King v. Eastern Airlines, Inc.

• Decision Date: 15 December 1987
• Docket Number: No. 86-938,86-938
• Citation: 13 Fla. L. Weekly 2401,536 So.2d 1023
• Parties: 13 Fla. L. Weekly 2401 Charles KING, Appellant, v. EASTERN AIRLINES, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1023

536 So.2d 1023

13 Fla. L. Weekly 2401

Charles KING, Appellant, v. EASTERN AIRLINES, INC., Appellee.

No. 86-938.

District Court of Appeal of Florida,

Third District.

Dec. 15, 1987.

Amended on Denial of Rehearing

Oct. 25, 1988.

On Rehearing En Banc

Oct. 25, 1988.

Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel Eaton, for appellant.

Thornton, David & Murray and Kathleen M. O'Connor, for appellee.

Before BARKDULL, HENDRY and BASKIN, JJ.

BASKIN, Judge.

On May 5, 1983, Eastern Airlines' Flight # 855 departed from Miami International Airport, bound for Nassau, in the Bahamas. En route to Nassau, one of the airplane's three jet engines failed. Shortly after the flight crew turned the plane around and headed back to Miami, the second and third engines failed. The airplane began losing altitude, and the passengers were told that the crew would ditch the airplane in the Atlantic Ocean. After an extended period, during which the airplane descended without power, the flight crew restarted an engine and landed the airplane safely at Miami International Airport.

Appellant Charles King, and other passengers not parties to this appeal, sued Eastern Airlines for damages allegedly incurred as a result of the airline's intentional or reckless infliction of mental distress, ¹ and for damages arising under the Warsaw Convention. ² The lawsuit was removed to the United States District Court for the Southern District of Florida, but was remanded to the Circuit Court. After remand, King filed an amended complaint alleging, among other matters, that Eastern's maintenance personnel had failed to install the required oil seals or "O-rings" necessary to prevent oil leaks; that Eastern's records reveal that its aircraft had experienced a dozen prior engine failures stemming from the absence of O-rings; that Eastern knowingly failed to institute "appropriate" procedures to correct the problem; and that Eastern's "entire want of care or attention to duty and great indifference to persons, property and rights of the plaintiff implies such wantonness, willfulness, and malice as would justify punitive damages." Because related cases were pending in the United States District Court, the state trial judge stayed King's action.

The related federal actions culminated in the entry of judgments on the pleadings in Eastern's favor based on a determination that the complaints, identical or similar to the one filed by King in the case before us, failed to state a cause of action against Eastern. In Re Eastern Airlines, Inc. Engine Failure, Miami Int'l Airport on May 5, 1983, 629 F.Supp. 307 (S.D.Fla.1986). Citing the federal court ruling, Eastern filed a motion for judgment on the pleadings in King's state court action. The trial court granted the motion, and entered a final judgment in favor of Eastern. King instituted this appeal, in which he contends that Count III of the amended complaint, predicated on intentional infliction of mental distress resulting in severe and permanent mental pain and anguish, medical expenses, and lost earnings, and Count IV, arising under the Warsaw Convention, allege causes of action justifying the recovery of damages. We agree that Count III states a cause of action but hold that Count IV does not. We address the counts in turn.

COUNT III--EASTERN'S ENTIRE WANT OF CARE

In Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla.1985), the supreme court recognized the availability of an independent cause of action for intentional infliction of emotional distress unaccompanied by physical injury or impact. The court adopted the Restatement (Second) of Torts, § 46 (1965):

§ 46. Outrageous Conduct Causing Severe Emotional Distress

(1) One who by extreme and outrageous conduct intentionally or recklessly According to section 46, the tort may result from intentional or reckless conduct. The court defined intentional infliction of emotional distress in accordance with the comments to the text:

causes severe emotional distress to another is subject to liabiilty for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (Emphasis supplied.)

d. Extreme and outrageous conduct

..... 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!"

McCarson, 467 So.2d at 278-79.

King posits that Eastern's conduct was "outrageous." Although he acknowledges that the failure to install an o-ring may constitute merely negligent conduct, in his brief he maintains that the airline's failure to correct its maintenance procedures after it experienced twelve engine failures can be characterized only as "behavior so reckless and outrageous, given the life-threatening nature of the risk involved, that it is the equivalent of an intentional disregard of the safety of the airline's passengers." Whether conduct is so extreme as to permit recovery is initially a question for the court. See note 7. We agree with King that the allegations state a cause of action. ³

King persuades us that Eastern's knowledge of the enormous risk to the many passengers for whom it was responsible under its special relationship as common carrier renders its failure to take appropriate, easily accomplished corrective action so "outrageous" that it constitutes a cause of action under the law. See Dorsey v. Honda Motor Co. Ltd., 655 F.2d 650 (car manufacturer's knowing refusal to accept recommendations for eliminating risks, constituted wantonness, willfulness or reckless indifference to the rights of others), modified, 670 F.2d 21 (5th Cir.1982), cert. denied, 459 U.S. 880, 103 S.Ct. 177, 74 L.Ed.2d 145 (1982); Piper Aircraft Corp. v. Coulter, 426 So.2d 1108 (Fla. 4th DCA) (failure to act in face of known substantial danger to lives of aircraft passengers sufficient to justify punitive damages), review denied, 436 So.2d 100 (Fla.1983); American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981) (manufacturer who is aware of defect but chooses not to seek safer alternative may be awarded punitive damages), review denied, 415 So.2d 1359 (Fla.1982); see also Ciamar Marcy, Inc. v. Monteiro Da Costa, 508 So.2d 1282 (Fla. 3d DCA 1987) (repossession of property without inquiry as to whether payments were made justifies punitive damage award).

King has directed our attention to Florida cases which recognize an action for intentional infliction of emotional distress based on facts far less egregious than those in this case. See, e.g., Smith v. Telophase Nat'l. Cremation Soc'y, 471 So.2d 163 (Fla. 2d DCA 1985) (intentional emotional distress recognized where cremation society failed to dispose of decedent's ashes in accordance with specific instructions); Dominguez v. Equitable Life Assurance Soc'y, 438 So.2d 58 (Fla. 3d DCA 1983) (damages for mental distress held recoverable where insurance company falsely accused injured insured of fabricating claim); Kirkpatrick v. Zitz, 401 So.2d 850 (Fla. 1st DCA) (recovery allowed skunk-bite victim for intentional infliction of emotional distress where pet-store owner withheld information that he sold skunk and that animal was unavailable for rabies test), dismissed Of course, Eastern Airlines cites other authorities in support of affirmance. Chrysler Corp. v. Wolmer, 499 So.2d 823 (Fla.1986); Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882 (Fla.1986); and White Constr. Co., Inc. v. Dupont, 455 So.2d 1026 (Fla.1984), do not persuade us. In Dupont, the supreme court compared intentional misconduct and recklessness. The court held that a driver's knowing operation of a loading truck with malfunctioning brakes did not amount to sufficient recklessness to justify punitive damages. Unlike Eastern Airlines, whose twelve previous engine failures foretold with substantial certainty the risk of injury or death, the truck driver in Dupont had no reason to "realize that there [was] a strong probability that harm [would] result." Restatement (Second) of Torts, § 500, Comment f (1965). ⁴ Wolmer is inapposite; it turns on lack of actual knowledge. Fisher lends no support. It deals with an employer's intentional tort in ordering an employee to work inside a pipe which the employer knew was filled with dangerous gas; the court did not consider whether the conduct constituted recklessness. See note 4. Here, Eastern's alleged history of indifference to its maintenance procedures could, if proved, demonstrate that Eastern's conduct was outrageous.

411 So.2d 385 (Fla.1981); Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA) (debtor has cause of action for intentional infliction of emotional distress where credit company falsely told debtor's mother that grandchildren were in serious auto accident), cert. dismissed, 379 So.2d 204 (Fla.1979) [based on authority of Restatement (Second) of Torts, § 46]; Knowles Animal Hosp., Inc. v. Wills, 360 So.2d 37 (Fla. 3d DCA 1978) (recovery for dog owner's mental suffering allowed where veterinarian left dog on heating pad and dog was severely burned), cert. denied, 368 So.2d 1369 (Fla.1979); Korbin v. Berlin, 177 So.2d 551 (Fla. 3d DCA 1965) (six-year old child may bring action for intentional infliction of emotional distress where adult made allegedly false statements indicating that the child's mother committed adultery) (based on ...