9601321

• Decision Date: 01 January 1999
• Docket Number: 9601321
• Parties: Gerald MacIntosh v. Interface Group Massachusetts-Comm, Inc.1 et al.2
• Court: Massachusetts Superior Court

1999-MBAR-007

Gerald MacIntosh v. Interface Group Massachusetts-Comm, Inc.1 et al.2

No. 9601321

Superior Court of Massachusetts

Mass L. Rptr. Cite: 9 Mass. L. Rptr. 408

Venue Superior Court, Norfolk, SS

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): DOERFER

INTRODUCTION

Plaintiff Gerald MacIntosh brought the present action alleging breach of contract, malicious prosecution, libel, and violation of Chapter 93A against Interface Group Massachusetts-Com., Inc. d/b/a GWV International and TAESA Airlines after he was removed from an airplane at Bradley International Airport in Connecticut, arrested, jailed and charged with a breach of the peace. This matter is before the court on the defendants' motions for summary judgment pursuant to Mass.R.Civ.P. 56. For the reasons discussed below, defendant GWV International's motion for summary judgment is ALLOWED. Further, defendant TAESA Airlines' motion for summary judgment is ALLOWED.

BACKGROUND

The undisputed facts as contained in the summary judgment record are as follows. Defendant Interface Group Massachusetts-Com Inc. dba GWV International (GWV) is a Needham-based charter tour operator which arranges package charter vacations to various destinations. Defendant TAESA Airlines (TAESA) is a company duly organized under the laws of Mexico which provides air transportation. On March 7, 1995, plaintiff Gerald MacIntosh (MacIntosh) contracted with GWV for a vacation travel package to the island of St. Maarten. GWV organized the tour package, issued passenger tickets to the participants, made reservations with the hotels in St. Maarten and arranged both the land and air transportation for the trip.

TAESA contracted with GWV to provide the round trip air transportation between Boston and St. Maarten. GWV sent MacIntosh ticket # 546132 for flight 1427 from Boston to St. Maarten on March 25, 1995 and return flight 1428 from St. Maarten to Boston on April 1, 1995. The ticket identified TAESA as the airline carrier.

Following an otherwise uneventful vacation, on April 1, 1995, MacIntosh and friend Tracie Taylor boarded TAESA's aircraft in St. Maarten to return to Boston. Flight 1428 was a nonsmoking flight. MacIntosh was seated in row 23 of the cabin, the second to last row, and there were two lavatories at the back of the aircraft. The plane made a scheduled intermediate stopover at Bradley International Airport in Hartford, Connecticut. Passengers who were continuing on to Boston were asked to remain on board the aircraft due to the short turnaround time and were reminded that there would be no smoking during the intermediate stop. After the aircraft arrived at the gate, MacIntosh told flight attendant Guillermo Blanco Aguilar (Aguilar) that he wished to leave the plane to smoke a cigarette in the terminal. Aguilar told him that he could not do so because there was not enough time.

MacIntosh then entered the rest room in the rear of the plane with a pack of cigarettes in the pocket of his shirt. After remaining inside for two or three minutes, MacIntosh exited the rest room, and another passenger then entered. Less than one minute after MacIntosh had returned to his seat two rows away, the smoke alarm sounded in the rest room. Flight Attendant Aguilar reported to Purser Albert Emil Vavrina Leon (Leon) that the smoke alarm had sounded in the rear cabin and pointed out MacIntosh as the person he believed had smoked in the rest room. Leon informed MacIntosh that it was a federal offense to smoke in the lavatory of an aircraft and told him to come forward to speak to the captain. However, MacIntosh refused to leave his seat.3 Leon went to the flight deck and reported to Captain Norberto Garcia Castillo that a passenger had been smoking in the lavatory and that the passenger was rude and abusive to the cabin crew. Captain Castillo radioed TAESA's ground handling company at Bradley and requested that security personnel come to the aircraft. Shortly thereafter, several uniformed Connecticut State Police officers arrived at the plane and inquired as to the identity of the troublesome passenger, whereupon Leon directed them to MacIntosh. The officers escorted MacIntosh off of the aircraft and took him into the terminal.

MacIntosh told the officers that he had done nothing wrong, he had paid to fly all the way to Boston, there were only twenty-minutes remaining in the flight, and he wanted to return to his seat. When MacIntosh demanded to speak to the captain, the officers told him that the captain did not have to explain his actions or do anything he didn't want to. MacIntosh then stated that he was reboarding the plane and attempted to walk toward the door leading to the aircraft, at which point the officers handcuffed him and informed him that he was under arrest.

One of the officers returned to the plane several minutes later and asked Leon whether MacIntosh could continue on the flight to Boston because he had no money to remain overnight in Hartford. However, Captain Castillo refused to allow MacIntosh to reboard the aircraft and continue to Boston. Two police officers then escorted MacIntosh, in handcuffs, back on the plane to retrieve his personal belongings.4 MacIntosh was taken to the State Police barracks where he received the Miranda warnings and was charged with breaching the peace and violating Federal Aviation Administration Regulation 49 U.S.C. 1472J, interfering with flight crew members and flight attendants. According to the police report, MacIntosh "used obscene language and was loud enough to be heard by other passengers on the aircraft. The accused appeared to be intoxicated at this time." Between the time the flight left St. Maarten and the time it landed in Hartford, MacIntosh had consumed two or three small bottles of scotch on the plane.

MacIntosh called his parents and asked them to contact his attorney, after which he was fingerprinted and booked. Bail was set at $500, but MacIntosh was unable to find a bail bondsmen. At approximately 2: 00 a.m., Taylor and another friend arrived with $380 in cash and convinced the police to release him on that amount. MacIntosh returned to Connecticut the following Monday for his arraignment and hired a local criminal lawyer. The District Attorney dismissed all charges against MacIntosh after no one appeared to testify that he breached the peace.

Thereafter, on June 21, 1996, MacIntosh filed the present action against GWV and TAESA alleging breach of contract in Count I, malicious prosecution in Count II, unfair and deceptive practices in violation of Chapter 93A in Count III, and libel in Count IV. Both defendants now move for summary judgment.

DISCUSSION

Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Community Nat'l. Bank v. Dawes, 369 Mass. 550, 553 (1976); Cassesso v. Commissioner of Correction, 390 Mass 419, 422 (1983); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).

I. GWV's MOTION FOR SUMMARY JUDGMENT

GWV moves for summary judgment on the ground that it breached no contractual obligation to MacIntosh and is not responsible for the actions of TAESA. MacIntosh contends that GWV contracted to provide him with air transportation on flight 1428 from St. Maarten to Boston on April 1, 1995 and breached that contractual obligation when he was removed from flight 1428 at Bradley Airport in Connecticut. There is no evidence before this Court of any charter tour contract between MacIntosh and GWV, although MacIntosh has produced copies of charter ticket #546132 issued by GWV for flight #1428, on April 1, 1995, from SXM Airport in St. Maarten to Logan International on carrier TAESA AIR.

Taking the facts in the light most favorable to the nonmoving party MacIntosh has simply failed to produce evidence demonstrating a genuine issue of material fact with respect to GWV's contractual liability. On the present summary judgment record, GWV agreed to arrange round trip air transportation for MacIntosh between Boston and Sr. Maarten on certain dates, and it is undisputed that it fulfilled that obligation by providing him with the plane tickets. MacIntosh has not introduced any evidence of an agreement by GWV to accept responsibility for subsequent events affecting the completion of the trip as scheduled. Accordingly, he has no reasonable expectation of establishing at trial that his removal from the plane by TAESA crew members constituted a breach of GWV's charter tour contract. Compare Accomando v. Trans National Travel, Civil Action No. 90-6605 (Suffolk Super. Ct. June 19, 1991) (Tuttle, J.) (concluding that charter tour operator did not breach its contract to vacationer where tour participant contract contained disclaimer that charter operator was not responsible for negligence of any service provider during trip, including plane services; tour operator performed its duties by arranging and providing services offered in tour package; and tour operator was not responsible for the 36 hour delay in flight). Thus, GWV is entitled to judgment as a matter of law on Count I of the...