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Keller v. Dundon

Court of Appeals of Ohio, Fifth District

June 20, 2013

EVELYN KELLER Plaintiff - Appellant
v.
MAUREEN DUNDON, ET AL Defendant-Appellees

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

For Plaintiff-Appellant JOHN K. KELLER.

For Defendants-Appellees MICHAEL E. BUCKLEY STEVEN L. BOLDT.

JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

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 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, 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.

{ΒΆ12} "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 ...


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