Pipino v. Delta Air Lines, Inc., CASE NO. 15-80330-CIV-MARRA

• Decision Date: 18 July 2016
• Docket Number: CASE NO. 15-80330-CIV-MARRA
• Citation: 196 F.Supp.3d 1306
• Court: U.S. District Court — Southern District of Florida
• Parties: Judith PIPINO, Plaintiff, v. DELTA AIR LINES, INC., Defendant.

196 F.Supp.3d 1306

Judith PIPINO, Plaintiff,

v.DELTA AIR LINES, INC., Defendant.

CASE NO. 15-80330-CIV-MARRA

United States District Court, S.D. Florida.

Signed July 18, 2016

Thatcher A. Stone, Stone & Woodrow, LLP, Charlottesville, VA, Cyrus Siavash Niakan, Murphy Niakan Zuniga PLLC, Palm Beach Gardens, FL, for Plaintiff.

Carlos A. Garcia, Christopher John Jahr, Robert Chanderline Bauroth, Wicker Smith Tutan O'Hara McCoy Graham & Ford, Fort Lauderdale, FL, for Defendant.

OPINION AND ORDER

KENNETH A. MARRA, United States District Judge

This matter is before the Court on Defendant Delta Air Lines, Inc.'s Motion for Summary Judgment (DE 40). For the following reasons, the motion is granted.

I. Facts¹

On April 29, 2013, Plaintiff Judith Pipino was a ticketed passenger on a Delta Airlines, Inc. ("Delta") flight from Burlington, Vermont to Tampa, Florida, with a change of planes at LaGuardia Airport in New York. (DE 57-1 ¶ 3.) Pipino has a history of panic attacks (and other anxiety disorders) and was having panic attacks several times a week for the past month. (DE 57-1 ¶¶ 4–5.) On the night before her flight, Pipino chipped a tooth, leaving it difficult for her to speak clearly. (DE 57-1 ¶ 9.) Also, on the day of her flight, Pipino had a painful blister on her foot. (DE 57-1 ¶ 8.)

On her flight to LaGuardia, which departed at 5:28 p.m. and landed at 7:00 p.m., Pipino drank one glass of wine. (DE 57-2 ¶ 1.) Her next flight to Tampa was scheduled to depart at 7:40 p.m., but it was delayed until 11:00 p.m. (DE 57-2 ¶ 3.) Between 9:30 p.m. and 10:00 p.m., Pipino went to the Delta Sky Lounge. (DE 57-2 ¶ 4.) There, Pipino drank two Johnnie Walker Black scotches and ate a meal. (DE 57-1 ¶ 15; DE 57-2 ¶ 4.) At around 10:45 p.m., after the bartender told Pipino that her plane was boarding, Pipino returned to the departure gate. (DE 57-1 ¶ 16; DE 57-2 ¶ 6.) Pipino does not remember if she paid for her drinks or tipped the bartender. (DE 57-1 ¶ 17.)

When Pipino arrived at the gate counter to board the plane, she engaged in conversation with an elderly woman next to her. (DE 57-1 ¶ 22.) Pipino then noticed that a Delta agent standing behind the counter was staring at her. (DE 57-1 ¶ 22.) Refering to the Delta agent, Pipino said to the elderly woman, "I don't think she likes me too much."(DE 57-1 ¶ 23.) Pipino spoke "with some difficulty due to her broken tooth." (DE 1 ¶ 14.) Pipino admits that her tooth and foot injuries "made her appear inebriated."² (DE 1 ¶ 33.)

A second Delta agent, Jackie Tse, asked Pipino to step aside, took her to a nearby seat, and told her that she would not be allowed on the flight because she was "severely inebriated." (DE 57-1 ¶¶ 25–26.) Tse smelled alcohol on Pipino, and Pipino admits that it is possible that she smelled of alcohol after drinking three alcoholic beverages. (DE 40-6 at 28:5–15; DE 57-1 ¶ 27.)

After being denied boarding, Pipino felt the symptoms of a panic attack: hyperventilation, heart palpitations, chest pain, trembling, feelings of being detached from surroundings, sweating, dizziness, numbness, hot and cold flashes, and fear of dying or losing control or going crazy. (DE 57-2 ¶ 7.) Pipino was also "grossly insulted" when Tse claimed she was intoxicated. (DE 57-2 ¶ 7.)

Pipino asked Tse for paramedics to be contacted after she was denied boarding, but Pipino is not sure if Tse heard or understood her because she was very upset and could not speak clearly due to her tooth issue. (DE 57-1 ¶ 31.) In any event, Tse did not obtain medical assistance. (DE 57-2 ¶ 8.) According to Pipino, Tse "did nothing other than escort [her] to an area and tell [her] to sit." (DE 57-2 ¶ 8.) Pipino remained in the departure area of the terminal until after midnight, when the airport terminal was closing. (DE 57-1 ¶ 33.) Pipino remained in the departure area because Tse told her to stay there. (DE 40-4 at 161:20–162:9.)

As the airport was closing, a TSA agent told Delta agent Susan Dileo that Pipino was refusing to leave the terminal.³ (DE 57-1 ¶ 34.) Dileo approached Pipino and told her that the terminal was closing and that she needed to leave the terminal.⁴ (DE 57-1 ¶ 35.) At first, Pipino refused.⁵ (DE 57-1 ¶ 36.) Eventually, after further discussion, Pipino agreed to leave the terminal and Dileo helped Pipino with her bags.⁶ (DE 57-1 ¶ 37.) Either while refusing to move from her initial seat or while walking toward the terminal exit with Dileo (the exact timing is immaterial), Pipino told Dileo that she was having a panic attack and requested medical assistance.⁷ (DE 57-1 ¶ 38.)

The radio call sign "Delta Tower" is used for the entity that coordinates medical assistance for Delta passengers.⁸ (DE 57-1 ¶ 39.) Dileo radioed Delta Tower, reported that a passenger was having a panic attack, and requested medical assistance.⁹ (DE 57-1 ¶ 40.) Delta Tower received the message and notified the Port Authority.¹⁰ (DE 57-1 ¶ 41.) Tse heard the radio communications and walked over to assist.¹¹ (DE 57-1 ¶ 42.) When she arrived, Tse asked Pipino if she was okay and waited with Pipino and Dileo for the Port Authority officers to arrive.¹² (DE 57-1 ¶ 43.)

Two Port Authority officers arrived. (DE 57-1 ¶ 44.) The officers' presence made Pipino feel better. (DE 57-1 ¶ 45.) Pipino started to calm down and was able to leave the terminal. (DE 57-1 ¶ 45.) When the Port Authority officers arrived, Pipino did not ask them for the paramedics and only said, "I thought you were the paramedics."¹³ (DE 57-1 ¶ 46.) Officer Patrick White asked Pipino if she wanted medical assistance and Pipino declined, or at least did not respond in the affirmative.¹⁴ (DE 57-1 ¶ 47.) The Port Authority officers then told Delta Agents Tse and Dileo that they would help Pipino and that no additional assistance was required of Tse or Dileo.¹⁵ (DE 57-1 ¶ 48.)

Although Pipino claims to have continued to suffer from "the residual physical symptoms of panic" for several days, (DE 57-2 ¶ 12), she admits that she "did not suffer any physical injury as a result of the incident at LaGuardia."¹⁶ (DE 40-4 at 178:11–18.) Though she did have doctor's visits following the incident, no doctor has ever told Pipino that she suffered any physical injury as a result of the incident at LaGuardia.¹⁷ (DE 40-4 at 178:6–10.) When she visited her doctor a few days later, Pipino did have an elevated blood pressure. (DE 40-4 at 174:24–175:10.)

Almost two years later, Pipino filed a one-count complaint for negligence against Delta. (DE 1.) Pipino alleges that Delta was negligent because it breached its duty of care "by disregarding [her] disabled circumstances, panic attack [sic] and thereby fail[ing] to discern that [she] was injured in her mouth and in her foot, which made her appear inebriated, even though she was not inebriated." (DE 1 ¶ 33.) She also alleged that Delta breached its duty to exercise reasonable care for Pipino's safety "by ignoring [Pipino's] repeated requests for medical assistance in the face of what was obviously a passenger in an abnormal state of emotional distress." (DE 1 ¶ 34.)

II. Legal Standard

The Court may grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It must do so by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). If the burden of persuasion lies with the nonmovant, summary judgment may be granted where the movant either negates an essential element of the nonmovant's claim or demonstrates to the Court that the nonmovant's evidence is insufficient to establish an essential element of that claim. Celotex , 477 U.S. at 331, 106 S.Ct. 2548. Any doubt regarding whether a trial is necessary must be resolved in favor of the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

After the movant meets its burden of production, this burden shifts to the nonmovant. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts or materials in the record...or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The nonmovant's evidence cannot "consist of conclusory allegations or legal conclusions." Avirgan v. Hull , 932 F.2d 1572, 1577 (11th Cir.1991). Where the nonmovant bears the burden of persuasion, it must produce more than a mere scintilla of evidence supporting its position; "there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby , 911 F.2d 1573, 1577 (11th Cir.1990).

III. Discussion

A. Preemption

Delta argues that federal law preempts Pipino's state-law negligence claim to the extent it is based on Delta's refusal to allow Pipino to board the plane. The Supremacy Clause of the Constitution provides that the laws of the United States "shall be the supreme Law of the Land... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Federal law may preempt state law through "conflict preemption," which "arises in two circumstances: when it is impossible to comply with both federal and state law and when state law stands as an obstacle to achieving the objectives of the federal law." Cliff v. Payco Gen. Am. Credits, Inc. , 363 F.3d 1113, 1122 (11th Cir.2004). "Federal regulations have no less pre-emptive effect than federal statute...