This case comes before the Court on defendant’s motion for summary judgment and plaintiffs motion for partial summary judgment and the responses thereto. The Court heard argument on the motion for summary judgment. The facts of the case are set forth below.
I
Plaintiff, James G. Abourezk (Abourezk), made a reservation on New York Air Flight 28 for October 3, 1985, which was scheduled to depart from Washington National Airport to LaGuardia Airport in New York City. Abourezk is an attorney and the purpose of his trip was to meet with a client and to attend a reception in the client’s honor at the United Nations on the evening of October 3, 1985. The reception which plaintiff planned to attend was scheduled to end at about 8:00 p.m. and he intended to fly back to National Airport that same evening. Flight 28 was can-celled due to a mechanical problem and as a result of this change plaintiff boarded New York Air Flight 30, which was scheduled to depart from National Airport at 4:30 p.m. on October 3, 1985 destined for LaGuardia Airport. Flight 30 had many of the passengers for the earlier but cancelled Flight 28; it had 110 seats and there were 107 passengers aboard.
Flight 30 left the gate
Abourezk recognized that Flight 30 would need to leave not later than 6:00 p.m. to arrive at LaGuardia Airport in time for him to attend the reception at the United Nations which was to begin at about 5:30 p.m. or 6:00 p.m. At about 5:30 p.m. but before 6:00 p.m., he went to the cockpit and explained this to Captain Dunn. Not long after 6:00 p.m., plaintiff again went to the cockpit and informed Captain Dunn that he no longer wanted to fly to New York. Captain Dunn said he was first in line for takeoff and did not want to lose his place in line
Sometime after plaintiff’s third visit to the cockpit, Captain Dunn conducted a poll of the passengers. According to plaintiff Dunn asked, “How many people still want to go to New York?” The poll was conducted by passengers raising their hands or saying “yes” very loudly if they wanted to go to New York. Captain Dunn took this poll over the public address system, but the cabin door was open and he could see the passengers. Captain Dunn stated that the result of the poll “left no doubt in my mind that the majority of the passengers wanted to go to New York and they wanted to go as quickly as possible.”
After a delay of about three hours, Flight 30 took off at 7:35 p.m. and landed an hour later at LaGuardia. Plaintiff arrived at LaGuardia too late to attend the reception at the United Nations. He waited in the terminal for over three hours until he was able to catch a flight back to National Airport. Abourezk arrived at his home at about 1:10 a.m. on October 4,1985, whereas he had expected to get home by approximately 10:00 p.m. on October 3, 1985.
At his deposition, plaintiff stated that he felt annoyed and frustrated by this experience. Abourezk Dep. at 38. Externally, he remained calm and he does not recall telling the pilot he was upset. At the time of the incident, plaintiff was on a medically prescribed liquid diet called “Optifast” a powder mixed with water, and also a potassium supplement, which he took five times a day to lose weight. He did not take this diet with him since he did not expect to stay overnight. Plaintiff usually took the last two doses of this diet at 11:00 p.m., but because of the delay he did not take them
II
After extensive discovery, defendant moved for summary judgment on all of the claims advanced by plaintiff. Relying on both District of Columbia and Virginia law
Defendant contends that the law of Virginia provides that false imprisonment is restraint of one’s liberty without any sufficient cause, relying on Zayre of Virginia, Inc. v. Gowdy,
Additionally, defendant relies on the principles set out in both the Restatement (Second) of Torts (hereinafter Restatement) and Prosser and Keeton, Law of Torts (5th Ed.1984) (hereinafter Prosser), in support of its arguments on the issue of false imprisonment. Namely, “[i]t seems reasonable to say that whenever a legal duty to release another from confinement can be made out, an intentional refusal to do so is sufficient for false imprisonment; but of course without such a duty there is no such tort”. Prosser at 51. On the issue of intent, Prosser states:
It has been held that a mere incidental confinement due to acts directed at another purpose — as, for instance, locking the door with plaintiff inside for the sole purpose of keeping others out — is not a sufficiently important invasion of the plaintiff’s interests to require the protection of the law. Since in such a case the defendant is aware that the conduct is certain to result in the confinement, it can scarcely be said that the defendant did not intend it; a better justification would appear to lie not in any lack of intent, but in a privilege to proceed reasonably about the defendant’s own affairs. (footnotes omitted).
Id at 53. Additionally, defendant argues that it acted pursuant to privilege as defined by Section 10 of the Restatement
The Herd plaintiff was detained in the mine for the period of about two and a half hours. He sued his employer for false imprisonment and the court held that there was no false imprisonment. With respect to the claim of false imprisonment the Herd Court concluded that Herd’s claim did not fall within the parameters of the law of false imprisonment. Defendant maintains that this case is relevant because Herd originally entered the mine voluntarily intending to perform his duties and only decided he wanted to come back up when he determined that the work he was to perform violated his labor contract. Similarly defendant points out that Abourezk entered the plane voluntarily seeking transport to New York City and only sought release when he determined that he would miss his appointment even though he was not guaranteed arrival at his destination by a certain time.
With respect to plaintiff’s claims for intentional infliction of emotional distress and negligent infliction of emotional distress, defendant argues that plaintiff’s claims for recovery, whether negligent or intentional, have no basis in the undisputed material facts, therefore it is entitled to summary judgment. In support of this contention, defendant states that to recover for negligent infliction of emotional distress there must be a showing of some physical injury, which is absent in this case. See Restatement § 436A. In this case plaintiff stated that he did not suffer any physical injury, Abourezk Dep. at 52,
Finally, defendant argues that under the law of both the District of Columbia and the Commonwealth of Virginia, punitive damages are only allowable where a tort is aggravated by evil motive, actual malice, deliberate violence or oppression, citing Black v. Sheraton Corp. of America,
In response, plaintiff seeks partial summary judgment on his claim of false imprisonment and opposes defendant’s motion for summary judgment. According to plaintiff, a false arrest or imprisonment occurs whenever a person is restrained or detained against his will citing Faniel,
Further, plaintiff argues that once he has shown imprisonment, the burden of proof shifts to the defendant to show privilege or legal justification relying on Marshall v. District of Columbia,
Additionally, plaintiff charges that defendant’s allegation that it was justified in refusing to return to the gate because it would have lost its number one takeoff position is unsubstantiated on several grounds. First there is no evidence that the FAA maintains any such written policy at National Airport. Second, the deposition of plaintiff’s expert states that any such
Abourezk contends that defendant’s suggestion that it may not have had a duty to release plaintiff is absurd and that its reliance on Herd is misplaced. First, it is argued that the Herd Court clearly rests its decision on contract, namely the employer’s duty or lack thereof. According to plaintiff it is apparent that under the Herd Court’s reasoning, had the employer refused to bring Herd up after the shift’s end, there would have been a claim for false imprisonment. Using Abourezk’s analogy, one could surmise that plaintiff voluntarily entered defendant’s aircraft for one hour, the scheduled flight time between Washington National and New York, LaGuardia, as published by defendant. Anything longer than one hour, by implication was not by consent. Under this argument after 6:00 p.m. when plaintiff told Captain Dunn that he wanted to get off the aircraft, there was no doubt that the consent was withdrawn.
Further, plaintiff argues that the evidence indicates the delay was excessive based on the deposition of his expert who will testify that the delay was excessive and the failure to deplane passengers unreasonable.
With respect to the plaintiff’s claim for intentional infliction of emotional distress, he contends that a jury will find the defendant’s behavior sufficiently outrageous and oppressive both to sustain this claim and to award punitive damages. Plaintiff offers three points in support of this contention. First, defendant refused to deplane plaintiff, second, defendant’s employee testified that he would not have returned to the gate even if one were available, and third, the extraordinary length of the delay. Further, plaintiff offers his deposition and the affidavit of his wife Margaret Abour-ezk in support of his allegation that he has suffered physically and emotionally as a result of this incident. Finally, plaintiff argues that there is sufficient evidence in the public domain to show that airline delays and resultant passenger suffering is “out of control”. He believes that the award of punitive damages in this case will prevent or greatly reduce the chance that this situation will be repeated.
Ill
Pursuant to Fed.R.Civ.P. 56(e), a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations and denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
With respect to the cross motions for summary judgment on the issue of whether defendant is liable for the tort of false imprisonment, the Court recognizes that since this case is one of first impression, the Court must balance the common law principles of tort in this area with an ever changing technological society. Thus, it is necessary to determine the nature of the duty of an airline pilot with regard to the release of his passengers. Obviously where vehicle and passenger safety necessitate release the pilot is under a clear duty to release all of his passengers. Similarly where medical and security concerns dictate the need for deplaning individuals, the pilot’s obligation to release is also clear. However, where the passenger seeks release for a personal reason because of a lengthy delay imposed by the airport authority, the analysis becomes considerably more complex. Therefore after stripping the arguments of the parties to their most basic form, the Court concludes that defendant’s reliance on Herd is persuasive on these facts. Although Herd differs in
On the facts at bar, it is clear that there is a common law duty to release under exigent circumstances, however, Abourezk had no common law or contractual right to release under the circumstances of his request. Nor do the facts indicate that he had the right to arrive in New York City at a specific time. Thus his desire for release from the aircraft constitutes a mere request to be granted or denied by the pilot. The legal duty to release arose when the plaintiff was transported to New York City. Since the delay herein was imposed by the air traffic controller for a duration unknown
This result is consistent with Faniel, to the extent that false imprisonment cases involving the seizure of an individual are analogous. In Faniel, cited by both parties, an employee of the telephone company was questioned by her employer, during work hours, regarding her misuse of certain equipment. After admitting that she had the equipment in her home, she was driven there to recover it. On the way, a detour was made to collect another security agent. The Court considered whether the questioning of the employee constituted imprisonment and whether the trip, including the detour constituted false imprisonment. In its discussion of implied consent, that court stated that if the defendant goes beyond the implied consent, and does a substantially different act, he will be liable. Faniel,
Although the case law is sparse with respect to the issue presented herein, the Court concludes that the legal principles incorporated by the tort of false imprisonment do not embrace plaintiff’s claim. It is dispositive that the airline’s actions neither created nor lengthened the delay and it would be beyond the jurisdiction of the Court to impose liability simply because the pilot did not anticipate the length of an indefinite hold. Moreover, the Court is not convinced that evidence supports the proposition that the imposition of liability in this case would lessen flight delays, but in fact could lead to both chaotic requests and decisions at the airport that subordinate the primary goal of safety. In so holding, the Court does not intimate by this ruling that no set of facts in this context would constitute false imprisonment, but that in
Based on the record before the Court, plaintiff’s claim of intentional infliction of emotional distress is deficient based on the record before the Court. The tort of intentional infliction of emotional distress consists of (1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress. Sere v. Group Hospitalization, Inc.,
After reviewing plaintiff’s claim for intentional infliction of emotional distress, the Court is constrained to conclude that plaintiff has not met the standard set forth above. At best the record demonstrates that plaintiff was frustrated, annoyed, and upset by both the delay and the fact that he had to fly to New York only to return to the District of Columbia. However, plaintiff’s allegations with respect to defendant’s conduct do not rise to the level of extreme outrageousness required by Sere. Although Abourezk’s annoyance and frustration as a result of this incident are understandable, he is not entitled to recovery from defendant for the inconveniences of modern life. Also, the record does not establish that plaintiff has suffered severe emotional distress. ' Plaintiff states that he has received no treatment, neither psychiatric nor physical, as a result of the incident. His deposition merely states that he either gained weight or failed to lose the appropriate amount of weight on his diet the week of the incident. Abourezk Dep. at 54. The affidavit of plaintiff’s wife setting forth her observations is not probative of whether Abourezk has suffered severe emotional distress. Therefore, plaintiff has not made a sufficient showing on the essential elements of his claim in the face of a motion for summary judgment.
In view of the foregoing,
An appropriate Order accompanies this memorandum.
Notes
. At National Airport, New York Air has two gates and access to a third gate, when available, under a lease from American Airlines. American Airlines has a total of five gates at that airport all on one concourse. Pursuant to the lease if American Airlines is experiencing delays, it may use any or all of the gates it leases to New York Air.
. An indefinite hold indicates that no planes are allowed to take off until the Federal Aviation Administration (FAA) permits them to do so.
. Dunn testified that in his experience as a commercial pilot who had been involved in numerous delays, normal procedure and policy for National Airport led him to the conclusion that he would have lost his number one position for takeoff. Dunn Dep. at 66-68.
. This request to the tower was made through New York Air Operations (Operations). Dunn stated that during rush hour at the airport when many planes are attempting to communicate on the same frequency, it is easier to coordinate through Operations which can communicate with the tower via telephone. The request was ultimately denied by the FAA. Dunn Dep. at 60-61.
.The testimony of the plaintiff supports Captain Dunn’s statements on this point. Abourezk Dep. at 31. However there is a factual issue with respect to the outcome of the poll. Plaintiff has offered the testimony of another passenger, Patrick Forte, who testified at his deposition that he counted approximately 85 passengers who wanted to stay in Washington. Forte Dep. at 18. The Court finds that the result of the Captain's poll is not a genuine issue of a material fact.
.Under District of Columbia choice of law rules, this Court must apply a governmental interest analysis to ascertain which state has the most significant interest in the controversy. See Klaxon Co. v. Stentor Electric Manufacturing Co.,
. Defendant makes an extensive argument with respect to the policy ramifications of a judgment in favor of the plaintiff. In sum, defendant concludes that such a decision should be left to rulemaking by the FAA or the Metropolitan Area Airports Authority (MAAA) or that a decision by this court is preempted by federal law. For the reasons discussed in Part III, the Court need not address these arguments.
. Section 10 of the Restatement defines a privilege as: (a) the consent of the other affected by the actor’s conduct; or (b) the fact that its exercise is necessary for the protection of some interest of the actor or of the public which is of such importance as to justify the harm caused or threatened by its exercise; or (c) the fact that
. Plaintiff has submitted the affidavit of Mrs. Abourezk on the issue of physical and psychological injuries. The affidavit does not indicate any thing contrary to Abourezk’s deposition on this point. Mrs. Abourezk merely declares her observations of plaintiffs behavior after the incident.
. In view of both the facts and the law on this point, the Court grants defendant’s motion for summary judgment on the issue of negligent infliction of emotional distress. Waldron v. Covington,
. Moreover, plaintiffs deposition indicates that the incident did not aggravate any preexisting condition and he does not maintain that he suffered any psychological injury as a result of the incident. Abourezk Dep. at 52.
. Defendant states that these records only indicate New York Air’s occupancy of the gates, the records do not show the American Airlines planes on the concourse during the delay.
. Plaintiffs expert acknowledged that he had no first hand knowledge of whether or not it was the normal practice at National Airport that a pilot who leaves his place in line for takeoff would have to return to the end of the line. Livingston Dep. at 49. He stated that in a general sense that's [pilots returning to the end of the line] what happens. Id. at 48.
. Plaintiffs expert, who is employed as an aviation consultant, testified that he would define an inordinate delay in this case as being a delay of over an hour and a half. Livingston Dep. at 22. He stated that this was a judgment call by him, speaking as a pilot and a traveling individual. Id. at 23. Livingston is not aware of any regulation that would support this time period. Id. The Court notes that although Livingston is a pilot, his flying has been principally for military services and the FAA. Id. at 7. He has not “been involved in commercial passenger movement". Id.
. Dunn Dep. at 64.
. Dunn also testified to experiencing other weather related delays as a pilot for New York Air, but he could not recall whether these delays exceeded three hours. Dunn Dep. at 15.
. In support of this contention plaintiff relies solely on the New York Air daily logs and records produced during discovery. However, the record also reflects the testimony of Jean Campbell of New York Air Operations that there were no gates available at the time of Captain Dunn's request. Campbell Dep. at 31. Campbell had a direct view of all of the gates on the concourse via television monitor. Id. In her deposition she stated that her duties encompass responsibility for inbound aircraft arriving at National for New York Air, assigning gates, and time of departure including any kind of significant delays. Id. at 5.
. An additional argument made by plaintiff in support of this point is the fact that Captain Dunn's testimony indicates that airplanes do not take off absolutely sequentially since planes were taking off from behind him during the delay. The record demonstrates that Captain Dunn testified that other planes with destinations that were not affected by the hold were allowed to take off. Dunn Dep. at 46.
. There is no evidence in the record that economics was a factor in the incident at issue. Plaintiff s expert, stated that he could only speculate as to the presence of any economic factor. Livingston Dep. at 85-86. ("... there’s really no way that I know that you can actually verify that this [economic factor] ... is the cause of the denial to offboard passenger.’’) Moreover, Captain Dunn stated on this issue, “I know that as a matter of policy we don’t try to hold people hostage. We want people to come back." Dunn Dep. at 62.
. For example, the period of confinement in Herd did not exceed the time that Herd would normally have spent in the mine, while Abour-ezk spent over three additional hours on the airplane in this case.
. Captain Dunn testified at his deposition that the only other delay of this length he had ever experienced occurred during the air traffic controllers strike.
. The Court need not address plaintiffs claim for punitive damages.
. All other motions in this case are dismissed as moot.