Morris v. Northwest Airlines, Inc.

• Decision Date: 13 October 1989
• Docket Number: Civ. A. No. 89-CV-70326-DT.
• Citation: Morris v. Northwest Airlines, Inc., 737 F.Supp. 422 (W.D. Mich. 1989)
• Parties: David Charles MORRIS, as the Personal Representative of the Estate of Suzanne Prassinos Morris, Deceased, Plaintiff, v. NORTHWEST AIRLINES, INC., a Delaware corporation; and McDonnell Douglas Corporation, a Maryland corporation, Defendants.
• Court: U.S. District Court — Western District of Michigan

737 F. Supp. 422

David Charles MORRIS, as the Personal Representative of the Estate of Suzanne Prassinos Morris, Deceased, Plaintiff, v. NORTHWEST AIRLINES, INC., a Delaware corporation; and McDonnell Douglas Corporation, a Maryland corporation, Defendants.

Civ. A. No. 89-CV-70326-DT.

United States District Court, E.D. Michigan, S.D.

October 13, 1989.

Charles Brewer, Phoenix, Ariz., Stanley Chesley, Cincinnati, Ohio, Lee Kreindler, New York City, Gerald Lear and Thomas Meehan, Washington, D.C., and Richard Schaden, Birmingham, Mich., for Plaintiffs' Steering Committee.

Carroll E. Dubuc, Laxalt, Washington, Perito and Dubuc, Washington, D.C., for defendant Northwest Airlines.

John J. Hennelly, Bryan, Cave, McPheeters & McRoberts, Los Angeles, Cal., and Donald E. Shely, Dykema Gossett, Detroit, Mich., for defendant McDonnell Douglas.

ORDER

JULIAN ABELE COOK, Jr., Chief Judge.

Plaintiff, David Charles Morris,¹ filed the current motion, asking this Court to invalidate the provisions of Suzanne Morris' travel ticket to the extent that it exonerates Northwest from liability for any ordinary negligence for her death.² Each of the Defendants oppose his motion. For the following reasons, Morris' motion must be denied.

I

In their initial opposition papers, the Defendants generally asserted that Morris' motion, at best, was procedurally premature, in that Practice and Procedure Order Number 2 had precluded the parties from conducting full discovery on this issue and, therefore, his application for relief should be rejected for reasons of timeliness. The Court was not persuaded by these arguments but, on June 23, 1989, issued an order which provided:

Although Morris' application for dispositive relief is not premature, this Court will not require Northwest or MDC to file a response to the instant motion until July 28, 1989. An obligation to file a response within the requisite ten (10) day period as mandated by Local Rule 17(g) would unduly strain the resources of all parties under the circumstances of this case.

Order, at 3 (E.D.Mich. June 23, 1989). Accordingly, on July 28, 1989, Northwest and MDC filed their respective substantive responses to the pending motion.³ Thereafter, the Plaintiff filed a Second Reply Brief, entitled "Refinement of Issues now before the Court."

II

It is not contested that Suzanne Morris was a domestic flight passenger on August 16, 1987. At the time of the accident, she was traveling on an Employee Easy-Write Travel Pass (Travel Pass), which contained the following language:

The holder agrees to assume all risk of accident and loss of every character, including personal injury, death and loss or damage to property and agrees that Northwest Airlines, Inc. shall not be liable for any such loss, damage, injury or death, whether caused by negligence of Northwest Airlines, Inc. or its agents or otherwise.

See Declaration of Paul H. Dinger, P. 6, Exhibit A.

In his motion, the Plaintiff asks this Court to declare that the "exculpatory clause of the ... Travel Pass ... is legally defective and void as a matter of ... federal and state law." Plaintiff's Second Rely Brief at 15. As such, he seeks declaratory relief under 28 U.S.C. Section 2201 which provides that a court "may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." Such a request may be properly brought under Fed.R.Civ.P. 56(a).

III

Plaintiff asserts that federal law preempts any potentially conflicting state law in this area by virtue of the Supremacy Clause of the Constitution.

In analyzing this contention, the Court notes that there are a plethora of cases which report that "free passes issued by interstate carriers and the conditions attached thereto are governed by federal law, not state law." Thompson v. National Railroad Passenger Corporation, 621 F.2d 814, 819-20 (6th Cir.1980), cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980); See Francis v. Southern Pacific Co., 333 U.S. 445, 449-50, 68 S.Ct. 611, 613-14, 92 L.Ed. 798 (1947); Kansas City Southern R. Co. v. Van Zant, 260 U.S. 459, 468, 43 S.Ct. 176, 177, 67 L.Ed. 348 (1923); Charleston & Western Caroline R. v. Thompson, 234 U.S. 576, 578, 34 S.Ct. 964, 965, 58 L.Ed. 1476 (1914); Uhlik v. Penn Central Railroad Co., 459 F.2d 460, 461 (6th Cir.1972). This principle was originally applied in the area of railroad employee passes, but was subsequently extended to airline employee passes in Braughton v. United Air Lines, Inc., 189 F.Supp. 137, 141 (W.D.Mo.1960). See also, Sims v. Northwest Airlines, Inc., 269 F.Supp. 272, 273 (S.D.Fla.1967).

MDC is the only party who asserts that federal preemption is inappropriate. MDC, citing Braughton, supra, acknowledges the existence of the reported cases which support federal preemption but argues that these findings of federal preemption were based upon the Civil Aeronautics Act which was a comprehensive effort by Congress to regulate the airlines. MDC posits that since the federal deregulation of the airline industry, the basis for federal preemption no longer exists and the applicable state law — not the federal law — must be the source for an evaluation of Morris' motion.

The Court is not persuaded that federal deregulation has had any legal effect upon the application of the federal common law to a dispute such as the present one. It should be noted that, despite a significant deregulation of the airline industry, an express statutory preemption continues to be embodied in 49 U.S.C.App. § 1305(a)(1). This statute, which was enacted during the same year as the federal deregulation of the airline industry, and amended as recently as 1984, provides:

No State or political subdivision thereof and no interstate agency or other political agency of two or more States 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 under subchapter IV of this chapter to provide air transportation.

49 U.S.C.App. Section 1305(a)(1). Thus, Congress obviously considered the issue of federal preemption as recently as five years ago and determined that it was still viable legislation. See, Hughes Air Corp. v. Public Utilities Commission, 644 F.2d 1334 (9th Cir.1981). Hence, MDC's argument on this issue must be rejected.

IV

Applying the federal common law to the facts in the present controversy, the Court finds that the exculpatory language within the Decedent's travel pass is valid as a matter of law. In Thompson, supra, the plaintiff, an employee of the owner of the railroad track, was injured while traveling as a passenger in a railroad car on an employee pass that had been issued by the defendant corporation. In a subsequently filed lawsuit, the plaintiff's claim for damages was resisted by the defendant who produced a release of liability clause within the employee pass. Thus, according to the defendant, precluded any recovery of compensatory damages. The trial court disagreed. On appeal, the Court of Appeals for the Sixth Circuit, acknowledged and reaffirmed the long standing federal common law that "a provision in a gratuitiously issued pass which released the railroad from liability due to negligence was valid." Thompson, 621 F.2d at 820. Thereafter, it concluded that "if an employee is traveling on a free pass, the Court will give effect to any release of liability provision contained therein. However, if there is consideration for the pass, the release of liability provision is not valid." Id.

In Northern Pacific Railroad Co. v. Adams, 192 U.S. 440, 453, 24 S.Ct. 408, 411, 48 L.Ed. 513 (1904), quoted with approval in Francis v. Southern Pacific Co., 333 U.S. at 448 n. 2, 68 S.Ct. at 612 n. 2, the Court wrote:

The railway company was not, as to Adams, a carrier for hire. It waived its right as a common carrier to exact compensation. It offered him the privilege of riding in its coaches without charge if he would assume the risk of negligence. He was not in the power of the company and obliged to accept it. They stood on equal footing. If he had a desire to hold it to its common law obligations to him as a passenger, he could have paid his fare.... It was a contract which neither party was bound to enter into, and yet one which each was at liberty to make, and no public policy was violated thereby.

See also, Kansas City Southern Railway Co. v. Van Zant, 260 U.S. 459, 469, 43 S.Ct. 176, 177, 67 L.Ed. 348 (1922).

Thus, the basis for upholding these exculpatory clauses, despite the apparent violation of public policy, is that these passes are gratuitous and inure to the benefit of the employee. Therefore, an employee who travels on such a pass is a "gratuitous licensee and as such the duty owed her by the airline was not to willfully or wantonly injure her." Sims v. Northwest Airlines, Inc., 269 F.Supp. at 273.

In the matter that is now before this Court, the Plaintiff argues that, based upon the erosion of the invitee/licensee distinction along with the airline deregulation policies and the tariff system which has been imposed thereunder, this Court should not adopt the Sims principle.

Existing Supreme Court and Sixth Circuit precedent, as previously cited, hold that exculpatory clauses within employee passes are valid as long as there is no consideration for the pass. Accordingly, this Court declines to ignore forty years of precedent and, hence, it will not invalidate the exculpatory clause, as requested.

V

Plaintiff also asserts that deregulation has eliminated any need for the tariff system. Under the regulation by the federal government, there were limited situations in which an airline could fly a person for less than the published fare. One such situation was the ability of air carriers to provide free passes to their employees. See, 49 U.S.C.App. § 1373(b)(2), repealed by, 49...