Eastern Airlines, Inc. v. King

• Decision Date: 15 February 1990
• Docket Number: No. 73395,73395
• Citation: 557 So.2d 574
• Parties: 15 Fla. L. Weekly S61 EASTERN AIRLINES, INC., Petitioner, v. Charles KING, Respondent.
• Court: Florida Supreme Court

Page 574

557 So.2d 574

15 Fla. L. Weekly S61

EASTERN AIRLINES, INC., Petitioner, v. Charles KING, Respondent.

No. 73395.

Supreme Court of Florida.

Feb. 15, 1990.

Rehearing Denied March 28, 1990.

Terry L. Redford, Linda Ann Singer and John M. Murray of Thornton, David & Murray, P.A., Miami, for petitioner.

Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for respondent.

Edward T. O'Donnell of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, amicus curiae for Product Liability Advisory Council.

GRIMES, Justice.

We review King v. Eastern Airlines, Inc., 536 So.2d 1023 (Fla. 3d DCA 1987), in which the Third District Court of Appeal partially reversed a judgment on the pleadings. Our jurisdiction is based on conflict with Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277 (Fla.1985), and Brown v. Cadillac Motor Car Division 468 So.2d 903 (Fla.1985). Art. V, § 3(b)(3), Fla. Const.

The facts as alleged in the complaint were as follows. On May 5, 1983, the respondent, Charles King, was a passenger on Eastern Airlines' Flight # 855 departing from Miami International Airport, bound for Nassau, Bahamas. En route one of the plane's three engines failed, so the flight crew turned the plane around to return to Miami. After turning around, the plane's other two engines failed. The crew and passengers were prepared to ditch the plane as it lost altitude. Finally, after an extended period, the crew was able to restart one engine and land the plane at Miami International Airport.

King sued Eastern Airlines for, inter alia, damages allegedly incurred as a result of Eastern's reckless or intentional infliction of mental distress and for damages arising under the Warsaw Convention. ¹ Specifically, count III of King's amended complaint alleged that Eastern failed to properly inspect, maintain, and operate its aircraft and that "Eastern's records reveal at least one dozen prior instances of engine failures due to missing O-rings [oil seals], and yet Eastern failed to institute appropriate procedures to cure this maintenance problem despite such knowledge." King further alleged that this constitutes an "entire want of care" and "indifference" and implies "such wantonness, willfulness, and malice as would justify punitive damages." In count IV, King claimed damages under the Warsaw Convention by reason of this negligent or willful misconduct.

The circuit court stayed action in this lawsuit pending the outcome of related federal actions filed by other passengers in the United States District Court for the Southern District of Florida. The district court entered judgments on the pleadings in Eastern's favor based on the failure to state a cause of action. In re Eastern Airlines, Inc. Engine Failure, Miami Int'l Airport on May 5, 1983, 629 F.Supp. 307 (S.D.Fla.1986). Persuaded by the federal district court's reasoning, the state circuit court then entered a judgment on the pleadings in favor of Eastern and against King. On appeal a panel of the Third District Court of Appeal reversed and reinstated the claim for intentional infliction of mental distress but affirmed the dismissal of the claim for emotional distress under the Warsaw Convention. King v. Eastern Airlines, Inc., 536 So.2d 1023 (Fla. 3d DCA 1987). On motion for rehearing, the court again affirmed the dismissal of the Warsaw Convention claim but held that the unavailability of a cause of action under the Warsaw Convention did not preclude other forms of relief. Id. at 1030, 1032. Thereafter, in a split vote on rehearing en banc, the court adhered to the decision but announced different reasons for reversing the dismissal of the state claim for emotional distress. Id. at 1032.

The related cases in federal court were appealed to the Eleventh Circuit Court of Appeals. That court relied on the Third District's decision in King to uphold the state claim for mental distress but noted that the issue was pending in this Court. Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1467 (11th Cir.1989). The Eleventh Circuit Court of Appeals then concluded that the Warsaw Convention does allow recovery for purely mental injuries unaccompanied by physical trauma. Id. at 1480. Further, the court ruled that to the extent that the cause of action for intentional infliction of emotional distress under Florida law conflicts with the cause of action under the Warsaw Convention, Florida law was preempted. Id. at 1482.

This Court first recognized the tort of intentional infliction of emotional distress in Metropolitan Life Insurance Co. v. McCarson. In McCarson we approved the adoption of section 46, Restatement (Second) of Torts (1965), which states:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

In that case, however, we held that the court below had not conformed its findings to the comments to section 46 which explain the application of the tort.

Comments d and i to section 46 are particularly pertinent to our consideration:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

....

i. Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts reckless, as that term is defined in § 500, in deliberate disregard of a high degree of probability that the emotional distress will follow.

Section 500, Restatement (Second) of Torts (1965), provides:

The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Comment b of section 500 further elaborates that "[c]onduct cannot be in reckless disregard of the safety of others unless the act or omission is itself intended...."

Applying these principles to the present case, it is clear that King has failed to state a claim for reckless or intentional infliction of emotional distress. The allegations that Eastern failed to properly inspect, maintain, and operate its aircraft rise no higher than negligence. The fact that there may have been at least one dozen prior instances of missing O-rings causing engine failures does not reflect "extreme and outrageous conduct intentionally or recklessly" causing emotional distress. The balance of count III contains only conclusions. See Price v. Morgan, 436 So.2d 1116 (Fla. 5th DCA 1983) (a pleading is insufficient if it contains merely conclusions as opposed to ultimate facts supporting each element of the cause of action).

As amicus points out, it is incongruous that Eastern would recklessly or intentionally place its passengers, crews, and multimillion dollar airplanes in such peril. Our conclusion is reinforced by King's allegation that, despite Eastern's knowledge of the prior engine failures, Eastern failed to take "appropriate" procedures to correct the problem. Failing to take "appropriate" action to correct the problems would appear to negate an intentional act or an intentional failure to act on Eastern's part. Significantly, King's complaint does not allege that Eastern knew or should have known that the procedures were inappropriate.

The majority opinion below represents a misapplication of the principle established in Metropolitan Life Insurance Co. v. McCarson. Furthermore, as noted by dissenting Judge Schwartz:

In essence, the majority view amounts to establishing an exception to the recently reaffirmed "impact rule," Brown v. Cadillac Motor Car Div., 468 So.2d 903 (Fla.1985), which would arise in every case in which the defendant acts recklessly. It would apply when, for example a highly intoxicated driver recklessly operates his vehicle and narrowly misses but severely frightens a plaintiff, or when a plaintiff uses and becomes mentally concerned over some potential harm, but is not actually "impacted" or physically injured by a product--like a Mustang or a Dalkon Shield--which may have been recklessly manufactured. Whatever the law of Florida may previously have been, see Crane v. Loftin, 70 So.2d 574 (Fla.1954) (dictum); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950) (dictum), it is very clear that there is no such exception under the present law of our state.

536 So.2d at 1036-37 (Schwartz, J., dissenting).

While not the basis of our jurisdiction, we deem it appropriate to address the question of whether King has stated a cause of action under the Warsaw Convention. The Warsaw Convention is an international treaty to which the United States is a party. Air France v. Saks, 470 U.S. 392, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985). The Convention applies "to all international transportation of persons, baggage, or goods performed by aircraft for hire." Warsaw Convention art....