5th Circuit Reverses Dismissal of Gay Couple's Lawsuit Against United Airlines

As some readers will recall, back in August, 2012, a young professional gay couple filed a lawsuit against United/Continental Airlines in connection with an outrage done to them by employees of United/Continental Airlines at George Bush Intercontinental Airport in Houston, Texas.  Here are some highlights of the facts as laid out in the lawsuit:

On May 21, 2011, Plaintiff's a homosexual couple, were returning from vacation on a flight provided by Defendants United Continental Holdings, Inc., and Continental Airlines, Inc. (collectively referred to as "Continental") from Costa Rica to Norfolk, Virginia with a layover at George Bush Intercontinental Airport in Houston, Texas.  When Plaintiffs arrived at Houston, they retrieved their checked luggage, which was undisturbed at that time.  After going through Customs, Plaintiffs rechecked their bags, and proceeded to board their flight to Norfolk.  Upon arriving in Norfolk, Plaintiffs exited the aircraft and went to the baggage claim area.  Plaintiffs' bags were sent to the baggage carousel where Plaintiffs discovered to their horror, that a private sex toy had been removed from one of their bags, covered with a greasy foul-smelling substance, and taped prominently to the top of their bag.

The U.S. District Court for the Southern District of Texas opted to tax the lazy easy  way out and dismissed the lawsuit citing narrow provisions of the Montreal Convention, more formally known as the Convention for the Unification of Certain Rules for International Carriage by Air.  Today, a three judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed the District Court and remanded the case back for trial.  Here are excerpts from the 5th Circuit's ruling:

This appeal involves whether two airline travelers’ state-law claims for intentional infliction of emotional distress, invasion of privacy, and negligence in connection with the airline’s alleged placement of a sex toy on their baggage are preempted by Article 17(1) or Article 17(2) of the Montreal Convention. We hold that the plaintiffs’ claims are not preempted by either. Accordingly, we REVERSE the district court’s grant of the defendants’ motion to dismiss and REMAND for further proceedings.

Article 17 of the Montreal Convention contains two provisions relevant to this case: Article 17(1) imposes liability on carriers for injuries to passengers and Article 17(2) for damage to baggage. 2242 U.N.T.S. at 355. On appeal, Plaintiffs argue that their state-law claims do not fall within the scope of either provision. We agree and address each provision in turn.

Here, any connection between the alleged misconduct—the display of Plaintiffs’ bag in the baggage-claim area—and the “operations of embarking or disembarking” [within the scope of Article 17(1)] is tenuous at best.

Plaintiffs’ state-law claims rely on the fact that their bag was “in the charge of the carrier,” and it is clear that their bag was not destroyed or lost. Thus, whether Article 17(2) preempts Plaintiffs’ claims boils down to whether they seek a remedy for “damage to checked baggage.”

We hold that they do not and that, therefore, Article 17(2) does not preempt Plaintiffs’ state-law claims.

No doubt Continental will be less than pleased with today's ruling.  Now, the question is whether the airline will accept responsibility for the acts of its employees and do the right thing or continue to litigate the matter.   Either way, I will continue to avoid United Airlines when I travel based on the experiences of my good friends.

Sex Toy Lawsuit: Exclusive Interview By Channel 3's Barbara Ciara

UPDATED:  Last night's on camera interview of the plaintiffs in the lawsuit against United Continental for desecrating their luggage can be found here.  I hope readers will listen to the interview and draw their own conclusions.  In doing so, remember this: the zipper on the luggage was completely undamaged and the tape shown in the photo had Continental Airline's logo on it.

Last month I wrote about the lawsuit filed against United Continental Airlines by two close friends who had their luggage desecrated by personnel at Houston Intercontinental Airport in Houston as they returned from a trip to Costa Rica.  I did a companion piece on The Bilerico Project that was picked up by Huffington Post which in turn went viral and literally swept the news media around the world.  Tonight at 11:00 PM the couple gives their first on camera interview to discuss their experience and their motivations for suing the airline.  Here are highlights from WTKR-TV 3 as it promotes the interview:

 

Most people who travel tolerate the fact that strangers go through their personal belongings inside their luggage. It’s creepy thinking of someone going through your underwear, but it’s an intrusion we have come to accept in the years since 9/11.

As Barbara Ciara reports, a Norfolk couple claims baggage handlers displayed the private contents of their luggage to create public pain.  Hear their story, tonight at 11.

Barbara Ciara is well respected in Hampton Roads and has shown herself to be non-judgmental of the LGBT community.  Hopefully, the interview will do the story and my friends justice.  I will report more tomorrow after the segment airs and is available on line.

Fighting Back: Motives of Gay Couple Suing United Airlines

When I wrote my post over the weekend on this blog and posted a largely identical post on The Bilerico Project on Monday, I seriously never dreamed that the story would go nearly viral and that I'd be contacted from everyone from local media outlets to The Daily Mail in London, England   But, the story does seem to have taken on a life of its own.  Even the far right blog Free Republic has picked up the story, where much to my surprise, some of the comments - especially from women - have been supportive of the plaintiffs in the lawsuit.  Sadly, some of the comments on the numerous blog posts and news stories, including some on my Bilerico post have been not so nice.  Comments have ranged from thinking the situation is a hoax, to demeaning the plaintiffs for calling friends to come to their assistance, to saying that the lawsuit is all about money. 

Having been involved in this story from almost its inception - I received a call from the plaintiffs at about 1:00 AM after their experience at the Norfolk airport and,  since I am a member of the State Bar of Texas, I wrote the initial demand latter to United Continental and received the airline's, in my view, pathetic response - I feel that some of the comments need to be addressed in no particular order. Not only for the sake of the plaintiffs, but also for my own credibility as an LGBT blogger and as a contributor to The Bilerico Project.

As to the comments that the whole thing is a hoax, I have a couple of responses.  First, having talked to the plaintiffs who are long time friends right after their return to Norfolk on May of last year, I seriously doubt that anything was made up or invented.  I'm the one, in fact who told them to take plenty of photos of the desecrated luggage before they extricated their things.  In addition, the friends who they called to the airport to assist them and drive them home are both highly regarded individuals, both of whom are straight and one of whom holds top security clearances.  They will prove to be highly credible witnesses and one's position will certainly turn some of the statements of some of the Free Republic crowd on their head.

As for those who say the entire lawsuit is about money, I likewise have several responses.  The first is to admit that yes, the suit does seek money damages, especially exemplary damages (also called punitive damages in some states).   Why the damage request?  I can tell you why.  As a former in-house attorney for a Fortune 50 company coincidentally based in Houston, I know first hand that in this nation's business world there are two things that keep large corporations and, indirectly their employees in line: strictly enforced regulations and the avoidance of paying out damage settlements.   If  one wants to get corporate CEO's to do the right thing, threaten the corporation's bank account and upset the shareholders.

The other aspect of this story is that this type of outrage could  happen to anyone, gay or straight.  When one has paid to have their checked baggage transported by a common carrier such as Continental Airlines, one should not have to worry that the luggage will be vandalized with the goal of humiliating the owner of the luggage.  In this instance, there is little doubt that the intent of perpetrator(s) was to inflict deliberate emotional harm.  In this case, the zipper on the checked bag was not damaged whatsoever.  There was no need to apply tape to the bag even if it had somehow come open.  Worse yet, there was no need to apply a foul smelling substance smeared with brown particulate matter to give the appearance that the sex toy had been used.  These actions were not inadvertently done.

I'm sure that whoever desecrated my friends' luggage had a good laugh at the thought of the luggage's owner's reaction upon viewing the sabotaged bag in the midst of a crowd at the luggage carousel.  Dharun Ravi likely laughed his ass off when he secretly broadcast video of Rutgers University student, Tyler Clementi.  We all know the tragic results of that prank - Tyler Clementi's suicide by jumping off of the George Washington Bridge.  Whoever was behind this sick stunt had no way of knowing how the bag's owner might respond.  Thankfully, this situation did not lead to a tragedy.  But it could have.  The plaintiffs are from Norfolk, Virginia, after all.  I assure you, this is not New York City or Los Angeles.  LGBT Virginians live under daily, state sponsored discrimination.  I personally have suffered harassment from certain members of the Norfolk Police Department and members of the Virginia judiciary simply because I am gay.  That is the climate in which the plaintiffs had to collect their bag in front of likely well over 100+ passengers and those meeting them. 

My last response involves a point that I've made many times both on this blog and on Bilerico: bad things happen because good people do nothing and allow hateful things to happen.  It's what I sometimes call the "good German" or "good Christian" phenomenon.   In this case, the plaintiffs could have done nothing and perhaps someone else would at some point find themselves subjected to some form similar of vile humiliation.  And just maybe that person might not hold themselves together and do something drastic.  By doing nothing one can become part of the problem.

For additional images and thoughts visit:  http://www.plight2171.com/