PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES W. SMITH,
Plaintiff-Appellant,

v.
                                                                     No. 96-2451
COMAIR, INCORPORATED; DELTA
AIRLINES, INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-95-1319-R)

Argued: December 5, 1997

Decided: January 15, 1998

Before WILKINSON, Chief Judge, ELLIS,
United States District Judge for the Eastern District of Virginia,
sitting by designation, and MERHIGE,
Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Ellis and Senior Judge Merhige joined.

_________________________________________________________________

COUNSEL

ARGUED: Randy Virlin Cargill, MAGEE, FOSTER, GOLDSTEIN
& SAYERS, Roanoke, Virginia, for Appellant. Robert Stewart Bal-
lou, JOHNSON, AYERS & MATTHEWS, Roanoke, Virginia, for
Appellees.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

James Smith sued Comair, Inc. and Delta Airlines, Inc. for breach
of contract, false imprisonment, and intentional infliction of emo-
tional distress. The district court granted summary judgment in favor
of Comair on the grounds that Smith's claims are preempted by the
Airline Deregulation Act of 1978 (ADA) and, alternatively, that his
intentional tort claims must be dismissed for failure to state a claim.
Smith appeals. We agree that Smith's contract and tort claims are pre-
empted to the extent they complain of Comair's boarding procedures.
Furthermore, to the extent Smith's tort claims rest on allegations dis-
tinct from Comair's refusal to allow him to board, we agree that they
should be dismissed. Accordingly, we affirm the judgment of the dis-
trict court.

I.

Because the instant case comes to us at the summary judgment
stage, we review the evidence in the light most favorable to Smith,
the nonmoving party. Hartsell v. Duplex Prods., Inc., 123 F.3d 766,
768 (4th Cir. 1997). On the morning of October 5, 1995, Smith
boarded a 6:40 a.m. Comair flight in Roanoke, Virginia to travel to
Minneapolis, Minnesota, with a layover in the Cincinnati airport.
Comair representatives did not ask Smith for proof of identification
when he boarded the flight in Roanoke. In Cincinnati, Smith met
some business associates and together they attempted to board the
9:00 a.m. connecting flight to Minneapolis. When Smith began to
board, however, the Comair representative asked him"to step aside."
After complying with this request and watching the rest of the flight's
passengers board, Smith asked why he was not permitted to board. A
Comair representative told Smith that a supervisor would be called.
The supervisor, Mr. Price, arrived approximately thirty minutes after
the Minneapolis flight's departure. According to Smith, Price would

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not explain why Smith could not fly out of the Cincinnati airport.
Meanwhile, Smith also noticed for the first time two security guards
standing approximately fifty and seventy feet away observing him.
Smith testified that these officers watched him throughout the rest of
his stay in the Cincinnati airport.

Three hours later, Price finally told Smith he was denied permis-
sion to board the Minneapolis flight because he did not match the
physical description contained in his Delta frequent-flyer account.
Smith, however, called his company's travel agent and learned that
Delta did not maintain a record of physical descriptions in connection
with frequent-flyer accounts. Smith, therefore, located Price and con-
fronted him with this information. Price continued to insist that the
dissimilar physical description was the reason Smith was not permit-
ted to board.

At approximately 1:00 or 2:00 p.m., Price returned to Smith and
told him the real reason he was refused permission to board was that
the Roanoke Comair representatives had failed to ask for photo identi-
fication, as shown by the absence of pink highlighting on his boarding
pass. At some point, Price explained that the Federal Aviation Admin-
istration ("FAA") required photo identification pursuant to security
regulations. Smith replied that he could not produce his driver's
license because he had left it in the glove compartment of his car,
which was parked at the Roanoke airport. Price then asked Smith
instead for his birth certificate and social security card, neither of
which Smith had at the time. Smith offered to have his physical
description faxed by the Virginia Department of Motor Vehicles
("DMV") or to pay Comair's expenses if they would enter his car,
retrieve his driver's license, and fly it to Cincinnati on the next avail-
able flight. Price refused both options, as DMV could not fax a photo
and entering Smith's car might expose Comair to liability.

Finally, sometime after 3:00 p.m., Price gave Smith a ticket to Roa-
noke and told him Comair would return him there. While waiting to
board the flight, Smith spoke to Price again and stated that he was so
angry he "would like to punch [Price] in the mouth." In response,
Price motioned for the two security guards Smith previously had
observed, one of whom was a Cincinnati police officer. When the two
approached and restrained Smith, Price asked them to remove Smith

                     3
from the terminal. After Smith explained his situation to the guard
and police officer, the officer intervened on Smith's behalf and con-
vinced Price to permit Smith to fly to Roanoke. Smith then returned
to Roanoke.

Smith filed a motion for judgment in the Circuit Court for the City
of Roanoke, alleging breach of contract, false imprisonment, and
intentional infliction of emotional distress. After the case was
removed to the United States District Court for the Western District
of Virginia, the district court granted summary judgment in favor of
Comair. The court found that Smith's claims were preempted by the
ADA and that his tort causes of action failed to state a claim. Smith
now appeals.

II.

The scope of federal preemption under the Airline Deregulation
Act has not been considered in this circuit, so it is appropriate first
to review the statute's preemption provision, the Supreme Court's
decisions interpreting that provision, and federal law concerning the
boarding practices of airlines. The Act provides:

          [A] State, political subdivision of a State, or political author-
          ity of at least 2 states may not enact or enforce a law, regula-
          tion, or other provision having the force and effect of law
          related to a price, route, or service of an air carrier that may
          provide air transportation under this subpart.

49 U.S.C. § 41713(b)(1). The Supreme Court first considered the
scope of preemption under the ADA in Morales v. Trans World Air-
lines, Inc., 504 U.S. 374 (1992). It noted that section 41713(b)(1) was
enacted "[t]o ensure that the States would not undo federal deregula-
tion with regulation of their own." Id. at 378. Focusing on the statu-
tory phrase "relating to" the Court held that"the words thus express
a broad pre-emptive purpose." Id. at 383.* Claims that have "a con-
_________________________________________________________________
*Before recodification in 1994, the preemption clause read, in relevant
part: "[N]o 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 . . . ."
49 U.S.C. App. § 1305(a)(1) (Supp. 1994) (emphasis added).

                     4
nection with, or reference to" an airline's prices, routes, or services
are therefore preempted under the statute. Id. at 384. Specifically, the
Court stated that even general statutes, when particularly applied to
the airline industry, are preempted. Id. at 386. However, state actions
that would affect airline prices, routes, or services "`in too tenuous,
remote, or peripheral a manner'" would not be preempted. Id. at 390
(citation omitted). Applying these principles, the Court held that the
ADA preempted the specific application of general state consumer
protection statutes to airline fare advertising.

The Court next considered the ADA's preemption clause in
American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995). In accord
with Morales, the Court held plaintiffs' claims under the Illinois Con-
sumer Fraud Act were preempted, because such actions served "to
guide and police the marketing practices of the airlines." Wolens, 513
U.S. at 228. However, the Court carved out an exception to ADA pre-
emption for contract claims against airlines such as those involving
frequent-flyer programs, even when related to prices, routes, or ser-
vices. The Court reasoned that such contract actions merely seek to
enforce the parties' "own, self-imposed undertakings." Id. The Court,
however, limited its breach-of-contract exception to actions confined
to the terms of the parties' bargain, "with no enlargement or enhance-
ment based on state laws or policies external to the agreement." Id.
at 233. Thus, when a contract claim cannot be adjudicated without
resort to outside sources of law, the claim is still preempted by the
ADA.

Significantly, when Congress deregulated the airline industry in
1978 by passing the ADA, it retained statutory provisions granting
broad discretion to airlines in making safety-related boarding deci-
sions. See Air Transportation Security Act of 1974, Pub. L. No. 93-
366, § 204, 88 Stat. 409, 418. The current version of that statute pro-
vides, in part: "Permissive refusal.-- Subject to regulations of the
Administrator, an air carrier, intrastate air carrier, or foreign air car-
rier may refuse to transport a passenger or property the carrier decides
is, or might be, inimical to safety." 49 U.S.C.§ 44902(b). Air travel
in modern society presents formidable safety and security concerns
and often passengers with criminal intentions are the source of that
threat. Federal law -- in conjunction with its broad preemption of
state-law claims related to airlines' services -- appropriately grants

                     5
airlines latitude in making decisions necessary to safeguard passen-
gers from potential security threats. Section 44902(b) recognizes air-
lines' boarding practices as a specific area of federal concern.

III.

A.

Smith first contends that the Supreme Court's decision in Wolens
saves his breach-of-contract claim from preemption by the ADA. He
argues that by refusing him permission to board his flight, Comair
breached a general contractual duty to transport him to Minneapolis.
Smith, however, fails to appreciate the effect Comair's federal
defenses have on the preemption question presented in this appeal.
Because Comair invokes defenses provided by federal law, Smith's
contract claim can only be adjudicated by reference to law and poli-
cies external to the parties' bargain and, therefore, is preempted under
the ADA.

Wolens recognized that state contract claims escape preemption
only when courts would be confined to the terms of the parties' agree-
ment. Here Comair invokes federal law in two respects. First, the
company argues it was entitled to prevent Smith from boarding by the
federal statute granting just such discretion for safety-related reasons
-- 49 U.S.C. § 44902(b). Second, Comair argues it had a legal duty
to refuse Smith permission to board under heightened FAA security
directives that became effective the evening before Smith's flight. In
response to those FAA directives, Comair required that ticketed pas-
sengers between the ages of eighteen and sixty present either official
photo identification issued by a government authority or two forms of
identification, one of which had to be issued by a government agency.
See Froendhoff Aff. ¶¶ 4-6. Smith's failure to produce identification
implicated the safety concerns of both the statute and the FAA direc-
tive. Because Smith's contract claim is based upon Comair's refusal
to permit him to board, it directly implicates the airline's discretion
and/or duty under federal law. Accordingly, the contract claim is pre-
empted under the ADA. See O'Carroll v. American Airlines, Inc., 863
F.2d 11, 12-13 (5th Cir. 1989) (relying on prior versions of 49 U.S.C.
§ 44902(b) and § 41713(b)(1) to hold claim alleging wrongful exclu-
sion from flight preempted).

                    6
Furthermore, Comair's preemption argument is distinguishable
from that presented by American Airlines in Wolens. American Air-
lines argued that whether it breached the frequent-flyer contract
depended on resolution of the external policy issue of whether to rec-
ognize American's express reservation of the right to modify the rules
governing its frequent-flyer contracts. 513 U.S. at 233-34. The Court
summarily rejected this argument, explaining that interpretation of the
company's express reservation was merely another issue within the
parties' contractual relationship and therefore not preempted. Id. at
234. Comair's argument is different in one important respect: The
company claims that to determine whether it breached its contract
with Smith, a court must look to federal law, which is clearly external
to the parties' agreement. Because a court adjudicating Smith's con-
tract claim could not confine itself to the terms of the parties' bargain,
Wolens is not controlling.

Finally, Smith's contract claim must be held to be preempted under
the ADA because of its practical effect on federal law in this area. If
passengers could challenge airlines' boarding procedures under gen-
eral contract claims alleging failure to transport, we would allow the
fifty states to regulate an area of unique federal concern -- airlines'
boarding practices. See Hodges v. Delta Airlines, Inc., 44 F.3d 334,
339 (5th Cir. 1995) (en banc) (allowing claims alleging wrongful
exclusions from flights "would result in significant de facto regulation
of the airlines' boarding practices"). Pursuant to 49 U.S.C.
§ 44902(b), airlines must be accorded broad discretion in making
boarding decisions related to safety. Allowing Smith's claim to pro-
ceed would frustrate this important federal objective. Airlines might
hesitate to refuse passage in cases of potential danger for fear of state-
law contract actions claiming refusal to transport. We hold, therefore,
that Smith's specific contract claim is preempted under the ADA.

B.

Smith next contends that his false imprisonment and intentional
infliction of emotional distress claims are not preempted. He admits
that an airline's boarding practices are properly considered a "service"
under section 41713(b)(1) of the ADA, which preempts state laws
"related to a price, route, or service of an air carrier." Smith, however,
argues that tort claims are not preempted if premised upon unreason-

                     7
able conduct that is unnecessary to the provision of a service.
Rombom v. United Air Lines, Inc., 867 F. Supp. 214, 222 (S.D.N.Y.
1994). He characterizes Comair's conduct during his encounter as so
outrageous as to be unrelated to the provision of a service.

To the extent Smith's intentional tort claims are premised on Com-
air's refusal to permit him to board his flight, we believe they are pre-
empted. To determine whether a claim has a connection with, or
reference to an airline's prices, routes, or services, we must look at
the facts underlying the specific claim. Travel All Over The World,
Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996).
Smith's tort claims are based in part upon Comair's refusal of permis-
sion to board. Undoubtedly, boarding procedures are a service ren-
dered by an airline. Hodges, 44 F.3d at 336, 339; Chukwu v. Board
of Dirs. British Airways, 889 F. Supp. 12, 13 (D. Mass. 1995), aff'd
mem., 101 F.3d 106 (1st Cir. 1996). Therefore, to the extent Smith's
claims are based upon Comair's boarding practices, they clearly relate
to an airline service and are preempted under the ADA. Chukwu, 889
F. Supp. at 13-14; Williams v. Express Airlines I, Inc., 825 F. Supp.
831, 833 (W.D. Tenn. 1993).

We agree with Smith that, to the extent his claims are based on
conduct distinct from Comair's determination not to grant permission
to board, his false imprisonment and intentional infliction of emo-
tional distress claims are not preempted. Suits stemming from outra-
geous conduct on the part of an airline toward a passenger will not
be preempted under the ADA if the conduct too tenuously relates or
is unnecessary to an airline's services. Rombom , 867 F. Supp. at 222,
224. If, for example, an airline held a passenger without a safety or
security justification, a claim based on such actions would not relate
to any legitimate service and would not be preempted. See Chrissafis
v. Continental Airlines, Inc., 940 F. Supp. 1292, 1298-99 (N.D. Ill.
1996) (distinguishing false imprisonment claims held preempted
because based on airline's refusal to transport and claims held not
preempted because based on airline causing arrest without proper fac-
tual basis).

To the extent Smith's tort actions are not preempted, we agree with
the district court that he failed to state a claim. Because Virginia fol-
lows a lex loci delicti standard, Jones v. R.S. Jones & Assocs., Inc.,

                     8
431 S.E.2d 33, 34 (Va. 1993), and the incidents underlying Smith's
claims occurred in the Cincinnati airport located in northern Ken-
tucky, his tort claims are governed by Kentucky law.

Smith argues he was falsely imprisoned primarily because Comair
flew him to the Cincinnati airport and stranded him there. These alle-
gations, however, fail to state a claim for this tort. Kentucky defines
false imprisonment as "`[a]ny exercise of force, by which in fact the
other person is deprived of his liberty and compelled to remain where
he does not wish to remain or to go where he does not wish to go.'"
Wal-Mart Stores, Inc. v. Mitchell, 877 S.W.2d 616, 617 (Ky. App.
1994) (quoting Great Atlantic & Pacific Tea Co. v. Smith, 136
S.W.2d 759, 767 (Ky. 1940)). Smith's evidence simply does not show
that he was compelled either to remain or to go anywhere he did not
wish. He conceded that no Comair representative told him that he
must remain in any specific part of the airport or that he was not free
to leave the airport. Price told Smith only that Comair would not per-
mit him to board the flight out of Cincinnati. Smith was therefore free
at all times to leave the airport or leave Cincinnati altogether by any
means he could arrange other than a Comair flight. False imprison-
ment results only if "the restraint be a total one, rather than a mere
obstruction of the right to go where the plaintiff pleases." W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 11, at 47 (5th
ed. 1984). Smith also briefly asserts that restraint by the security offi-
cers constituted false imprisonment. However, even he admits that the
officers grabbed his arms only momentarily and nonforcefully, and
then immediately interceded on his behalf by convincing Price to per-
mit Smith to board a flight back to Roanoke. Smith's evidence thus
fails to support a claim for false imprisonment.

Smith next contends that Price's outrageous behavior-- lying and
rudely failing to assist Smith -- constitutes intentional infliction of
emotional distress. We disagree. The Kentucky Supreme Court, in
adopting Restatement (Second) of Torts § 46 (1965), has stated that
"the conduct must be outrageous and intolerable in that it offends
against the generally accepted standards of decency and morality."
Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990). In
Humana, the Kentucky Supreme Court refused to find conduct it
labeled as "cold, callous, and lacking sensitivity [and] . . . compas-
sion" to meet this requirement. Id. at 4. Price's conduct was unques-

                     9
tionably rude and unprofessional, but it was not so outrageous and
intolerable as to satisfy the high standard set by the Kentucky
Supreme Court. And though Comair has doubtless lost the goodwill
of a customer, it did not commit a tort. Smith "must necessarily be
expected and required to be hardened to a certain amount of rough
language, and to occasional acts that are definitely inconsiderate and
unkind." Restatement (Second) of Torts § 46 cmt. d. The Kentucky
Supreme Court also held in Humana that "the emotional distress must
be severe." 796 S.W.2d at 3. In his deposition, however, Smith con-
ceded that the events of October 5 have had almost no effect on his
life: "[P]ersonally it has not affected me." Because Smith fails to sat-
isfy at least two elements of an intentional infliction of emotional dis-
tress action, we find the district court properly granted summary
judgment in favor of Comair on that claim.

IV.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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