UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
April 4, 2011
BERNICE SUMMERS, INDIVIDUALLY,
DELTA AIRLINES, INC., MESABA AVIATION, INC. OPERATING AS DELTA
CONNECTION, AND DOES 1-20, INCLUSIVE,
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION DISMISS
Defendants Delta Air Lines, Inc. ("Delta") and Mesaba Aviation, Inc.*fn1 move to dismiss Plaintiff Bernice Summers's Complaint on grounds of federal preemption and insufficient 19 pleading. The Court heard oral argument on March 24, 2011. Having considered the submissions 20 and arguments of the parties, the Court grants in part and denies in part Defendants' motion to dismiss.
On June 13, 2010, Plaintiff Bernice Summers flew to San Jose, California, to visit her daughter on Delta Flight 2163, allegedly operated by Mesaba.*fn2 Compl. at 1, ¶¶ 13-14. Plaintiff is an 84-year-old woman who suffers from various physical limitations and therefore requires special 2 assistance and the use of a wheelchair while entering and exiting an airplane. Compl. at 1. Prior to 3 her trip to San Jose, Plaintiff arranged, with the help of her daughter, to have special assistance 4 from Delta, including the use of a wheelchair to enter and exit the plane. Compl. ¶ 13.
On June 13, 2010, when Delta Flight 2163 landed in San Jose, the plane did not pull up directly to the gate, but instead passengers were required to disembark by walking through the 7 plane's door, onto a platform, and down a flight of stairs. Compl. ¶ 14. Delta did not provide a 8 wheelchair to assist Plaintiff's exit, and flight personnel did not offer to assist her in exiting. Compl. ¶ 15. Surprised that a flight attendant had not offered to assist her from the plane, Plaintiff 10 attempted to exit the plane on her own.*fn3 Compl. at 2. Plaintiff claims that there was a large gap or e platform leading to the stairs, step between the plane's door and th due to the different heights of 12 the platform and the floor of the plane. Compl. ¶ 16. The flight crew did not use a ramp to cover 13 the gap or step, and flight personnel did not attempt to help Plaintiff or offer her assistance in 14 exiting the plane. Id. Plaintiff alleges that the large gap or step constituted a dangerous condition 15 for herself and other passengers. Id. While Plaintiff was attempting to step over the gap or step, 16 and while a flight attendant and pilot stood within a few feet of her, Plaintiff fell, seriously injuring 17 her leg and hip. Compl. ¶ 17. After falling, Plaintiff claims that she lay on the platform in serious pain for over an hour while waiting for medical care. Compl. ¶ 18.
Plaintiff alleges that she fell and incurred serious injuries due to the dangerous condition created by the step or gap and due to the lack of required assistance from flight personnel. Compl. 21 ¶ 17. She claims the flight personnel did not make her aware that there was a platform and a flight 22 of stairs she would have to descend in order to exit the plane. Compl. ¶ 15. She claims, further, 23 that Delta was aware that she could not exit in this manner since she had arranged for wheelchair 24 assistance prior to the flight. Id. Based on these allegations, Plaintiff filed the instant action 25 against Defendants Delta and Mesaba on December 15, 2010, invoking the Court's diversity 26 jurisdiction. Her Complaint asserts four state law causes of action: (1) failure to provide the utmost care and diligence in the safe carriage of Plaintiff, in violation of California Civil Code § 2100; (2) 2 failure to provide a plane safe and fit for its purpose, in violation of California Civil Code § 2101; (3) negligence; and (4) negligent infliction of emotional distress. Defendants argue that each of 4 these claims is preempted by the Air Carrier Access Act of 1986 and now move to dismiss the Complaint on grounds of federal preemption and other alleged deficiencies.
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A Rule 12(b)(6) 9 dismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient 10 facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9th Cir. 2008). In considering whether the complaint is sufficient to state a claim, the court must accept as true all of the factual allegations contained in the complaint.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). However, the court need not accept as true "allegations that contradict matters properly subject to judicial notice or by exhibit" or "allegations 15 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." St. Clare v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008). While a 17 complaint need not allege detailed factual allegations, it "must contain sufficient factual matter, 18 accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible 20 when it "allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged." Iqbal, 129 S.Ct. at 1949. If a court grants a motion to dismiss, leave to 22 amend should be granted unless the pleading could not possibly be cured by the allegation of other 23 facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
In their motion to dismiss, Defendants raise two bases for federal preemption of Plaintiff's state law claims. First, Defendants argue that all of Plaintiff's claims are preempted by the Air Carrier Access Act ("ACAA"), 49 U.S.C. § 41705, and the implementing regulations promulgated 28 by the U.S. Department of Transportation ("DOT"), 14 C.F.R. Part 382. The ACAA was enacted in 1986 as an amendment to the Federal Aviation Act. Pub. L. No. 99-435, 100 Stat. 1080 (1986). The ACAA and its implementing regulations prohibit air carriers from discriminating against 3 passengers on the basis of disability; require carriers to make aircraft, other facilities, and services 4 accessible; and require carriers to take steps to accommodate passengers with disabilities. 14 C.F.R. § 382.1. Defendants also argue that the Federal Aviation Act, 49 U.S.C. § 40101 et seq., 6 preempts Plaintiff's first and second causes of action under the California Civil Code because the FAA imposes a federal standard of care and preempts claims based on a state-law standard of care. Finally, Defendants also argue that if Plaintiff's fourth cause of action is not preempted, it must be 9 dismissed because it is insufficiently pled.
A.Background on Preemption under the FAA and the ACAA
It is well-established that Congress may preempt state law, either expressly or impliedly. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). Here, the parties agree that neither the ACAA nor the FAA contains a relevant express preemption provision. "In the absence of an 14 express congressional command, state law is pre-empted if that law actually conflicts with federal 15 law, or if federal law so thoroughly occupies a legislative field as to make reasonable the inference 16 that Congress left no room for the States to supplement it." Id. (citations and quotation marks 17 omitted). In this case, Defendants' arguments are primarily directed toward field preemption. Although the Ninth Circuit has not yet considered the preemptive effect of the ACAA, it has twice 19 considered the field-preemptive effect of the FAA. Because the Ninth Circuit's decisions rely 20 heavily on the Third Circuit's analysis of FAA field preemption, and because the Third Circuit has 21 considered the preemptive effect of the ACAA, the Court will consider the decisions of both 22 circuits, as well as recent district court decisions, in evaluating Defendants' arguments.
1.Ninth and Third Circuit Precedent
In Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), the Ninth Circuit considered the general preemptive effect of the FAA for the first time. In Montalvo, the plaintiffs brought 26 common law negligence claims against various airlines for failure to warn passengers about the danger of developing deep vein thrombosis. Id. at 467-68. The district court held that the FAA preempted the field of preflight warnings and therefore dismissed the failure-to-warn claims. Id. at 468. Upon review, the Ninth Circuit noted that a number of circuits had concluded that the FAA preempts discrete aspects of air safety. Id. The Third Circuit, however, had gone a step further. Id. (citing Abdullah v. American Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir. 1999)). Based on the 4 historic need for uniformity in air safety and the pervasive nature of regulations under the FAA, the Third Circuit in Abdullah held that the FAA preempts all state or territorial standards of care 6 relating to aviation safety. 181 F.3d at 368-71. The Third Circuit also noted that FAA regulation 14 C.F.R. § 91.13(a) supplies a comprehensive, general standard of care that can be used in cases 8 where there is no specific regulation addressing the particular risk at issue in a given case. Id. at 371; see also 14 C.F.R. § 91.13(a) ("No person may operate an aircraft in a careless or reckless 10 manner so as to endanger the life or property of another."). The Abdullah court imposed a critical limitation on its holding, however. Reasoning that federal standards of care can coexist with state and territorial tort remedies, the Third Circuit concluded that while the FAA broadly preempts all 13 state or territorial standards of care, state tort claims based on violations of the federal standard of 14 care are not preempted. 181 F.3d at 375. Thus, the Third Circuit stated: "Even though we have 15 found federal preemption of the standards of aviation safety, we still conclude that the traditional 16 state and territorial law remedies continue to exist for violation of those standards." Id.
In Montalvo, the Ninth Circuit "adopt[ed] the Third Circuit's broad, historical approach to hold that federal law generally establishes the applicable standards of care in the field of aviation 19 safety." 508 F.3d at 468. The Ninth Circuit reviewed the regulations promulgated under the FAA 20 and determined that those regulations, "read in conjunction with the FAA itself, sufficiently 21 demonstrate an intent to occupy exclusively the entire field of aviation safety." Id. at 471. It also 22 found that the purpose, history, and language of the FAA indicate Congress's intent to create a Circuit's decision in Abdullah, the Ninth Circuit held that the "FAA, together with federal air 25 safety regulations, establish complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, states." Id. at
Circuit held further that Plaintiff's negligence claim failed as a matter of law. Id.
"single, uniform system for regulating aviation safety." Id. Accordingly, following the Third
474. Because the federal standard did not require warnings about deep vein thrombosis, the Ninth clarified, and to some degree limited, the scope of field preemption under the FAA. First, in 2009, 3 the Ninth Circuit in Martin considered a personal injury claim brought by a pregnant woman who 4 fell from an airplane's stairs, injuring herself and her fetus. Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009). The airline had settled with the passenger 6 and sought indemnity from the stair manufacturer. Id. Relying on Montalvo, the manufacturer 7 argued that the FAA preempted the passenger's personal injury claims and, consequently, the 8 airline's indemnity claim. Id. The Ninth Circuit disagreed. Reviewing its earlier decision, the
Since the decisions in Abdullah and Montalvo, both the Ninth and Third Circuits have Ninth Circuit found that "[c]onsidered as a whole . . . Montalvo cuts against the manufacturer's 10 argument for broad FAA preemption." Id. at 809. The court emphasized that the preemption analysis in Montalvo rested heavily on the FAA's pervasive regulation of warnings to passengers and noted that the decision did not find FAA preemption of the plaintiffs' claim that the airplane 13 seats were defectively designed. Id. at 809-810. The Ninth Circuit also pointed to its decision in Charas v. Trans World Airlines, Inc.,160 F.3d 1259 (9th Cir. 1998), which reversed several 15 decisions that interpreted preemption of personal injury claims under the Airline Deregulation Act 16 too broadly. Martin, 555 F.3d at 810-11. The Court noted that this holding would be moot if all of 17 the personal injury claims in Charas were preempted by the FAA. Id. at 811. Based on this 18 analysis, the Ninth Circuit clarified the preemptive effect of the FAA as follows:
standard of care when there are no relevant federal regulations. Instead, it means that when the agency issues "pervasive regulations" in an area, like passenger warnings, the FAA preempts all state law claims in that area. In areas without pervasive regulations or other grounds for preemption, the state standard of care remains applicable.
Montalvo, then, neither precludes all claims except those based on violations of specific federal regulations, nor requires federal courts to independently develop a
Id. at 811 (emphasis added). In analyzing FAA preemption, therefore, courts should "look to the 24 pervasiveness of federal regulations in the specific area covered by the tort claim or state law at 25 issue." Id. at 809.
As to the specific claim at issue in Martin, the Ninth Circuit reviewed the FAA regulations related to aircraft stairs and found only a single regulation requiring that stairs not be designed in a 28 way that could block emergency exits. Id. at 812 (citing 14 C.F.R. § 25.810). The court noted that the regulations said nothing about handrails, "maintaining the stairs free of slippery substances, or 2 fixing loose steps before passengers catch their heels and trip." Id. Based on the lack of 3 regulation, the Ninth Circuit found it "hard to imagine that any and all state tort claims involving 4 airplane stairs are preempted by federal law." Id. Accordingly, the Ninth Circuit held that the 5
The Third Circuit, too, has taken a second look at FAA preemption and also considered preemption under the ACAA. In Elassaad v. Independence Air, Inc., 613 F.3d 119 (3d Cir. 2010), 8 the Third Circuit considered the claim of Plaintiff Joseph Elassaad, whose right leg was amputated 9 above the knee and who required crutches to walk. Elassaad fell and was injured while attempting 10 to descend a narrow staircase from the plane to the tarmac. Id. at 122. The district court granted FAA did not preempt state law claims that airplane stairs are defective. Id.
summary judgment in favor of the airline, finding that under Abdullah federal law dictated the standard of care and that the ACAA imposed no affirmative duty to offer assistance under the 13 circumstances alleged. Id. at 124. On appeal, the Third Circuit reversed. First, the Third Circuit 14 determined that the FAA did not preempt Elassaad's claims and clarified that the analysis of field 15 preemption in Abdullah applied only in the context of "in-flight safety." Id. at 126. The Third Circuit reasoned that the FAA and its implementing regulations are primarily concerned with 17 assuring passenger safety "in connection with flight." Id. at 128-29. In contrast, the statute and 18 regulations did not specifically regulate the disembarkation of passengers, which occurs only after 19 the plane has landed, taxied to the gate, and come to a complete stop. Id. at 128-30. Thus, the 20 court concluded that the FAA did not preempt state law standards of care regarding disembarkation. Id. at 131.
The Third Circuit in Elassaad further held that the ACAA did not preempt Elassaad's claims. The court read the ACAA as primarily aimed at ensuring respect and equal treatment for 24 disabled airline passengers. Id. at 131-32. Although ACAA directed the FAA to issue regulations "to ensure non-discriminatory treatment of qualified handicapped individuals consistent with safe 26 carriage of all passengers on air carriers," Pub. L. No. 99-435 § 2(a), 100 Stat. 1080 (1986)
(emphasis added), the Third Circuit viewed the ACAA's safety mandate as secondary to its 28 nondiscrimination purpose. 613 F.3d at 132. Thus, it concluded that while the ACAA might preempt state nondiscrimination laws as applied to air carriers, it did not preempt any state law 2 duty to provide a passenger with a safe means of exiting an aircraft. Id. at 132-33. The Third Circuit also rejected an argument that conflict preemption applied, finding that any state law duty 4 to assist Elassaad or provide safe exit from the aircraft could easily coexist with the ACAA's 5 nondiscrimination mandate. Id. at 132. Accordingly, the Third Circuit ultimately held that the ACAA did not preempt personal injury claims based on negligent failure to assist or provide a safe 7 means of exit for disabled passengers. Id. at 132-33.
number of district courts within the Ninth Circuit have considered the issue, with somewhat
2.District Court Decisions
Although the Ninth Circuit has not yet addressed the preemptive effect of the ACAA, a conflicting results. First, a number of California district courts have held that the ACAA preempts personal injury claims.*fn4 For instance, in Johnson v. Northwest Airlines, Inc., Judge Walker 13 considered a negligence claim alleging that Northwest Airlines breached its duty by failing to 14 provide a passenger with requested wheelchair service, thereby causing injuries when the plaintiff 15 attempted to walk to her connecting flight and fell while exiting a moving walkway. No. C 08-16 02272 VRW, 2010 WL 5564629, at *1 (N.D. Cal. May 5, 2010). Relying on Montalvo and Martin, Judge Walker reviewed the ACAA regulations governing carriers' obligations to provide 18 disabled passengers with assistance in deplaning and obtaining transportation between gates to 19 make a connection. Id. at *5-6. He found that the ACAA regulations establish carriers' 20 obligations with specificity and concluded that "[t]his extensive regulation is of the sort 21 contemplated by the Ninth Circuit in Martin and Montalvo, implying an intent by Congress to preempt state-law in this area." Id. at 6. Similarly, in Gilstrap v. United Air Lines, Inc., the Central District of California considered various tort claims based upon the airline's failure to 24 provide the plaintiff with wheelchair services and poor treatment by airline personnel in response to plaintiff's request for accommodations. 2:10-cv-06131-JHN-JCx, at 2-3 (C.D. Cal. Jan. 21, 2011). There, the Central District agreed with Judge Walker's analysis and found that the 3 plaintiff's claims were subject to field preemption by the ACAA. Id. at 7. The Gilstrap court 4 distinguished Elassaad (which was decided after Judge Walker's decision) on grounds that Elassaad had not invoked the ACAA by requesting assistance, and further found that Elassaad read 6 the anti-discrimination purpose of the ACAA too narrowly. Id. at 8. See also Russell v. Skywest Airlines, No. C 10-0450 MEJ, 2010 WL 2867123 (N.D. Cal. July 20, 2010) (finding that ACAA 8 preempts tort claims based on failure to provide assistance in deplaning).
argues that these cases were wrongly decided and asks the Court to follow the Third Circuit's Defendants urge this Court to follow the above decisions. Plaintiff, on the other hand, decision in Elassaad and the Western District of Washington's decision in Hodges v. Delta Air Lines, Inc., No. C09-1547-BAT, 2010 WL 5463832 (W.D. Wash. Dec. 29, 2010). In Hodges, the 13 plaintiff was injured when she fell from a wheelchair as employees pushed her down the aisle of a Delta aircraft, and she brought a claim for negligence. Id. at *1. The court reviewed the ACAA 15 regulations and found that they "say nothing about how to move a disabled passenger from a plane 16 seat to a wheelchair, how many people must assist the passenger, whether the passenger must be 17 buckled in to the wheelchair, and the like." Id. at *4. Because the regulations left open the 18 standard of care for moving a passenger in a wheelchair, the court could not find the "clear and 19 manifest intent" of Congress to preempt state law. Id. The court thus agreed with the reasoning in
Elassaad and concluded that the ACAA did not preempt the plaintiff's negligence claim.
reconcilable-with each other and with Ninth Circuit precedent-and that both apply, in part, to 24 this case. Under the Ninth Circuit's analysis in Martin, field preemption applies only where the 25 agency has issued relevant and "pervasive regulations" in the specific area covered by the tort 26 claim or state law at issue. 555 F.3d at 809, 811. Pursuant to this analysis, the Court agrees with Judge Walker's determination in Johnson that the ACAA supplies extensive regulation in certain 28 areas related to access for and treatment of people with disabilities. Here, for instance, Plaintiff
B.Preemption under the ACAA
This Court believes that the district court decisions in Johnson and Hodges are alleges that Defendants breached their duty in part by "[f]ailing to provide the assistance exiting 2 the plane to which Plaintiff was entitled due to her previous arrangements with Defendants."
Compl. ¶¶ 23(a), 25(a), 27(a). The ACAA regulates with specificity an airline's obligations with 4 respect to boarding and deplaning assistance, particularly in instances where the plane does not pull 5 up directly to the gate. See 14 C.F.R. § 382.41(c) (requiring airlines to provide information on the 6 availability of level-entry boarding to an aircraft); § 382.95 (detailing obligations to provide 7 deplaning assistance, including provision of assistance through use of lifts or ramps where level-8 entry loading bridges are not available); § 382.99 (requiring carriers to negotiate with airport 9 operators to ensure provision for lifts where level-entry loading bridges are not available for 10 boarding and deplaning); § 382.101 (requiring carriers to ensure provision of boarding and deplaning assistance when level-entry boarding and deplaning assistance is not required to be 12 provided); § 382.141 (requiring carriers to train personnel regarding the use of boarding and 13 deplaning assistance equipment and procedures). Thus, the Court agrees that to the extent
ACAA appears to occupy the field and preempt any state law duty to provide greater or different 16 assistance.
interactions between airlines and disabled passengers. See Elassaad, 613 F.3d at 132 ("we are not 19 persuaded that Congress intended the ACAA to preempt any state regulation of the interaction 20 between an air carrier and disabled passengers"). Under the Ninth Circuit's analysis in Martin,
"[i]n areas without pervasive regulations or other grounds for preemption, the state standard of care 22 remains applicable." 555 F.3d at 811. Thus, in Hodges, for instance, the claim was not that the 23 airline failed to provide required assistance, but rather that assistance was provided in a negligent 24 manner. While the ACAA regulations specify when and to whom wheelchair assistance must be 25 provided, they do not elaborate on the proper procedures or standards of care to be followed when 26 transporting someone in a wheelchair. Id. at *4. In such cases, where a disabled passenger brings 27 a claim that does not depend on duties pervasively regulated by the ACAA, the Court agrees that 28 the reasoning of Martin precludes a finding of preemption.
Plaintiff's negligence claim rests upon Defendant's failure to provide assistance in deplaning, the
The Court also agrees, however, that the ACAA does not preempt all claims related to three causes of action for violations of the California Civil Code and negligence, Plaintiff alleges 4 that Defendants breached a duty of care in four ways:
distress also presumably depends upon breach of one of these four duties, as it alleges that Defendants engaged in negligent conduct that caused Plaintiff emotional distress. Compl. ¶ 29. At 14 the motion hearing, Plaintiff's counsel confirmed the Court's sense that Plaintiff asserts two basic 15 theories of liability: first, that Plaintiff was injured due to Defendants' failure to assist her in 16 exiting the plane (going to alleged breaches (1) and (4) above), and second, that Plaintiff was 17 injured due to a dangerous condition on the premises (going to alleged breaches (2), (3), and 18 possibly (4) above).*fn5 As the Court believes that ACAA preemption applies differently to these two 19 theories, the Court will address each separately below.
regarding carriers' obligations to provide boarding and deplaning assistance. The ACAA likewise 23 imposes specific requirements regarding the training carriers must provide for personnel involved 24 in providing boarding and deplaning assistance. See 14 C.F.R. § 382.141(a)(1)(iii) (requiring 25 training to proficiency concerning use of boarding and deplaning assistance equipment and
C.Application of ACAA Preemption to Plaintiff's Claims
The difficulty in this case is determining the precise basis for Plaintiff's claims. In her first
(1) Failing to provide the assistance exiting the plane to which Plaintiff was entitled due to her previous arrangements with Defendants;
(2) Failing to warn Plaintiff of a dangerous condition on the Defendants' premises;
(3) Failing to take steps to cure a dangerous condition on the Defendants' premises; and
(4) Failing to properly train and supervise flight personnel regarding appropriate procedures for passengers exiting the plane.
Compl. ¶¶ 23, 25, 27. Plaintiff's fourth cause of action for negligent infliction of emotional
1.Failure to provide deplaning assistance and training
As the Court has already indicated, the ACAA provides comprehensive regulations
procedures); id. § 382.141(a)(5) (requiring carriers to develop a program to provide refresher 2 training as needed to maintain proficiency); id. § 382.143 (detailing requirements for when training 3 must occur); id. § 382.145 (requiring carriers to retain records regarding initial and refresher 4 training for employees). Thus, to the extent that Plaintiff's claims are premised on a breach of the 5 duty to provide deplaning assistance or to properly train employees regarding deplaning procedures 6 for disabled passengers, the Court agrees with Defendants that Plaintiff's claims are subject to field 7 preemption by the ACAA. Under Montalvo, however, field preemption in this context does not bar Plaintiff from seeking state remedies.*fn6 It merely preempts any state-law-based standard of care.
See Montalvo, 508 F.3d at 468 (holding that "federal law generally establishes the applicable 2 standards of care in the field of aviation safety" and dismissing state-law failure to warn claim 3 because federal law did not impose a duty to warn about deep vein thrombosis) (emphasis added); 4 see also Abdullah, 181 F.3d at 365 ("despite federal preemption of the standards of care, state and 5 territorial damage remedies still exist for violation of those standards"); Martin,555 F.3d at 813-15 (discussing Ninth Circuit's express adoption of Abdullah rule that FAA preempts state standards of 7 care) (Bea, J., concurring).
Preemption of state-law standards of care, in turn, precludes Plaintiff from asserting failure to assist and failure to train claims under California Civil Code §§ 2100 and 2101, as these statutes 10 impose heightened state-law-based standards of care. See Cal. Civ. Code § 2100 (imposing duty of "utmost care and diligence" upon common carriers); Cal. Civ. Code §2101 (imposing strict liability standard on common carriers regarding duty to provide vehicles that are safe and fit for their 13 purposes). As to Plaintiff's common law negligence and negligent infliction of emotional distress 14 claims, however, it would seem that Plaintiff may maintain these claims as long as they are 15 premised on breach of a federal standard of care as set forth in the ACAA and its implementing regulations.*fn7 It is not entirely clear based on Plaintiff's pleadings whether she intended to bring 17 these claims under the state common law standard of care or under the standard imposed by the ACAA. However, as the Complaint does not cite ACAA regulations and Plaintiff has not argued 19 that the claims are pled under the federal standard of care, the Court assumes that Plaintiff currently relies on a state standard. Accordingly, Plaintiff is granted leave to amend to replead this 2 aspect of her negligence claims under the federal standard of care.
2.Failure to cure and warn about a dangerous condition
On the other hand, to the extent that Plaintiff's claims are based on failure to warn of a dangerous condition and failure to take steps to cure the dangerous condition, the ACAA does not 6 appear to have a preemptive effect. Plaintiff's Complaint alleges that the large gap or step between 7 the plane and the platform "constitut[ed] a dangerous condition for Ms. Summers and the other 8 passengers." Compl. ¶ 16. Thus, Plaintiff appears to allege that the gap or step presented a danger 9 independent of any need for assistance or accommodation specific to Plaintiff or her physical 10 disabilities. The Ninth Circuit has already held that the FAA does not preempt personal injury claims based on the defective or dangerous condition of aircraft stairs. See Martin, 555 F.3d at 812. Thus, a non-disabled passenger would face no obstacles to bringing suit for injuries caused by 13 a dangerously large gap between the plane and the stair platform. The Court agrees with Plaintiff 14 that unless the ACAA specifically regulates such hazards, it would be inequitable and legally 15 insupportable to bar Plaintiff from bringing such a claim simply because she is disabled.
Like the FAA, the ACAA does not regulate a carrier's basic duty to ensure that an exit path is well-maintained and free of hazards. Rather, the ACAA focuses on the carriers' obligations to 18 provide wheelchair assistance or lifts to enable disabled passengers to deplane. Accordingly, the ACAA does not preempt Plaintiff's claims that Defendants were negligent in failing to cure a 20 dangerous condition (i.e., the large step or gap) and failing to warn Plaintiff of that condition.*fn8 In 21 addition, the Court is unable to ascertain whether Plaintiff's failure to train allegations are directed 22 only at a failure to train employees on proper deplaning procedures for disabled passengers, or if Plaintiff also intends to allege a failure to train regarding procedures for curing or warning about dangerous conditions along an exit route. To the extent that Plaintiff intends to allege a failure to train regarding dangerous conditions, such a claim would not be preempted.
In sum, the Court finds that Plaintiffs' claims are not subject to preemption to the extent that they are based on Defendants' failure to cure or to warn about a dangerous condition on the 5 premises. To the extent that her claims are based upon Defendants' failure to provide deplaning 6 assistance or training on such assistance, Plaintiff's claims are preempted by the ACAA. The 7 effect of ACAA preemption is to bar any claims based on a state-law-based standard of care. Accordingly, Plaintiff cannot base her California Civil Code claims upon breach of a duty to 9 provide deplaning assistance or training in such assistance. However, as Plaintiff may be able to 10 replead her claims for negligence and negligent infliction of emotional distress under the federal standard of care, she is granted leave to amend these claims.
D.FAA Preemption of Plaintiff's First and Second Causes of Action
Defendants argue that even if the ACAA does not entirely preempt Plaintiff's claims, Plaintiff's first and second causes of action under the California Civil Code are preempted by the FAA. Relying on Hill v. Skywest Airlines, Inc., No. 1:06-cv-00801-SMS, 2008 WL 4816451 (E.D. Cal. Nov. 5, 2008), Defendants argue that the FAA preempts any claim based upon a state-law-17 based standard of care. As the Court previously noted, California Civil Code §§ 2100 and 2101 18 impose a heightened standard of care on common carriers. Thus, as discussed above, plaintiff may 19 not bring her failure to assist or failure to train claims under these statutes because the ACAA 20 provides the exclusive federal standard of care for such claims. To the extent that Plaintiff bases 21 her California Civil Code claims on Defendants' failure to cure and warn of a dangerous condition, 22 however, the Court does not believe that either the ACAA or the FAA preempts state-law-based standards of care.
In Martin, which was decided after Hill, the Ninth Circuit clarified that the FAA preempts state-law standards of care only when the agency has issued "pervasive regulations" in the specific 26 area covered by the state law claim at issue. 555 F.3d at 811. Otherwise, "[i]n areas without 27 pervasive regulations or other grounds for preemption, the state standard of care remains applicable." Id. As previously noted, Martin explicitly considered whether aircraft stairs were 2 pervasively regulated by the FAA and found that they were not:
Airstairs are not pervasively regulated; the only regulation on airstairs is that they can't be designed in a way that might block the emergency exits. 14 C.F.R. § 25.810. The regulations have nothing to say about handrails, or even stairs at all, except in emergency landings. No federal regulation prohibits airstairs that are prone to ice over, or that tend to collapse under passengers' weight. The regulations say nothing about maintaining the stairs free of slippery substances, or fixing loose steps before passengers catch their heels and trip. It's hard to imagine that any and all state tort claims involving airplane stairs are preempted by federal law. Because the agency has not comprehensively regulated airstairs, the FAA has not preempted state law claims that the stairs are defective.
Id. at 812. Defendants have not presented the Court with any FAA regulations that would change 9 this analysis. The Court has already indicated that insofar as Plaintiff asserts negligence claims 10 based upon Defendants' duty to maintain stair platforms and exits free of hazards, or to warn of such hazards, her claims are not subject to ACAA preemption. Under the analysis in Martin, such claims are not subject to FAA preemption either, and Plaintiff may therefore bring her failure to 13 cure and failure to warn claims under the state-law standards imposed by California Civil Code §§ 2100 and 2101.
E.Sufficiency of Plaintiff's Fourth Cause of Action
Finally, Defendants argue that to the extent it is not preempted, Plaintiff's fourth cause of action is insufficiently pled. The Court agrees that Plaintiff cannot sustain a separate cause of 18 action for negligent infliction of emotional distress on the facts currently pled. "A claim of 19 negligent infliction of emotional distress is not an independent tort but the tort of negligence to 20 which the traditional elements of duty, breach of duty, causation, and damages apply." Wong v. 21 Tai Jing, 189 Cal. App. 4th 1354, 1377, 117 Cal. Rptr. 3d 747 (Cal. Ct. App. 2010) (citing Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1004, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993)).
Under California law, it is well-settled that "in ordinary negligence actions for physical injury, 24 recovery for emotional distress caused by that injury is available as an item of parasitic damages." Potter, 6 Cal. 4th at 981. In her opposition brief, Plaintiff explains that she suffered serious 26 emotional distress due to the fact that she was injured exiting the plane, lay on a platform in serious 27 pain while waiting for medical care, required surgery for her injuries, and spent weeks in the 28 hospital. Opp'n to Defs. Mot. to Dismiss at 22, ECF No. 19. Thus, Plaintiff's allegations of emotional distress are connected to the physical injury that is the basis for her ordinary negligence 2 claim, and any damages related to that distress can be recovered as "parasitic damages" in the 3 negligence claim. As currently pled, therefore, Plaintiff's negligent infliction of emotional distress 4 claim is no more than a restatement of her third cause of action for negligence. See Catsouras v. Department of California Highway Patrol, 181 Cal. App. 4th 856, 875-76, 104 Cal. Rptr. 3d 352 (Cal. Ct. App. 2010) ("we observe that plaintiffs, in their second amended complaint, framed both 7 negligence and negligent infliction of emotional distress causes of action. To be precise, however, 8 the [only] tort with which we are concerned is negligence. Negligent infliction of emotional 9 distress is not an independent tort . . ."). However, as it is possible that Plaintiff may have some 10 other basis for her negligent infliction of emotional distress claim that is unrelated to the negligence that allegedly caused her physical injuries, the Court dismisses this claim with leave to amend.
For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. In particular, the Court concludes as follows:
(1) Regarding Plaintiff's first and second causes of action under California Civil Code §§ 2100 and 2101: To the extent that Plaintiff's claims are based on Defendants' failure to provide deplaning assistance or Defendants' failure to properly train flight personnel regarding deplaning procedures for disabled passengers, Plaintiff's claims are preempted by the ACAA and cannot be amended to cure the deficiency. However, Plaintiff may maintain these claims to the extent that they are based on Defendants' failure to warn about or cure a dangerous condition on the premises, or on Defendants' failure to train employees regarding proper procedures for dealing with such dangerous conditions.
(2) Regarding Plaintiff's third cause of action for negligence: To the extent that Plaintiff's claim is based on Defendants' failure to provide deplaning assistance or Defendants' failure to properly train flight personnel regarding deplaning procedures for disabled passengers, Plaintiff's claims are preempted by the ACAA. However, Plaintiff is granted leave to amend this aspect of her negligence claim to allege violations of the federal standard of care, if possible. Plaintiff may also maintain her negligence claim based on Defendants' failure to warn about or cure a dangerous condition on the premises, or on Defendants' failure to train employees regarding proper procedures for dealing with such dangerous conditions, as these bases for the claim are not preempted.
(3) Plaintiff's fourth cause of action for negligent infliction of emotional distress is dismissed with leave to amend.
Plaintiff shall file a First Amended Complaint within 30 days of this Order.
IT IS SO ORDERED.