Gardner v. USA et al
Filing
151
MEMORANDUM DECISION AND ORDER granting 116 Deltas motion for summary judgment ; granting in part and denying in part 119 United States motion for summary judgment ; denying without prejudice 120 Gardners motion to exclude expert testimony at this time. Signed by Judge Jill N. Parrish on 6/8/2018. (jds)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
RONALD GARDNER,
MEMORANDUM DECISION AND ORDER
ON MOTIONS FOR SUMMARY
JUDGMENT AND MOTION TO EXCLUDE
AN EXPERT WITNESS
Plaintiff,
v.
Case No. 1:14-cv-00125-JNP-DBP
UNITED STATES OF AMERICA, DELTA
AIR LINES, INC., and DOES 1–10,
District Judge Jill N. Parrish
Defendants.
Ronald Gardner sued Delta Airlines and the United States of America based upon his
interactions with an air marshal. He asserted a number of claims, including intentional and
negligent infliction of emotional distress, negligence, false imprisonment, and assault. Before the
court are motions for summary judgment filed by Delta and the United States and a motion to
exclude an expert witness filed by Gardner. The court GRANTS Delta’s motion for summary
judgment and GRANTS IN PART AND DENIES IN PART the United States’ motion for
summary judgment. The court DENIES without prejudice Gardner’s motion to exclude an expert
witness.
BACKGROUND1
Gardner has macular degeneration, which eliminates his central field of vision and
renders him legally blind. In 2011, he had some peripheral vision, which he could use to perceive
the shape of a face and determine when a person is facing him. He could also see the color of
1
The court recites the facts of the case in the light most favorable to Gardner’s claims.
clothing a person was wearing and perceive an individual’s “gross movements,” like standing up,
sitting down, or walking. Gardner is also hearing impaired and wears hearing aids. It is difficult
for him to engage in conversation with someone behind him on an airline flight due to the
ambient noise. On the date of the incident that is the basis of this lawsuit, Gardner was 59 years
old.
On January 20, 2011, Gardner was seated in the first class section of a Delta flight from
Washington, D.C. to Salt Lake City. Two undercover federal air marshals (FAM1 and FAM2)
were also aboard the flight. FAM1 was seated directly behind Gardner. FAM2 was seated in the
row behind FAM1 on the other side of the aisle. FAM1 is 6 foot 2 inches tall, weighs 235
pounds, and is an active weightlifter.
After take-off, Gardner began to slowly recline his seat. He felt a violent hit on the back
of his seat that shoved it back into an upright position. Five to ten minutes later, Gardner began
to recline his seat a second time. His seat was hit from behind even more violently, causing it to
return to an upright position and causing Gardner to jolt forward in his seat. Gardner turned his
head over his left shoulder and said, “Hey, fella, we each have a ticket on this flight.” FAM1
responded in a “disgusted tone,” but Gardner could only make out the word “computer” in his
response.2 A few minutes later, Gardner tried to recline his seat for a third time, but FAM1 again
pushed the seat forward. Gardner’s further attempts to recline the seat were futile because FAM1
was applying pressure to the back of the seat.
Gardner went to the galley at the front of the airplane where the head flight attendant was
located. The flight attendant noticed that Gardner was “literally shaking,” sweating, and taking
FAM1 admitted to the head flight attendant that he told Gardner that if he reclined his seat
again, “We will settle this on the ground.” Gardner apparently did not hear this ultimatum.
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shallow breaths. Gardner told the head flight attendant what had occurred and asked for
assistance. The attendant responded that he would take care of it. The flight attendant then
looked at a paper posted on the wall, which Gardner presumed to be either a flight manifest or a
list of passengers in first class, and mentioned to Gardner that it was odd that the man seated
behind him did not have a frequent flier number. Gardner entered the bathroom to allow himself
some time to calm down and to give the flight attendant time to deal with the situation.
While Gardner was in the bathroom, the head flight attendant spoke with FAM1. FAM1
complained that if Gardner reclined his seat, he would not have enough room to use his laptop.
Given FAM1’s level of agitation during this discussion and the fact that he was armed, the flight
attendant became instantly concerned for the welfare of Gardner and all of the other passengers
on the flight. The flight attendant told FAM1 that he would ask Gardner to consider reclining his
seat to a lesser degree, but that under no circumstances should FAM1 physically or verbally
threaten Gardner. The Head flight attendant then returned to the galley at the front of the
airplane.
After Gardner had waited in the bathroom for a couple of minutes, he returned to his
seat. As he was sitting down, FAM1 stood up and angrily said, “I was just looking for a little
compromise.” Gardner responded, “Compromise is fine, bullying is not.” FAM1 left his seat and
went to the front of the airplane for one or two minutes and then returned.3 As FAM1 was sitting
Unbeknownst to Gardner, FAM1 went to the front of the airplane to confront the head flight
attendant. In an “angry” and “intimidating” manner, FAM1 accused the attendant of taking
Gardner’s side in the dispute. Before returning to his seat, FAM1 told the attendant, “You and I
will settle this on the ground.” The head flight attendant was inclined to take this threat seriously
and considered notifying Salt Lake City police to meet the airplane at the ground. The attendant
ultimately decided against involving the police, but stated that he had “never been closer to, or
felt more justified in calling police.”
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down, he grabbed Gardner’s seatback and “jostl[ed] the heck out of it.” Gardner began to worry
that the man seated behind him had found his name on the list posted near the front of the
airplane.
After the flight attendants served drinks, the head flight attendant came to Gardner’s seat,
crouched down, and said to Gardner, “It’s okay. He’s in a pile of shit. It’s the federal air
marshal.” Gardner believed that the head flight attendant was attempting to reassure him by
letting him know that FAM1 would be dealt with. But the revelation that the man seated behind
him was a federal air marshal had the opposite effect. Gardner then knew that FAM1 was armed.
He also worried that FAM1 would be able to discover his name, address, future flight plans, and
whether his wife was flying with him or would be home alone. For the rest of the flight, Gardner
was so nervous and upset that the woman seated next to him asked if he was alright.
Near the end of the flight, the head flight attendant approached Gardner and said, “You
know, I have flown with you a lot, and I know how independent you are and that you don’t need
help getting off of the plane, but I want to help you off the plane tonight.” Gardner said that he
appreciated the offer and accepted it. The attendant said that he had to do some things after the
airplane landed. He told Gardner to wait in his seat until he came to get him and that after the
first class section was empty, he would escort Gardner off the airplane and through the airport.
When the airplane landed, Gardner waited in his seat for about ten minutes after he
believed that everyone in first class had deplaned. At that point, he could no longer hear
passengers in coach exiting the airplane and he decided to leave. Unbeknownst to Gardner,
FAM1 had waited on the airplane as well. As Gardner stood up and retrieved his briefcase and
cane, FAM1 also stood up and moved to the aisle. When Gardner turned towards the exit, he
found himself face to face with FAM1, who was blocking the aisle. Gardner, in shock, yelled
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“What is he doing here?” Gardner heard the lead flight attendant respond from the front of the
airplane, “Well, I guess he has as much right to get off the plane as anyone else.” Gardner then
asked whether the lead flight attendant was going to help him off the airplane. He responded that
he had called someone from the airport to came and assist Gardner. Gardner than said to FAM1,
“Excuse me, I’ve got to get my suitcase.” FAM1 did not move or say anything in response.
Gardner repeated his request to get by FAM1 multiple times, but for about three minutes FAM1
remained motionless and silent. At some point, a Delta airport employee arrived to assist
Gardner. When FAM1 turned to look at the airport employee behind him, Gardner pushed passed
FAM1. The airport employee retrieved Gardner’s bag from the overhead bin and the two of them
exited the airplane.
When they entered the airport, Gardner told the Delta airport employee that he wanted to
hide to avoid any encounter with the man who was with him on the airplane. The airport
employee led Gardner to a spot behind some type of divider or placard. Gardner then asked the
airport employee to tell him when the captain walked by because he wanted to talk to him. When
the Delta airport employee spotted the captain, the pair approached him. Gardner told the captain
that he wanted to talk to him about what happened on the flight, and the captain responded that
he had heard about it. At that point, Gardner realized that another man was standing next to the
captain. Gardner asked the airport employee whether it was the man who was in first class, and
he said yes. Gardner asked the captain to speak in private. The captained waived off FAM1, who
moved a few feet away.
Gardner, the captain, and the Delta airport employee began to walk through the airport. In
response to Gardner’s questions of what he should do, the captain said that he should call
customer care. When Gardner expressed dissatisfaction with this option, the captain responded at
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least twice by saying “Aw, I think you’ll be all right.” Gardner again noticed that a man was next
to the captain, and the airport employee confirmed that it was FAM1. The captain then excused
himself and left.
Gardner and the Delta airport employee began to make their way to the airport exit, and
FAM1 followed a few feet behind them. In response to Gardner’s inquiries, the airport employee
continually updated Gardner on where FAM1 was walking and what he was doing. He told
Gardner that FAM1 was following them and that he was looking over at them. Gardner believed
that FAM1 was intentionally stalking him. When Gardner, the Delta airport employee, and
FAM1 approached the security check area, Gardner intentionally allowed FAM1 to go past
security first. Gardner and the airport employee then sprinted as fast as Gardner could to a
different exit so that he could lose FAM1. Gardner exited the airport without further incident.
Gardner sued both Delta and the United States based upon this incident. In his
complaint, Gardner alleged that his encounter with FAM1 caused him to suffer from
post-traumatic stress disorder; anxiety; depression; periodic, anxiety-related loss of the little
remaining vision he has; panic attacks; fear of public places; insomnia; and recurring nightmares.
Gardner voluntarily dismissed two of the causes of action he originally asserted, leaving claims
against Delta for (1) negligence, (2) negligent infliction of emotional distress, (3) breach of duty
of a common carrier towards a disabled passenger, (4) breach of duty towards a business visitor,
and (5) a cause of action that Gardner labels as a respondeat superior claim. The parties dispute
whether a sixth claim for intentional infliction of emotional distress survived Delta’s motion to
dismiss. Gardner also asserted claims against the United States for (1) negligence, (2) intentional
infliction of emotional distress, (3) negligent infliction of emotional distress, (4) false
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imprisonment, (5) assault, and (6) a cause of action that Gardner labels as a respondeat superior
claim.
APPLICABLE LAW AND LEGAL STANDARDS
The parties have not engaged in a choice of law analysis to determine which state’s
substantive laws governs Gardner’s various causes of action. But by citing Utah authorities, they
appear to agree that Utah law controls. The court, therefore, applies Utah’s substantive law to
Gardner’s state-law claims.
The court applies federal procedural law to determine whether summary judgment is
appropriate. See Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007).
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). “A fact is material if, under the governing law, it could have an effect on the outcome of
the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the
nonmoving party on the evidence presented.” Schneider v. City of Grand Junction Police Dep’t,
717 F.3d 760, 767 (10th Cir. 2013) (citation omitted). On a motion for summary judgment, the
court “consider[s] the evidence in the light most favorable to the non-moving party.” Conroy v.
Vilsack, 707 F.3d 1163, 1170 (10th Cir. 2013) (citation omitted). However, “[w]hen the moving
party has carried its burden under rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue
for trial.’” Scott v. Harris, 550 U.S. 372, 380 (2007) (alterations in original) (citation omitted).
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ANALYSIS
I.
DELTA’S MOTION FOR SUMMARY JUDGMENT
A. Intentional Infliction of Emotional Distress
The court must first determine whether Judge Kimball dismissed Gardner’s intentional
infliction of emotional distress claim against Delta. Delta argues that Judge Kimball dismissed
this claim in his June 18, 2015 order; Gardner contends that he did not.
In his order on Delta’s motion to dismiss, Judge Kimball concluded that the facts alleged
in the complaint were sufficient to support a claim that the actions of Delta’s employee’s
constituted intentional infliction of emotional distress. [Docket 30, p. 5]. But Judge Kimball
further determined that Delta could not be held liable for this tort because “to the extent that
Gardner can prove a claim of intentional infliction of emotional distress against a Delta
employee, such conduct would be outside the scope of that employee’s employment and Delta
would not be liable under respondeat superior.” [Docket 30, p. 6]. Thus, Judge Kimball clearly
found that Delta prevailed as a matter of law on the intentional infliction of emotional distress
claim and dismissed this cause of action. The intentional infliction of emotional distress claim
against Delta is no longer a live issue in this case.
B. Preemption
Delta argues that Gardner’s claim for negligent infliction of emotional distress and his
negligence-based claims4 are preempted by federal statutes governing airlines. Gardner asserts
In addition to asserting a claim for negligence, Gardner also asserts separate causes of action
that he labels as claims for respondeat superior, breach of duty of a common carrier towards a
disabled passenger, and breach of duty towards a business visitor. There is no such thing as a
respondeat superior cause of action. It is a legal doctrine that holds employers liable for the torts
of employees. Prunte v. Universal Music Grp., 484 F. Supp. 2d 32, 43 (D.D.C. 2007)
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that Delta waived its preemption argument. He also contends that his claims are not preempted.
The court will address each of these issues in turn.
1) Delta did not waive its preemption argument.
Gardner first argues that Delta waived its preemption argument because it did not assert it
in the motion to dismiss. But it provides no authority for this proposition. The case Gardner cites
states only that parties may not raise a new argument in a motion for reconsideration. See
Carvana v. MFG Fin., Inc., No. 2:07-CV-00128DAK, 2008 WL 2468539, at *2 (D. Utah June
17, 2008). Delta did not waive preemption by failing to raise it in the motion to dismiss.
Gardner also argues that Delta may not assert a preemption argument in its motion for
summary judgment because it did not plead it as an affirmative defense. Gardner is correct that
preemption is an affirmative defense that should be pleaded. See PLIVA, Inc. v. Mensing, 564
U.S. 604, 634 (2011) (“Because pre-emption is an affirmative defense, a defendant seeking to set
aside state law bears the burden to prove impossibility.”); Cook v. Rockwell Int’l Corp., 790 F.3d
1088, 1092 (10th Cir. 2015) (“[P]otential preemption defenses, like most other affirmative
defenses, are forfeited if not made.”). Thus the question before the court is whether Delta may
raise its unpleaded preemption affirmative defense for the first time in a motion for summary
judgment.
(“Respondeat superior is not itself a cause of action or a cognizable legal claim.”); Ellis v. Isoray
Med., Inc., No. 08-2101-CM, 2008 WL 3915097, at *3 (D. Kan. Aug. 22, 2008) (same). And
Gardner’s breach of a duty of a common carrier and breach of a duty toward a business visitor
claims are, at most, species of negligence that can be analyzed together with the negligence
claim for the purposes of determining whether they are preempted. See Hill v. Superior Prop.
Mgmt. Servs., Inc., 321 P.3d 1054, 1060 (Utah 2013) (holding that premises liability is a
“negligence-based theory.”); Lamb v. B & B Amusements Corp., 869 P.2d 926, 930 (Utah 1993)
(analyzing a negligence claim and holding that “[c]ommon carriers are held to a higher standard
of care than the ‘reasonably prudent person’ standard”).
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“[T]he substance of many unpleaded Rule 8(c) affirmative defenses may be asserted by
pretrial motions, particularly in the absence of any showing of prejudice to the opposing party
and assuming it has had an opportunity to respond.” 5 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER FEDERAL PRACTICE AND PROCEDURE § 1278 (3d ed. 2004); accord Ahmad v. Furlong,
435 F.3d 1196, 1204 (10th Cir. 2006) (permitting the defendants to raise an unpleaded
affirmative defense in a motion for summary judgment because the plaintiff had not shown any
prejudice); cf. Viernow v. Euripides Dev. Corp., 157 F.3d 785, 790 n.9 (10th Cir. 1998) (“Issues
raised for the first time in a plaintiff’s response to a motion for summary judgment may be
considered a request to amend the complaint, pursuant to Fed.R.Civ.P. 15.”). Gardner has had an
opportunity to respond to the preemption argument. The issue that must be decided, therefore, is
whether Gardner’s has been prejudiced by Delta’s failure to give notice of its preemption defense
before the close of discovery.
The court determines that Gardner has not been prejudiced. As described in greater detail
below, Delta’s preemption defense turns on whether Gardner’s common law tort claims are
“related to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b)(1). This analysis
requires the court to examine the relationship between the substance of Gardner’s claims and
airline prices, routes, and services. No additional discovery would affect the court’s resolution of
this question because it rests on a broad view of the nature of these claims rather than a detailed
examination of the evidence supporting the claims. Therefore Gardner was not prejudiced by
Delta’s failure to give notice of its preemption defense prior to the close of discovery and the
court permits Delta to raise preemption through its motion for summary judgment.
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2) Gardner’s claims against Delta are preempted.
The Federal Aviation Act of 1958 (FAA) authorized broad federal regulation of the airline
industry, including the regulation of interstate airfares. Pub. L. No. 85-726, 72 Stat. 731 (1958).
In 1978, Congress amended the FAA with the Airline Deregulation Act (ADA), which undid
government regulation of ticket prices. “To ensure that the States would not undo federal
deregulation with regulation of their own, the ADA included a pre-emption provision . . . .
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992). The ADA preemption provision
prohibits any state from “enact[ing] or enforce[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. §
41713(b)(1).5
The U.S. Supreme Court analyzed this provision and held that the phrase “related to”
expresses “a broad pre-emptive purpose.” Morales, 504 U.S. at 383. Thus, “[s]tate enforcement
actions having a connection with or reference to airline ‘rates, routes, or services’ are pre-empted
under” the ADA preemption provision. Id. at 384. The Court cautioned, however, that not every
conceivable connection between a state law and airline rates, routes, or services is sufficient to
merit preemption. “‘[S]ome state actions may affect [airline prices, routes, or services] in too
tenuous, remote, or peripheral a manner’ to have pre-emptive effect.” Id. at 390 (citation
omitted).
In 1994, after the Supreme Court issued Morales, Congress renumbered and revised the FAA
and the ADA and changed the wording of the preemption clause. Pub L. No. 103-272, 108 Stat.
745 (1994). Congress confirmed that the 1994 amendments were stylistic and did not
substantively change the meaning of the provisions of the ADA. Pub L. No. 103-272, § 1(a), 108
Stat. 745; see also Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422, 1429 (2014) (“. . . Congress
made it clear that this recodification did not effect any ‘substantive change.’”). The court cites
the current version of the preemption provision, but pre-1994 interpretations of the provision are
still binding authority.
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The Supreme Court has applied this preemption test on three occasions. In Morales, a
coalition of state attorney generals issued a number of guidelines regarding airfare advertising.
Id. at 379. The guidelines purported to explain how state deceptive practices laws required
airlines to disclose restrictions to an advertised fare. Id. at 387–88. The Court held that the
guidelines “related to” airline prices because they explicitly bore “a ‘reference to’ airfares.” Id.
Moreover, since state deceptive practices laws would effectively give consumers a right to an
advertised fare if an advertisement failed to adequately disclose restrictions on the fare, these
state laws directly related to prices for air travel. Id. at 388. The Court, therefore, found that the
state-law based guidelines issued by the attorney generals were preempted.
In American Airlines, Inc. v. Wolens, the Court examined a class action law suit against
an airline based on both the Illinois Consumer Fraud and Deceptive Practices Act and
common-law breach of contract. 513 U.S. 219, 225 (1995). The plaintiffs alleged that an airline
violated state deceptive practices law and state contract law when it devalued its frequent flier
miles. Id. at 224–25. The Court held that the deceptive practices cause of action related to airline
prices and services because this claim sought to establish the number of frequent flier miles
required for free tickets and class-of-service upgrades. Id. at 226–28. The state deceptive
practices claim was, therefore, preempted. The contract claim likewise related to airline prices
and services because it sought the same relief as the deceptive practices claim. Id. at 226. But the
court held that the contract claim was not preempted because this claim did not seek to enforce
“state-imposed obligations,” but rather the airline’s self-imposed contractual undertakings. Id. at
228–29.
Finally, in Northwest, Inc. v. Ginsberg, the Court had to decide whether a claim for
breach of the implied covenant of good faith and fair dealing was preempted. 134 S. Ct. 1422,
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1426 (2014). In that case, an airline kicked the plaintiff out of its frequent flier program for
alleged abuses, and he sued for readmittance. Id. The Court held that the ADA preemption clause
applies to common-law claims like breach of the covenant of good faith and fair dealing because
they are state-imposed obligations and not voluntarily assumed contractual duties. Id. at 1430.
And because the suit sought readmittance to a frequent flier program, which allowed customers
to earn free flights and class-of-service upgrades, the plaintiff’s claim related to the airline’s
prices and services. Id. at 1430–31. Therefore the plaintiff’s common-law claim was preempted.
Id. at 1433.
The Tenth Circuit has also considered whether a tort claim was preempted by the ADA.
In Cleveland ex rel. Cleveland v. Piper Aircraft Corp., the pilot of a two-seat airplane was
severely injured when he crashed into a van parked on the runway during takeoff. 985 F.2d 1438,
1441 (10th Cir. 1993).6 The pilot’s estate sued the airplane’s manufacturer under a theory of
negligent design. Cleveland held that even the broad reading of the ADA preemption clause
announced in Morales would not lead to preemption of a tort claim for negligent design of an
airplane. Id. at 1443–44 nn.11 & 13 (“We agree with the parties in this case that even a broad
reading of the phrase, ‘relates to,’ would not encompass the safety regulations at issue here.”).
Courts in other circuits agree that the ADA preemption clause does not grant blanket
immunity to all tort claims. The Fifth Circuit, for example, interpreted the ADA’s preemption
provision in conjunction with a provision of the FAA requiring air carriers to obtain insurance for
“bodily injury to, or death of, an individual or for loss of, or damage to, property of others,
Some of the reasoning of Cleveland regarding implied preemption was later rejected by the
Supreme Court. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000); US Airways, Inc.
v. O'Donnell, 627 F.3d 1318, 1326 (10th Cir. 2010). But the subsequent Supreme Court opinion
did not affect Cleveland’s reasoning regarding the ADA’s express preemption clause.
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resulting from the operation or maintenance of [an] aircraft.” 49 U.S.C. § 41112(a); Hodges v.
Delta Airlines, Inc., 44 F.3d 334, 338 (5th Cir. 1995) (en banc). Reasoning that it would make no
sense to require air carriers to obtain insurance for bodily injury and property damage if they
were immune to all tort liability, that circuit held that “federal preemption of state laws, even
certain common law actions “related to services” of an air carrier, does not displace state tort
actions for personal physical injuries or property damage caused by the operation and
maintenance of aircraft.” Hodges, 44 F.3d at 336, 338.
Taken together, the above-mentioned cases suggest that some common-law claims, such
as a claim for readmittance to a frequent flier program under a breach of the implied covenant of
good faith and fair dealing theory, are preempted. Other claims, like negligent design of an
aircraft leading to serious bodily injuries, are not preempted. The test for determining whether a
particular claim is preempted is whether it is “related to a price, route, or service of an air
carrier.” 49 U.S.C. § 41713(b)(1).
In this case, Gardner’s claims against Delta rest on three separate theories. First, Gardner
argues that the head flight attendant negligently told him that FAM1 was an air marshal, which
caused him stress and anxiety. Second, he asserts that the head flight attendant failed to promptly
escort him off the airplane after inducing him to wait in his seat and failed to intervene when
FAM1 blocked the aisle. Third, he contends that Delta employees failed to prevent FAM1 from
following him through the airport. Delta argues that all of these theories of liability are related to
a Delta service.
The Tenth Circuit has interpreted the term “service of an air carrier” broadly: “Elements
of the air carrier service . . . include items such as ticketing, boarding procedures, provision of
food and drink, and baggage handling, in addition to the transportation itself.” Arapahoe Cty.
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Pub. Airport Auth. v. F.A.A., 242 F.3d 1213, 1222 (10th Cir. 2001) (quoting Hodges, 44 F.3d at
336); see also Am. Airlines, 513 U.S. at 226 (holding that class-of-service upgrades related to
airline services). If providing in-flight beverages is a “service,” this expansive definition
necessarily includes the mediation of disputes between passengers and maintaining order in the
cabin to provide a safe and tranquil flight.
Under this definition of “service,” Gardner’s claims against Delta have “a connection
with or reference to” a Delta service. See Morales, 504 U.S. at 384. The head flight attendant
informed Gardner that FAM1 was an air marshal within the context of mediating a dispute
between the two passengers. Indeed, Gardner concedes that the flight attendant was attempting to
reassure him by letting him know that FAM1 would be dealt with. In addition, Gardner’s claims
that Delta employees did not do enough to protect him from FAM1 while he was exiting the
airplane and travelling through the airport all related to Delta services. In essence, Gardner
alleges that Delta did not provide the level or type of services that he needed to deal with FAM1.
Thus all of Gardner’s claims directly relate to a Delta service.
Other courts that have examined similar claims have concluded that they were
preempted. See Tobin v. Fed. Exp. Corp., 775 F.3d 448, 454 (1st Cir. 2014) (holding that claims
for negligent and intentional infliction of emotional distress and for negligence were preempted
where a package delivery company accidentally delivered a package containing marijuana to the
plaintiff and the company revealed the plaintiff’s address to the intended recipient of the
package); Xiaoyun Lucy Lu v. AirTran Airways, Inc., 631 F. App’x 657, 660–62 (11th Cir. 2015)
(holding that tort claims were preempted where flight attendants exhibited rude behavior and
removed the plaintiff from a flight, causing emotional distress); Sawyer v. Sw. Airlines Co., No.
CIV.A. 01-2385-KHV, 2004 WL 48899, at *6 (D. Kan. Jan. 7, 2004) (concluding that a
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negligence claim was preempted where a passenger experienced emotional distress caused by a
flight attendant’s use of an historically racist nursery rhyme (“eenie, meenie, minie, moe, pick a
seat, we gotta go”) during boarding); Joseph v. JetBlue Airways Corp., No. 5:11-CV-1387
TJM/ATB, 2012 WL 1204070, at *8 (N.D.N.Y. Apr. 11, 2012) (concluding that claims for
infliction of emotional distress were preempted where an air carrier ran out of food and water
and failed to control unruly passengers during a lengthy delay on the tarmac); Howard v. Nw.
Airlines, Inc., 793 F. Supp. 129, 132 (S.D. Tex. 1992) (holding that a plaintiff’s claim based upon
an airline’s failure to meet a sick, elderly passenger and help him make a connecting flight was
preempted).
The court, therefore, concludes that Gardner’s negligent infliction of emotional distress
claim and his negligence-based claims are explicitly preempted by 49 U.S.C. § 41713(b)(1). The
court grants summary judgment in favor of Delta on all remaining claims against it.
II.
THE UNITED STATES’ MOTION FOR SUMMARY JUDGMENT
A. Negligent Infliction of Emotional Distress
Utah has adopted the Restatement (Second) of Torts test for negligent infliction of
emotional distress. Johnson v. Rogers, 763 P.2d 771, 785 (Utah 1988). The second restatement
provides: “If the actor unintentionally causes emotional distress to another, he is subject to
liability to the other for resulting illness or bodily harm if the actor (a) should have realized that
his conduct involved an unreasonable risk of causing the distress . . . and (b) from facts known to
him should have realized that the distress, if it were caused, might result in illness or bodily
harm.” RESTATEMENT (SECOND)
OF
TORTS § 313(1) (1965). This test is based upon the
defendant’s knowledge. Thus, the defendant “does not take the risk of any exceptional physical
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sensitiveness to emotion which the other may have unless the circumstances known to the actor
should apprise him of it.” Id. § 313 cmt. c.
Gardner asserts two distinct types of claims for negligent infliction of emotional distress.
First, he alleges that FAM1’s negligence directly caused him to suffer emotional distress. Second
he contends that the negligence of unnamed individuals who trained or supervised FAM1
indirectly caused his emotional distress.
1) Direct Liability Theory
The United States argues that it is entitled to summary judgment on Gardner’s direct
negligent infliction of emotional distress claim based upon the actions of FAM1 because no
reasonable jury could find that Gardner has satisfied both subdivision (a) and subdivision (b) of
the Second Restatement test.7 The evidence, taken in the light most favorable to Gardner’s
The United States cites language from both Hansen v. Mountain Fuel Supply Co., 858 P.2d 970
(Utah 1993) and Harnicher v. University of Utah Medical Center, 962 P.2d 67, 68 (Utah 1998) in
support of its contention. In Hansen, Justice Durham suggested that a plaintiff could prevail on a
negligent infliction of emotional distress claim in the absence of bodily harm if the defendant’s
actions caused a mental illness. Hansen, 858 P.2d at 975. Justice Durham opined that the mental
distress must be severe to be deemed a mental illness: “We emphasize, however, that the
emotional distress suffered must be severe; it must be such that ‘a reasonable [person,] normally
constituted, would be unable to adequately cope with the mental stress engendered by the
circumstances of the case.’” Id. (citation omitted) (alteration in original). But the remaining
justices held that there was no reason to adopt the mental illness exception to the bodily injury
requirement because the plaintiffs in that case did not claim that they had suffered from a mental
illness. Id. at 982–83 (Zimmerman, J. concurring in the result). In Harnicher, Justices Howe and
Zimmerman opined that even if the Utah Supreme Court were to adopt the mental illness
exception, the plaintiffs in that case could not satisfy the elevated standard laid out in Justice
Durham’s opinion in Hansen. 962 P.2d at 71–72. The other three justices, however, did not join
this opinion.
7
The United States’ reliance on the language from Justice Durham’s opinion in Hansen and
Justice Howe’s opinion in Harnicher is misplaced for two reasons. First, the language quoted
from these cases is not binding authority because it was never adopted by a majority of the Utah
Supreme Court. Second, even if the language were binding authority, it refers to the heightened
standard for proving a mental illness. This language has no application to this case because
17
claims, shows that when Gardner attempted to recline his seat on three separate occasions, FAM1
violently shoved it forward. Later, FAM1 shook Gardner’s seat as he was sitting down in order to
physically intimidate him. FAM1 concedes that he discovered that Gardner was blind before the
airplane landed. And given that the head flight attendant and the passenger seated next to
Gardner perceived that he was deeply shaken by FAM1’s actions, a fact finder could conclude
that FAM1 also knew that he had frightened Gardner to the point that he was shaking, sweating,
and taking shallow breaths. Despite this knowledge, he waited with Gardner until the first class
section had emptied. When Gardner attempted to exit the airplane, FAM1 intentionally blocked
him by standing in the aisle for three minutes. During this time, FAM1 ignored Gardner’s frantic
requests that he move so that Gardner could get by. FAM1 then stalked Gardner through the
airport in order to further intimidate him.
Taking these facts together, a reasonable factfinder could conclude that FAM1 should
have realized that his conduct involved an unreasonable risk of causing Gardner to experience
emotional distress. Additionally, a factfinder could conclude that FAM1 should have realized that
the distress might result in illness or bodily harm. The court, therefore, denies the United States’
motion for summary judgment on Gardner’s negligent infliction of emotional distress claim
based upon FAM1’s actions.
2) Indirect Liability Theories
Gardner’s complaint alleges that unidentified individuals negligently inflicted emotional
distress on him by breaching a “duty to train their employees and agents about how to properly
treat airline passengers.” Gardner does not clarify precisely who was at fault for failing to
Gardner does not claim that FAM1’s actions caused him to suffer a mental illness. He alleges that
he suffered a bodily harm that would satisfy the Second Restatement test.
18
properly train FAM1, how he was trained, or how he should have been trained differently. Absent
this factual development, no reasonable factfinder could conclude that an unknown individual in
charge of training FAM1 should have realized that his or her conduct involved an unreasonable
risk of causing airline passengers to experience emotional distress. Nor could a reasonable
factfinder determine that this unknown individual, from facts known to him or her, should have
realized that the emotional distress might result in illness or bodily harm. Thus, the court grants
summary judgment on Gardner’s negligent training theory.
Gardner’s complaint also alleges emotional distress caused by negligent supervision. In
response to the United States’ motion for summary judgment, Gardner clarifies that this claim is
based upon the allegation that FAM2 failed to intervene and stop FAM1. But Gardner provides
no evidence that FAM2 was FAM1’s supervisor. Absent any evidence that FAM2 had a duty or
the authority to supervise FAM1, Gardner cannot prevail on a negligent supervision theory of
negligent infliction of emotional distress. Thus the court summarily adjudicates this claim in
favor of the United States.
B. Intentional Infliction of Emotional Distress
In order to prevail on his intentional infliction of emotional distress claim, Gardner must
prove that FAM1
intentionally engaged in some conduct toward [Gardner], (a) with
the purpose of inflicting emotional distress, or, (b) where any
reasonable person would have known that such would result; and
his actions are of such a nature as to be considered outrageous and
intolerable in that they offend against the generally accepted
standards of decency and morality.
Oman v. Davis Sch. Dist., 194 P.3d 956, 969 (Utah 2008) (citation omitted). “To be considered
outrageous, the conduct must evoke outrage or revulsion; it must be more than unreasonable,
19
unkind, or unfair.” Id. (citation omitted). “[L]iability under the tort of intentional infliction of
emotional distress . . . may be found only where the conduct complained of has been so extreme
in degree as to go beyond all possible bounds of decency, so as to be regarded as atrocious and
utterly intolerable in a civilized society.” Id. at 970 (second alteration in original) (citation
omitted). “[I]t is for the court to determine, in the first instance, whether the defendant’s conduct
may reasonably be regarded as so extreme and outrageous as to permit recovery.” Cabaness v.
Thomas, 232 P.3d 486, 499 (Utah 2010) (citation omitted). “However, ‘[w]here reasonable men
may differ, it is for the jury, subject to the control of the court, to determine whether, in the
particular case, the conduct has been sufficiently extreme and outrageous to result in liability.’”
Id. (alteration in original) (citation omitted).
The Utah Supreme Court has concluded as a matter of law that declining a marriage
proposal, referring a victim of sexual abuse to an unlicensed counselor, denying a claim for
insurance benefits where the issue of coverage was fairly debatable, and firing an employee for
cause do not constitute outrageous or intolerable conduct. Gygi v. Storch, 503 P.2d 449, 449–50
(Utah 1972); Franco v. The Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 207 (Utah
2001); Prince v. Bear River Mut. Ins. Co., 56 P.3d 524, 536 (Utah 2002); Oman, 194 P.3d at 970.
On the other hand, the issue of whether a defendant’s conduct was sufficiently extreme or
outrageous was a jury question in a case where co-workers shadowed a fellow employee and
subjected her to months of threatening looks and remarks. Retherford v. AT&T Commc’ns of the
Mountain States, Inc., 844 P.2d 949, 978 (Utah 1992). The Utah Supreme Court similarly
declined to resolve as a matter of law the issue of whether a defendant’s conduct was sufficiently
outrageous in a case where a supervisor required an employee to work in unsafe conditions and
20
subjected him to an ongoing pattern of abusive and intimidating comments. Cabaness, 232 P.3d
at 500–01.
In this case, the United States argues that the court should determine as a matter of law
that FAM1’s actions were not sufficiently outrageous to permit Gardner’s intentional infliction of
emotional distress claim to proceed to trial. As described in greater detail above, FAM1
physically intimidated Gardner on a flight by shoving and shaking his seat, intentionally blocked
him from exiting the airplane for three minutes, and stalked him through the airport. FAM1’s
conduct is dissimilar to the conduct described in cases where the Utah Supreme Court decided
that the defendant clearly did not offend accepted standards of decency. Unlike rejecting a
marriage proposal or firing an employee for cause, reasonable people could differ as to whether
FAM1’s conduct was outrageous, intolerable, and offensive to generally accepted standards of
decency and morality. The court, therefore, denies the United States’ motion for summary
judgment on the intentional infliction of emotional distress claim.
C. Negligence
Gardner also argues that the United States should be held liable under a negligence theory
for his emotional distress damages. Utah law, however, does not permit a claim for ordinary
negligence that is based upon emotional injuries. Reiser v. Lohner, 641 P.2d 93, 100 (Utah 1982)
(“It is well established in Utah that a cause of action for emotional distress may not be based
upon mere negligence.”); Samms v. Eccles, 358 P.2d 344, 346 (Utah 1961). If an individual
negligently inflicts emotional harm, the proper claim to assert is a cause of action for negligent
infliction of emotional distress. Johnson v. Rogers, 763 P.2d 771, 779, 785 (Utah 1988); see also
Dalley v. Utah Valley Reg’l Med. Ctr., 791 P.2d 193, 201 (Utah 1990) (“The difference in the two
theories [negligence and negligent infliction of emotional distress] is that awards for pain and
21
suffering result when the emotional trauma arises from the physical injury and awards for
negligently inflicted emotional distress arise when physical or mental illness results from the
emotional trauma itself.”). Because Gardner does not assert that FAM1’s negligence directly
caused physical harm, the court grants summary judgment in favor of the United States on
Gardner’s ordinary negligence claim.
D. Respondeat Superior
Gardner also asserts a claim for what he calls respondeat superior. But “[r]espondeat
superior is not itself a cause of action or a cognizable legal claim.” Prunte v. Universal Music
Grp., 484 F. Supp. 2d 32, 43 (D.D.C. 2007)); accord Ellis v. Isoray Med., Inc., No. 08-2101-CM,
2008 WL 3915097, at *3 (D. Kan. Aug. 22, 2008). It is a legal doctrine that holds employers
liable for the torts of employees. Thus the court grants summary judgment on Gardner’s
so-called respondeat superior claim.
E. False Imprisonment
“False imprisonment is an act ‘intending to confine the other . . . within boundaries fixed
by the actor,’ which ‘results in such a confinement’ while ‘the other is conscious of the
confinement or is harmed by it.’” Tiede v. State, 915 P.2d 500, 503 n.4 (Utah 1996) (alteration in
original) (quoting RESTATEMENT (SECOND) OF TORTS § 35(1) (1965)). “To make the actor liable
for false imprisonment, the other’s confinement within the boundaries fixed by the actor must be
complete.” Id. § 36(1). “If the actor knows of an avenue of escape, he cannot intend to imprison
the other . . . .” Id. § 36 cmt. a. But an individual is not required to take an avenue of escape if it
is “offensive to a reasonable sense of decency or personal dignity.” Id.
The United States argues that it cannot be liable for false imprisonment because Gardner
had a reasonable avenue of escape that would not have been unduly offensive. It asserts that
22
Gardner could have just pushed past FAM1 at any time. But the facts, taken in the light most
favorable to Gardner’s claim, do not support the United States’ argument. According to
Gardner’s testimony, he was able to squeeze past FAM1 only when he turned sideways to look at
the Delta employee behind him. It was this action that created the avenue of escape. Gardner
presented evidence that FAM1, who is 6 feet, 2 inches tall and weighs 235 pounds, effectively
blocked the aisle of the airplane when he stood face to face with Gardner, leaving no reasonable
avenue of escape. The court, therefore, denies the United States’ motion for summary judgment
on the false imprisonment claim.
F. Assault
“An actor is subject to liability to another for assault if (a) he acts intending to cause a
harmful or offensive contact with the person of the other or a third person, or an imminent
apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.”
RESTATEMENT (SECOND) OF TORTS § 21(1) (1965); see also Tiede, 915 P.2d at 503 n.3 (citing the
Restatement (Second) of Torts to define assault). “An attempt to inflict a harmful or offensive
contact or to cause an apprehension of such contact does not make the actor liable for an assault
if the other does not become aware of the attempt before it is terminated.” Reynolds v.
MacFarlane, 322 P.3d 755, 758 (Utah Ct. App. 2014) (quoting RESTATEMENT (SECOND)
OF
TORTS § 22 (1965)). The United States argues that it cannot be liable for assault because Gardner
did not perceive that FAM1 was about to shove or shake his seat before he actually did it. The
United States asserts, therefore, that FAM1’s actions never caused Gardner to experience
apprehension of imminent harmful or offensive contact.
The court agrees that there is little evidence that Gardner ever apprehended imminent
contact. Gardner’s deposition testimony indicates that he did not see what FAM1 was doing
23
behind him before FAM1 shoved his seat. See Reynolds, 322 P.3d at 758 (affirming the dismissal
of an assault claim because the plaintiff was not aware of the defendant’s presence behind him
until the defendant snatched a ten dollar bill from his hand). And although it is unclear whether
Gardner saw FAM1 place his hand on his seatback as FAM1 was returning to his seat to sit
down, the evidence indicates that Gardner did not anticipate that FAM1 would violently shake
his seat. Gardner instead testified that FAM1 disguised his intent by acting if he was simply
steadying himself as he moved to his seat to sit down.
A factfinder, however, may infer from the evidence that Gardner apprehended that FAM1
would shove his seat when Gardner attempted to lower it for a third time. After FAM1 shoved his
seat forward for a second time, Gardner and FAM1 exchanged words over the incident. At that
point, it was clear to Gardner that FAM1 was prepared to physically challenge any attempt to
recline his seat. From this evidence, a factfinder could conclude that Gardner apprehended that
his seat would be shoved forward when he attempted to recline his seat for a third time. The
court, therefore, denies the United States’ motion for summary judgment on Gardner’s assault
claim.
III.
GARDNER’S MOTION TO EXCLUDE EXPERT TESTIMONY
Gardner moves to exclude the defendants’ joint expert, Dr. Moulton, under Rule 702 of
the Federal Rules of Civil Procedure. Specifically, Gardner asserts that Dr. Moulton’s opinions
are not “the product of reliable principles and methods” because he did not examine Gardner
before expressing opinions about his emotional distress, because his opinion that Gardner is
malingering is improper, and because he expressed opinions about sleep apnea that are outside
the scope of his expertise. See FED. R. EVID. 702(c).
24
Because the court grants summary judgment on all of Gardner’s claims against Delta, the
remaining claims against the United States will be tried before the court in a bench trial. See 28
U.S.C. § 2402. “[T]he usual concerns regarding unreliable expert testimony reaching a jury
obviously do not arise when a district court is conducting a bench trial.” Attorney Gen. of Okla. v.
Tyson Foods, Inc., 565 F.3d 769, 779 (10th Cir. 2009). Therefore, “a judge conducting a bench
trial maintains greater leeway in admitting questionable evidence, weighing its persuasive value
upon presentation.” Id. at 780.
In this case, the court determines that the best course of action is to allow Dr. Moulton to
give testimony at the bench trial. This will allow the court to better assess whether Dr. Moulton’s
opinions meet the Rule 702 standard. The court, therefore, denies Gardner’s motion to exclude
Dr. Moulton’s testimony at this time. Gardner can reraise this issue at trial or move to strike his
testimony after Dr. Moulton testifies.
CONCLUSION
The court orders as follows:
(1) The court GRANTS Delta’s motion for summary judgment. [Document 116].
(2) The court GRANTS IN PART AND DENIES IN PART the United States’ motion for
summary judgment. [Docket 119]. The court grants summary judgment on Gardner’s
negligence and respondeat superior claims. The court also grants summary judgment
on the negligent infliction of emotional distress claim to the extent that it is based
upon negligent training or supervision. The court denies summary judgment as to the
remainder of Gardner’s claims against the United States.
25
(3) The court DENIES without prejudice Gardner’s motion to exclude expert testimony
at this time. [Docket 120]. Gardner may raise his objection at trial or reassert this
motion after the expert testifies.
The issues that remain for trial are Gardner’s claims against the United States for (1)
negligent infliction of emotional distress based upon the negligence of FAM1 (2) intentional
infliction of emotional distress, (3) false imprisonment, and (4) assault.
Signed June 8, 2018.
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
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