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Blind airline passenger intimidated by Federal Air Marshal: Is Delta Air Lines liable?

Blind airline passenger intimidated by Federal Air Marshal: Is Delta Air Lines liable?

In this week’s travel law article, we examine the case of Gardner v. United States of America, Delta Air Lines, Case No. 1:14-cv-00125-JNP-DBP (D. Utah June 8, 2018) wherein the Court noted that “Ronald Gardner sued Delta Airlines and the United States of America based upon his interactions with an air marshal…Gardner (is) legally blind (and) hearing impaired and wears hearing aids (and) 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 (and) 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…Five to ten minutes later, Gardner began to recline his seat a second time. His seat was hit from behind even more violently, causing…Gardner to jolt forward in his seat…A few minutes later, Gardner tried to recline his seat for a third time, but FAM1 again pushed the seat forward…

Gardner went to the galley (and complained and) the flight attendant noticed that Gardner was ‘literally shaking’, sweating and taking shallow breaths…The head flight attendant spoke with FAM1 (and) [g]iven FAM1’s level of agitation during the 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. (Gardner returned to his seat followed by FAM1 who) grabbed Gardner’s seatback and ‘jostl[ed] the heck out of it’…The head flight attendant came to Gardner’s seat, crouched down and said ‘It’s okay. He’s in a pile of shit. It’s the federal air marshal’…

After landing, Gardner got up but was blocked by FAM1 and said, “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, for about three minutes FAM1 remained motionless and silent…When they entered the airport, Gardner told the Delta airport employee that he wanted to hide to avoid any encounter with (FAM1)”. Summary judgment granted to Delta and partial summary judgment granted to U.S.”.

In the Gardner case, the Court noted that “Gardner sued both Delta and the United States based upon this incident (alleging) that his encounter with FAM1 caused him to suffer from pos-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 Garner labels as a respondeat superior claim…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 imprisonment, (5) assault and (6) a cause of action that Gardner labels as a respondeat superior claim”.

Delta Claims Preempted

“The Federal Aviation Act of 1958 (FAA) authorized board federal regulation of the airline industry…In 1978 Congress amended the FAA with the Airline Deregulation Act (ADA)…‘To ensure that the States would not undo federal deregulation of their own, the ADA included a preemption provision…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.

Related To Delta’s Service

Delta argues that all of these theories of liability are related to a Delta service. The Tenth Circuit has interpreted the term ‘service of 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’…Under this definition of ‘service’, Gardner’s claims against Delta have ‘a connection with or reference to’ Delta service…Other courts that have examined similar claims have concluded that they were preempted…The court, therefore, concludes that Gardner’s negligent infliction of emotional distress claim and his negligence-based claims are explicitly preempted”.

Claims Against United States

“The evidence, taken in the light most favorable to Gardner’s 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 the 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 action, 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, we waited with Gardner (and) [w]hen 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, denied the United States’ motion for summary judgment on Gardner’s negligent infliction of emotional distress claim based upon FAM1’s actions”.

Patricia and Tom Dickerson

The author, Thomas A. Dickerson, passed away on July 26, 2018 at the age of 74. Through the graciousness of his family, eTurboNews is being allowed to share his articles that we have on file which he sent to us for future weekly publication.

The Hon. Dickerson retired as an Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and wrote about Travel Law for 42 years including his annually-updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018), and over 500 legal articles many of which are available at For additional travel law news and developments, especially in the member states of the EU, see

Read many of Justice Dickerson’s articles here.

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