149 F.3d 111 (2nd Cir. 1998), 97-9066, Pittman by Pittman v. Grayson

Docket Nº:Docket No. 97-9066.
Citation:149 F.3d 111
Party Name:Elizabeth PITTMAN, a minor under 18 years of age by Frederick PITTMAN her father and legal custodian and Frederick Pittman, individually, Plaintiffs-Appellants, v. Erna (Etta) Pittman GRAYSON, a/k/a Erna Eyjolfsdottir, Helgi Hilmarsson, and Gudmundur Karl Jonsson, Defendants, Icelandair, Inc., Defendant-Appellee.
Case Date:June 26, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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149 F.3d 111 (2nd Cir. 1998)

Elizabeth PITTMAN, a minor under 18 years of age by

Frederick PITTMAN her father and legal custodian

and Frederick Pittman, individually,



Erna (Etta) Pittman GRAYSON, a/k/a Erna Eyjolfsdottir, Helgi

Hilmarsson, and Gudmundur Karl Jonsson, Defendants,

Icelandair, Inc., Defendant-Appellee.

Docket No. 97-9066.

United States Court of Appeals, Second Circuit

June 26, 1998

Argued Jan. 6, 1998.

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Howard A. Wintner, New York City, (Robert K. Erlanger, New York City, on the brief), for Plaintiffs-Appellants.

John F. Schutty III, New York City (Desmond T. Barry, Jr., Susan S. Kang, Condon & Forsyth, New York City, on the brief), for Defendant-Appellee.

Before: KEARSE and JACOBS, Circuit Judges, and MISHLER, District Judge [*].

KEARSE, Circuit Judge:

Plaintiffs Elizabeth Pittman ("Elizabeth"), by her father and legal custodian Frederick Pittman ("Frederick"), and Frederick individually appeal from a judgment entered in the United States District Court for the Southern District of New York, John S. Martin, Jr., Judge, setting aside a $15 million jury verdict in their favor against defendant Icelandair, Inc. ("Icelandair"), for its participation in the removal of Elizabeth from the United States by defendant Erna Pittman Grayson a/k/a Erna Eyjolfsdottir ("Erna"), who is Elizabeth's mother and Frederick's ex-wife, in violation of a court order and of Frederick's right to joint custody. The district court granted judgment as a matter of law in favor of Icelandair on the ground that the trial evidence was inadequate to permit a reasonable inference that Icelandair had sufficient notice to allow it to be held liable as a coconspirator or an aider and abettor. On appeal, plaintiffs seek reinstatement of the jury verdict; they also contend that, even if the evidence they introduced was insufficient, judgment against them as a matter of law was improper because of erroneous trial rulings against them. Icelandair contends that judgment in its favor as a matter of law was appropriate, and, alternatively, that it is entitled to a new trial because of errors in the district court's instructions to the jury. For the reasons that follow, we affirm.


The facts stipulated by the parties and the evidence at trial, taken in the light most favorable to plaintiffs as the parties against whom judgment as a matter of law was granted, revealed the following.

  1. The State Court Orders Regarding Elizabeth

    Erna, a citizen of Iceland, and Frederick were married for five years. Following their divorce in 1986, they had joint legal custody of their then-four-year-old daughter, Elizabeth. Elizabeth lived with Erna, but Frederick saw her frequently. Erna then married Brian Grayson ("Grayson"), with whom she had a daughter, Anna Nicole Grayson ("Anna"), born in 1987. Erna, Grayson, Anna, and Elizabeth lived together in northwest Florida. In 1991, Grayson sought a divorce from Erna and requested sole custody of Anna. At about the same time, Frederick brought a proceeding in Okaloosa County, Florida, seeking sole custody of Elizabeth.

    In Frederick's custody proceeding, the Okaloosa court on October 28, 1991, issued a temporary injunction prohibiting Erna from removing Elizabeth from the territory encompassed by the First Judicial Circuit of Florida. On May 4, 1992, Frederick was awarded sole custody of Elizabeth.

    In the meantime, Grayson had obtained a court order, similarly prohibiting Erna from removing Anna from northwest Florida. In addition, fearing that Erna might flee to Iceland before the custody proceedings were

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    resolved, Grayson arranged to have the passports of Erna, Anna, and Elizabeth impounded by the court.

  2. Erna's May 1, 1992 Removal of Elizabeth from the United States

    During the pendency of the custody proceedings, notwithstanding the orders not to remove her daughters from northwest Florida, Erna made preparations to take the girls to Iceland. In March 1992, she obtained provisional passports at the Icelandic Consulate in Tallahassee, Florida, to replace those impounded by the court. The Icelandic provisional passports were issued in the names "Erna Eyjolfsdottir," "Elizabeth Jeanne Pittman," and "Anna Nicole Grayson."

    In early April, Erna's then-boyfriend, defendant Helgi Hilmarsson, made an airline reservation for himself, through an Icelandair sales agent in New York, to fly on May 2, 1992, from Florida to John F. Kennedy Airport ("JFK Airport") in New York, and from there on Icelandair Flight 614 to Keflavik Airport in Iceland. On April 10, reservations for the same flights were made through an Icelandair sales agent in Iceland for three additional passengers, under the names Ms. S. Hilmarsson, Child "A" Hilmarsson, and Child "B" Hilmarsson. The Icelandair tickets corresponding to these three reservations were paid for in Iceland on April 18 by credit card registered to defendant Gudmundur Karl Jonsson, Erna's stepfather.

    During the weekend of April 17-19, Grayson became aware that Erna, Anna, and Elizabeth had disappeared. Suspecting that Erna would attempt to return to Iceland with the girls, Grayson alerted Frederick and undertook to prevent Erna from leaving the country. On Monday April 20, Grayson telephoned the Baltimore-Washington and Orlando, Florida offices of Icelandair. He spoke with Icelandair representatives (whom he could not identify by name or title at trial), told them of his fear that Erna would attempt to leave the country, and told them there was a court order prohibiting Erna from taking the girls out of northwest Florida. Grayson asked whether Icelandair had reservations under the names "Erna Eyjolfsdottir or Pittman or Grayson or Etta or Ron Matlack, Elizabeth Jeanne[ ]Pittman or Anna Nicole Grayson," and was told that Icelandair did not have a reservation under any of those names. (Trial Transcript ("Tr.") 44.) In an effort to enlist the airline's aid in stopping Erna from leaving the country, Grayson gave the employees with whom he spoke physical descriptions of Erna, Anna, and Elizabeth, and said that Erna and the girls would probably be traveling under false names. Grayson testified that this was the substance of his conversation with both the Baltimore-Washington and Orlando offices of Icelandair.

    On April 24, four days after Grayson's calls to Icelandair, the "Hilmarsson" May 2 reservations were altered in several respects. The passengers' names were changed from "Hilmarsson" to "Karlsson"; the flights between Florida and New York were cancelled; and the departure date from JFK Airport to Keflavik was advanced to May 1. On May 1, Erna, Hilmarsson, Anna, and Elizabeth arrived at JFK Airport, checked in under the name "Karlsson", and flew to Iceland on Flight 614. Elizabeth, who was then 10 years old, has remained in Iceland; Frederick has not seen his daughter since.

    In 1993, Frederick, on behalf of himself and as the legal representative of Elizabeth, commenced the present action in New York state court against Erna, Icelandair, Hilmarsson, and Jonsson, alleging that they had conspired to remove Elizabeth from the United States in violation of Frederick's custody rights. Icelandair removed the action to federal court on the basis of diversity jurisdiction. The individual defendants failed to answer or otherwise appear, and plaintiffs proceeded against Icelandair, asserting claims of intentional interference with parental custody, intentional infliction of emotional distress, false imprisonment, and negligence.

  3. Irregularities in Icelandair's Transport of Erna and the Girls

    In addition to evidence of the above events, plaintiffs presented evidence of airline irregularities in Erna's check-in and departure on the May 1st Flight 614. First, although the names on the reservations had been changed to "Karlsson" on April 24, the tickets were

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    nontransferable, and new tickets were not issued in the name "Karlsson"; the names on the tickets remained "Hilmarsson." Thus, Erna and the girls were allowed to check in for and depart on Flight 614 despite the fact that there were no reservations in the names shown on their tickets. Further, the provisional passports then possessed by Erna and the girls showed their true names, "Erna Eyjolfsdottir," "Elizabeth Jeanne Pittman," and "Anna Nicole Grayson." Notwithstanding a provision in Icelandair's customer service manual instructing employees checking in passengers to "compare name in passport to name on ticket," Erna and the girls were allowed to travel on Flight 614 despite the fact that the names on their passports matched neither the "Hilmarsson" names on their tickets nor the "Karlsson" names on their reservations.

    Further, the Icelandair passenger manifest for the May 1st Flight 614 was falsified to conceal the presence of Erna and her daughters. Icelandair assigns a "weight and balance" code to each passenger as part of its check-in process. Those codes--"M" for male, "F" for female, "C" for child--represent different average passenger weights and are important for weighting and balancing the aircraft. Olav Ellerup, Icelandair's senior passenger supervisor at JFK Airport, testified that if one were searching for a woman traveling alone with two children, examination of the weight-and-balance column on the passenger manifest would be the quickest way to locate such a group. On the manifest for the May 1st Flight 614, however, though Helgi Hilmarsson (traveling as a "Karlsson") was properly coded "M," the three female "Karlsson" passengers were not coded "F, C, C," which would have signified a woman traveling with two children, but rather were coded as "M, F, C,"...

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