Price v. Delta Airlines, Inc., No. 2:97-CV-12.

CourtUnited States District Courts. 2nd Circuit. District of Vermont
Writing for the CourtSessions
Citation5 F.Supp.2d 226
PartiesConstance PRICE, individually, and as Executrix of the Estate of Gregory Price, Plaintiffs, v. DELTA AIRLINES, INC. and Comair, Inc., Defendants.
Decision Date08 May 1998
Docket NumberNo. 2:97-CV-12.
5 F.Supp.2d 226
Constance PRICE, individually, and as Executrix of the Estate of Gregory Price, Plaintiffs,
v.
DELTA AIRLINES, INC. and Comair, Inc., Defendants.
No. 2:97-CV-12.
United States District Court, D. Vermont.
May 8, 1998.

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COPYRIGHT MATERIAL OMITTED

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R. Jeffrey Behm, Sheehey Brue Gray & Furlong, Burlington, VT, for Plaintiff.

Garry Richard Lane, Ransmeier & Spellman, Concord, NH, for Defendants.

OPINION AND ORDER

SESSIONS, District Judge.


In this action brought under the Air Carrier Access Act of 1986, 49 U.S.C. § 41705, Constance Price, on behalf of herself and her son (now deceased) seeks damages as a result of their being removed from a Comair flight owing to an odor emanating from bandaged tumors on Gregory Price's legs. Defendants Delta Airlines, Inc. ("Delta") and Comair, Inc. ("Comair") have moved for summary judgment on all counts of the complaint, arguing that the suit is untimely; that the decision to remove the Prices was based on flight safety or other permissible reasons, and was not discriminatory; that there was no breach of a contract of carriage; that federal law preempts the plaintiffs' state law claims; and that the conduct alleged did not result in compensable damages. For the reasons that follow, the defendants' motion for summary judgment is granted in part and denied in part.

I. Factual Background

A. The Incident

The following facts are essentially undisputed. Constance Price and her adult son Gregory boarded an airplane in Burlington, Vermont on July 26, 1995. Constance Price is a resident of Vermont, and Gregory Price was a resident of Florida. The Prices were bound for Miami, Florida by way of Manchester, New Hampshire and Cincinnati, Ohio, where they were to transfer to a connecting flight for the remainder of their journey.

At the time, Gregory Price was suffering from acquired immune deficiency syndrome ("AIDS") and had contracted Kaposi's sarcoma, a disease in which cancerous cells in the tissues under the skin cause lesions on the skin. The cancer was causing his legs to swell, requiring occasional use of a wheelchair. His lesions had become ulcerated and infected, with fluid draining from them and a foul smell emanating from them that required periodic cleansing to control. As a result he had to keep his legs sealed in highly absorbent dressings, which he would change when they became wet from the draining fluid. Gregory Price died in Vermont four weeks after the events which form the basis for this lawsuit, on August 27, 1995.

Gregory Price was returning to Florida to keep a doctor's appointment. On the day of his departure he was having difficulty walking, and his mother offered to accompany him. She telephoned Delta for a reservation, and at that time requested a wheelchair for Gregory. She made no mention of his illnesses or why he needed a wheelchair.

Gregory Price had purchased his ticket through a travel agency in Florida. The ticket indicated that it was issued by Delta for travel on flight DL3774. Constance Price obtained her ticket just before the flight at the ticket counter in the Burlington airport which handled Delta, Comair and Business Express flights.1 Her ticket was imprinted with the words Delta Airlines and a logo, and was issued for flight DL 3774. Flight DL 3774, originating in Burlington, Vermont, was

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on a Comair Airlines aircraft, however. When the Prices arrived at the departing gate, they were able to tell that the plane they were about to board was a Comair craft.

Gregory Price boarded the plane in Burlington without assistance. The plane was a fifty passenger "regional jet," captained by Kent Dobbins. The first officer was Ken Klassen, and the sole flight attendant was Barbara Hamilton. When the plane arrived in Manchester, about thirty minutes after it left Burlington, the passengers were permitted to leave the aircraft during a 30 to 45 minute layover. Constance Price went into the terminal; Gregory Price remained on board.

While the plane was on the ground in Manchester, the flight attendant reported to the pilots that an odor from one of the passengers was so strong that she felt nauseated, and wasn't sure she could continue on the flight. Both pilot and co-pilot walked through the plane, and both agreed that the smell was sickening. One of the crew members asked the gate agent to walk through the plane and confirm that the smell was as bad as they thought it was. He reported that he too felt nauseated.

The flight crew had determined that the odor emanated from Gregory Price. Captain Dobbins concluded that he would have him removed from the plane. One of the pilots radioed the terminal for a customer service agent to assist them. Vickie Duguay, the Business Express2 manager, came out to speak with the captain, who told her that he had a man on board whose odor was making the flight attendant and the passengers sick, and that the passengers were complaining. According to Duguay, the captain said "he wanted the passenger removed from the aircraft and that he would not fly the aircraft with the passenger on board smelling the way he was." Duguay Depo. at 82.

Duguay contacted Comair's customer service department in Cincinnati, who told her if the captain wouldn't fly the plane unless the man was removed, then the man would have to be taken off the plane. Duguay asked the captain for written documentation, which he provided. The captain then announced to the passengers, who by now had reboarded the plane: "I apologize for the inconvenience, we are going to have to deplane everybody to take care of something on the airplane." Dobbins Depo. at 71.

The Prices had to wait for a wheelchair to arrive, and were the last to leave the plane. With a Business Express employee pushing the chair, the Prices were escorted into the terminal. When the flight was called for reboarding, the individual began taking the wheelchair in the opposite direction from the other passengers. His only response to Constance Price's questions about his actions was that he was just doing his job.

The Prices were taken to Duguay at the ticket counter. Duguay told them that they were being removed from the plane because of the odor.3 Gregory Price explained that he had cancer, and that the wounds on his legs were draining, which caused the odor. Duguay told the Prices that she could not get them on a flight until the next day, and that the airline would put them up in an inexpensive motel and pay for their meals.4 Duguay booked one room for the two of them at a nearby Super 8 motel.

The following morning the Prices returned to the airport, boarded a flight to Cincinnati and continued on to Florida without incident. Gregory Price was able to reschedule his doctor's appointment. Constance Price never discussed the incident with her son because she did not want to upset him, and because shortly thereafter his medical condition worsened significantly.

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Constance Price testified that she felt upset, hurt and humiliated, that the incident was degrading, stressful, emotional, devastating. Gregory Price's doctor testified that Gregory felt very bad and very insulted about the incident.

Constance Price, on behalf of herself and her son, filed suit on January 8, 1997, alleging violations of a federal airline antidiscrimination statute, the Air Carrier Access Act; and state claims of breach of contract, and negligent and intentional infliction of emotional distress. Jurisdiction is based on diversity, federal question and supplemental jurisdiction.

B. The Contract of Carriage

On the face of the Prices' tickets was printed the language "subject to conditions of contract." On the reverse side of their tickets appeared a standard notice that domestic air transportation "is subject to the individual contract terms ... of the transporting air carriers, which are herein incorporated by reference and made part of the contract of carriage," and standard advice to "[p]lease make sure you have received the important legal notices entitled `Conditions of Contract,' [and] `Notice of Incorporated Terms.'"

Comair has incorporated by reference a term requiring that written notice of a claim must be given to Comair within twenty-one days of an incident, and that any legal action must commence within one year.5 Delta has incorporated by reference a term requiring that claims for loss, damage or delay of checked baggage are subject to a twenty-one day notice requirement and a one-year limit on bringing a claim.6 Both airlines have incorporated by reference a disclaimer of liability for delay or failure to perform service. The plaintiffs did not submit written notice of their claims within 21 days, nor did they file suit within one year of this incident.

Constance Price has stated that she did not receive a Notice of Incorporated Terms with her ticket, that while Gregory Price's ticket was in her possession no such notice accompanied it, and that she was unaware from any other source of such a notice or its contents.

II. Legal Standard

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when it affects the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute over a material fact exists when the evidence requires a fact finder to resolve the parties' differing versions of the truth at trial. Id. at 249, 106 S.Ct. 2505 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). "Uncertainty as to the true state of any material fact defeats the motion." Gibson v. American Broadcasting Companies, Inc., 892 F.2d 1128, 1132 (2d Cir.1989).

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6 practice notes
  • Dobyns v. United States, No. 08-700C
    • United States
    • Court of Federal Claims
    • September 16, 2014
    ...v. Titan Corp., 516 F. Supp. 2d 1177, 1195-96 (S.D. Cal. 2007) (same, discussing California law); Price v. Delta Airlines, Inc., 5 F. Supp. 2d 226, 238 (D. Vt. 1998) (same, discussing Vermont law); Huskey v. Nat'l Broad. Co., Inc., 632 F. Supp. 1282, 1292-93 (N.D. Ill. 1986) ("[D]amages wil......
  • Ron v. Airtran Airways, Inc., No. 14–11–01110–CV.
    • United States
    • Court of Appeals of Texas
    • April 23, 2013
    ...summary-judgment arguments for it. Ours is not the first court to arrive at a result such as this. See Price v. Delta Airlines, Inc., 5 F.Supp.2d 226, 232 (D.Vt.1998) (“[W]hether or not notice was provided to the Prices is a material fact in dispute, precluding summary judgment.... If notic......
  • Ron v. Airtran Airways, Inc., NO. 14-11-01110-CV
    • United States
    • Court of Appeals of Texas
    • March 12, 2013
    ...summary-judgment arguments for it. Ours is not the first court to arrive at a result such as this. See Price v. Delta Airlines, Inc., 5 F. Supp. 2d 226, 232 (D. Vt. 1998) ("[W]hether or not notice was provided to the Prices is a material fact in dispute, precluding summary judgment . . . . ......
  • Rousseau v. Coates, Case No. 2:18-cv-205
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 18, 2020
    ...§ 346 (1981) ).With respect to the availability of damages for emotional harm, this Court recognized in Price v. Delta Airlines, Inc. , 5 F. Supp. 2d 226, 238 (D. Vt. 1998) that "[a]lthough recovery for emotional disturbance is ordinarily not allowed, an exception may be made if the nature ......
  • Request a trial to view additional results
6 cases
  • Dobyns v. United States, No. 08-700C
    • United States
    • Court of Federal Claims
    • September 16, 2014
    ...v. Titan Corp., 516 F. Supp. 2d 1177, 1195-96 (S.D. Cal. 2007) (same, discussing California law); Price v. Delta Airlines, Inc., 5 F. Supp. 2d 226, 238 (D. Vt. 1998) (same, discussing Vermont law); Huskey v. Nat'l Broad. Co., Inc., 632 F. Supp. 1282, 1292-93 (N.D. Ill. 1986) ("[D]amages wil......
  • Ron v. Airtran Airways, Inc., No. 14–11–01110–CV.
    • United States
    • Court of Appeals of Texas
    • April 23, 2013
    ...summary-judgment arguments for it. Ours is not the first court to arrive at a result such as this. See Price v. Delta Airlines, Inc., 5 F.Supp.2d 226, 232 (D.Vt.1998) (“[W]hether or not notice was provided to the Prices is a material fact in dispute, precluding summary judgment.... If notic......
  • Ron v. Airtran Airways, Inc., NO. 14-11-01110-CV
    • United States
    • Court of Appeals of Texas
    • March 12, 2013
    ...summary-judgment arguments for it. Ours is not the first court to arrive at a result such as this. See Price v. Delta Airlines, Inc., 5 F. Supp. 2d 226, 232 (D. Vt. 1998) ("[W]hether or not notice was provided to the Prices is a material fact in dispute, precluding summary judgment . . . . ......
  • Rousseau v. Coates, Case No. 2:18-cv-205
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 18, 2020
    ...§ 346 (1981) ).With respect to the availability of damages for emotional harm, this Court recognized in Price v. Delta Airlines, Inc. , 5 F. Supp. 2d 226, 238 (D. Vt. 1998) that "[a]lthough recovery for emotional disturbance is ordinarily not allowed, an exception may be made if the nature ......
  • Request a trial to view additional results

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