O'Leary v. American Airlines

• Decision Date: 30 April 1984
• Citation: 475 N.Y.S.2d 285,100 A.D.2d 959
• Parties: Anne O'LEARY, etc., Appellant, v. AMERICAN AIRLINES, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 285

475 N.Y.S.2d 285

100 A.D.2d 959

Anne O'LEARY, etc., Appellant, v. AMERICAN AIRLINES, Respondent.

Supreme Court, Appellate Division Second Department.

April 30, 1984.

Lawrence M. Rosenberg and Herbert M. Horowitz, New York City (Seymour Armstrong, New York City, of counsel), for appellant.

Moore, Berson, Lifflander & Mewhinney, Garden City (James A. Gallagher, Jr., Mineola, and Robert A. Faller, New York City, of counsel), for respondent.

Before TITONE, J.P., and BRACKEN, O'CONNOR, WEINSTEIN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries and wrongful death, plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County, dated December 23, 1982, which granted defendant's motion to dismiss the action after the opening statement of plaintiff's counsel at trial, and which granted judgment to defendant.

Order and judgment reversed, on the law, motion to dismiss the action denied, and matter remitted to the Supreme Court, Nassau County, for a new trial, with costs to abide the event.

Plaintiff's decedent allegedly died as the result of injuries sustained while traveling as a passenger aboard defendant American Airlines' flight 573 from LaGuardia Airport in New York City to Detroit, Michigan. According to the amended complaint and bill of particulars, the decedent's death resulted from asphyxiation when he choked on a piece of food while in an intoxicated state. It was alleged that defendant's negligence was the proximate cause of decedent's death, in that defendant, inter alia, permitted him to board the airplane while intoxicated, continued to serve him alcoholic beverages and food, failed to provide adequate emergency medical treatment and failed to comply with existing Federal Aviation Administration regulations pertaining to service of alcoholic beverages in flight.

In its demand for a bill of particulars, defendant requested that plaintiff set forth the specific regulations allegedly giving rise to defendant's liability. In response, plaintiff stated that she would, at the time of trial, ask the court to take judicial notice of all statutes and regulations, including 14 CFR 121.575. Defendant thereafter moved, inter alia, for an order striking any reference to that regulation and precluding introduction of any evidence with respect thereto on the ground that it neither established a separate cause of action nor a standard for defendant's conduct. Special Term (OPPIDO, J.) denied that branch of that motion with leave to renew at the time of trial.

Defendant renewed its motion on the eve of trial, and, on November 22, 1982, Trial Term (ROBBINS, J.) granted it in all respects.

Immediately thereafter, counsel for plaintiff delivered his opening statement to the jury, in which he alleged that defendant was negligent in permitting the decedent to board the plane while intoxicated and in serving food and alcoholic beverages to him on board while he remained in an intoxicated state. At the conclusion of the opening statement, counsel for defendant moved to dismiss the action upon the ground that plaintiff could not, as a matter of law, prove a cause of action for negligence, because defendant owed no duty to refrain from furnishing alcoholic beverages to plaintiff's decedent. Trial Term granted the motion and thereafter granted judgment to defendant. Plaintiff appeals from that judgment.

At the outset, we agree with Trial Term that a breach of the Federal Aviation Administration's regulation did not give rise to an independent private cause of action in this case. The regulation (14 CFR 121.575) provides in pertinent part:

"(a) No person may drink any alcoholic beverage aboard an aircraft unless the certificate holder operating the aircraft has served that beverage to him.

"(b) No certificate holder may serve an alcoholic beverage to any person aboard any of its aircraft who--

"(1) Appears to be intoxicated

* * *

* * *

"(c) No certificate holder may allow any person to board any of its aircraft if that person appears to be intoxicated".

In order for the violation of a statute to create a cause of action for damages plaintiff must be one of the particular of class of persons which the statute was intended to protect (Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26). In Manfredonia v. American Airlines, 68 A.D.2d 131, 416 N.Y.S.2d 286, we held that the instant regulation did give rise to a private cause of action against an airline on behalf of a third party who was assaulted by an intoxicated passenger. However, we do not read the statute (U.S.Code, tit. 49, § 1421), or the regulations promulgated thereunder, as creating a private cause of action on behalf of an intoxicated passenger for injuries sustained to himself. The purpose of the enabling statute is "to promote safety of flight of civil aircraft in air commerce" (U.S.Code, tit. 49, § 1421, subd. [a] ). Viewed in that context, the regulation serves to ensure the safety of the flight and thus of the passengers who might be endangered by the conduct of an intoxicated passenger. However, the regulation does not serve to protect such an intoxicated passenger from his own conduct which poses no discernible risk to the safety of the flight itself or to the safety of the other passengers. Thus, in this case, recognition of a private right of action on behalf of the decedent for breach of the regulation is not consistent with the statutory purpose (Cort v. Ash, supra, 422 U.S. p. 78, 95 S.Ct. p. 2087, see, also, Haley v. Western Airlines, 708 F.2d 400; Rauch v. United Instruments, 548 F.2d 452; Halama v. New Horizons Helicopter Corp., 17 Avi 17,339; Griner v. Dugan, 16 Avi 17,842).

We are also in agreement with Trial Term's conclusion that plaintiff could not introduce evidence of a breach of the regulation for the purpose of proving negligence on the part of defendant airline. Generally, the violation of a regulation constitutes some evidence of negligence, which the jury may consider along with all of the other evidence bearing on the issue (Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 160, 448 N.Y.S.2d 132, 433 N.E.2d 115; Conte v. Large Scale Dev. Corp., 10 N.Y.2d 20, 29, 217 N.Y.S.2d 25, 176 N.E.2d 53). However, this rule is qualified to the extent that the actual injury must have been a consequence against which the regulation was intended to protect (Chester Litho v. Palisades Interstate Park Comm., 33 A.D.2d 202, 205, 305 N.Y.S.2d 682, affd. 27 N.Y.2d 323, 317 N.Y.S.2d 761, 266 N.E.2d 229). We have already noted that the regulation in question is intended "to promote safety of flight" (U.S.Code, tit. 49, § 1421, subd. [a] ) and not to protect individual passengers from the consequences of their own consumption of alcoholic beverages. Stated otherwise, the regulation is intended to protect against interference with the safe operation of the aircraft by an intoxicated person, and also to protect the other occupants of the aircraft from the harmful conduct of an intoxicated person (Manfredonia v. American Airlines, 68 A.D.2d 131, 416 N.Y.S.2d 286, supra); the regulation simply is not intended to protect an individual passenger from choking to death as the result of his own intoxication. Thus, Trial Term properly precluded plaintiff from introducing evidence with respect to the regulation and defendant's alleged breach thereof.

We do not agree with Trial Term, however, that the common-law causes of action for personal injuries and wrongful death should have been dismissed at the conclusion of plaintiff's opening statement. It is well settled that dismissals at that juncture are not favored (Davidson v. Hillcrest Gen. Hosp., 40 A.D.2d 693, 336 N.Y.S.2d 296) and should be granted only where it clearly appears either that (1) the complaint does not state a cause of action, (2) the cause of action is conclusively defeated by an admitted defense, or (3) counsel by admissions or statements of fact has subverted his cause of action (Becker v. David Askin Jr., Inc., 36 A.D.2d 520, 317 N.Y.S.2d 720; Blake v. Judelsohn, 251 App.Div. 559, 560, 296 N.Y.S. 860; see, also, 8 Carmody-Wait 2d, NY Prac, § 59:13). In the case at bar, Trial Term dismissed the complaint upon the ground that, except for commercial dispensers of alcoholic beverages (General Obligations Law, § 11-101), there is no liability upon one who furnishes liquor to a person who thereby becomes intoxicated and in consequence of his intoxication causes injury to himself or to another (Gabrielle v. Craft, 75 A.D.2d 939, 428 N.Y.S.2d 84). However, the defendant in this case is not a private person but a common carrier, which owed a duty to plaintiff's decedent to exercise reasonable care for his safety "in keeping with the dangers and risks known to the carrier or which it should reasonably have anticipated" (see 1 NY PJI 2d, 2:161). Moreover, if a passenger suffers from a disability such as intoxication, there is a further duty on the part of a common carrier "to exercise such additional care or to render such aid for his safety and welfare as is reasonably required by the passenger's disability and the existing circumstances, providing that the carrier's employees know or in the exercise of reasonable care, have reason to know of the passenger's disability" (see 1 NY PJI 2d, 2:162; see 14 Am Jur 2d, Carriers, § 959).

Applying these principles to the instant case, we conclude that Trial Term erred in dismissing the action after plaintiff's opening statement. The amended complaint, as amplified by the bill of particulars and the opening statement, were sufficient to make out the existence of a duty on the part of defendant common carrier as well as a breach thereof. Thus, plaintiff sufficiently stated a cause of action for negligence, and she is entitled to an opportunity to present her proof at trial.

TITONE, J.P., and BRACKEN and NIEHO...