[Cite as Keller v. Dundon, 2013-Ohio-2727.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


EVELYN KELLER                                 :     JUDGES:
                                              :     Hon. William B. Hoffman, P.J.
   Plaintiff - Appellant                      :     Hon. John W. Wise, J.
                                              :     Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
MAUREEN DUNDON, ET AL                         :     Case No. 12-CA-73
                                              :
   Defendant - Appellees                      :     OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Licking County
                                                    Court of Common Pleas, Case No.
                                                    11-CV-0891TMM



JUDGMENT:                                           REVERSED & REMANDED




DATE OF JUDGMENT:                                   June 20, 2013




APPEARANCES:

For Plaintiff-Appellant                             For Defendants-Appellees

JOHN K. KELLER                                      MICHAEL E. BUCKLEY
52 East Gay Street                                  6037 Frantz Road, Suite 107
P. O. Box 1008                                      Dublin, OH 43017
Columbus, OH 43216-1008
                                                    STEVEN L. BOLDT
                                                    20 South Clark Street Suite 2500
                                                    Chicago, IL 60603
Licking County, Case No. 12-CA-73                                                       2

Delaney, J.

       {¶1} Plaintiff-Appellant Evelyn Keller appeals the October 3, 2011 and August

28, 2012 judgment entries of the Licking County Court of Common Pleas dismissing her

complaint.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On July 5, 2011, Keller filed a complaint against Defendants-Appellees

Maureen Dundon, Chautauqua Airlines, Inc, and Republic Airlines, Inc. in the Licking

County Court of Common Pleas. In her complaint, Keller brought the following claims:

(1) negligence against Dundon; (2) respondeat superior liability against Chautauqua

Airlines and Republic Airlines; (3) negligent training, supervision, and review against

Chautauqua Airlines and Republic Airlines; (4) breach of contract against Chautauqua

Airlines and Republic Airlines; (5) violation of the Air Carrier Access Act against

Dundon, Chautauqua Airlines, and Republic Airlines; and (6) punitive damages against

Dundon, Chautauqua Airlines, and Republic Airlines.            The complaint alleges the

following facts.

       {¶3} On November 13, 2010, Keller flew on Continental Express Flight 5909

from Houston, Texas to Columbus, Ohio. Keller suffers from a physical disability that

requires her right leg to be able to be both flexed and extended when she is in a

continual seated position. To accommodate her physical disability on the flight from

Texas to Ohio, Keller booked and received, in advance, confirmation of a seat

assignment for an aisle seat on the right side of the aircraft, specifically seat 4B.

       {¶4} Keller was provided a boarding pass that assigned her seat 4B as her

confirmed seat. When Keller boarded Flight 5909, another passenger was seated in
Licking County, Case No. 12-CA-73                                                         3


seat 4B. The passenger informed Keller that the flight attendant, Defendant-Appellee

Maureen Dundon, gave the passenger seat 4B so that the passenger could sit next to

her relative.

       {¶5} Keller informed Dundon that she had a physical disability that required her

to sit in seat 4B. Keller stated she needed to sit in an aisle seat on the right side of the

aircraft so she could flex and straighten her right leg.     In response, Dundon stated,

“Just my luck, I give away one seat and it belongs to a handicapped.” Dundon directed

Keller to a seat in the front row of the plane, immediately behind the bulkhead. Keller

told Dundon she could not sit in the seat behind the bulkhead because Keller could not

fully stretch her leg. Dundon directed Keller to sit in the bulkhead seat.

       {¶6} Keller sat in the bulkhead seat, which prevented Keller from stretching and

flexing her right leg during the flight. The lack of movement caused injury and pain in

her right leg and right hip, also causing Keller to suffer emotional distress. Airport

employees physically assisted Keller off the plane upon landing. Keller sought medical

attention directly after the flight.

       {¶7} Prior to filing an answer to the complaint, Dundon, Chautauqua Airlines,

and Republic Airlines filed a joint motion to dismiss on August 3, 2011. Keller filed a

response and Appellees filed a reply. In their motion to dismiss, Appellees argued

Keller’s claims were preempted by federal law pursuant to the Airline Deregulation Act

of 1978. On October 3, 2011, the trial court issued its judgment entry that granted

Appellees’ motion to dismiss in part. The trial court found Keller’s claims for negligence

were preempted by the Airline Deregulation Act. The trial court dismissed counts one,
Licking County, Case No. 12-CA-73                                                         4


two, three, five, and six of Keller’s complaint. The trial court denied Appellees’ motion to

dismiss as to Keller’s claim for breach of contract.

       {¶8} On February 29, 2012, Chautauqua Airlines and Republic Airlines filed a

motion for summary judgment on the breach of contract claim. Keller filed a response

and Appellees filed a reply. The trial court granted the motion for summary judgment on

August 28, 2012, disposing of Keller’s sole remaining claim.

       {¶9} It is from these judgments Keller now appeals.

                              ASSIGNMENTS OF ERROR

       {¶10} Keller raises five Assignments of Error:

       {¶11} “I. THE COURT ERRED BY DISMISSING PLAINTIFF-APPELLANT'S

TORT CLAIMS AGAINST THE AIRLINES, ON THE BASIS THAT FEDERAL LAW

WHICH PREEMPTS STATE CONTROL OVER AIRLINES "OPERATION" APPLIES TO

A SITUATION WHERE A FLIGHT ATTENDANT KNOWINGLY RESEATED A

DISABLED PASSENGER INTO A SEAT WHICH DID NOT ACCOMMODATE HER

DISABILITIES FOR NON-OPERATIONS REASONS.

       {¶12} “II. THE COURT ERRED BY DISMISSING PLAINTIFF-APPELLANT'S

TORT CLAIMS AGAINST THE FLIGHT ATTENDANT WITHOUT CONSIDERATION

OF WHETHER THE FLIGHT ATTENDANT'S ACTIONS IN KNOWINGLY SEATING A

DISABLED PASSENGER INTO A SEAT WHICH DID NOT ACCOMMODATE HER

DISABILITIES WERE, OR WERE NOT, IN COMPLIANCE WITH THE FLIGHT

ATTENDANT'S EMPLOYER'S WORK RULES AND POLICIES AND THUS WHETHER

THE FLIGHT ATTENDANT WAS ACTING WITHIN THE SCOPE OF HER

EMPLOYMENT.
Licking County, Case No. 12-CA-73                                                   5


      {¶13} “III. THE COURT ERRED BY DETERMINING THAT AS A MATTER OF

LAW THE ACTIONS OF DEFENDANTS-APPELLEES COULD NOT BE CONSIDERED

OUTRAGEOUS.

      {¶14} “IV. THE COURT ERRED BY DETERMINING THAT THE ISSUE OF

WHETHER THE ACTIONS OF DEFENDANTS-APPELLEES WERE OUTRAGEOUS

WAS NOT AN ISSUE OF FACT FOR DETERMINATION BY A JURY.

      {¶15} “V. THE COURT ERRED BY GRANTING SUMMARY JUDGMENT IN

FAVOR      OF     DEFENDANTS-APPELLEES                ON    THE   CONTRACT    ISSUE,

NOTWITHSTANDING THAT THE APPLICABLE CONTRACT WAS EXPRESSLY

SUBJECT TO FEDERAL LAWS AND RULES, AND THOSE LAWS AND RULES

REQUIRE AN AIRLINE TO REASONABLY ACCOMMODATE THE SEATING NEEDS

OF A PASSENGER WITH DISABILITIES.”

                                      ANALYSIS

                                   I., II., III., and IV.

      {¶16} We consider Keller’s first, second, third, and fourth Assignments of Error

together because they raise a similar question as to whether the trial court erred in

granting Appellees’ motion to dismiss because the Airline Deregulation Act preempted

Keller’s negligence claims.

      {¶17} The standard of review on a Civil Rule 12(B)(6) motion to dismiss is de

novo. Greely v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d

981 (1990).     In a de novo analysis, we must accept all factual allegations of the

complaint as true and all reasonable inferences must be drawn in favor of the

nonmoving party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).
Licking County, Case No. 12-CA-73                                                       6


       {¶18} The basis of Keller’s claims against Dundon, Chautauqua Airlines, and

Republic Airlines arise from Dundon’s alleged negligent actions towards Keller. Keller’s

complaint states as to Dundon’s negligence:

       39. Dundon negligently required Plaintiff to sit in a seat unfit for her

       medical needs and physical disability, causing physical injury to Plaintiff’s

       knee and hip.

       40. Dundon failed to provide Plaintiff with seat 4B, which Plaintiff

       scheduled in advance of Flight 3909 [sic], and paid for, to accommodate

       her physical disability.

       41. Dundon was told of Plaintiff’s physical disability and, as an employee

       of a common carrier, owed Plaintiff a heightened degree of care.

       42. As a direct and proximate result of Dundon’s negligence, Plaintiff

       sustained significant damages and personal injuries, * * *.

       {¶19} In Appellees’ joint motion to dismiss, Appellees argued Keller’s claims

were preempted under the Airline Deregulation Act of 1978 (“ADA”), now known as the

Federal Aviation Authority Authorization Act (1994). From 1958 to 1978, the Federal

Aviation Act permitted passengers to pursue common law or state statutory remedies

against airlines. In 1978, the Federal Aviation Act was amended by the ADA. The

relevant version of the ADA provides in relevant part:

       (b) Preemption

       (1) Except as provided in this subsection, a State, political subdivision of a

       State, or political authority of at least 2 States may not enact or enforce a

       law, regulation, or other provision having the force and effect of law
Licking County, Case No. 12-CA-73                                                       7


       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).

       {¶20} Congress, however, left in place the “savings clause” that provides that

“[a] remedy under this part is in addition to any other remedies provided by law.” 49

U.S.C. 40120(c).

       {¶21} We note that tort law traditionally has been regulated by the states,

particularly claims for personal injuries.

       {¶22} The first issue is whether Keller’s negligence claims relate to a “price,

route, or service of an air carrier” Appellees argue Keller’s claims involve the provision

of a service because they are directly related to Appellees’ boarding/seating policies

and procedures, specifically seating assignments on Flight 5909.

       {¶23} There is no definition within the federal statute as to the meaning of

“relating to * * * service.” “The United States Supreme Court has acknowledged that the

statute was meant to bar state actions ‘having a connection with or reference to airline *

* * services.’” Peterson v. Continental Airlines, Inc., 970 F.Supp. 246 (S.D.N.Y.1997)

quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 119

L.E.2d 157 (1992). “However, the Court has cautioned against finding preemption in

cases where the state law’s impact on an air carrier’s services is ‘tenuous, remote, or

peripheral.” Id. Although the Supreme Court has interpreted the reach of the ADA’s

preemption provision in three cases, it has not expressly ruled on whether state tort

actions are within the provision’s preemptive scope. Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (states prohibited from
Licking County, Case No. 12-CA-73                                                      8


enforcing airline fare advertising guidelines adopted by the National Association of

Attorneys General (NAAG) through their existing general consumer protection laws);

American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995)

(state consumer fraud claims involving frequent flyer program preempted because they

serve to guide and police marketing practices of airlines and thus impose state

substantive standards with respect to rates, routes or services. Common law contract

claims were not preempted because they merely involve an airline’s own agreements);

and Rowe v. New Hampshire Motor Transport Ass’n, 552 U.S. 364, 128 S.Ct. 989, 169

L.Ed.2d 933 (2008) (state tobacco law regulating the delivery of tobacco within the state

preempted by the ADA because it directly regulated airline and trucking services).

      {¶24} Keller asks this Court to consider a three-part test utilized by the United

States District Court in Rombom v. United Air Lines, Inc., 867 F.Supp. 214, 221,

(S.D.N.Y.1994) to determine whether preemption is warranted under the ADA. The

threshold inquiry in deciding whether state claims against an airline are preempted by

Section 41713 is whether the activity at issue is an airline service. Id. If the court

determines the activity is not an airline service for Section 41713 purposes, then the

preemption inquiry ceases and the state law claims are actionable. Id. at 222. If,

however, the activity at issue implicates an airline service, then the court must address

the second prong: Whether plaintiff’s claims affect the airline service directly as

opposed to “tenuously, remotely, or peripherally.” Id.   If the state claims have only an

incidental effect on the airline service, there is no preemption. The third prong of the

preemption inquiry focuses on whether the underlying tortious conduct was reasonably

necessary to the provision of the service. Id. In other words, Section 41713 “cannot be
Licking County, Case No. 12-CA-73                                                        9


construed in a way that insulates air carriers from liability for injuries caused by

outrageous conduct that goes beyond the scope of normal aircraft operations.” Id. at

222. If, in contrast, the service was provided in a reasonable manner, then preemption

is appropriate.

       {¶25} The three-part Rombom test has been adopted by the United States

District Court for the Eastern District of Michigan in Hammond v. Northwest Airlines, No.

09-12331, 2009 WL 4166361 (Nov. 25, 2009). The Ohio Tenth District Court of Appeals

also engaged in a similar analysis in White v. America West Airlines, Inc., 152 Ohio

App.3d 14, 2003-Ohio-1182. See also, Restivo v. Continental Airlines, Inc., 192 Ohio

App.3d 64, 2011-Ohio-219, 947 N.E.2d 1287 (8th Dist.) (claims alleging violation of

Ohio’s Gift Card Statute and Ohio Consumer Sales Practices Act were preempted by

the ADA).

       {¶26} In White v. America West Airlines, Inc., the plaintiffs brought a cause of

action for defamation against the pilot and crew of a flight from which the plaintiffs were

removed.    After the plaintiffs’ removal from the flight, the captain addressed the

passengers and apologized for the disturbance. Plaintiffs argued the announcement

was defamatory, entitling them to damages. White, 2003-Ohio-1182, ¶ 10. The Tenth

District Court of Appeals analyzed the issue of service and the tort claim and concluded,

“[d]espite our best efforts to do so, we have been unable to conceive of any situation

where a defamatory statement is a ‘service’ of an airline.” Id. at ¶ 18.

       {¶27} We will engage in the Rombom analysis to determine whether Keller’s

claim is preempted by Section 41713. The activity at issue, the flight attendant

managing the seating assignments during the boarding of the flight, would constitute an
Licking County, Case No. 12-CA-73                                                          10


airline service based on the underlying facts of this case. “A flight crew’s conduct during

the boarding stage of a flight, specifically, flight attendants’ efforts to locate appropriate

seat assignments and resolve seat conflicts, constitutes an airline service within the

meaning of Section 41713.” Peterson v. Continental Airlines, Inc., 970 F. Supp. 246,

250 (S.D.N.Y. 1997).

       {¶28} The next prong asks whether Keller’s personal injury claims affect the

airline service directly, as opposed to “tenuously, remotely, or peripherally.” See Rowe,

supra, at 375. Keller claims that Dundon sat a passenger traveling with a relative in

Keller’s confirmed seat. Keller states that by not honoring her confirmed aisle seat and

placing her in a bulkhead seat, she suffered a physical injury and emotional distress.

We conclude under the second Rombom prong, Keller’s claims against the airline have

a tenuous, remote, or peripheral impact on the delivery of services by the airlines;

therefore, preemption is not warranted.       We find such a negligence suit would not

impede free market competition of air carriers or frustrate deregulation by interfering

with matters about which airlines compete. Here, a disabled passenger was allegedly

injured by the negligent acts of Dundon. Allowing Keller’s claims to proceed would not,

in this Court’s opinion, have a direct or indirect effect on airline competition or frustrate

Congress’s purpose in deregulation. To preempt such personal injury claims would also

have the effect of immunizing Appellees from the consequences of their own

negligence.

       {¶29} The third prong analyzes whether Appellees provided the airline service in

a reasonable manner; i.e., whether the underlying tortious conduct was reasonably

necessary to the provision of the service. Even assuming that Keller’s claims directly
Licking County, Case No. 12-CA-73                                                          11


implicate an airline service, Appellees’ preemption argument also fails under the third

prong because Keller’s version of the facts raises the issue of whether Appellees acted

reasonably and/or went beyond the scope of normal aircraft boarding procedures.

       {¶30} Based on our de novo review, the trial court erred in granting Appellees’

joint motion to dismiss Keller’s common law tort claims based on preemption under 49

U.S.C. 41713(b)(1). Further, because the Keller’s common law tort claims are viable, it

was incorrect for the trial court to dismiss Keller’s punitive damages claims.

       {¶31} Keller’s first, second, third, and fourth Assignments of Error are sustained.

                                             V.

       {¶32} In Keller’s fifth Assignment of Error, she argues the trial court erred in

granting summary judgment on her breach of contract claim against Appellees

Chautauqua Airlines and Republic Airlines. We agree.

       {¶33} The standard for granting summary judgment is delineated in Dresher v.

Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996): “ * * * a party seeking summary

judgment, on the ground that the nonmoving party cannot prove its case, bears the

initial burden of informing the trial court of the basis for the motion, and identifying those

portions of the record that demonstrate the absence of a genuine issue of material fact

on the essential element(s) of the nonmoving party's claims. The moving party cannot

discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving party must be

able to specifically point to some evidence of the type listed in Civ.R. 56(C) which

affirmatively demonstrates the nonmoving party has no evidence to support the

nonmoving party's claims. * * *”
Licking County, Case No. 12-CA-73                                                       12


       {¶34} Appellees’ joint motion for summary judgment was based on Continental’s

Contract of Carriage. It states:

       Transportation of Passengers and Baggage provided by Continental

       Airlines, Inc., Continental Micronesia, Inc. and Carriers doing business as

       Continental Express or Continental Connection, are subject to the

       following terms and conditions, in addition to any terms and conditions

       printed on or in any ticket, ticket jacket or eticket receipt, or specified on

       any internet site, or published schedules.        By purchasing a ticket or

       accepting transportation, the passenger agrees to be bound thereby.

       {¶35} Chautauqua was the carrier for Keller’s Continental Express flight

pursuant to Continental’s Contract of Carriage.

       {¶36} Rule 4(I) of the contract states, “[s]eat assignments are not guaranteed

and are subject to change without notice. CO reserves the right to reseat a Passenger

for any reason, including from an extra legroom seat for which the applicable fee has

been paid.” The trial court found this provision to state that Keller’s confirmed seat was

not guaranteed and therefore Appellees did not breach the contract.

       {¶37} Keller, however, argued in her response to the motion for summary

judgment that Rule 3(B) of the Continental Contract of Carriage created an ambiguity for

the applicability of Rule 4(I) to the facts of this case. Rule 3(B) states:

       This Contract of Carriage is subject to applicable laws, regulations, rules,

       and security directives imposed by governmental agencies * * * In the

       event of a conflict between the Rules contained herein and such
Licking County, Case No. 12-CA-73                                                  13


      governmental laws, regulations, rules, security directives and their

      corresponding effects on CO’s operation, the latter shall prevail.

      {¶38} In 1986, the Air Carrier Access Act, 49 U.S.C. 41705, was enacted to

require air carriers to take steps to accommodate passengers with a disability. The

federal regulations enacted pursuant to the Air Carrier Access Act regulate seat

assignments for a disabled individual.

      {¶39} Upon our de novo review, we find there is a genuine issue of material fact

as to whether Appellees Chautauqua Airlines and Republic Airlines breached its

contract with Keller based on the language of the Contract of Carriage and the

regulations promulgated by the Air Carrier Access Act.

      {¶40} Keller’s fifth Assignment of Error is sustained.
Licking County, Case No. 12-CA-73                                                     14


                                    CONCLUSION

      {¶41} The first, second, third, and fourth Assignments of Error of Plaintiff-

Appellant Evelyn Keller are sustained.

      {¶42} The fifth Assignment of Error of Plaintiff-Appellant Evelyn Keller is

sustained.

      {¶43} The judgment of the Licking County Court of Common Pleas is reversed

and this case is remanded for further proceedings consistent with this opinion and law.

By Delaney, J.

Hoffman, P.J. and

Wise, J. concur.




                                            _______________________________



                                            _______________________________



                                            _______________________________

                                                           JUDGES
[Cite as Keller v. Dundon, 2013-Ohio-2727.]


                   IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


EVELYN KELLER                                 :
                                              :
        Plaintiff-Appellant                   :
                                              :
-vs-                                          :       JUDGMENT ENTRY
                                              :
MAUREEN DUNDON, ET AL                         :
                                              :
        Defendants-Appellees                  :       CASE NO. 12-CA-73


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is reversed and

remanded for further proceedings. Costs assessed to Appellees.




                                              _______________________________



                                              _______________________________



                                              _______________________________

                                                              JUDGES
