Joseph et al v. JetBlue Airways Corporation

Filing 23

DECISION AND ORDER granting Deft's 14 Motion to Dismiss the claims in the Amended Complaint, and all claims in the amended complaint are dismissed. Signed by Senior Judge Thomas J. McAvoy on 4/5/12. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
VIVIANE JOSEPH and TIMOTHY MOFFITT,
on behalf of themselves and all others similarly
situated,
Plaintiffs,
-against-

5:11-CV-1387 (TJM/ATB)

JETBLUE AIRWAYS CORPORATION,
a Delaware corporation,
Defendant.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
Plaintiffs commenced this action asserting claims under New York state law against

Defendant JetBlue Airways Corporation (“JetBlue”) after certain JetBlue flights were
diverted to Bradley International Airport (“BDL”) on October 29, 2011 due to heavy winter
storm conditions in the Northeast region of the United States. See Am. Compl., dkt. # 11.
Plaintiffs’ claims are predicated on the contention that JetBlue unlawfully and improperly
confined Plaintiffs as passengers on the diverted aircrafts for a period in excess of seven
(7) hours on the tarmac at BDL. Id. JetBlue moves to dismiss the action on the grounds
that Plaintiffs' state law claims are expressly preempted by the Airline Deregulation Act of

1

1978 ("ADA"), 49 U.S.C. § 41713(b)(1), and impliedly preempted by the Federal Aviation
Act ("FAA"), 49 U.S.C. §§40101 et seq., and its implementing regulations. See Mot., dkt. #
14. Additionally, Defendant contends that Plaintiffs fail to set forth facts necessary to state
a claim upon which relief may be granted for each of their causes of action. Id. Plaintiffs
have opposed the motion, see Opp., dlt. # 19, and JetBlue has filed a reply. See Reply,
dkt. # 21.
II.

BACKGROUND
On October 29, 2011, winter storm conditions in the Northeast region of the United

States caused numerous flights to be diverted from New York City-area airports to Bradley
International Airport ("BDL") near Hartford, Connecticut. Am. Compl., ¶ 14. Six JetBlue
flights were diverted to BDL, and the named Plaintiffs were passengers on two of these
flights, namely Flight 504 (Fort Lauderdale-Newark) and Flight 1013 (Boston-New York).
Id., ¶¶ 10-11, 15, 21, and 33. Both named Plaintiffs are citizens and residents of Florida.
Id., ¶¶ 10-11.
Plaintiffs allege that their aircrafts were stranded on the tarmac at BDL for over
seven (7) hours. Id., ¶¶ 22 and 34. Plaintiffs contend that during their respective tarmac
delays, "the conditions upon the aircraft became inhumane and intolerable," (id., ¶¶ 24,
37); that "rolling power outages" left the aircraft in "total darkness" for periods of time (id.,
¶¶ 25, 38); that JetBlue "ran out of supplies for its passengers" and they were "left without
food and drinking water" (id., ¶¶ 26, 39); and that JetBlue failed to have "potable water
supplies for proper functioning of lavatories and sinks" (id., ¶¶ 27, 40). Plaintiffs also
allege that "passengers began to argue and fight with one another" and "physical and

2

verbal violence between passengers was rampant." Id., ¶¶ 24, 37. The Captain of Flight
504 is heard on a recorded conversations with BDL air traffic control tower personnel
asking for a police officer to come on board and, in another conversation, for a tow of the
aircraft to a gate to disembark the passengers. Id. ¶¶ 30, 31.
Plaintiffs claim that JetBlue engaged in unfair and deceptive trade practices under
New York's General Business Obligations Law §§ 349, 350. Specifically, they allege that
JetBlue "unfairly and deceptively" diverted flights from their intended destinations and
created "intolerable and inhuman conditions" on its aircraft. Id., ¶¶ 59-60.
Plaintiffs also allege that JetBlue breached the implied covenant of good faith and
fair dealing in their contracts with Plaintiffs. Id., ¶¶ 64-65. According to Plaintiffs, JetBlue
breached its contracts by violating the "Passenger Bill of Rights and Tarmac Contingency
Plan" and by "engaging in unfair and deceptive conduct." Id., ¶ 68. Plaintiffs further allege
that JetBlue "engage[ed] in inequitable and deliberate misconduct" (id., ¶ 70) and acted
"deliberately indifferent to . . . any potential benefit to Plaintiffs" (id., ¶ 72) and in "bad
faith" (id., ¶ 73).
Plaintiffs also bring claims for false imprisonment, negligence, and negligent
infliction of emotional distress. Specifically, Plaintiffs allege that JetBlue falsely imprisoned
them by "intend[ing] to confine" its passengers and "refus[ing] to allow" them to deplane
the aircraft diverted to BDL. Id., ¶¶ 76-77. Plaintiffs were aware of their confinement,
repeatedly demanded their release, and did not consent to or approve of the confinement.
Id., ¶¶ 76-78. Plaintiffs claim that the confinement was not privileged. Id., ¶ 80. In their
negligence claim, Plaintiffs contend that JetBlue owed them a duty to exercise reasonable
care under the circumstances, but breached this duty by subjecting them to rolling power
3

outages and denying them food and water, access to medication, serviceable sinks and
lavatories, the ability to exit the aircraft, and other basic human necessities. Id., ¶ 85.
According to Plaintiffs, JetBlue also deviated from the standard of care by rerouting its
aircraft in the direct line of a winter storm. Id., ¶ 86. Plaintiffs' claim for negligent infliction
of emotional distress contends that the conditions on the aircraft "unreasonably
endangered" Plaintiffs by causing them "severe emotional distress" and "fear for their
safety." Id., ¶ 91.
II.

DISCUSSION
a. Whether Plaintiffs’ state law claims are preempted
JetBlue argues that Plaintiffs' state law claims are barred by the express

preemption clause of the Airline Deregulation Act of 1978 ("ADA") and, to the extent
Plaintiffs' state law claims relate to airline consumer protection, air safety, tarmac delays,
and other areas regulated by the federal government, they are preempted by principles of
implied "field preemption" and "conflict preemption" under the Federal Aviation Act of 1958
("FAA"). Plaintiffs argue that their claims are not preempted.
1. Preemption Generally
It is a “fundamental principle of the Constitution” that the Supremacy Clause gives
Congress the power to preempt state law. Crosby v. National Foreign Trade Council, 530
U.S. 363, 372 (2000); see U.S. Const. art. VI, cl. 2; Air Transp. Ass'n of Am., Inc. v.
Cuomo, 520 F.3d 218, 220 (2d Cir. 2008)(“ATA”)(The Supremacy Clause of the United
States Constitution, article VI, clause 2, declares that “the laws of the United States ...
shall be the supreme law of the land,” thereby “invalidat[ing] state laws that interfere with,

4

or are contrary to, federal law.”) (internal quotation marks and citation omitted). “When
considering a claim of federal preemption, a court's principal focus is discerning whether
Congress intended to displace an area of state law.” Goodspeed Airport, LLC v. East
Haddam Inland Wetlands and Watercourses Com'n, 681 F. Supp.2d 182, 199 (D. Conn.
2010), aff’d 634 F.3d 206 (2d Cir. 2010)(citing Crosby v. Nat'l Foreign Trade Council, 530
U.S. 363, 372 (2000); Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev.
Comm'n, 461 U.S. 190, 203 (1983)).
Congressional intent to preempt state law can be either express or implied.
See, e.g., ATA, 520 F.3d at 220-21. Express preemption . . . is present
when “a federal statute expressly directs that state law be ousted.” Id. at 220.
Implied preemption comes in two varieties, known as field preemption and
conflict preemption. Conflict preemption arises when state law “actually
conflicts with federal law,” id. at 220, such that it is not possible to comply
with both and “state law stands as an obstacle to the accomplishment” of the
congressional objective. Hillsborough County v. Automated Med. Labs. Inc.,
471 U.S. 707, 713, 105 S. Ct. 2371, 85 L. Ed.2d 714 (1985). Field
preemption, on the other hand, is present under circumstances where it is
clear that Congress intended for its regulation of a particular area (or “field”)
to be the only regulation, to which states and localities may not add or
detract. See ATA, 520 F.3d at 221. Courts infer the presence of this
congressional intent when “the pervasiveness of the federal regulation
precludes supplementation by the States, where the federal interest in the
field is sufficiently dominant, or where the object sought to be obtained by
the federal law and the character of obligations imposed by it ... reveal the
same purpose.” Id. (quoting Schneidewind v. ANR Pipeline Co., 485 U.S.
293, 300, 108 S. Ct. 1145, 99 L .Ed.2d 316 (1988)) (internal quotations
omitted).
Goodspeed Airport, 681 F. Supp.2d at 199 (emphasis in original).
2. The Airline Deregulation Act
The ADA, which amended the FAA, includes a preemption clause that prohibits any
state from “enact[ing] or enforc[ing] a law, regulation, or other provision having the force
and effect of law related to a price, route, or service of an air carrier. . . .” 49 U.S.C. §
5

41713(b)(1). Congress enacted this provision “to ensure that the States would not undo
federal deregulation with regulation of their own.” Morales v. Trans World Airlines, Inc.,
504 U.S. 374, 378 (1992). “The [Supreme] Court has therefore held that the words ‘related
to,’ as used in this clause, ‘express a broad preemptive purpose’ and encompass all state
laws ‘having a connection with or reference to’ airline prices, routes, or services, even if
those laws do not directly regulate those activities.” Gill v. JetBlue Airways Corp., --- F.
Supp.2d ----, 2011 WL 6258518, at *3 (D. Mass. Dec. 14, 2011)(quoting Morales, 504 U.S.
at 383 and citing American Airlines, Inc. v. Wolens, 513 U.S. 219, 219 (1995)). “Under this
standard, enforcement of state laws against airlines on the basis of how particular services
are provided is preempted unless it affects those services in ‘too tenuous, remote, or
peripheral a manner’ to warrant preemption.” Id. (quoting Morales, 504 U.S. at 390).
In ATA, the Second Circuit found the New York Passenger Bill of Rights, a State
legislative enactment addressing tarmac delays, was expressly preempted by
§41713(b)(1), writing: “We hold that requiring airlines to provide food, water, electricity,
and restrooms to passengers during lengthy ground delays does relate to the service of an
air carrier and therefore falls within the express terms of the ADA's preemption provision.”
ATA, 520 F.3d at 223. In so holding, the Second Circuit rejected the rule adopted by the
Ninth and Third Circuits to the effect that “service[s]” under this section means only air
transportation, finding such an interpretation as “inconsistent with the Supreme Court's
recent decision in Rowe [v. New Hampshire Motor Transp. Ass'n, 552 U.S. 364, 128 S. Ct.
989, 169 L .Ed.2d 933 (2008), where] the [Supreme] Court necessarily defined ‘service’ to
extend beyond prices, schedules, origins, and destinations.” ATA, 520 F.3d at 223; see id.
at 224 (“Onboard amenities, regardless of whether they are luxuries or necessities, still
6

relate to airline service.”).
3. The FAA and Implied Preemption
[T]he FAA was passed by Congress for the purpose of
centralizing in a single authority - indeed, in one administrator the power to frame rules for the safe and efficient use of the
nation's airspace. Congress and the Federal Aviation
Administration have used this authority to enact rules
addressing virtually all areas of air safety. These regulations
range from a general standard of care for operating
requirements, to the details of the contents of mandatory
onboard first-aid kits, to the maximum concentration of carbon
monoxide permitted in suitably vented compartments. This
power extends to grounded planes and airport runways.
ATA, 520 F.3d at 224-25 (interior quotation marks and citations omitted).
The inquiry into whether state law is impliedly preempted by federal law is twofold:
"we must determine not only Congressional intent to preempt, but also the scope of that
preemption." Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses
Comm., 634 F.3d 206, 211 (2d Cir. 2011). The key is to determine at what point the state
regulation interferes with federal regulation that it should be preempted. Id.
In Goodspeed, the Second Circuit joined several sister circuits and "concluded that
Congress intended to occupy the entire field of air safety and thereby preempt state
regulation of that field." 634 F.3d at 210; see also U.S. Airways, Inc. v. O'Donnell, 627
F.3d 1318, 1327 (10th Cir. 2010) ("[FAA's] comprehensive regulatory scheme …
evidences the intent for federal law to occupy the field of aviation safety exclusively.").
The United States Department of Transportation (DOT) has promulgated
comprehensive tarmac delay regulations. See, e.g., 14 C.F.R. §§ 259.1-259.7. The
regulations provide, inter alia, that carriers must adopt a Contingency Plan for Lengthy

7

Tarmac Delays ("Contingency Plan") that assures that:
(1) . . . the air carrier will not permit an aircraft to remain on the tarmac for more
than three hours unless:
(i) the pilot-in-command determines there is a safety-related or
security-related reason (e.g. weather, a directive from an appropriate
government agency) why the aircraft cannot leave its position on the tarmac
to deplane passengers; or
(ii) air traffic control advises the pilot-in-command that returning to the gate
or another disembarkation point elsewhere in order to deplane passengers
would significantly disrupt airport operations.
14 C.F.R. § 259.4(b)(1).
The Contingency Plan also must assure that the airline will provide adequate food
and potable water no later than two hours into a tarmac delay, unless the
pilot-in-command determines that safety or security considerations preclude such service.
Id. at § 259.4(b)(3). Operable lavatory facilities and medical attention, if needed, must be
provided while the aircraft remains on the tarmac. Id. at § 259.4(b)(4).
JetBlue created a Contingency Plan for Lengthy Tarmac Delays consistent with
these regulations. See Am. Compl. ¶¶ 19-20.1 The DOT has the authority to bring
enforcement actions against the airlines for alleged unfair and deceptive trade practices
arising from lengthy tarmac delays and purported violations of the regulations. See 14
C.F.R. § 259.4(e).

1
JetBlue’s Contingency Plan for Lengthy Tarm ac Delays purportedly states: “At Two Hours: Unless,
the Pilot-In-Com m and determ ines that safety or security precludes such service (e.g., weather, a directive
from an appropriate governm ent agency), the Carrier shall ensure the provision of: snack and drinking water
service, potable water for operation of lavatories and sinks, operable lavatory facilities and adequate m edical
attention if needed. At Three Hours for Dom estic Flights: aircraft m ust be at gate with the door open or at
rem ote parking with air stairs connected.” Am . Com pl. ¶ 19. This Plan also states: “Exceptions to the Rule
include, if in the judgm ent of the Pilot-In-Com m and there is a safety or security related reason not to return; if
in the opinion of the FAA Air Traffic Controller m ovem ent of an aircraft subject to this Rule would cause
operational difficulties.” Id. ¶ 20.

8

4. Plaintiffs’ Claims
a. Deceptive Business Practices Claim
Plaintiffs’ deceptive and unfair business practice claim seeks to recover for conduct
related to JetBlue’s routes and services and caused by alterations of its routes. Plaintiffs
have provided no compelling reason to distinguish New York’s tarmac delay legislation
from the substance of their New York General Business Law claim, both of which seek to
impose obligations upon airlines to provide certain services during ground delays.
Enforcing the state law deceptive practices statute in this case would have the “force and
effect of law related to a price, route, or service of an air carrier,” as prohibited by the
ADA’s preemption clause. Therefore, for the reasons discussed in ATA, the Court finds
that Plaintiffs’ New York General Business Obligations Law §§ 349 and 350 cause of
action is expressly preempted by § 41713(b)(1) of the ADA. See ATA, 520 F.3d at 224;
see also Morales, 504 U.S. at 379; In re JetBlue Airways Privacy Litig., 379 F. Supp. 2d
299, 315 (E.D.N.Y. 2005) (claims brought under state consumer protection laws represent
"a direct effort to regulate" the airline's communications with its customers in connection
with reservations and ticket sales); Butler v. United Air Lines, Inc., 2008 WL 1994896, at
*6 (N.D. Cal. May 5, 2008) (finding it "unsurprising that plaintiffs have not cited a single
case in which a consumer protection statute claim against an airline was held not
preempted by the [ADA]").
Moreover, by enacting comprehensive and pervasive regulations on airline
passenger protections, including regulations that specifically address tarmac delays and
airline customer service plans, Congress plainly intended for the DOT to regulate how

9

airlines handle lengthy tarmac delays. These federal regulations provide that the DOT is
the agency empowered to address any unfair and deceptive trade practices by the airlines
arising from tarmac delay situations. 14 C.F.R. § 259.4(e);2 see also 49 U.S.C. § 41712
(DOT has plenary authority to "investigate and decide whether an air carrier ... has been
or is engaged in an unfair or deceptive practice"). The federal government has occupied
the field in enforcing these regulations, and, therefore, the state statutory unfair practice
claim, which seeks private enforcement of these regulations, is also impliedly preempted
by the FAA.
b. Breach of Implied Covenant Claim
Plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing
alleges that JetBlue breached its contracts with Plaintiffs by violating the "Passenger Bill of
Rights and Tarmac Contingency Plan" incorporated in their contracts, and by "engaging in
unfair and deceptive conduct." Am. Compl. ¶ 68. Plaintiffs further allege that JetBlue
"engage[ed] in inequitable and deliberate misconduct" and acted in "bad faith." Id. ¶
70,73.
The Supreme Court has held that the ADA preemption clause does not
“shelter airlines from suits alleging no violation of state-imposed obligations,
but seeking recovery solely for the airline's alleged breach of its own,
self-imposed undertakings.” [Wolens, 513 U.S. at 228]. “The ADA does not
preempt ‘state-law-based court adjudication of routine breach-of-contract
claims' as long as there ‘is no enlargement or enhancement based on state
laws or policies external to the agreement.’” Power Travel Int'l, Inc. v.
American Airlines, Inc., 257 F. Supp.2d 701, 707 (S.D.N.Y.2003) (quoting
2

Section 259.4 (e) states:

Unfair and Deceptive Practice. An air carrier's failure to com ply with the assurances required
by this rule and as contained in its Contingency Plan for Lengthy Tarm ac Delays will be
considered an unfair and deceptive practice within the m eaning of 49 U.S.C. 41712 that is
subject to enforcem ent action by the Departm ent.

10

Wolens, 513 U.S. at 232-33).
AIB Express, Inc. v. FedEx Corp., 358 F. Supp. 2d 239, 253 (S.D.N.Y. 2004).
The implied covenant claim seeks to add to the terms of JetBue’s contractual
obligations on matters related to routes and services. The claim, which is functionally
indistinguishable from the statutory unfair and deceptive practice claim, would interfere
with the ADA’s purpose of deregulating air carriers, and, therefore, is expressly preempted
by the ADA. Id. Moreover, like the statutory unfair and deceptive practice claim, the
implied covenant claim seeks to recover via a private enforcement action for the airline’s
obligations otherwise enforceable only by the DOT. For the same reasons that the state
statutory claim is preempted, the breach of the implied covenant contractual claim is also
preempted. See id.; see also Feldman v. United Parcel Service, Inc., 2008 WL 800989, at
* 17-18 (S.D.N.Y. Mar. 24, 2008) (preempting claims based on breach of the implied
covenant of good faith and fair dealing).
c. Tort Claims
Turning to Plaintiffs’ common law tort claims, the Court starts with the proposition
that “a common-law tort action is a ‘law, regulation, or other provision having the force and
effect of law’ within the meaning of the [ADA.]” Weiss v. El Al Israel Airlines, Ltd., 39 Fed.
Appx. 483, 485 (2d Cir. Feb. 13, 2009)(citing Morales, 504 U.S. at 386 (common-law tort
suits can be preempted by the ADA)).
In determining whether a state law claim concerning an alleged airline
service is preempted by the ADA, numerous district courts in this circuit have
adopted the three-part test established in Rombom v. United Air Lines, Inc.,
867 F.Supp. 214 (S.D.N.Y. 1994) (Sotomayor, J.). See Farash v. Continental
Airlines, Inc., 574 F.Supp.2d 356, 363 (S.D.N.Y. 2008) (“To assess whether
a tort claim should be preempted, courts in the Southern District have
generally applied the three-part test articulated in Rombom.” ), aff'd, 2009
11

WL 1940653 (2d Cir. Jul 02, 2009). Under the Rombom test, a court must
first determine whether “the activity at issue in the claim is an airline service.”
Id. at 221. If the activity is an airline “service” then the court must decide
whether the plaintiff's claim affects the airline service “directly or tenuously,
remotely or peripherally.” Id. at 222. If the “specific state tort claim has only
an incidental effect on a service, there is no preemption and the state tort
action should continue.” Id. Third, the court looks to see whether “the
underlying tortuous conduct was reasonably necessary to the provision of
the service.” Id. “If the tortuous act did not occur during the service ... or did
not further the provision of the service in a reasonable manner, then the
state tort claim should continue.” Id. This final prong of the Rombom test
“has been applied only to exempt from preemption actions that are
‘outrageous or unreasonable,’ ” [Weiss v. El Al Israel Airlines, Ltd., 471 F.
Supp. 2d 356, 361 (S.D.N.Y. 2006)] (quoting Rombom, 867 F. Supp. at 223).
Bary v. Delta Airlines, Inc., 2009 WL 3260499, at *11 (E.D.N.Y. Oct. 9, 2009).
Plaintiffs argue that the tort claims escape preemption because (1) they do not
“relate to services;” (2) if they do relate to services, they do not affect the services directly
but rather have a tenuous, remote or peripheral impact on the services; (3) the alleged
tortuous conduct was not reasonable necessary to the service provided; (4) the claims fall
under the FAA’s saving clause, 49 U.S.C. §1506,3 and (5) the FAA requires airlines to
have insurance for bodily injury, see 49 U.S.C. § 4112(a),4 thereby signaling Congress’s
intent to preserve tort claims. The arguments are without merit.

3

§1506 of the FAA states:

“nothing contained in this chapter shall in any way abridge or alter the rem edies now existing in
com m on law or by statute, but the provisions of this chapter are in addition to such rem edies.”
49 U.S.C. §1506.
Plaintiffs argue that because the FAA was am ended by the ADA which added §1305 but failed to
repeal or am end the “savings clause” found in §1506, and om itted “safety” from the federal regulations,
Plaintiffs state law tort claim s are not preem pted.
4

Requiring airlines to m aintain insurance or self-insurance to cover “am ounts for which… air carriers
m ay becom e liable for bodily injuries to or the death of any person… resulting from the operation or
m aintenance of aircraft.” 49 U.S.C. § 4112(a).

12

Plaintiffs’ tort claims all relate to prices, routes, or services inasmuch as the claims
are all premised upon complaints of Plaintiffs’ treatment while they were detained on the
tarmac at BDL. See ATA, 520 F.3d at 223-224. Simply stated, each claim relies on the
facts arising from the tarmac delays and the nature of the services received from JetBlue
during these periods. Moreover, as explained below, the alleged tortuous conduct
affected the services directly and was reasonably necessary to the service provided.
The false imprisonment claim has the essential element that JetBlue employees,
and not the air traffic controllers at BDL, intentionally confined the passengers on the
tarmac against the passengers’ wills. The alleged tortuous conduct directly affected, and
was reasonably necessary to, the service of maintaining safety by controlling passengers’
movement while the airplanes were grounded on the tarmac due to adverse weather
conditions. The false imprisonment claim, which challenges JetBlue’s service related
decision to keep its airplanes on the tarmac in the manner that it did, is expressly
preempted by the ADA for the same reasons that New York’s Passenger Bill of Rights was
preempted. See ATA, 520 F.3d at 224
Moreover, to allow such a tort claim to proceed would subject airlines to a
patchwork of obligations which might be contradictory to federal regulations. See 14
C.F.R. § 139.329 (restricting runway/taxiway movements); 14 C.F.R. § 91.123(b)
(requiring crew to comply with air traffic controller instruction); 14 C.F.R. § 91.3 (holding
crew responsible for passenger safety); 14 C.F.R. § 121.533 (d)-(e) (same); 14 C.F.R. §
121.317(b), (f) (restricting passenger movement). Because Congress intended to occupy
the field of passenger safety while planes are grounded on tarmacs, the false
imprisonment claim is also impliedly preempted by the FAA.
13

The negligence claim has the essential element that JetBlue breached its duty of
care in scheduling its routes resulting in diversion of flights and subsequent tarmac delays,
and by failing to properly provide amenities during lengthy ground delays. As to flight
schedules and diversion of flights, the direct connection to the airline’s routes and
services, and the necessity of the airline’s ability to make decisions in this regard, is self
evident. Allowing a common law tort claim challenging an airline’s ability to make
decisions such as whether to divert and land a plane safely in the face of a winter storm
subjects airlines to a patchwork of obligations that would eviscerate federal regulations
aimed at air safety control. This aspect of the negligence claim is clearly preempted by
the ADA.
As to the nature of the amenities provided during a tarmac delay, the Second
Circuit has determined that these fall within the scope of airline services controlled by the
ADA. See ATA, 520 F.3d at 223. Moreover, the alleged tortuous conduct of not providing
the level of amenities that Plaintiffs wanted during the tarmac delay affects the airline
service directly, and was reasonably necessary to the provision of the service. On this last
point, the Court views the service as maintaining the aircraft, and the passengers in it, in a
position of safety until the aircraft is cleared to leave the tarmac to disembark its
passengers. A claim challenging this service because the airline had not planned for such
lengthy delay is expressly preempted by the ADA, ATA, 520 F.3d at 224, and impliedly
preempted by the FAA because the claim has at its heart a challenge to the federal safety
regulations that may required an airplane to remain on a tarmac for such a lengthy period
of time until can be safely moved.
Similarly, the negligent infliction of emotional distress claim has the essential
14

element that JetBlue breached its duty of care in providing proper services and controlling
unruly passengers during long tarmac delays, resulting in the infliction of emotional
distress. The claim clearly relates to JetBlue’s routes and provision of services, as did the
Passenger Bill of Rights legislation addressed in ATA. See ATA, 520 F.3d at 223; see
also Weiss v. El Al Israel Airlines, Ltd., 471 F. Supp. 2d 356, 361 (S.D.N.Y. 2006), aff’d,
39 Fed. Appx. 483 (2d Cir. Feb. 13, 2009)(“Despite the fact that the ultimate goal of
obtaining transit for plaintiffs was not fulfilled, El Al was performing common airline
services for plaintiffs related to air travel, and plaintiffs' claim that El Al preformed ineptly
or rudely, or even failed in the end to provide the services contracted for, is necessarily a
claim in ‘connection with or reference to airline ... services.’”)(quoting Morales, 504 U.S. at
384). The negligent infliction of emotional distress claim is directly related to the airline’s
services, and allowing the claim to proceed would directly affect the services that airlines
must provide on the chance that a plane would be stranded on a tarmac for several hours.
To allow this, or any of the tort claims, to proceed would place airlines in the position of
deciding whether to obey federal regulations and wait until they are allowed to deplane
passengers, or to take matters into their own hands in order to avoid tort liability. The
safety of the flying public clearly weighs against the latter, and points decidedly to ADA
and implied FAA preemption.
Plaintiffs’ FAA savings clause argument does not exempt the tort claims from
preemption. The Supreme Court has determined that the FAA’s savings clause is a "relic
of the pre-ADA/no preemption regime," and that the "general 'remedies' savings clause
cannot be allowed to supersede the [ADA's] specific substantive pre-emption provision."
Morales, 504 U.S. at 385. While claims falling outside of the scope of ADA preemption
15

such as claims for bodily injury or wrongful death, and for which the savings clause is often
invoked, are allowed, see Cuomo, 520 F.3d at 225 (citing In re Air Crash Disaster at John
F. Kennedy Int'l Airport, 635 F.2d 67 (2d Cir. 1980)), state law claims that plainly relate to
an air carrier's prices, routes, or services are expressly preempted. See Riegel v.
Medtronic, Inc., 552 U.S. 312, 325 (2008)("excluding common-law duties from the scope
of preemption would make little sense. State tort law ... disrupts the federal scheme no
less than state regulatory law to the same effect."); Morales, 504 U.S. at 385 (recognizing
that common law claims can be preempted by the ADA); United Airlines, Inc. v. Mesa
Airlines, Inc., 219 F.3d 605, 607 (7th Cir. 2000) ("State common law counts as an 'other
provision having the force and effect of law' for purposes of [the ADA]"); Weiss, 471 F.
Supp. 2d at 361.
There is also no merit to Plaintiff’s argument that all tort claims must necessarily
escape preemption because airlines are required to have insurance for personal injury and
wrongful death claims. While personal injury or wrongful death claims arising from matters
unrelated to airlines’ prices, routes, and services fall outside the scope of ADA preemption
(and within the FAA’s savings clause) thereby creating a need for insurance protection for
passengers, the same is not true for the tort claims asserted here. To allow the claims to
proceed on this reasoning would allow the insurance requirement to swallow the rule of
preemption. That is clearly not what Congress intended.
The Court finds that the tort claims are expressly preempted by the ADA, and
because Congress has occupied the field of on-ground safety of airplanes and air
passengers, the claims are impliedly preempted by the FAA.

16

b. Whether Plaintiffs State Viable Claims
Because the Court has determined that all of Plaintiffs’ claims are preempted by
federal law, there is no reason to address the viability of the claims under state law.
III.

CONCLUSION
For the reasons discussed above, Defendant’s motion to dismiss the claims in the

Amended Complaint [dkt. # 14] is GRANTED, and all claims in the Amended Complaint
are DISMISSED.

IT IS SO ORDERED
Dated: April 5, 2012

17