Tallarico v. Trans World Airlines, Inc.

• Decision Date: 08 August 1989
• Docket Number: 88-2486,Nos. 88-2429,s. 88-2429
• Citation: 881 F.2d 566
• Parties: , 58 USLW 2117, 28 Fed. R. Evid. Serv. 337 Thomas M. and Mary C. TALLARICO, and Mary Park Tallarico, by and through her duly appointed next friend Thomas Tallarico, Appellants/Cross-Appellees, v. TRANS WORLD AIRLINES, INC., Appellee/Cross-Appellant, v. M.V. CORPORATION, an Arkansas corporation, d/b/a Dillard's Travel Agency.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 566

881 F.2d 566

108 A.L.R.Fed. 551, 58 USLW 2117, 28

Fed. R. Evid. Serv. 337

Thomas M. and Mary C. TALLARICO, and Mary Park Tallarico, by

and through her duly appointed next friend Thomas

Tallarico, Appellants/Cross-Appellees, v. TRANS WORLD AIRLINES, INC., Appellee/Cross-Appellant, v. M.V. CORPORATION, an Arkansas corporation, d/b/a Dillard's

Travel Agency.

Nos. 88-2429, 88-2486.

United States Court of Appeals Eighth Circuit.

Submitted June 12, 1989.

Decided Aug. 8, 1989.

David B.B. Helfrey, St. Louis, Mo., for appellants/cross-appellees.

Philip L. Willman, St. Louis, Mo., for appellee/cross-appellant.

Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSON, ^* Senior District Judge.

BEAM, Circuit Judge.

The Tallaricos appeal several decisions which the district court made regarding their discrimination action against Trans World Airlines, Inc. (TWA) under the Air Carriers Access Act (ACAA or Act), 49 U.S.C.App. Sec. 1374(c) (Supp. IV 1986). TWA cross-appeals claiming that there is no private cause of action under the ACAA. We affirm in part and reverse in part.

I. Background

Polly Tallarico, who is fourteen years old, has cerebral palsy which impedes her ability to walk and talk. She generally uses a wheelchair, but is able to move about on her own by crawling. Although Polly is able to speak only short words, she is able to hear and understand the spoken word. She communicates by use of a variety of communication devices such as a communication board, a memo writer and a "Minispeak."

On November 25, 1986, the day before the Thanksgiving holiday, Polly arrived at Houston's Hobby Airport intending to fly to St. Louis, Missouri, unaccompanied. When the TWA ticket agent, Richard Wattleton, learned that Polly intended to fly alone he contacted Lynn Prothero, acting TWA station manager, and asked for directions as to how he should handle the situation. Wattleton had learned from the limousine driver assisting Polly that she could not speak or walk. Wattleton relayed this information to Prothero and also informed her that Polly could communicate by use of a communication board. From this information, Prothero determined that Polly would not be allowed to fly unaccompanied and informed Wattleton of her decision. This decision was apparently made on the basis of Prothero's conclusion that Polly could not take care of herself in an emergency and could not exit the plane expeditiously. As a result of this decision, Polly's father had to fly to Houston to accompany Polly to St. Louis.

The Tallaricos brought suit alleging that TWA violated the ACAA by denying Polly the right to board the plane because of her physical handicaps. The jury found for the Tallaricos awarding damages in the amount of $80,000. The district court entered judgment notwithstanding the verdict on the issue of damages reducing the award to $1,350 which is equivalent to the Tallaricos' actual out-of-pocket expenses.

II. Discussion

A. Private cause of action

Logic dictates that we begin with TWA's cross-appeal in which TWA contends that the ACAA does not provide for a private cause of action. The Act states that "[n]o air carrier may discriminate against any otherwise qualified handicapped individual, by reason of such handicap, in the provision of air transportation." 49 U.S.C.App. Sec. 1374(c)(1) (Supp. IV 1986). The ACAA does not expressly provide for a cause of action to enable private citizens to seek a remedy for a violation of the Act. Consequently, we must determine if a private cause of action is implied under the ACAA. Cort v. Ash, 422 U.S. 66 (1975), states that four factors are relevant in making such a determination.

First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted,' that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

Id. at 78 (citations omitted) (emphasis in original).

The district court concluded, using the analysis of Cort v. Ash, that the ACAA does imply a private cause of action. The court determined, first, that "Polly, as a handicapped individual, is a member of the class of persons for whose especial benefit the Air Carrier Access Act was enacted." Tallarico v. Trans World Airlines, Inc., 693 F.Supp. 785, 788 (E.D.Mo.1988). Although the court found "no explicit indication in the legislative history of the Act that Congress intended either to create or to deny implied private rights to enforce the Act," the court stated that it believed "that the circumstances surrounding the enactment of the Act provide[d] an implicit indication that Congress did intend to create a private cause of action for handicapped individuals who are injured when they are discriminated against by air carriers." Id. The court found no "inconsistency with the underlying purposes of the legislative scheme, namely to prevent discrimination against handicapped persons by air carriers, to imply a remedy to handicapped persons for perceived violations of the Act." Id. at 789. And finally the court determined that "discrimination against handicapped persons by air carriers is not an area of law basically the concern of the states." Id.

TWA claims that Polly is not an intended beneficiary of the ACAA because the Act is intended to benefit only "otherwise qualified handicapped individuals." Because we find that Polly is an otherwise qualified handicapped individual, we do not need to decide whether the ACAA was intended to benefit handicapped persons who are not otherwise qualified.

No definition of otherwise qualified handicapped individual is given in the Act. Although the ACAA requires the Secretary of Transportation "to promulgate regulations to ensure nondiscriminatory treatment of qualified handicapped individuals," no regulations were in effect at the time of the incident. S.Rep. No. 99-400, 99th Cong., 2d Sess. 4, reprinted in 1986 U.S.Code Cong. & Admin.News 2328, 2332. However, the legislative history of the Act states that the definition of otherwise qualified handicapped individual is intended to be consistent with the Department of Transportation's definition in 14 C.F.R. Sec. 382.3(c) (1988). Id. at 4, reprinted in 1986 U.S.Code Cong. & Admin.News at 2332. Section 382.3(c) defines a "qualified handicapped person" as a handicapped individual (1) who tenders payment for air transportation, (2) whose carriage will not violate Federal Aviation Administration (FAA) regulations, and (3) who is willing and able to comply with reasonable safety requests of the airline personnel or, if unable to comply, who is accompanied by a responsible adult passenger who can ensure compliance with such a request. 14 C.F.R. Sec. 382.3(c) (1988). An instruction based upon section 382.3(c) was given to the jury which instruction required the jury to find that Polly was an otherwise qualified handicapped individual before it could allow her to recover. Although the jury obviously determined that Polly was an otherwise qualified handicapped individual, the district court stated in its memorandum that had it been the trier of fact, it would have concluded differently.

We agree with the jury's conclusion and hold that Polly is an otherwise qualified handicapped individual within the meaning of the ACAA. The evidence at trial showed that Polly had tendered payment for air transportation, that her carriage would not violate any FAA regulations (in fact she had flown alone before), and that she was capable of complying with the reasonable safety requests of airline personnel. The evidence demonstrated that Polly is able to crawl on her knees or her hands and knees, that she has normal intelligence, and that she is capable of communicating her needs. Polly has a variety of ways of communicating including the use of communication boards which contain the letters of the alphabet and some short phrases; a memo writer, an electronic typewriter-like device; and a "Minispeak," a portable computer with an electronic voice attached. Polly is able to fasten her own seatbelt as well as put on an oxygen mask. In addition, Polly's mother testified that she was confident that Polly could crawl to the bathroom (and, presumably, an exit) on the plane if necessary. From this evidence we conclude, as did the jury, that Polly is an otherwise qualified handicapped individual and, consequently, one of the class for whose especial benefit the ACAA was enacted.

The second factor under Cort v. Ash, is whether there is any indication of legislative intent to create such a remedy or to deny one. As the district court noted, the ACAA was enacted in response to the Supreme Court ruling in United States Dep't of Transp. v. Paralyzed Veterans of America, 477 U.S. 597, 106 S.Ct. 2705, 91 L.Ed.2d 494 (1986) (PVA ), which case held that section 504 of the Rehabilitation Act of 1973 applies only to those commercial airlines receiving direct federal subsidies. S.Rep. No. 99-400 at 1-2, reprinted in 1986 U.S.Code Cong. & Admin.News at 2329. Congress felt that "the practical effect of [PVA was] to leave handicapped air travelers subject to the possibility of discriminatory, inconsistent and unpredictable treatment on the part of air carriers." Id. Consequently, Congress amended the Federal Aviation Act of 1958 to specifically prohibit discrimination against otherwise qualified handicapped individuals. Relying on this portion of the legislative history and the fact that the ACAA is patterned after the Rehabilitation Act of 1973, which Act has been held to...