Today’s post looks at Gill v. JetBlue Airways Corp. the first of two cases highlighting the existence of a circuit split over the meaning of the word "service," as used in two completely separate and unrelated statutes. Civil Action No. 10-11454-FDS (D.C. Mass. Dec. 14, 2011).
While boarding an airplane with his wife, George Gill, who uses a wheelchair, was injured when a JetBlue employee tried to help him transfer to a smaller wheelchair. George sued JetBlue, alleging that its employees negligently caused his injuries. JetBlue argued, however, “that the ADA preempts state-law tort claims arising from its employees’ attempt to accommodate a passenger’s disability.” (No, not that ADA; the "ADA" as in the Airline Deregulation Act of 1978.)
The ADA’s preemption provision provides, in relevant part, that “a State . . . may not enact or enforce a law . . . related to a . . . service of an air carrier . . . .” 49 U.S.C. § 41713 (emphasis added).
So how have the courts defined the word “service” as used in the ADA?
1. The 9th Circuit's Narrow Construction
The Ninth Circuit has construed the term more narrowly than its sister circuits, which the court in Gill explains as follows:
In Charas v. Trans World Airlines, Inc., the court held that the term "service" under the statute included "prices, schedules, origins and destinations of the point-to-point transportation passengers, cargo, or mail," but not "provision of in-flight beverages, personal assistance to passengers, the handling of luggage, and similar amenities." 160 F.3d 1259, 1261 (9th Cir. 1998) (en banc); see also Duncan v. Northwest Airlines, Inc., 208 F.3d 1112, 1114-15 (9th Cir. 2000), cert. denied, 531 U.S. 1058, 121 S. Ct. 650, 148 L. Ed. 2d 571 (2000).
2. The 5th, 7th, and 9th Circuits' Broad Construction
According to the court in Gill, the Fifth, Seventh, and Eleventh Circuits have construed “services” more broadly to include provisions of labor from one party to another that are either bargained-for or anticipated, including "items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself." Hodges v. Delta Airlines, 44 F.3d 334, 336 (5th Cir. 1995) (en banc); Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1256-57 (11th Cir. 2003).
3. The 2nd and 4th Circuits' Moderate Construction
Gill goes on to explain that the Second and Fourth Circuits have adopted a more moderate definition of "service":
The Second Circuit, while stopping short of endorsing the Hodges rule, has similarly rejected a definition as narrow as that endorsed in Charas. Air Transport Ass'n of Am., Inc. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008) (holding that the provision of amenities during a lengthy ground stay was a "service" under § 41713(b)(1)). In Smith v. Comair, Inc., the Fourth Circuit agreed that "boarding procedures are a service rendered by an airline." 134 F.3d 254, 259 (4th Cir. 1998).
4. Definitions Adopted by District Courts Within the 1st Circuit
Finally, Gill provides a cursory look at how other district courts within the First Circuit have defined a "service":
District Courts within the First Circuit have generally adopted the Hodges approach, holding that "service" includes activities peripheral to point-to-point transportation itself. See Chukwu v. Board of Dir. British Airways, 889 F. Supp. 12, 13 (D. Mass. 1995), aff'd mem., 101 F.3d 106 (1st Cir. 1996); DeTerra, 226 F. Supp. 2d at 277; Seymour v. Continental Airlines, Inc., 2010 U.S. Dist. LEXIS 105980, 2010 WL 3894027 (D.R.I. 2010). Even those courts that have found particular activities to be outside the scope of "services" contemplated by the statute have done so through reasoning that is consistent with the Hodges standard. See Somes v. United Airlines, Inc., 33 F. Supp. 2d 78, 82-83 (D. Mass. 1999) (holding that the in-flight provision of medical equipment is not a "service" because it is not a "bargained-for or anticipated" element of air travel); Stone v. Frontier Airlines, Inc., 256 F. Supp. 2d 28, 39 (D. Mass. 2002) (same).
After considering the various positions taken, the court in Gill “conclude[d] that the term 'service,' as used in 49 U.S.C. § 41713(b)(1), encompasses all bargained-for or anticipated elements of air travel provided by air carriers except for those related to aircraft operation and maintenance.” According to the court, the following items do not qualify as bairgained-for "services" provided to travelers by air carriers: (1) the “aircraft operation itself,” (2) the “maintenance of overhead luggage bins so as to prevent falling baggage,” (3) ensuring safe conditions at the entrance to the aircraft, and (4) inspecting “disembarkment staircases” for defects that could lead to slip-and-fall injuries.
Accordingly, the court held that George Gill’s “claims arose from JetBlue employees' allegedly negligent performance of an airline 'service' within the meaning of the preemption clause of the ADA.” Stay tuned for Part II, which will focus on a conflict of law over the word "service" as used in the other ADA - the Americans with Disabilities Act.