Kiefer v. Continental Airlines, Inc.

Decision Date11 August 1994
Docket NumberNo. 01-91-01286-CV,01-91-01286-CV
Citation882 S.W.2d 496
PartiesNorma L. KIEFER and Robert C. Kiefer, Appellants, v. CONTINENTAL AIRLINES, INC., Appellee. (1st Dist.)
CourtTexas Court of Appeals

Grant Gealy, Houston, for appellants.

Sarah B. Duncan, San Antonio, Jennifer Bruch Hogan, M. Cody Mueller, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and HUTSON-DUNN and WILSON, JJ.

OPINION

WILSON, Justice.

Norma L. Kiefer and her husband Robert C. Kiefer (the Kiefers) appeal from a summary judgment rendered in favor of Continental Airlines, Inc. (Continental) on the basis of federal preemption. The Kiefers raise four points of error. We reverse and remand for trial on the merits.

A defendant moving for summary judgment has the burden to show that, as a matter of law, there is no genuine issue of material fact as to one or more of the essential elements of the plaintiffs' cause of action. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Goldberg v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex.App.--Houston [1st Dist.] 1989, writ denied). Every reasonable inference will be indulged in favor of the non-movants, and any reasonable doubt will be resolved in their favor. Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988); Goldberg, 775 S.W.2d at 752.

In the light most favorable to the Kiefers, the non-movants, the summary judgment evidence shows that Mrs. Kiefer was a passenger on a Continental flight from Pittsburgh, Pennsylvania, to Houston, during which a Continental flight attendant dropped a bag from an overhead storage bin onto Mrs. Kiefer's head, injuring her.

Mrs. Kiefer and her husband sued Continental for personal injuries and loss of society, respectively; they each asserted a state common-law negligence cause of action. Continental moved for summary judgment, based on its contention that the Kiefers' claims were preempted by section 4(a) of the Airline Deregulation Act of 1978, as amended (the 1978 Act), 1 codified at 49 U.S.C.A.App. § 1305 (West Pamph.1994). The trial court ruled that, "Continental Airlines, Inc. is entitled to summary judgment as follows. Ordered that the cause of action is dismissed as being preempted by section 1305 of Federal Aviation Act." 2 Within 30 days after the trial court signed the order granting summary judgment for Continental, the Kiefers filed their "motion for new trial or to alter or amend judgment," asserting that the court dismissed their suit without adequate consideration of their amended petition, filed five days before the summary judgment hearing, which had added two new claims: an implied federal cause of action under section 404 of the Federal Aviation Act of 1958, as amended (the 1958 Act), 3 codified at 49 U.S.C.A.App. § 1374 (West 1976 & Pamph.1994); 4 and a federal common-law negligence and gross negligence cause of action. In that motion, the Kiefers prayed that the trial court set aside the summary judgment in full, or, in the alternative, that it amend the judgment to reflect that only their state-law cause of action was dismissed. The trial court denied the Kiefers' motion, and this appeal followed.

Federal preemption is an affirmative defense. See Gorman v. Life Ins. Co. of North America, 811 S.W.2d 542, 546 (Tex.), cert. denied, 502 U.S. 824, 112 S.Ct. 88, 116 L.Ed.2d 60 (1991) (preemption under Employee Retirement Income Security Act (ERISA)); see also City of Houston v. First City, 827 S.W.2d 462, 467-68 (Tex.App.--Houston [1st Dist.] 1992, writ denied) (preemption under federal banking laws pleaded as affirmative defense); Dueringer v. General American Life Ins. Co., 842 F.2d 127, 129-30 (5th Cir.1988) (ERISA preemption). When a defendant moves for summary judgment based on an affirmative defense, the defendant has the burden to prove conclusively all the elements of the affirmative defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Unless the movant conclusively establishes the affirmative defense, the non-movant plaintiffs have no burden in response to a defendant's motion for summary judgment filed on the basis of an affirmative defense. Torres v. Western Casualty & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970).

A summary judgment for the defendant, disposing of the entire case, is proper only if, as a matter of law, the plaintiff could not succeed upon any of the theories pleaded. Havens v. Tomball Community Hosp., 793 S.W.2d 690, 691 (Tex.App.--Houston [1st Dist.] 1990, writ denied); Dodson v. Kung, 717 S.W.2d 385, 390 (Tex.App.--Houston [14th Dist.] 1986, no writ). Once the defendant produces sufficient evidence to establish the right to a summary judgment, the plaintiffs must set forth sufficient evidence to give rise to a fact issue to avoid an adverse summary judgment. "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972).

When a trial court's order granting summary judgment specifies the grounds relied on for its ruling, the summary judgment will be affirmed on appeal if the specified grounds are meritorious. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); River Consulting, Inc. v. Sullivan, 848 S.W.2d 165, 168-69 (Tex.App.--Houston [1st Dist.] 1992, writ denied).

In their first point of error, the Kiefers assert that the summary judgment was erroneous because section 1305 does not preempt their state common-law negligence cause of action. Section 1305 provides, in pertinent part:

(a) Preemption

(1) [N]o State ... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority ... to provide [interstate] air transportation.

49 U.S.C.A.App. § 1305 (West Pamph.1994).

The express terms of section 1305 plainly indicate that Congress intended to preclude state lawmaking with respect to some body of subject matter. Within constitutional limits, Congress may, of course, preempt state lawmaking by so stating in express terms. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). The question here is not whether state laws have been preempted, as it is in the case of implied preemption, but rather, the extent of that preemption.

The Kiefers contend that the 1978 Act was intended to address economic issues only, and was not intended to preempt state-law remedies for injuries that passengers might incur during the course of receiving "services" from an interstate air carrier. Continental contends that the 1978 Act was also addressed to "safety concerns," and that, in that aspect, the 1978 Act expressly preempts the Kiefers' state common-law negligence cause of action, because, Continental reasons, that cause of action "relat[es] to ... services of [an] air carrier having authority ... to provide [interstate] air transportation."

To support its view, Continental relies primarily upon a pair of Fifth Circuit cases, O'Carroll v. American Airlines, 863 F.2d 11 (5th Cir.1989), cert. denied, 490 U.S. 1106, 109 S.Ct. 3158, 104 L.Ed.2d 1021 (1989), and Baugh v. Trans World Airlines, No. 90-2074, slip op. (5th Cir.1990) (unpublished). 5

In O'Carroll, the plaintiff held a valid ticket for a Chaparral Airlines flight between Portland, Maine and Alexandria, Louisiana. When he and his companion, Rollins, boarded for the last leg of that trip, they were loud, boisterous, and intoxicated. At one point, Rollins proclaimed his willingness to "help fly the plane." During the ensuing chain of events, an "irregularity" in O'Carroll's ticket was discovered; he was asked to disembark; and, uttering obscenities, he refused to move. Ultimately, police officers were called, and removed both O'Carroll and Rollins from the aircraft. O'Carroll sued because of what he alleged to be his wrongful exclusion from that flight, asserting what the Fifth Circuit described only as "various state law claims." 863 F.2d at 12.

The Fifth Circuit found that O'Carroll's claims were preempted by section 1305. In so holding, however, the Fifth Circuit relied at least in part on the "broad, expansive discretion," accorded to air carriers about whether to provide services at all, and quoted the following statutory language:

Subject to reasonable rules and regulations prescribed by the Secretary of Transportation, any [interstate air] carrier may ... refuse transportation of a passenger or property when, in the opinion of the carrier, such transportation would or might be inimical to safety of flight.

49 U.S.C.A.App. § 1511(a) (West Pamph.1994). The Fifth Circuit construed section 1511 to permit carriers to refuse to carry even the holders of valid tickets, but observed also that an implied cause of action against an air carrier existed under section 1374 for abuse of the discretion accorded to the carrier under section 1511. 863 F.2d at 12-13.

O'Carroll concerned wrongful exclusion from a flight, an entirely different variety of injury than at issue here. There is no assertion, and no summary judgment evidence, that any of the safety considerations germane under section 1511 were implicated in the transaction between Mrs. Kiefer and Continental.

In Baugh, the facts were similar to those before us here. Baugh was a passenger on a flight from Houston to New York, New York, during which a flight attendant stepped on Baugh's foot, causing her injury. Slip. op. at 1-2. Like Mrs. Kiefer, Baugh sued the air carrier in Texas state court for personal injuries, asserting a state common-law negligence cause of action. Slip. op. at 2. The carrier removed Baugh's suit to federal district court based on diversity jurisdiction. Id. The federal district court then found that Baugh's claim was preempted by section 1305, 6 and dismissed her suit under FED.R.CIV.P. 12(b)(6) for failure to state a claim on which...

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