim stated therein other than
the kind of “formulaic recitation of the elements of a cause of

action,” id., that is insufficient to state a claim under the
standard articulated in Iqbal.
Based on the sufficiently specific factual allegations
elsewhere in the complaint, viewed in the most plaintifffriendly way, plaintiffs have also failed to state a CPA claim.
Plaintiffs have alleged that US Airways allowed Yost to board a
plane when it was unsafe to do so, because of its slippery wet
floor.

Allowing a customer to enter an unsafe commercial

premises is not one of the acts proscribed by RSA 358-A:2.

Nor

is that act “of the same type as that proscribed in the
enumerated categories.”

State v. Sideris, 157 N.H. 258, 262

(2008) (citing State v. Moran, 151 N.H. 450, 452 (2004)).

That

is because there is nothing unfair or deceptive about the
conduct plaintiffs allege.

Without an allegation of unfair or
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deceptive conduct, it is not necessary even to address the issue
of rascality, a standard that “requires the plaintiff to show
„that the defendant‟s acts attained a level of rascality that
would raise an eyebrow of someone inured to the rough and tumble
of the world of commerce.‟”

Beer v. Bennett, 160 N.H. 166, 171

(2010) (quoting Hair Excitement, Inc. v. L‟Oreal U.S.A., Inc.,
158 N.H. 363, 370 (2009)).

In sum, the conduct adequately

alleged in plaintiffs‟ complaint is insufficient to state a
claim under the CPA.
Plaintiffs‟ adequately alleged facts state a claim for
negligence.

The New Hampshire Supreme Court has repeatedly held

that “[t]he CPA does not supply a remedy for „an ordinary breach
of contract claim.‟”

Beer, 160 N.H. at 171 (quoting Milford

Lumber Co. v. RCB Realty, Inc., 147 N.H. 15, 19 (2001)); see
also McNeal v. Lebel, 157 N.H. 458, 469-70 (2008) (quoting
Barrows v. Boles, 141 N.H. 382, 390 (1996)).

And, in McNeal,

the Supreme Court affirmed the trial court‟s ruling that
“routine contract and negligence issues,” id. at 469 (emphasis
added), did not fall within the ambit of the CPA.

In so doing,

the court left undisturbed the trial court‟s extension of
Barrows to cover tort claims.

Thus, this court is confident

that tort claims, like contract claims, are not cognizable under
the New Hampshire Consumer Protection Act.

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Because plaintiffs‟ allegations concerning US Airways‟
alleged misrepresentations about safety are insufficient, and
the remaining sufficiently alleged facts do not state a claim
under the CPA, US Airways is entitled to dismissal of Count II.
B. Count III
Count III is plaintiffs‟ claim that US Airways violated 14
C.F.R. § 91.13 by operating the aircraft on which Yost slipped
and fell in a careless or reckless manner.

US Airways argues

that Count III should be dismissed because the regulation on
which it is based does not provide a private right of action.
In their objection to US Airways‟ motion to dismiss, plaintiffs
clarify that they are not making a claim under 14 C.F.R. §
91.13, but, rather, are using that regulation as a basis for a
claim of negligence per se.

That clarification is insufficient

to save Count III.
According to the New Hampshire Supreme Court, “[w]hen an
action exists at common law, the negligence per se doctrine may
define the standard of conduct to which a defendant will be held
as that conduct required by a particular statute, either instead
of or as an alternative to the reasonable person standard.”
Mahan v. N.H. Dep‟t of Admin. Servs., 141 N.H. 747, 754 (1997)
(citing Marquay v. Eno, 139 N.H. 708, 713 (1995)).
regulation on which plaintiffs rely provides:
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The

No person may operate an aircraft, other than for the
purpose of air navigation, on any part of the surface
of an airport used by aircraft for air commerce
(including areas used by those aircraft for receiving
or discharging persons or cargo), in a careless or
reckless manner so as to endanger the life or property
of another.
14 C.F.R. § 91.13.

The problem with plaintiffs‟ invocation of

the negligence per se doctrine is that the regulation on which
they rely simply does not establish a standard of conduct.

Cf.

Mahan, 141 N.H. at 755 (affirming trial court‟s determination,
in negligence action, that standard of care could be established
by state statute requiring, among other things, that a person
employing another to clean a building must furnish certain
safety equipment).

Because 14 C.F.R. § 91.13 does nothing more

than proscribe negligence, and does not identify any particular
standard of care appropriate to the circumstances of this case,
plaintiffs have failed to state a claim for negligence per se
based on that regulation.

Accordingly, US Airways is entitled

to dismissal of Count III.
Conclusion
For the reasons given, US Airways‟ motion to dismiss Counts
II and III, doc. no. 7, is granted, without prejudice to
plaintiffs‟ filing an amended complaint that addresses the
deficiencies in their CPA claim.

As plaintiffs consider whether

or not to do so, they would be well advised to examine Judge
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DiClerico‟s decision in Evans v. Taco Bell Corp., in which he
held that a consumer‟s “expectation” of product quality “based,
in large part, on representations made by Taco Bell in its
national, regional and local advertising promoting the quality
of Taco Bell restaurants generally and their food in particular”
relied on too “vague [an] account of the content of Taco Bell‟s
advertising [to] support a Consumer Protection Act claim based
on Taco Bell‟s allegedly false statements,” No. Civ. 04CV103JD,
2005 WL 2333841, at *12 (D.N.H. Sept. 23, 2005) (citing Clorox
Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 38
(1st Cir. 2000) (noting that puffery cannot support false
advertising claim); Kalik v. Abacus Exch., Inc., No. Civ. 99421-M, 2001 WL 1326581, at *8-*9 (D.N.H. Oct. 19, 2001)
(granting summary judgment against RSA 358-A:2 claim premised on
misrepresentation in absence of evidence of any material
misstatement).
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
Dated:
cc:

May 2, 2011

Kristyn M. Dery, Esq.
John E. Lyons, Jr., Esq.
Michele Carlucci Sears, Esq.
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