YOUR ESSENTIAL GUIDE TO THE
AIR CARRIER ACCESS ACT
TOM STILWELL
MARCH 26, 2015
Current Scope of the ACAA
March 26, 2015
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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
March 26, 2015
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Four General Duties
1.
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.
March 26, 2015
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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)

March 26, 2015
Light Spikes by Jay Baker/ Llewelyn-Davies Sahni, Inc.
Houston Intercontinental Airport (Installed ~1990)
Practice Tip: Negotiate Strong
Indemnity & Additional Insured
Provisions
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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
March 26, 2015
 Dogbe v Delta Airlines, Inc. (E.D. NY
2013) No requirement to provide
accommodations in a class of service not
purchased by the passenger
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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.
March 26, 2015
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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.
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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
required
March 26, 2015
 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.
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Service Animal?
“Service Bulldog” pictured at the Louis
Armstrong New Orleans International Airport
December 2014
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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 court
March 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



Summers v Delta Airlines (N.D. Ca. 2011) – Mandatory assistance in disembarking does
not preempt claims regarding condition of the exit path (stairs)



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.



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


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
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.


March 26, 2015
Consumer protection claims are preempted
Negligent provision of assistance claim allowed
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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
March 26, 2015
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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
March 26, 2015
* Alex Stilwell (Age 4) at “Wings
over Houston” airshow 2011
27
Tom Stilwell
Telephone: 713-646-1378
Mobile No: 832-274-6749
tstilwell@bakerlaw.com
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