Donna Jean Harris v. American Airlines, Inc., a Delaware Corporation, and John Doe, a Fictitious Party

55 F.3d 1472 63 USLW 2757 Donna Jean HARRIS, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., a Delaware corporation, and John Doe, a fictitious party, Defendant-Appellee. No. 92-36768. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 3, 1994. Decided June 1, 1995. Christopher H. Kent, O'Connell, Goyak & DiLorenzo, Portland, OR, for plaintiff-appellant. James N. Westwood, Steven O. Rosen, Pamela J. Stendahl, Miller, Nash, Wiener, Hager & Carlsen, Portland, OR, for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before: ALARCON, NORRIS, and LEAVY, Circuit Judges. LEAVY, Circuit Judge: 1 The issue before us is whether section 1305(a)(1) of the Federal Aviation Act, also known as the Airline Deregulation Act (the Act), 49 U.S.C.App. Secs. 1301-1308 (1978 and Supp.1994) preempts state law claims against an airline for negligence, the intentional infliction of emotional distress, and violation of a state public accommodation statute where one passenger harassed another by making rude and obnoxious remarks indicative of racial animus. 2 On September 30, 1990, Donna Jean Harris (Harris), a black female, traveled…

The issue before us is whether section 1305(a)(1) of the Federal Aviation Act, also known as the Airline Deregulation Act (the Act), 49 U.S.CApp. §§ 1301-1308 (1978 and Supp.1994) preempts state law claims against an airline for negligence, the intentional infliction of emotional distress, and violation of a state public accommodation statute where one passenger harassed another by making rude and obnoxious remarks indicative of racial animus.

On September 30, 1990, Donna Jean Harris (Harris), a black female, traveled from Dallas, Texas, to Portland, Oregon, on American Airlines flight 1289. Harris was seated in first class. She was the only black person on the airplane. Seated directly in front of Harris was a white male known only as John Doe.

During the course of the flight, John Doe allegedly had four drinks. Harris thought John Doe was drunk but she did not notice him stumbling and did not remember him slurring his words. He did not make any physically threatening gestures toward Harris. After one flight attendant told John Doe that she would have to stop serving him alcoholic beverages, he went to the galley and returned with a drink. After takeoff, John Doe uttered a…

dissenting.

The Airline Deregulation Act (“ADA”) preempts private causes of action “relating to rates, routes, or services of any air carrier.” 49 U.S.C. § 1305 (a)(1) (Supp.1994). The gravamen of Ms. Harris’ personal injury claim is that the flight crew negligently failed to provide for her safety by not protecting her from Doe’s abusive behavior. The majority, however, goes astray in characterizing Ms. Harris’ claim in terms of a single piece of evidence she offers to prove negligence: that the flight crew gave Doe more to drink after observing his abusive behavior toward her, thus aggravating the risk of emotional and physical harm. Fixating on the allegation that drinks were served to Doe, the majority holds that Ms. Harris’ personal injury claim is preempted because it “relates to” the “service[ ]” of beverages by airline carriers. In so holding, the majority has created an inter-circuit conflict with the Fifth Circuit. See Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir.1995) (en banc), Smith v. America West Airlines, Inc., 44 F.3d 344 (5th Cir.1995) (en banc).

Frances Hodges, a passenger on a Delta Airlines flight, was injured when a case of rum fell on her from an…