Ninth Circuit Chips Away at Preemptive Effect of ACAA

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March 20, 2013
Michael McGrory
SmithAmundsen Aerospace Alert

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The Air Carrier Access Act and related regulations prohibit airlines from discriminating against disabled passengers and affirmatively require airlines to assist disabled passengers in emplaning, deplaning, and getting around the airport. Recent appellate court opinions have held that the ACAA does not provide a private cause of action—in other words, a passenger cannot sue an airline because the airline failed to comply with the ACAA. Despite this precedent, the Ninth Circuit, in Gilstrap v. United Air Lines, Inc., held that a disabled passenger can use an airline’s failure to comply with the ACAA as evidence of negligence in a state law tort claim.

The disabled plaintiff alleged physical and emotional injuries due to United’s failure to provide her with wheelchair service and otherwise rude and insensitive service, and sued for, among other things, negligence and intentional and negligent infliction of emotional distress. She did not make a direct claim under the ACAA; rather, she alleged that United’s violations of the ACAA were evidence of negligence.

The Ninth Circuit found that the plaintiff’s state law claims were not preempted by the ACAA. The ACAA provides the sole standard of care with respect to services to disabled passengers, and states are not permitted to impose a different or higher standard of care. Nevertheless, state law still governs the other elements of a tort claim (i.e., breach of duty, causation, and damages), and a plaintiff is permitted to bring a state tort claim provided the state does not impose any different standard of care. In other words, if the evidence shows that United complied fully with the ACAA, then United could not be liable; however, if United did not comply with the ACAA, the plaintiff could recover damages if she is able to establish the other elements of her claim. The Court also noted that the Federal Aviation Act explicitly preserves remedies provided by other laws and requires air carriers to maintain liability insurance, provisions which the Court believes show Congress’ intent that state law claims in the aviation context be preserved.

Until this decision, it was fairly clear that the only remedy available for violations of the ACAA was administrative. Now, though, at least within the Ninth Circuit, plaintiffs will be able to make a claim under the ACAA simply by couching it in terms of state tort law. Given the history of preemption in the aviation context, it is likely that other Circuits will take a different approach. Nevertheless, airlines should adhere strictly to the ACAA and related regulations when serving disabled passengers, as their failure to do so could lead to liability well in excess of the $25,000 maximum fine allowed by the ACAA.