In re Eastern Airlines, Inc.

• Decision Date: 03 February 1986
• Docket Number: MDL No. 575.
• Citation: 629 F. Supp. 307
• Parties: In re EASTERN AIRLINES, INC., ENGINE FAILURE, MIAMI INTERNATIONAL AIRPORT on MAY 5, 1983.
• Court: U.S. District Court — Southern District of Florida

629 F. Supp. 307

In re EASTERN AIRLINES, INC., ENGINE FAILURE, MIAMI INTERNATIONAL AIRPORT on MAY 5, 1983.

MDL No. 575.

United States District Court, S.D. Florida, Miami Division.

February 3, 1986.

Michael S. Olin, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Owen, P.A., Miami, Fla., for plaintiff.

Richard J. Thornton, Calvin F. David, and Kathleen M. O'Connor, Thornton, David & Murray, Miami, Fla., for defendant.

ORDER DISMISSING COMPLAINTS WITH PREJUDICE^*

EDWARD B. DAVIS, District Judge.

THIS MATTER is before the Court on Defendant EASTERN AIRLINES, INC.'s, Motion for Judgment on the Pleadings. On January 21, 1986, a hearing was held on Defendant's Motion. After review of the memoranda submitted in support of and in opposition to this motion, and upon consideration of the arguments presented at the hearing on this motion, it is

ORDERED AND ADJUDGED that the Complaints filed in this case are DISMISSED with prejudice. The parties are directed to the "DISPOSITION OF THE COMPLAINTS" section, captioned below, for the precise disposition of each Complaint.

DISCUSSION

This action arose on or about May 5, 1983, out of Eastern Airlines' Flight No. 855, bound for Nassau, Bahamas, from Miami International Airport, Miami, Florida. Shortly after take-off, one of the aircraft's engines failed, and the plane turned around for return and landing in Miami. After turning around, the aircraft's other two engines failed.

The crew and passengers prepared for ditching of the aircraft as it lost altitude due to the engine failure. After a period of flight without any engines, the crew was able to restart one engine, under whose sole power the plane landed at Miami International Airport.

Each of the Complaints filed in this case contains four basic counts: one in contract, two in tort, and one under the Warsaw Convention. Defendant EASTERN AIRLINES, INC., has filed a Motion for Judgment on the Pleadings, asserting, inter alia, that nowhere in the Complaints are there allegations that Plaintiffs sustained physical injury, bodily injury, impact and/or direct physical contact during or resulting from the subject flight. Defendant argues the Complaints fail to state claims upon which relief can be granted.

This Order is directed to the sufficiency of the Plaintiffs' allegations under state law, i.e., under Breach of Contract (Count I), Negligence (Count II), and entire Want of Care (Count III) theories,¹ and under federal law, pursuant to the Warsaw Convention (Count IV).

COUNT Ia€”EASTERN'S BREACH OF CONTRACT TO USE THE HIGHEST DEGREE OF CARE

Plaintiffs contend that the state claim aspects of this case are governed by Kirksey v. Jernigan, 45 So.2d 188 (Fla. 1950). The Court finds that Kirksey does not support Plaintiffs' claims for breach of contract. In Kirksey, the Florida Supreme Court reaffirmed the long-standing Florida rule that "there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved." Id. at 189. Kirksey has been interpreted to mean that there can be no recovery for mental distress caused by a breach of contract in the absence of an independent willful tort. Crenshaw v. Sarasota County Public Hospital Board, 466 So.2d 427, 428 (Fla.2d DCA 1985); Gellert v. Eastern Airlines, Inc., 370 So.2d 802 (Fla.3d DCA 1979), cert. denied, 381 So.2d 766 (Fla.1980); Forde v. Royal's, Inc., 537 F.Supp. 1173, 1175 (S.D.Fla.1982).

Consequently, in the instant suit, the sufficiency of Plaintiffs' allegations under Counts II and III, the tort counts, is determinative of the viability of Plaintiffs' cause of action in contract. Because this Court concludes, as discussed below, that the Complaints fail to adequately allege an independent willful tort, there can be no recovery under Count I for mental anguish arising out of a breach of contract.

COUNT IIa€”EASTERN'S NEGLIGENCE

Count II seeks recovery for simple negligence. Under Florida law "there is no cause of action for psychological trauma alone when resulting from simple negligence." Brown v. Cadillac Motor Car Division, 468 So.2d 903 (Fla.1985). See also Champion v. Gray, 478 So.2d 17 (Fla. 1985). Recovery for emotional distress caused by simple negligence, as alleged in Count II, is therefore precluded absent allegations of discernible and demonstrable physical injury. Brown, 468 So.2d at 903 (holding that, in cases where a person suffers no physical injuries in an accident the "psychological trauma must cause a demonstrable physical injury such as death, paralysis, muscular impairment, or similar objectively discernible physical impairment before a cause of action may exist").

Plaintiffs argue that Brown and Champion are not controlling because this suit involves emotional distress caused by fear for one's own safety, and not distress caused to a bystander out of fear for another's safety. While it is true that "personal" and "bystander" distress constitute two distinct emotional circumstances, see Champion v. Gray, 478 So.2d 17, 18 (Fla. 1985), recognition of this distinction offers no relief to the Plaintiffs in the case sub judice.

In Brown and Champion the impact rule was modified to allow recovery for damages flowing from discernible physical injury caused by psychic trauma resulting from negligent injury to another. If, as Plaintiffs argue, these "bystander" cases leave undisturbed prior Florida law regarding recovery for emotional distress caused by fear for one's own safety, then Plaintiffs' claim for negligence must fail, for the "impact rule" would bar recovery. Alternatively, if this Court were to fashion a "new" rule, regarding recovery for mental distress caused by fear for one's own safety, as opposed to fear for another's safety, it would nonetheless decline to allow recovery for psychic trauma alone. Cf. Champion, 478 So.2d at 18 ("the public policy of this state is to compensate for physical injuries ... we are willing to modify the impact rule, but are unwilling to expand it to purely subjective and speculative damages for psychic trauma").

Absent allegations of impact and/or direct physical contact resulting from Defendant's alleged negligence, this Court concludes that there can be no recovery for emotional distress caused by simple negligence, unless Plaintiffs can establish discernible physical consequences resulting from the distress.²

COUNT IIIa€”EASTERN'S ENTIRE WANT OF CARE

In Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950), the Florida Supreme Court stated:

We do not feel constrained to extend the rule barring recovery for mental pain and anguish unconnected with physical injury to cases founded purely in tort, where the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages.

In the previously-cited case of Brown v. Cadillac Motor Car Division, 468 So.2d 903 (Fla.1985), a negligence case, the Florida Supreme Court noted that its "ruling does not disturb any prior decisions allowing damages for psychological trauma in intentional tort cases." Brown, 468 So.2d at 904 n. *. Plaintiffs, therefore, argue that Count III, entitled "Entire Want of Care", states a cause of action under Kirksey. Defendant counters that Kirksey did not establish an independent cause of action for "entire want of care." Upon review of the relevant case law, this Court concludes, as Defendant contends, that Kirksey did not establish an independent cause of action in tort.

When Kirksey was decided, Florida had not yet recognized an independent cause of action for intentional infliction of emotional distress. Generally, recovery for emotional distress alone was barred. In Kirksey, however, the Florida Supreme Court recognized for the first time, not a new tort, but, that damages for emotional distress alone could be recovered if the defendant was guilty of another recognized intentional tort.³ Later Florida Supreme Court opinions support this interpretation of Kirksey. See e.g., Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla.1958). In Slocum, the Supreme Court of Florida stated that the Kirksey decision "would apparently allow recovery for mental suffering, even absent physical consequences, inflicted in the course of other intentional or malicious torts...." Id. at 395 (emphasis added).

This Court concludes that Count III can withstand a motion to dismiss for failure to state a cause of action only if facts are alleged which, assuming their truth, would put the Defendant on notice of an independently recognized intentional tort.

In Metropolitan Life Insurance Company v. McCarson, 467 So.2d 277 (Fla.1985), the Florida Supreme Court recognized for the first time the tort of intentional infliction of emotional distress. Section 46 of the Restatement (Second) of Torts (1965) has been adopted in Florida as the appropriate definition of the tort. Id. Section 46 defines the tort of intentional infliction of mental distress as follows:

§ 46. Outrageous Conduct Causing Severe Emotional Distress

... 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.

Restatement (Second) of Torts, § 46 (1965). To state a cause of action under this definition, it is necessary that Plaintiffs allege conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Metropolitan Life Insurance Co., 467 So.2d at 279.

"It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." Restatement (Sec...