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Hall v. Delta Air Lines, Inc.

United States District Court, D. Maine

March 30, 2018

KARL HALL and MARLENE HALL, Plaintiffs,
v.
DELTA AIR LINES, INC. and FLIGHT SERVICES & SYSTEMS, INC. Defendants.

          ORDER MOTION FOR SUMMARY JUDGMENT

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         Karl Hall and Marlene Hall bring this diversity action against an airline and one of its contractors alleging common law negligence and statutory loss of consortium and seeking punitive damages arising out of two incidents of personal injury. The airline moves for summary judgment on all counts, arguing preemption, a lack of vicarious liability, and the inapplicability of punitive damages. The Court denies the Motion for Summary Judgment (ECF No. 42).

         I. PROCEDURAL HISTORY

         On August 16, 2016, Karl Hall and his wife Marlene Hall filed a complaint in this Court against Delta Air Lines, Inc. (Delta) and Flight Services & Systems, Inc. (FSS). Compl. (ECF No. 1). The Complaint contains four counts: Count I- common law negligence arising out of a 2015 incident, in which Mr. Hall was injured disembarking a Delta flight in Maine (the 2015 incident); Count II-loss of consortium, pursuant to 14 M.R.S. § 302, arising out of the 2015 incident; Count III- common law negligence arising out of a 2016 incident, in which Mr. Hall was injured boarding a Delta flight in Georgia (the 2016 incident); Count IV- loss of consortium, pursuant to 14 M.R.S. § 302, arising out of the 2016 incident. Id. at 3-5. On September 13, 2016, Delta answered the Complaint. Answer and Demand for Jury Trial (ECF No. 6).[1]

         On June 6, 2017, Delta filed a motion for summary judgment, Delta's Mot. for Summ. J. (ECF No. 42) (Def.'s Mot.), with a statement of material facts, Statement of Material Facts as to Which Delta Air Lines, Inc. Contends There is no Genuine Issue of Material Fact to be Tried (ECF No. 43) (DSMF), as well as the stipulated record. Stipulation as to Facts Admitted Solely for Purposes of Summ. J. (ECF No. 40) (Stip.). On June 23, 2017, the Halls filed their opposition, Pls.' Opp'n to Delta Air Lines, Inc.'s Mot. for Summ. J. (ECF No. 48) (Pls.' Opp'n), their response to Delta's statement of material facts, Pls.' Opposing Statement of Material Facts (ECF No. 49) (PRDSMF), and a set of additional material facts. Id. at 15-21 (PSAMF). On July 7, 2017, Delta replied to the Halls' opposition, Delta's Reply Mem. in Supp. of Mot. for Summ. J. (ECF No. 51) (Def.'s Reply), and to the Halls' additional material facts. Delta's Reply Statement of Material Facts (ECF No. 52) (DRPSAMF).

         II. STATEMENT OF FACTS

         A. The Parties

         As of the dates of both incidents, Karl Hall was a qualified individual under the Air Carrier Access Act (ACAA), 49 U.S.C. § 41705 et seq. and a passenger with a disability under 14 C.F.R. Part 382. Stip. ¶ 7; PRDSMF ¶ 7. He suffers from muscular dystrophy. DSMF ¶ 9; PRDSMF ¶ 9. As a result of this condition, Mr. Hall has little to no motor control over his own body and cannot prevent himself from falling if not properly secured in a chair. PSAMF ¶ 71. Delta is a common carrier subject to the laws, rules, and regulations of the United States relating to the airline industry. Stip. ¶ 8; PRDSMF ¶ 10.

         B. Delta's Mobility Contractors: FSS and AirServ

         1. FSS Services at Portland International Jetport

         Pursuant to a contract dated January 19, 2009, Delta contracted with FSS to perform passenger assistance services for Delta's passengers at the Portland International Jetport in Portland, Maine, including the transfer of passengers to and from wheelchairs to aircraft seats with the aid of aisle chairs and assistance to passengers in boarding and deplaning. Stip. ¶ 1; id. Attach. 1 Airport Services Master Agreement (FSS Contract); PRDSMF ¶ 1. Section 2.5 of the FSS contract states:

All Services shall be furnished by Contractor as an independent contractor. All personnel utilized by Contractor in the furnishing of such Services shall be employees of Contractor and under no circumstances shall be deemed employees of Delta. Contractor shall be fully responsible for all acts and omissions of such personnel.[2]

DSMF ¶ 23; FSS Contract at 4[3]; PRDSMF ¶ 23.

         The contract also provides that FSS is obligated “to comply with all applicable laws, rules, regulations and procedures, including without limitation the Air Carrier Access Act (ACAA) of 1986 and 14 C.F.R. Part 382” in its provision of passenger assistance services. DSMF ¶ 27; FSS Contract at 45; PRDSMF ¶ 27. The contract further states that FSS “shall ensure supervisory personnel are familiar with all aspects of the operation relating to special services, including providing training related to 14 CFR Part 382, and that such personnel “shall be responsible for operations oversight [and] employee conduct and performance . . .” DSMF ¶¶ 28, 29; FSS Contract at 47; PRDSMF ¶ 29. FSS also is obligated to “[t]ransfer . . . customers to/from the wheelchair and aircraft seat with the aid of an aisle chair and [provide] assistance in boarding, deplaning and transfers of customers between gates.” DSMF ¶ 30; FSS Contract at 47; PRDSMF ¶ 30. The contract requires that “[p]rior to interacting with the traveling public, contractor personnel are required to complete training regarding the requirements of Part 382 and Delta's disability procedures, including the proper and safe operation of any equipment used to accommodate individuals with a disability.”[4] DSMF ¶ 32; FSS Contract at 48-49; PRDSMF ¶ 32. The contract also mandates that FSS “institute and maintain an effective quality assurance program to ensure Passenger Assistance Services comply with 14 C.F.R. Part 382.” DSMF ¶ 33; FSS Contract at 50; PRDSMF ¶ 33.[5]

         After reviewing FSS's training curriculum, Delta's General Manager of Airport Customer Service Learning, by memorandum dated March 12, 2014, advised FSS that:

This letter acknowledges that your request to accept Wheelchair Assistance Training provided by FSS Service Learning.
It is acknowledged that FSS has agreed to keep their training records updated and available for inspection at any time. It is also acknowledged that FSS guarantees that they will only provide qualified personnel for Delta's operation.

Stip. ¶ 11; id. Attach. 3 Memo (emphasis in original); PRDSMF ¶ 34.

         Delta was contractually empowered to review and approve all FSS staffing plans related to the provision of the Services to disabled passengers, such as Mr. Hall; FSS did in fact provide staffing plans for Portland-based services to Delta for review and, if Delta found them deficient, Delta was authorized to order FSS to change them. PSAMF ¶ 54.[6] Delta was contractually empowered to instruct FSS on how to provide Services to, inter alia, disabled passengers such as Mr. Hall, at the Portland airport. PSAMF ¶ 55.[7] Pursuant to the terms of the FSS Contract, Delta reviews and approves the content and nature of passenger Services-related training provided to FSS employees, including training on how to properly enplane and deplane disabled passengers such as Mr. Hall. PSAMF ¶ 56.[8]

         2. AirServ Services at Hartsfield-Jackson Atlanta International Airport

         Pursuant to a contract dated April 9, 2009, Delta contracted with AirServ to perform passenger assistance services for Delta's passengers at the Hartsfield- Jackson Atlanta International Airport in Atlanta, Georgia, including the transfer of passengers to and from wheelchairs to aircraft seats with the aid of aisle chairs and assistance to passengers in boarding and deplaning. Stip. ¶ 4; id. Attach. 2 Airport Services Master Agreement (AirServ Contract); PRDSMF ¶ 4. Section 2.5 of the contract between Delta and AirServ states:

All Services shall be furnished by Contractor as an independent contractor. All personnel utilized by Contractor in the furnishing of such Services shall be employees of Contractor and under no circumstances shall be deemed employees of Delta. Contractor shall be fully responsible for all acts and omissions of such personnel.[9]

DSMF ¶ 36; AirServ Contract at 4[10].

         The contract also provides that AirServ is obligated “to comply with all applicable laws, rules, regulations and procedures, including without limitation the Air Carrier Access Act (ACAA) of 1986 and 14 C.F.R. Part 382” in its provision of passenger assistance services. DSMF ¶ 40; AirServ Contract at 50; PRDSMF ¶ 40. The contract also provides that AirServ “shall ensure supervisory personnel are familiar with all aspects of the operation relating to special services, including providing training related to 14 CFR Part 382, and that such personnel “shall be responsible for operations oversight [and] employee conduct and performance . . .” DSMF ¶ 42; AirServ Contract at 50; PRDSMF ¶ 42. AirServ is required to “[t]ransfer . . . customers to/from the wheelchair and aircraft seat with the aid of an aisle chair and provision of assistance in boarding, deplaning and transfers of customers between gates.” DSMF ¶ 43; AirServ Contract at 50; PRDSMF ¶ 43. The contract requires:

Prior to interacting with the traveling public, contractor personnel are required to complete training regarding the requirements of Part 382 and Delta's disability procedures, including the proper and safe operation of any equipment used to accommodate individuals with a disability.[11]

DSMF ¶ 45; AirServ Contract at 51-52; PRDSMF ¶ 45. The contract also requires that AirServ “institute and maintain an effective quality assurance program to ensure Passenger Assistance Services comply with 14 C.F.R. Part 382.” DSMF ¶ 46; AirServ Contract at 53; PRDSMF ¶ 46.[12]

         After reviewing AirServ's training curriculum, Delta's General Manager of Airport Customer Service Learning, by memorandum dated February 25, 2016, advised AirServ that:

This letter acknowledges that your request to accept Wheelchair Assistance Training provided by AIRSERV in ATL, in lieu of training provided by Delta has been accepted Airport Customer Service Learning.
It is acknowledged that AIRSERV has agreed to keep their training record updated and available for inspection at any time. It is also acknowledged that AIRSERV guarantees that they will only provide qualified personnel for Delta's operation.

Stip. ¶ 12; id. Attach. 4 Memo (emphasis in original); PRDSMF ¶ 47.

         Delta was contractually empowered to review and approve all AirServ staffing plans related to provision of the Services to disabled passengers, such as Mr. Hall. PSAMF ¶ 51.[13] AirServ did in fact provide staffing plans for Atlanta-based services to Delta for review. Id. Delta was contractually authorized to provide instructions to AirServ on how to provide services to disabled passengers, such as Mr. Hall, at the Atlanta airport. PSAMF ¶ 52.[14] Pursuant to the terms of the AirServ contract, Delta reviews and approves the content and nature of passenger services-related training provided to AirServ employees, including training on how to properly enplane and deplane disabled passengers such as Mr. Hall. PSAMF ¶ 53.[15]

         C. Flight Operations, Roles, and Responsibilities of Delta, FSS, and AirServ

         Once the pilot is on the plane, the pilot has control over everything that happens on the plane. PSAMF ¶ 57; DRPSAMF ¶ 57.[16] AirServ and FSS employees enplaning or deplaning passengers cannot board Delta planes until the Delta flight crew is already on board and the flight crew notifies the gate that they are ready for boarding. PSAMF ¶ 58; DRPSAMF ¶ 58. The Federal Aviation Administration (FAA) requires that the flight crew be on board before mobility contractors such as AirServ or FSS come aboard so that the crew can supervise the loading and unloading of passengers and ensure their safety. PSAMF ¶ 59; DRPSAMF ¶ 59.[17] Delta's flight attendant training materials state that “[a]s flight attendants we have the responsibility to assist our passengers during boarding, in flight and upon deplaning” and that the flight attendants' responsibilities include “[h]elp[ing] get the customer on and off the aircraft.” PSAMF ¶ 60; DRPSAMF ¶ 60.

         Delta flight attendants are required, as part of their job responsibilities, to ensure that disabled partners are enplaned and deplaned safely. PSAMF ¶ 61.[18] In general, if Delta flight attendants see any unsafe enplaning or deplaning procedures, including with disabled passengers under the supervision of mobility contractors, they are expected to intervene. PSAMF ¶ 62; DRPSAMF ¶ 62.[19] Mobility contractors, such as AirServ or FSS, have no right to refuse to honor these Delta instructions regarding special needs for deplaning that are identified midflight, such as a request for a wheelchair or the request the Delta pilot made for two male mobility agents to meet the Halls' plane in Portland to assist Mr. Hall in deplaning. PSAMF ¶ 66; DRPSAMF ¶ 66.[20] Katherine Hughes, the station manager for Delta at Portland, has never seen a Delta flight attendant actively assist a customer in transition because it has always been in the contract with FSS for FSS to move the passengers as that is what Delta and the other participating airlines in the wheelchair consortium hired FSS to do. DSMF ¶ 19.[21]

         At each airport, Delta has complaint resolution officials (“CROs”), who are Delta employees specially trained to handle any types of issues or incidents involving passengers with disabilities. PSAMF ¶ 63; DRPSAMF ¶ 63. As part of their responsibilities, CROs interact with air mobility contractors such as AirServ and, if necessary, will step in to address any problems with Part 382 services provided by mobility contractors; Delta CROs have the ability to resolve any disability-related issues, including any dispute between Delta employees and mobility contractors related to disabled passengers. PSAMF ¶ 64; DRPSAMF ¶ 64.

         FSS employees are trained that “[m]ost passengers react to a uniform and don't really distinguish between FSS employees and the employees of our contracted airlines.” PSAMF ¶ 69.[22] In the experience of Kristean Jacobs, FSS' General Manager at the Portland airport, when passengers are flying on a specific airline, they generally believe all the personnel they interact with are employees of that airline, even if some may be employed by others, such as FSS. PSAMF ¶ 70; DRPSAMF ¶ 70.[23]

         D. The 2015 Incident

         The 2015 incident occurred while Mr. Hall was disembarking a Delta aircraft at the Portland airport. DSMF ¶ 13; PRDSMF ¶ 13. Employees of FSS boarded Delta's aircraft and moved Mr. Hall from his seat into an aisle chair. Stip. ¶ 2; PRDSMF ¶ 13. After Mr. Hall was seated in the aisle chair, the FSS personnel secured only one strap across Mr. Hall. DSMF ¶ 14; PRDSMF ¶ 14. While the FSS personnel focused on trying to keep Mr. Hall's feet on the platform, Mr. Hall fell over to the side and hit his head on the armrest. DSMF ¶ 14; PRDSMF ¶ 14. There is no evidence that any Delta employee directly contributed to this incident of personal injury. DSMF ¶ 48.[24]

         During the incident, the FSS employees were providing the services that FSS was obligated to provide under its contract with Delta. Id.; PRDSMF ¶ 2. The FSS employees wore FSS clothing that identified them as such. Id. ¶ 3; PRDSMF ¶ 3. At the time of the 2015 incident, Mr. Hall thought that the two FSS employees who were helping him deplane were Delta employees, but at a later time he learned they were not. DSMF ¶ 12; PRDSMF ¶ 12. The Delta flight crew members, consisting of the pilot, first officer, and flight attendants, on board the aircraft were employees of Delta. Stip. ¶ 9; PRDSMF ¶ 11.

         E. Communications between the Parties after the 2015 Incident

         Delta found that the incident constituted a violation of 14 C.F.R. § 382. PSAMF ¶ 49.[25] The September 25, 2015 e-mail from Contact Delta to Mr. Hall never suggests that any third party may be liable for the Part 382 violation. PSAMF ¶ 68.[26]

         F. The 2016 Incident

         The 2016 incident occurred during the boarding process at the Atlanta airport. DSMF ¶ 15; PRDSMF ¶ 15. There, AirServ employees placed Mr. Hall into an aisle chair, wheeled him onto the aircraft, attempted to lift him out of the aisle chair, over the armrest of the airplane seat, and into his aircraft seat. Stip. ¶ 5; DSMF ¶ 15; PRDSMF ¶ 15. During this process, the employees dropped Mr. Hall onto the floor. Stip. ¶ 5. The larger of the two AirServ employees got behind Mr. Hall, putting her hands under his arms while the smaller of the two employees grabbed his feet, and as they were trying to transfer him over the armrest, all of a sudden Mr. Hall ended up on the floor. DSMF ¶ 16; PRDSMF ¶ 16. There is no evidence that any Delta employee directly contributed to this incident of personal injury. DSMF ¶ 48.[27] After Mr. Hall was dropped during the 2016 Incident, the Delta flight crew immediately intervened to assist him; the pilot and first officer picked up Mr. Hall and placed him into his seat. PSAMF ¶ 65; DRPSAMF ¶ 65.

         In providing these services, the AirServ employees were providing services that AirServ was obligated to provide under its contract with Delta. Stip. ¶ 5; PRDSMF ¶ 5. These AirServ employees wore AirServ clothing that identified them as such. Stip. ¶ 6; PRDSMF ¶ 6. The Delta flight crew members, consisting of the pilot, first officer and flight attendants, on board the aircraft were employees of Delta. Stip. ¶ 9; PRDSMF ¶ 11.

         After this incident, at the request of Mrs. Hall that strong men be available to assist her husband deplane, while en route from Atlanta to Portland, the Delta pilot radioed ahead to the Portland airport and requested that FSS have two male attendants assist Mr. Hall with deplaning. Stip. ¶ 10; PRDSMF ¶ 20.

         G. Communications between the Parties after the 2016 Incident

         Mr. Hall did not understand who was involved in the June 8, 2016 incident, but three days after the incident, he wrote to FSS stating that he was still trying to resolve the 2015 incident and he asked FSS to advise him of its plans to bring closure to both the 2015 Portland incident and the 2016 Atlanta incident. DSMF ¶ 18; PRDSMP ¶ 18. Delta found that the 2016 incident constituted a violation of 14 C.F.R. § 382. PSAMF ¶ 50.[28] On June 21, 2016, Mr. Hall received an e-mail from Delta stating, in part:

Thanks for taking the time to let me know of your poor experience when being boarded on Flight 2574 on June 5 from ATL to PWM. Your son also contacted us via Social Media about this situation and let us know you went to the hospital. I hope everything checked out well and that you are feeling much better now. I can certainly understand how upset you - as well as your family - must be, especially since a similar situation occurred last year. You have every right to expect better from us and I'm so very sorry we let you down.
I've reviewed your concerns that you were dropped by the two attendants when they tried to assist you into the airplane seat. While these attendants don't work for Delta, they do represent us so when we receive a complaint like yours, we want to understand what went wrong . . .
I am so very sorry you were not properly helped into the seat [i]n Atlanta and for the embarrassment this caused. As a result, our records show a violation of 14 CFR, Part 382 occurred. This incident is being thoroughly reviewed with all involved and with the leadership team in ATL to make every effort that nothing like this occurs again.

PSAMF ¶ 67; DRPSAMF ¶ 67.[29]

         III. THE PARTIES' POSITIONS

         Delta moves for summary judgment on all claims against it arguing that the claims: (1) are preempted by federal law, (2) are based on acts of independent contractors for whom Delta cannot be held vicariously liable, and (3) cannot support an award of punitive damages. Def.'s Mot. at 1.

         A. Preemption

         1. ADA Express Preemption

         a. Delta's Position

         Delta argues that the Airline Deregulation Act (ADA), 49 U.S.C. § 40101 et seq. expressly preempts the Halls' claims. Id. at 4-9. Specifically, it underscores the statute's preemption provision:

Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

49 U.S.C. § 41713(b)(1). Delta states that the First Circuit's ADA preemption analysis consists of two parts: the “mechanism” question and the “linkage” question. Def.'s Mot. at 5. The mechanism question pertains to whether the claims are state-law claims, and the linkage question asks whether and to what degree the claims are related to price, route, or service of air carriers. Id.

         With respect to mechanism, Delta observes that the Halls' negligence and loss of consortium claims are brought under Maine or Georgia law. Id. at 6. With respect to linkage, Delta avers that the Halls' claims are sufficiently related to Delta's services to be preempted. Id. at 6. Delta asserts that the Supreme Court has repeatedly instructed that the “related to” language in the ADA's preemption provision must be read broadly. Delta states that the First Circuit has defined the term “service” as: “a ‘bargained-for or anticipated provision of labor from one party to another, ' thus leading to ‘a concern with the contractual arrangement between the airline and the user of the service.'” Id. at 6 (citing Tobin v. Fed. Express Corp., 775 F.3d 448, 452 (1st Cir. 2014)). Delta cites a number of cases in which the Supreme Court and the First Circuit have held state law claims preempted by the ADA.

         Delta acknowledges a “general rule” that personal injury claims are not preempted but argues that the rule should not be applied in this case for two reasons. Def.'s Mot. at 8. First, Delta points out that the First Circuit has counseled that ADA preemption analysis does not permit general rules concerning broad categories of claims. Id. (citing Tobin, 775 F.3d at 455). Second, Delta argues that because the Halls' claims involves independent contractors, “[a]ny liability for Delta would require revisiting its rights and obligations concerning the use of independent contractors for boarding of disabled passengers.” Def.'s Mot. at 9. It states that “[a] jury evaluating Delta's liability would [] be called upon to evaluate [] purported oversight activities by Delta employees over FSS and AirServ, ” and it asserts that the ADA preemption provision is designed to avoid such a situation. Id. Delta argues that the Halls' claims constitute “a frontal assault on air carrier policies for rendering services in compliance with the ACAA.” Def.'s Reply at 3. It asserts that the Halls' claims are sufficiently linked to airline industry services because “[a]llowing [the] claim[s] to proceed would impose an additional burden on air carriers, requiring them to rethink their policies for the boarding and deplaning of disabled passengers perhaps concluding that they need to hire and train additional in-house personnel to perform such services.” Id.

         b. The Halls' Position

         As “[a] threshold point relevant to the preemption analysis, ” the Halls clarify that their theory of Delta's liability is that the services rendered by its servants to Mr. Hall were rendered negligently-not that the training and/or boarding or deplaning procedures were inadequate or negligently designed, or that Delta's choice of FSS and/or AirServ as mobility contractors was negligent. Pls.' Opp'n at 3; see also id. at 9 n.5.

         The Halls argue that the ADA does not expressly preempt their claims, saying the claims would not have a forbidden significant effect on airline operations because the claims are “entirely too tenuous, remote and peripheral to the services Delta provides to passengers.” Id. at 4. The Halls observe that Delta does not cite a single case in which a court found that the ADA preempted a state law tort cause of action. Pls.' Opp'n at 2-3.

         Applying the First Circuit's two-step “mechanism” and “linkage” analysis, the Halls concede that their claims satisfy the “mechanism” prong. Id. However, they disagree with Delta's argument that their claims also satisfy the second prong because “there is no material linkage between these garden-variety personal injury claims and airline services that would warrant invocation of ADA preemption.” Id. at 4-5 (footnote omitted). They assert that any linkage is “too tenuous, remote or peripheral” to be preempted. Id. at 4 (quoting Tobin v. Fed. Express Corp., 775 F.3d 448, 454-55 (1st Cir. 2014) (quoting Morales, 504. U.S. at 390)).

         In support of the proposition that their claims do not have any material linkage to airline services as contemplated by the ADA preemption provision, the Halls point to the fact that another part of the statute requires that airlines maintain appropriate bodily injury insurance. Id. at 5. They suggest that if Congress had intended the preemption provision to cover personal injury claims then it would be illogical and incongruous to also require that the carriers maintain insurance for such occurrences. Citing caselaw, the Halls also argue that personal injury actions such as theirs do not give rise to the type of patchwork state regulations that the ADA was designed to avoid. Id. at 5-6.

         The Halls highlight Gill v. JetBlue Airways Corp., 836 F.Supp.2d 33 (D. Mass. 2011), a case in which an incomplete quadriplegic sued an airline for negligence and negligent supervision after he fell out of an aisle chair while airline employees were assisting him with boarding one of its planes. Pls.' Opp'n at 6-8 (citing Gill, 836 F.Supp.2d at 36-37). The District of Massachusetts found the ADA preemption clause “inapplicable to plaintiffs' claims because state law concerning negligence is not sufficiently ‘related to' the particular services at issue.” Gill, 836 F.Supp.2d at 43.

         The Halls also call the Court's attention to Bower v. EgyptAir Airlines Co., 731 F.3d 85 (1st Cir. 2013), a First Circuit case that arose in the context of an international parental kidnapping. A father brought the action against an airline on his own behalf and as guardian of his two minor children, alleging various torts for allowing the mother (the father's ex-wife) to fly with their children to Egypt, in violation of custody order. Id. at 88-89, 93. The plaintiff's theory of liability was that the airline had missed a number of “red flags” indicating that a child abduction was in progress during the ticket purchase and check-in processes. Id. at 93-94. The First Circuit noted “that personal injury claims are generally not preempted by the ADA, [but that] there are numerous distinctions between personal injury claims and the claims present in this case.” Id. at 95. The Bower Court held the ADA preempted the plaintiff's claims because they sufficiently related to the service of an air carrier. Id. at 98.

         The Halls state that “the fact pattern in Gill is essentially identical to that here” and that this Court should come to the same conclusion as the Gill Court: that the claims are insufficiently closely linked to the operations of the airline industry to be preempted by the ADA. Pls.' Opp'n at 10-11.

         2. ACAA Implied Field Preemption

         a. Delta's Position

         Delta also argues that the Air Carrier Access Act (ACAA), 49 U.S.C. § 41705 et seq. impliedly preempts their claims. Def.'s Mot. at 10-13. It acknowledges that the First Circuit has not decided an ACAA preemption case, and points to cases from other circuits. Id. at 10-11.

         Delta posits that the implied field preemption analysis has two parts: (1) defining the relevant regulatory field; and (2) evaluating the scope of federal regulation in that field. Id. at 11. With respect to the first part, Delta defines the relevant regulatory field for the Halls' claims as the obligations of air carriers who engage independent contractors for boarding disabled passengers. Id. With regard to the second part, Delta concludes that the Department of Transportation, through the authority granted by the ACAA, has pervasively and specifically regulated that field. Id.

         In arriving at that conclusion, Delta emphasizes that ACAA regulations impose oversight obligations on air carriers who engage independent contractors to perform boarding services. Id. For example, it cites Part 382 regulations that

require that air carriers include assurances of compliance in their contracts with any independent contractors; provide training to any contractors' employees who will be interacting with passengers; conduct any such training within specific timeframes; include procedures implementing the requirements of Part 382 in any manuals, guidance, or instructional materials provided to contractors; and retain training records for contractors for three years.

Id. at 11-12 (citing 14 C.F.R. §§ 382.15(b), 382.141(a)(6), 382.143(a), 382.145).

         According to Delta, these regulations preempt state law claims that “purport to cover, and as such, re-regulate, this same territory.” Id. at 12.

         b. The Halls' Position

         The Halls argue that the ACAA does not impliedly preempt their claims because, to the extent the statute occupies a field, that field is discrimination against disabled passengers, and the Halls' claims fall outside that scope. Pls.' Opp'n at 14-15. As a corollary, the Halls argue that even though Delta cites ACAA regulations as preempting the field, the regulations do not direct Delta or its contractors as to how to provide services to disabled passengers. Pls.' Opp'n at 14. The Halls allege that the way Mr. Hall was provided services (negligently) was improper, and do not allege that he was discriminated against because of his disability. Pls.' Opp'n at 15.

         The Halls cite caselaw supporting their argument, including Hodges v. Delta Air Lines, Inc., No. C09-1547-BAT, 2010 WL 5463832 (W.D. Wash. 2010). Pls.' Opp'n at 12-13. There, the plaintiff was an elderly right-leg amputee who required mobility services when disembarking a Delta plane. Hodges, 2010 WL 5463832, at *1. While two AirServ employees were pushing her in a wheelchair down the aisle of the plane, she fell out of the wheelchair. Id. The Hodges Court rejected Delta's argument that the ACAA preempted the plaintiff's negligence claims, holding that, while federal regulations may have occupied the field as far as ensuring disabled passengers are not discriminated against, they are silent as to how services should be provided to those passengers. Id. at *4 (quoting Elassad v. Independence Air, Inc., 613 F.3d 119, 131 (3rd Cir. 2010)).

         The Halls point again to Gill, which also involved a claim by a defendant airline that the ACAA impliedly preempted a plaintiff's state-law negligence claims. Pls.' Opp'n at 14 (citing Gill, 836 F.Supp.2d at 43-45). The Gill Court distinguished between failure to provide services-i.e., treating disabled passengers differently from able-bodied passengers-and negligently providing services to disabled passengers:

JetBlue relies on the line of cases holding that claims premised on the failure to provide accommodations are preempted by ACAA regulations requiring airlines to provide such assistance when it is requested. This reliance is misplaced. As other courts have concluded, claims for failure to assist are distinguishable from those, such as plaintiffs' claim here, alleging negligent provision of assistance.

Id. at 45-46 (emphasis in original) (internal citation omitted).

         B. Vicarious Liability

         1. Delta's Position

         As a threshold matter, Delta asserts that “there are compelling reasons to apply Maine law to both [the 2015 and 2016] incidents.” Def.'s Mot. at 13 n.3. At the same time, Delta asserts that under either Maine or Georgia law, it is not vicariously liable for the actions of FSS and AirServ personnel. Id. at 13-15. Delta observes that the general rule under the law of both states is that an employer may not be held liable for the acts of independent contractors. Because FSS and AirServ were independent contractors, Delta argues ...


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