YOUR ESSENTIAL GUIDE TO THE AIR CARRIER ACCESS ACT

TOM STILWELLMARCH 26, 2015

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Current Scope of the ACAA

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Air Carrier Access Act

Enacted in 1986 following holding in U.S. Dept. of Transportation v. Paralyzed Veterans of America (U.S. 1986) Case held that regulations prohibiting discrimination

by federally funded programs did not apply to airlines that did not receive direct federal subsidies.

The DOT issues regulations to enact and enforce the ACAA

As of March 13, 2009, amended to apply to domestic and foreign air carriers

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Four General Duties1. Cannot discriminate against a

person with a disability by reason of such disability

2. Cannot require a passenger to accept special services that are not requested

3. Cannot exclude a passenger with a disability from benefits or services available to other passengers

4. Cannot take adverse action against a passenger who invokes their rights under the act

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Purpose: More than Anti-Discrimination

Aimed at ensuring services, facilities, and accommodations are provided in a respectful and helpful manner

No Strict Liability Deterra v. America West Airlines, Inc. (D. Ma. 2002)

– Ticketing agent talked over the head of a wheelchair passenger and referred to the passenger as an “it.”

o Isolated instances of distasteful, uncivil or inappropriate demeanor by airline personnel is not an act of discrimination or a violation of the Act.

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Who Must Comply? US Carriers - applies to all operations

and aircraft regardless of location

Foreign Air Carriers - applies to flights that begin or end at a US airport

Code Sharing - US carrier must ensure all legs operated by a foreign air carrier comply Even if the Act would not otherwise

apply

Airlines responsible for the conduct of their contractors (i.e. wheelchair service) Practice Tip: Negotiate Strong

Indemnity & Additional Insured Provisions

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Light Spikes by Jay Baker/ Llewelyn-Davies Sahni, Inc. Houston Intercontinental Airport (Installed ~1990)

Enforcement of the ACAA

Airline must provide a complaint resolution official at each airport

Passenger may file a complaint with DOT DOT investigates & conducts a hearing

For written complaints made within 45 days, Airline must respond in 30 days Must specifically admit or deny fault

Provide summary of facts

DOT may impose a fine of $27,500 per violation

Appeal of DOT ruling directly to the US Federal Court of Appeals

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Refusal of Carriage Cannot exclude a passenger even when the disability “results in

appearance or involuntary behavior that may offend, annoy, or inconvenience crewmembers or other passengers”

Only if the carrier objectively determines that the individual represents a “direct threat” to the safety of the passengers or crew. Meaning a "significant risk to the health or safety of others that cannot be

eliminated” Must be an individualized assessment Relying on current medical knowledge and Best available objective evidence

Carrier must select least restrictive response from the point of view of the passenger

If the carrier can protect health or safety of others while allowing travel, it must do so

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Seating Accommodations Allow pre-boarding if requested

For mobility impaired passengers, seating in a row with moveable arm rests

Adjoining seats for personal care attendants

Bulkhead seating for passengers with a service animal

Cannot seat in an exit row if physical or communication impairments exist

Cannot deny travel to one passenger in order to offer seating accommodation to a disabled passenger

May charge for additional seats if passenger's condition (i.e. stretcher) occupies more than one seat space

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Dogbe v Delta Airlines, Inc. (E.D. NY 2013) No requirement to provide accommodations in a class of service not purchased by the passenger

Assistance During Flight Must Assist With:

Moving to and from seat Opening food packages (if

requested) and identifying food (if needed)

Access to lavatories Stowing / retrieving carry-on items Communication (sight/auditory

impairment)

Extensive Assistance Is Not Required Assistance with eating Assistance in a lavatory Provision of medical care

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Wheelchair assistance Between gates & to or from terminal

entrance Includes key functional areas: ticketing

and baggage claim

Boarding & deplaning Includes ground wheelchairs; motorized

carts; boarding wheelchairs; on-board wheelchairs; ramps; lifts.

Arriving carrier statutorily responsible to assist passenger to the connecting flight

Does not extend to areas beyond the carrier's control Edick v Allegiant Air LLC. (D. NV. 2012)

Plaintiff with a brain tumor falls in the parking garage and brings suit for failure to provide wheelchair service. Court finds no violation of ACAA.

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Wheelchair Response Time Should be prompt - 30 minutes or less

From time of arriving flight and/or disembarking Not judged by the information/need conveyed at

ticketing Even if the passenger is traveling with companions

Glass v Northwest Airlines, Inc. (W.D. Tenn. 2011) – Plaintiff falls down an escalator. 24 minutes from arrival and 10 minutes after disembarking is not a violation.

Johnson v Northwest Airlines, Inc. (N.D. Ca. 2010) – Plaintiff falls on a moving walkway between gates. Short delay of 12 minutes is not a violation.

Jackson v United Airlines, Inc. (E.D. Va. 2009) – Plaintiff falls while walking to baggage claim. 30 minute wait created a fact question for the jury.

Glatfelter v Delta Air Lines (Ga. Ct. App. 2002) – Plaintiff falls on escalator between gates. 15 to 20 minutes after arrival is not a violation.

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Visual & Hearing impairments ACAA extends to the ticketing and

reservation systems

Text Telephone Systems (TTY) must be available

Dec. 12, 2015 - deadline for websites to meet W3C recommendations of 11 December 2008

Airport automated kiosks Kiosks installed after Dec 12, 2016

must meet DOT design criteria December 12, 2022 - 25% of kiosks

at each location in the airport must meet DOT design criteria

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Disease & Medical Issues Medical issue or disease may qualify as a

disability under the ACAA

Is the passenger a "Direct Threat" to health and safety of others? Based on objective medical evidence.

Test is ease of transmission from casual contact in the aircraft cabin, not mere severity of the consequences of the disease Aids has severe consequences, but is not readily

transmissible in an aircraft cabin, so an HIV+ passenger cannot be refused transport

SARS is readily transmissible and possesses severe health consequences, transport can be refused

If a passenger has a medical certificate outlining measures for safe travel, the carrier must provide transport unless it cannot carry out the medical recommendations

Unless a direct threat, cannot delay the flight, impose restrictions not imposed on other passengers, or require a medical certificate

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Price v. Delta Airlines, Inc. (D. Vt. 1998) – Removal of a passenger with HIV & Kaposi's Sarcoma whose lesions were draining and smelled was discrimination.

Newman v American Airlines, Inc. (9th Cir. 1999) removal of blind passenger with heart condition who could not produce a medical certificate was discrimination.

Service Animals A service animal is different

from an emotional support animal

What is a service animal? No definition Carrier can rely on

identification cards, written documentation, harnesses, tags, or credible verbal assurances

Accommodation required No advance notice

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Adler v. WestJet Airlines, Ltd. (S.D. Fla. 2014) Plaintiffs were removed from a flight due to a flight attendant’s concern over a service dog, a 4 pound yorkie. Plaintiffs alleged injury and humiliation. Court allowed claims for negligence and negligent training.

Service Animal?

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“Service Bulldog” pictured at the Louis Armstrong New Orleans International AirportDecember 2014

Emotional Support Animal No accommodation

required absent medical documentation Letter from a licensed

mental health professional within last 12 months

Identifies the passenger as possessing a DSM IV condition and needs the animal

Carrier may require advance notice and advance check-in

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Unusual Service Animals No accommodation required:

snakes, reptiles, ferrets, rodents, and spiders

Discretion of the carrier: miniature horses, pigs, monkeys

Factors to consider weight and size of the animal

whether it poses a threat to health or safety of others

whether it will significantly disrupt cabin service

whether it will be prohibited from entering a foreign country serviced by the flight

Foreign carriers need only accommodate dogs

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Preemption? One of the first issues

decided in a case

At its core, preemption is a fight over choice of law & venue: Determines jurisdiction –

state v federal Determines claim viability Determines standard of

care applied Determines remedies

allowed

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What Preemptive Effect Exists?

ACAA does not contain a clause creating a federal cause of action for an aggrieved passenger

Does not contain an express preemption clause that prevents assertion of causes of action

DOT believes that its regulations "substantially, if not completely, occup[y] the field of nondiscrimination on the basis of handicap in air travel.“

DOT warns “interested parties should be on notice that there is a strong likelihood that state action on matters covered by this rule will be regarded as preempted.”

Courts do not uniformly agree

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No Implied Cause of Action Alexander v Sandoval (U.S. 2001) - Strictly

curtails the ability to recognize an implied cause of action

Post Sandoval - Courts generally agree that no implied right of action exists under the ACAA 9th Cir. – Gilstrap v United Air Lines, Inc. (2013) 2nd Cir. – Lopez v Jet Blue Airways (2011) 10th Cir. – Boswell v SkyWest Airlines, Inc. (2004) 11th Cir. – Love v Delta Air Lines (2002)

Casts into doubt prior opinions of 5th Cir. - Shinault v American Airlines, Inc. (1991) 8th Cir. - Tallarico v Trans World Airlines, Inc. (1989)

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Conflict Preemption of State Law Claims?

Occurs when federal law conflicts with state law Makes it impossible for private party to comply with federal and state law Or state law stands as an obstacle to accomplishment of the objectives

of federal law

Majority Trend: No Conflict 9th Cir. – Gilstrap v United Air Lines, Inc. (2013) 3rd Cir. – Elassaad v Independence Air, Inc. (2010) DOT Remedies are Non-Exclusive

Contrarian View: DOT enforcement conflicts with state causes of action Compass Airlines LLC. v. Montana Dept. of Labor & Industry (D. Mt.

2013) Expressly disagrees with the holding of the 9th Cir. in Gilstrap. Court believes airlines will stop cooperating with DOT investigations if

subject to state law causes of action/damages for the same conduct

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Field Preemption of State Law Claims?

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Field Preemption? Yes – DOT Regulations serve a safety function and completely preempt state law

claims Compass Airlines Inc. v Montana Dept. Labor & Industry (D. Mt. 2013). Plaintiff removed

from an aircraft due to the use of a portable oxygen concentrator

No – ACAA & DOT regulations serve an anti-discrimination purpose only Elassaad v Independence Air, Inc., (3rd Cir. 2010) – Amputee passenger falls on aircraft exit

stairway ACAA does not displace state law regulation of safety At most, the Act displaces state law anti-discrimination statutes

Gilstrap v United Air Lines, Inc., (9th Cir. 2013) – Passenger with osteoarthritis claims injuries from failure to provide assistance in airports ACAA is an economic regulation only ACAA defines the federal standard of care owed by the airline Plaintiff can rely on state law for elements of breach, causation, damages and remedies

Baugh v. Delta Air Lines, Inc. (N.D. Ga. 2015) – Blind passenger does not receive requested assistance and falls during boarding Follows holding and rationale of Gilstrap

ACAA regulations detail how an air carrier is to treat a passenger. Thus ACAA preempts state law standard of care. Plaintiff can rely on other state law elements for negligence and remedies

Because no preemption, federal jurisdiction does not exist. Case is remanded to state court24March 26, 2015

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Field Preemption? Hybrid View IT DEPENDS! Look at the basis for the claim and the regulations on that issue

Often, claim concerning whether or not the carrier provides service is preempted But, claim arising from how the service is provided – safely or poorly – is not preempted

Summers v Delta Airlines (N.D. Ca. 2011) – Mandatory assistance in disembarking does not preempt claims regarding condition of the exit path (stairs) Negligence & negligent infliction of emotional distress claims survive if premised on a standard of

care set forth in the ACAA

Gill v JetBlue Airways Corp. (D. Ma. 2011) – Incomplete quadriplegic passenger falls out of an aisle boarding chair during transfer Complaints regarding the failure to provide service are preempted, but negligent provision of

assistance is not Negligent training claim must utilize the standard of care in the ACAA; state law will provide damages

for the breach

Brown v Alaska Air Group - (E.D. Wa. 2011) – Elderly passenger fell walking on the tarmac to the aircraft. Claim for failure to provide assistance is preempted; extensive regulations govern duty to assist a

passenger between aircraft Negligent provision of assistance is not preempted

Hodges v Delta Air Lines - (W.D. Wa. 2010) – Mobility impaired passenger fell from an aisle chair during deplaning. Consumer protection claims are preempted Negligent provision of assistance claim allowed

March 26, 2015

Warsaw Convention v. ACAA Warsaw Convention preempts claims arising from

violations of the ACAA Mikerina v. Delta Air Lines, Inc. (D. Ma. 2011) – Moscow

to NYC flight was diverted after plaintiff fainted in-flight due to a medical condition. Plaintiff was removed from the flight in Poland and was not allowed to re-board.

Warsaw preempts “local law” so plaintiff’s discrimination claims under the ACAA are preempted

Same Holding King v American Airlines, Inc. (2nd Cir 2002)

Turturro v Continental Airlines, Inc. (S.D. NY 2001)

Waters v Port Authority of NY & NJ (D. NJ 2001)

Brandt v American Airlines (N.D. Ca. 2000)

But see, Adler v WestJet Airlines, Ltd. (S.D. Fla. 2014) – state law claims for violation of the ACAA may continue subject to the treaty’s damage limitations

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The Future of ACAA Claims:

Continued aging of average passenger loads

Advancement in medical treatment and technology increase mobility of impaired passengers

Less protection of industry, more protection of consumers

Thus, less federal preemption of ACAA claims * Alex Stilwell (Age 4) at “Wings

over Houston” airshow 201127March 26, 2015

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Tom StilwellTelephone: 713-646-1378Mobile No: 832-274-6749tstilwell@bakerlaw.com