In this week’s travel law article, we examine the case of Kekona v. Alaska Airlines, Inc., Case No. C18-0116-JCC (W.D. Wash. March 14, 2018) wherein “Bernice Kekona was a round-trip ticketed Alaska passenger, traveling from Maui to Spokane (and) was a vulnerable adult who became confused when outside familiar environments. She had physical, visual, auditory and mental impairments, and used an electric wheelchair for mobility…When purchasing her round-trip ticket with Alaska, Ms. Kekona requested ‘mobility/wheelchair’ assistance for the entire trip’.
For a passenger with an electric wheelchair, this includes assistance on and off the airplane and a ‘gate-to-gate’ escort. Alaska includes passengers requesting the service on a ‘Special Services’ list it keeps for each flight…Alaska contracts with Defendant Huntleigh UDA Corporation to provide this service…Alaska claims it notified Huntleigh that Ms. Kekona requested gate-to-gate service…Huntleigh asserts Alaska failed to notify it that Ms. Kekona requested anything more than assistance exiting the aircraft…Ms. Kekona attempted to find her gate but ended up driving her wheelchair onto the top of an escalator. She tumbled down the escalator, with her motorized wheelchair landing on top of her. She suffered serious injuries…Ms. Kekona died three-and-a-half months later from complications resulting for her June 7, 2017 injuries”. Motion to dismiss Complaint denied.
In the Kekona case, the Court noted that “Alaska removed the matter to this Court…based on the federal question implicates by the complaint, which asserts a breach of Alaska’s duty to Ms. Kekona, as established by the Air Carrier Access Act (ACAA). Alaska now moves to dismiss (because, inter alia):…(2) the ACAA and its associated regulations preempt claims presented in the complaint; and (3) the complaint fails to plead plausible grounds that Alaska negligently trained and supervised its employees”.
Preemption
“Alaska asserts the ACAA preempts Plaintiff’s tort claims…First, Alaska alleges that the complaint fails to address Defendants’ standard of care for Ms. Kekona, as provided by the ACAA, or to provide facts demonstrating that Defendants breached this standard of care. Second, Alaska alleges that the imposition of tort liability under the circumstances described in the complaint conflict with the ACAA”.
Violation Of Standard Of Care
“The complaint describes the relevant standard of care, as provided by DOT regulations. According to the complaint ‘14 C.F.R. 382.91 provides that air carriers as Defendant Alaska Airlines are required to ensure that individuals with disabilities are provided with assistance in making flight connections and transportation between gates, among other requirements, when requested by on or behalf of a passenger with a disability’…The complaint then provides sufficient facts to demonstrate that Alaska failed to provide this assistance, despite repeated requests by Ms. Kekona and her family to do so”.
Failure To Request Assistance
“The complaint alleges that Ms. Kekona affirmatively sought Alaska’s assistance at the top of the jet way and that insubstantial assistance was rendered…Ms. Kekona was on a ‘special services’ list, she ‘showed [the Alaska agent] or ticket’ at the top of the jet way, yet the agent merely ‘pointed [Ms. Kekona] where to go, but again, failed to provide the gate-to-gate assistance as required’.
Failure To Train Or Supervise
“Alaska asserts the complaint is deficient in failing to provide sufficient facts to establish plausible negligence claims based on a failure to train and/or supervise…According to the complaint ‘Defendants…were negligent in failing to properly train and/or supervise their agents and/or employees in the legally responsible way of dealing with a passenger with disabilities’. The complaint includes facts that support this assertion: repeated requests for assistance by Ms. Kekona and her family before her flight, Ms. Kekona’s inclusion on the special services list and her attempt to seek assistance at the top of the jet way…Yet no assistance was provided. This plausibly implies negligent training and/or supervision”.
Patricia and Tom Dickerson
The author, Thomas A. Dickerson, passed away on July 26, 2018 at the age of 74. Through the graciousness of his family, eTurboNews is being allowed to share his articles that we have on file which he sent to us for future weekly publication.
The Hon. Dickerson retired as an Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and wrote about Travel Law for 42 years including his annually-updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018), and over 500 legal articles many of which are available here. For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
Read many of Justice Dickerson’s articles here.
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