Age discrimination suit against airline is not preempted by federal law

Law Reporter, Jun 2003

Aquino v. Asiana Airlines, Inc., 130 Cal. Rptr. 2d 223 (Ct.App. 2003).

A California appellate court held that the Warsaw Convention, 49 U.S.C. [sec] 40105, and the Airline Deregulation Act of 1978, 49 U.S.C. [sec] 41713, do not preempt a state lawsuit where an airline refused to allow an elderly couple to board their flight.

Here, Aquino and her husband, both 90 years old, had tickets to board a flight to the Philippines. While they were checking in at the gate, the ticket agent asked how old they were. When informed that they were 90 years old, the agent told them they would need a certificate from the airport's medical clinic, certifying that they were healthy enough to board the flight, before they would be permitted to board. The medical clinic staff stated that they were healthy, but did not provide a certificate. The airline refused to allow them to board their flight. They later traveled to the Philippines on another airline.

Aquino sued the airline on her own behalf and as successor in interest to her husband. Suit alleged discrimination, among other claims. Defendant moved for summary judgment. The trial court granted the motion, holding that the Warsaw Convention and the Airline Deregulation Act of 1978 preempted plaintiffs' action.

Reversing in part, the appellate court held that neither statute applied here. For the Warsaw Convention to apply, the court said, the incident giving rise to the claim must occur "on board the aircraft or in the course of any of the operations of embarking or disembarking." Plaintiffs were not in the course of such operations, the court held, and indeed, their claims arose from the fact that they were not permitted to begin embarking. Similarly, the Airline Deregulation Act was designed to deregulate airline services that are contractual features of air travel, the court said. Such contractual services include the transportation itself as well as services like ticketing, boarding, and baggage handling. Citing case law, the court held that the act was not meant to preempt state law tort claims that "have only a peripheral effect on deregulation."

Plaintiffs' Counsel

Esperanza V. Bada, La Puente, Cal.