Gellert v. Eastern Air Lines, Inc.

• Decision Date: 17 April 1979
• Docket Number: No. 78-352,78-352
• Citation: 370 So.2d 802
• Parties: Dan Gonzales GELLERT, Appellant, v. EASTERN AIR LINES, INC., a Delaware Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 802

370 So.2d 802

Dan Gonzales GELLERT, Appellant, v. EASTERN AIR LINES, INC., a Delaware Corporation, Appellee.

No. 78-352.

District Court of Appeal of Florida, Third District.

April 17, 1979.

Rehearing Denied June 1, 1979.

Horton, Perse & Ginsberg and Arnold R. Ginsberg; Ellis Rubin, Miami, for appellant.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.

Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE F., Jr. (Ret.), Associate Judges.

CHARLES CARROLL, Associate Judge.

This appeal is by Dan Gonzales Gellert, the plaintiff below, from a judgment for the defendant Eastern Airlines, Inc., entered upon granting defendant's renewed motion for directed verdict, after a jury verdict had been rendered in favor of the plaintiff for substantial amounts of compensatory and punitive damages.

The principal question presented by this appeal is whether, under the law of this state as pronounced by the Supreme Court and district courts of appeal, one may recover damages for intentional infliction of severe mental distress which is without physical contact, and which is not incidental to or consequent upon any separate tort or other actionable wrong. The judgment appealed from was predicated on the trial court answering that question in the negative. We hold that in so ruling the trial court was correct, and affirm the judgment.

The appellant was a pilot employed by Eastern. Based on his experience with a certain type of passenger aircraft then in use, plaintiff regarded as a defect therein (bearing on safety) the fact that the "automatic hold" (an automatic control device designed to maintain a set altitude level) could become disengaged silently upon inadvertent application of pressure on the wheel control column. The action by Gellert against Eastern (as it went to the jury after the court had eliminated other counts) was for damages for mental distress occasioned by certain actions which allegedly were done intentionally in retaliation for Gellert's contentions or criticisms of lack of safety in Eastern's said equipment and its pilot training procedures.

The complaint presented four counts. The first count charged defamation against Eastern, for having published, to other employees and to the Airline Pilots Association, the report of the company's doctor that it would not be safe for Gellert to fly aircraft. The second count charged Eastern breached plaintiff's employment contract, by not keeping such medical report confidential, by improperly removing Gellert from flight duty, and by allegedly destroying a written bid Gellert had made for a change of flight duty.

Count III sought recovery of damages for intentional infliction of mental distress, charging that conduct of Eastern (citing the incident of grounding, an incident relating to a ticket or pass, and the "mysterious lost bid") was intended to cause Gellert severe emotional distress, or was such that Eastern should have known it would have that effect. The fourth count sought a mandatory injunction to require Eastern to institute certain aircraft safety and training safeguards; and to enjoin Eastern from further acts of harassment.

On defendant's motion to dismiss, the trial court dismissed, as not being within the court's jurisdiction, the count for breach of contract and the count seeking by injunction to require Eastern to institute certain safety procedures. The count for defamation was eliminated at trial, by the granting of a motion of the defendant for a directed verdict on that count.

With regard to the count on intentional infliction of mental distress, at trial the defendant moved for directed verdict at the close of the plaintiff's case and at the conclusion of the evidence. After verdict for the plaintiff, the defendant renewed the motion for directed verdict. The motion was granted, and judgment was then entered for the defendant, from which the plaintiff appealed.

Our disposition of this appeal does not require lengthy or detailed statement of the facts, or of the evidence adduced. In his experience as a first officer (co-pilot) on the L-1011 type passenger aircraft then in use by defendant, on two occasions the "altitude hold" became disengaged upon some contact being made with the control wheel column. Those occurrences took place prior to the time that a craft of that type crashed in the Everglades west of Miami while approaching Miami International Airport. By design the "altitude hold" was to disengage upon application of 15 to 20 pounds pressure on the control wheel column. When the "altitude hold" was "on", that fact was shown by a lighted indicator on the control panel, called an annunciator. When the automatic hold became disengaged, the annunciator light on the panel would go out. Such an inadvertent disengagement of the altitude hold was experienced by Gellert on two occasions. Gellert had reported the first such incident to a superior flight officer. He wrote a letter to Colonel Borman (then a vice president in charge of operations) relating to the operation of the automatic pilot and automatic hold and its silent disengagement, Borman replied by letter that the matter was being analyzed.

Gellert sent letters to the chairman of the board of Eastern and to the president of Eastern, in which among other things he expressed desire to testify as Eastern's representative at the hearing to be held by the National Transportation Safety Board regarding the Everglades crash. Instead, Eastern chose as its representative (witness) for that hearing the pilot who was its most experienced on that type craft. Gellert was granted leave to attend the hearing as a witness, without pay or expenses, and did attend and testify at the hearing.

After the NTSB made its findings, Gellert filed a petition with the Board for reconsideration of its findings in certain respects. Thereafter, he wrote lengthy letters to the FBI and to Colonel Borman, including in the latter a copy of the letter he had written to the FBI. The letters written by Gellert were referred to Eastern's psychiatrist and neurologist, Dr. Watt, for initial evaluation. Upon reviewing them, Dr. Watt reported to Eastern by memorandum that the "construction, tone, intent and implications" of the letters indicated some psychiatric disorder. Thereupon Gellert was notified he was removed from flight duty (but would continue on flight pay status), and it was requested that he report to Eastern's medical department for physical and psychological examination. As a result thereof, the doctor made a written report to Eastern in which the doctor expressed the view that he did not believe that it would be completely safe for Gellert to fly aircraft "at this time." ¹ Based thereon Eastern's medical director, Dr. Serrano, informed Gellert he would not be on flight status, and would be placed on sick leave pay; that the medical records would be made available for examination by Gellert's physician; and that Gellert would be re-evaluated within a reasonable time. Some months later, upon a re-evaluation, Gellert was found then fit for and was returned to flight status. Without dissent, the medical witnesses, after reading the letters, found the actions of Eastern in this regard were justifiable. However, that matter was one of the three items which Gellert charged caused him extreme mental distress.

Another item was one relating to a hearing with resultant reprimand to Gellert for his misuse of a certain type of pass issued to the pilots. Concededly Gellert had altered the destination of the pass, and had used it for purposes other than or in addition to those which were prescribed for its use. That was considered by Gellert as harassment, and as a matter that caused him mental distress.

A third incident was with reference to a bid which Gellert had mailed in, for change of pilot duty, to serve as captain on flights from a New York base. His was one of some 2,000 duty transfer bids handled. In sending in the bid, the envelope he used gave a return address but not his name. After a delay of approximately 60 days a letter was sent to "Occupant" at the address, stating the bid form that was sent in had been bare of any information. Gellert contended that such report that the bid form he had sent was in blank was false, and that by reason of that incident he suffered intense mental distress.

An additional incident upon which Gellert relied as causing him mental distress was that, prior to the time he testified before the NTSB, a fellow pilot who was a good friend talked to him about his intentions to so testify, and attempted to persuade him not to testify, and told him that it would be against his best interests to do so. Gellert viewed that as action directed by Eastern, in an effort to prevent him from testifying at the hearing. That fact, if it was so, was not established. To the contrary, the pilot who so advised Gellert testified he had done so on his own.

A further matter advanced by the plaintiff, although not alleged in Count III dealing with mental distress, was that he noted what he assumed to be intentional tampering with planes he was piloting. One such occurrence consisted of the fact that on a plane he was piloting between Washington and New York one of the motors lost practically all of its oil. Another was that an altimeter was found to be registering improperly by hundreds of feet. An assumption that Eastern as a retaliatory act against the plaintiff would thus intentionally sabotage a plane in a manner that well might cause loss of the plane and its passengers, is staggering and unreal.

Of the above incidents, those consisting of his being grounded, reprimanded for misuse of the pass, and the manner of handling of his bid for duty change, were charged and classified by the plaintiff as constituting breaches of his employment contract (in the contract count in his complaint). Those incidents did not constitute...