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Travel law: Misbehavior aboard commercial aircraft – peanut hurling, hip checking, and threat of arrest

Travel law: Misbehavior aboard commercial aircraft – peanut hurling, hip checking, and threat of arrest

In this week’s article, we discuss the case of Gressett v. Southwest Airlines Company, 2016 WL 6124214, E.D. La. (10/20/2016) which involves a confrontation between a passenger on a commercial aircraft and a flight attendant which the Court described as “The plaintiffs in this litigation are suing, both literally and metaphorically, over peanuts”.

Terror Targets Update

France: The New Normal

In Nossiter, French Terrorism Suspects Appeared Anything But, nytimes.com (12/14/2016) it was noted that “One was a well-liked elementary school assistance. Another was hard-working cargo handler. The third was a friendly grocer. They were longtime friends in their quiet suburban neighborhood, and they joked with teenagers and greeted children with a smile. Yet in the early hours of Nov. 20 agents from France’s internal security agency swooped down, plucking the three and one other from their apartments, charging them with plotting a terrorist attack, and locking them up in a prison outside Paris. Here was a new type of terrorism arrest: decently paid men in their 30s giving no warning signs of radicalization-no beards, no robes, no proselytizing…It is their sheer normalcy that has had a thoroughly unsettling effect on the authorities and residents alike”.

Exploding Fireworks In Mexico

In Villegas, Explosion at Fireworks Market in Mexico Kills Dozens, nytimes.com (12/20/2016) it was noted that “A huge explosion at Mexico’s largest fireworks market on Tuesday afternoon killed at least 27 people and injured 70, the Mexico State police said. The explosion occurred at about 3 p.m. at the well-known San Pablito fireworks market in Tultepec, a town on the outskirts of Mexico City. A video of the episode captured by a passing driver showed a chain reaction of explosions followed by enormous plumes of smoke”.

South Beach, Florida: Please Behave

In Alvarez, Miami Beach Tries to Tame its Most Raucous Street (but the Fishbowl Drinks Can Stay), nytimes.com (12/17/2016) it was noted that “From rooftop bars and rope lines to gridlocked streets and sidewalks, Ocean Drive, the once-idyllic neon heartbeat of South Beach, can trample the senses on most weekends. Tourists sip Technicolor cocktails from fishbowl-size glasses. High-decibel music throbs into the night as people amble along in the glow of stadium-style lights. A weed dealer in the shadows peddles ‘Purple Haze’ for $25 as a near-toothless older man chases women with a seven-foot Burmese python draped around his neck. Police officers are everywhere, scanning the action. ‘It has gotten to the point where the place has become a 24-hour carnival like crime-ridden circus, where public safety is no longer ensured’ said Mitch Novick, who owns the Sherbrooke Hotel…’I’m witnessing the blighting of my neighborhood, which was once paradise’”.

Chinese Tourists In New York City

In McGeehan, Chinese, Spending Freely, Become Ever-Larger Tourism Force in New York, nytimes.com (12/19/2016) it was noted that “Hew York City’s tourism officials have solved the riddle of how to attract the Chinese. The challenge now may lie in impressing them once they arrive. Chinese tourists, who have been flocking to New York is rising numbers for a decade, accounted for nearly one million of the record 60.3 million visitors to the city in 2016, city officials said. But some, like Li Chen, a retired bureaucrat from Beijing, are far from awed by the scale of America’s biggest city. Mr. Chen said he…expected New York to have taller buildings and wider streets…The Chinese surpassed Brazilians and Canadians in the ranks of tourists to the city this year and will overtake the British by 2022, said Fred Dixon, the chief executive of NYC & Company, the city’s tourism marketer”.

Uber’s Self-Driving Experiment

In Mele, In a Retreat, Uber Ends Its Self-Driving Car Experiment in San Francisco, nytimes.com (12/21/2016) it was noted that “Uber’s grand experiment of a self-driving car service in its hometown officially lasted only a week. On Wednesday, Uber ended the autonomous car service in San Francisco after defying California officials who had told the company to stop the service because it was illegal. The company lacked the necessary state permits for autonomous driving, state officials have said…’We’re now looking at where we can redeploy these cars but remain 100 percent committed to California and will be redoubling our efforts to develop workable statewide rules’, the company said”.

Uber Losses Near $1 Billion

In Uber losses reaching close to US$1 billion, etn.travel/article (12/22/2016) it was noted that “Uber was big in China…including its financial losses. The company has since abandoned its operations in the county. Now, even without China factored into the equation, from January to September of this year, the company has lost more than US@2.2 billion. On August 1, Uber came to an agreement with Didi Chuxing to exit China in exchange for 17.5 of the Chinese company. The deal included Didi investing $1 billion in Uber. In Uber’s home market in the US, the company lost US$100 million in the second quarter and increased in the third quarter. Uber generated US$3.76 billion in net revenue the first 3 quarters of 2016, but it is estimated that the bottom line will be a loss of more than US$2.2 billion with US$800 million of that in the third quarter. By year end, it is expected that Uber will have netted US$5.5 billion”.

China’s New Ride-Hailing Rules

In Li, China’s New Ride-Hailing Rules Focus on Where Drivers Call Home, nytimes.com (12/21/2016) it was noted that “Fresh from school with a degree in hotel management, Luo Haichao left his hometown and moved to Beijing to look for a bigger paycheck. He eventually found one in a different sector: driving cars. China has created its own local versions of Uber and Lyft, and the ride-hailing business is booming. But now Mr. Luo-and potentially tens of thousands of other drivers-will have to get off the road. Citing safety and other issues, the cities of Beijing and Shanghai said on Wednesday that Chinese ride-hailing companies must stop using out-of-town drivers like Mr. Luo and hire only local residents to sit behind the wheel. ‘It makes me feel sad’ said Mr. Luo, 29, who…had just spent about $36,000 on a new Volkswagen Passat to give passengers a more reliable ride”.

Ride-Hailing In Upstate New York

In McKinley, Ride-Hailing Gains Prominence for Any Special Session in Albany, nytimes.com (12/20/2016) it was noted that “Mr. Cuomo may also be using ride-hailing to lure recalcitrant upstate lawmakers to the table to address other issues. Companies like Uber are able to operate only in New York City because state laws for group insurance policies make it financially impractical to operate elsewhere. Industry backers point to a variety of evidence that upstate residents-and voters-want to use the app. (In one case, Uber cited internal data to say that 43,000 people tried to gain access to its app in upstate New York on the day before Thanksgiving, ‘one of the busiest drinking nights of the year’, though that figure-or that drinking-could not be verified)…Bills to change such insurance restrictions have run into opposition in the last two years from an array of groups, including the taxi industry, advocates of accessibility for the disabled and labor groups concerned about driver wages and the lack of other benefits. Jonathan Westin, the executive director of New York Communities for Change, said that ‘Uber is quickly becoming one of the largest low-wage employer in New York’ and suggested that the governor, who championed a higher minimum wage this year, should not back a company that helped ‘exploit and devalue its drivers’”.

Travel Law Article: The Gressett Case

As noted by the Court “On February 14, 2014, Andrew Gressett, Bam Gressett and their minor son A.G. were the first passengers to pre-board Southwest Flight No. 3006, set to depart from New Orleans to Los Angeles with a brief stop in Houston. The Gressetts were planning to visit Legoland in celebration of A.G.’s birthday before traveling down coast to San Diego with family friends”.

Searching For A Seat

“Upon embarking, Andrew Gressett began searching for a row of seats that would accommodate his recent back injury while allowing him to sit with his family. He found three suitable seats in the second row only to allegedly discover a flight attendant identified as ‘Kelly’ sitting in the center seat, eating and reading a magazine. According to the plaintiffs, Kelly ‘stormed off’ in a huff as they approached the row. Kelly purportedly told another flight attendant, ‘I guess I need to move before he [Mr. Gressett] runs me over’. As Mr. Gressett placed his family’s carry-on luggage in an overhead bin, the plaintiffs assert, Kelly again ‘stormed’ to the front of the aircraft and told the passenger behind the plaintiffs, ‘You can come in if this person [Mr. Gressett] moves out of the aisle’. Mr. Gressett retorted that he and his family would already have been seated had Kelly not been sitting in their chosen row. The plaintiffs thereafter settled into their seats, with Mr. Gressett taking the aisle, Mrs. Gressett sitting in the middle, and A.G. opting for the window seat”.

Forcefully Pushing Bags Of Peanuts

“Once in the air, Kelly began distributing bags of peanuts to passengers. The plaintiffs allege that when Kelly reached their row, she ‘forcefully pushed’ bags of peanuts into Mr. Gressett’s hands before throwing ‘four to six’ bags at his face and torso”.

Watch Your Language

“Mr. Gressett then complained to his wife of Kelly’s ‘Southwest White Trash Professional Behavior’. When she heard this remark, Kelly warned the plaintiffs, ‘If you don’t watch your language, security will be waiting for you when you land’. Although the plaintiffs’ original complaint characterizes Kelly’s warning as a loud proclamation, they later admitted that she leaned in and spoke to them quietly, as if to prevent other passengers from eavesdropping. Neither of the plaintiffs could confirm that anyone else heard Kelly’s comment”.

Hip Bumping

“The plaintiffs assert that, on at least two other occasions during the flight, Kelly bumped Mr. Gressett with his hip. During their depositions, however, neither Mr. Nor Mrs. Gressett could testify with certainty that Kelly intended the contact. Mr. Gressett even realistically acknowledges that inadvertent contact with flight attendants ‘inevitably’ occurs on crowded flights”.

Fear Of Arrest And Detention

“Although the rest of the flight proceeded without incident, the plaintiffs claim that the fear of arrest and detention engendered by Kelly’s threat beset them until they landed and disembarked in Los Angeles. The vacation unfolded as planned, but residual distress from the incident on the flight apparently prevented Mr. and Mrs. Gressett from enjoying themselves. They claim to have been upset for as many as 10 days after the flight. But neither Mr. Gressett nor Mrs. Gressett sought medical treatment for their alleged emotional anguish. A.G. suffered no discernable effects of the flight that so tormented his parents”.

The Lawsuit

“On February 13, 2016, the plaintiffs filed this lawsuit… The complaint alleges that, within the course and scope of her employment with Southwest, Kelly engaged in intentional and negligent conduct which resulted in severe emotional distress. According the plaintiffs, Kelly’s peanut hurling, hip checking and threat of arrest constituted assault and defamation. The complaint further accuses Southwest of direct negligence in failing to prevent the incident or intervene, as well as in its hiring, training and supervision of Kelly. Finally, the complaint seeks to hold Southwest liable ‘any and all other acts of negligence and/or carelessness’ that come to light. Southwest now seeks summary judgment dismissing the plaintiff’s claims”.

Intentional Infliction Of Emotional Distress

“The plaintiffs insist that Kelly’s ‘threatening and bullying’ behavior sullied the Gressett’s long-awaited family vacation and resulted in severe mental anguish, rendering Southwest liable for damages. As a matter of law, the plaintiffs’ claim must be dismissed. According to the Statement of Uncontested Facts, Kelly allegedly complained about Mr. Gressett ‘run[ning] over’ her; ridiculed Mr. Gressett taking too long to load his family’s luggage into the overhead bin; opted for an uncourteously hostile method of peanut delivery; and quietly warned Mr. Gressett, after he referred to her as ‘White Trash’, that security would be waiting at the Houston gate if he failed to clean up his language. No rational trier of fact could conclude that this behavior qualified as anything more than regrettably rude and off-putting”.

No Anxiety Or Distress

“Despite asserting that residual anxiety and distress from their encounters with Kelly ‘ruined’ their vacation, the plaintiffs admittedly participated in all of the planned activities. The Court notes that the plaintiffs never sought medical attention or treatment for their alleged distress…That the plaintiffs even could enjoy a lavish 10-day vacation and ‘live their lives’ illustrates that their emotional suffering fell within the range of reasonable human endurance”.

The Threat

“Southwest also asks this Court to dismiss the plaintiffs’ claim that Kelly assaulted them by threatening to call security in response to Mr. Gressett’s ‘White Trash’ comment. This claim must also be dismissed as a matter of law…Clearly, the apprehension of eventual arrest and detention here- and the Court would strain to even regard that apprehension as reasonable-is not the sort giving rise to a valid assault claim…The plaintiff’s claim that Kelly’s warning constituted an assault defies law and common sense”.

The Peanut Assault

“The plaintiffs additionally contend, in cursory fashion, that Kelly assaulted and battered Mr. Gressett by 1) pelting him with peanuts and 2) bumping into him with her hip at least twice. Both claims are without merit. Even assuming Kelly forcefully shoved peanuts onto Mr. Gressett, he suffered no physical injury…Therefore, as a matter of law, Kelly neither assaulted or battered Mr. Gressett with her allegedly aggressive form of delivery of the peanut packages. The same is true of Kelly’s alleged hip-bumping. In addition, as Southwest points out, the plaintiffs admitted in their deposition testimony that they could not determine with certainty whether Kelly intentionally bumped Mr. Gressett…no reasonable finder of fact could conclude that Kelly intended to contact Mr. Gressett on this evidence”.

Conclusion

“Finally, in their opposition papers, the plaintiffs introduce for the first time in this case claims for breach of contract, third-party witnessing of injury to a spouse and ‘Lost Vacation Enjoyment’. Insofar as the plaintiffs have attempted to amend their original pleadings well past the pleading deadlines without good cause, the Court does not consider them. Even assuming that the plaintiffs had properly pleaded these claims, none would have merit…summary judgment dismissing all of the plaintiffs’ claims against Southwest is appropriate”.

Thomas A. Dickerson is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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