YOUR ESSENTIAL GUIDE TO THE AIR CARRIER ACCESS ACT TOM STILWELL MARCH 26, 2015 Current Scope of the ACAA March 26, 2015 2 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 3 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 March 26, 2015 4 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 5 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 6 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 March 26, 2015 7 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 March 26, 2015 8 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 9 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 March 26, 2015 10 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. March 26, 2015 11 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 12 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 March 26, 2015 13 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 March 26, 2015 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. 14 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. 15 Service Animal? “Service Bulldog” pictured at the Louis Armstrong New Orleans International Airport December 2014 March 26, 2015 16 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 March 26, 2015 17 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 March 26, 2015 18 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 March 26, 2015 19 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 March 26, 2015 20 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) March 26, 2015 21 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 March 26, 2015 22 Field Preemption of State Law Claims? March 26, 2015 23 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 24 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 25 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 26 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 Atlanta Chicago Cincinnati Cleveland Columbus Costa Mesa Denver Houston Los Angeles New York Orlando Philadelphia Seattle Washington, DC www.bakerlaw.com These materials have been prepared by Baker & Hostetler LLP for informational purposes only and are not legal advice. The information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. 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