Petition for Writ of Certiorari — O'Carroll v. Chaparral Airlines, Inc.

t ~—— >. ——

| Supreme Court, U.S,

88-1582 « | FILED

| MAR 25 1968

} 5 JOSEPH F. SFANION, JR,

= CLERK

wh -

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

MELVIN O’CARROLL,

Petitioner

V.

CHAPARRAL AIRLINES, INC.,

Respondent

PETITION FOR WRIT OF CERTIORARI

MARCH H. CoOFFIELD

SEALE, STOVER, COFFIELD,

GATLIN & BISBEY

P. O. Box 480

Jasper, Texas 75951

(409) 384-3463

Counsel for Petitioner,

Melvin O’Carroll

Alpha Law Brief Co., Inc. — 8748 Westpark — Houston, Texas 77063 — 789-2000

I

QUESTION PRESENTED FOR REVIEW

WHETHER AN AIRLINE PASSENGER’S STATE

BASED REMEDY FOR COMMON LAW NEGLI

GENCE AGAINST AN AIRLINE IS FEDERALLY

PRE-EMPTED BY THE FEDERAL AVIATION ACT,

49 US.C.A. 3 1301, ET SEQ. (SEE ESPECIALLY:

49 US.C.A. §§ 1305, 1506.)

Il

PARTIES TO THIS PROCEEDING

The names of the parties to this proceeding are con

tained in the case caption

NO.

IN THE

Supreme Court of the Mnited States

OCTOBER TERM, 1988

MELVIN O’CARROLL,

Petitioner

Vv.

CHAPARRAL AIRLINES, INC..

Respondent

PETITION FOR WRIT OF CERTIORARI

Petitioner, Melvin O’Carroll, prays that a Writ of

Certiorari issue to review the Judgment of the Fifth

Circuit Court of Appeals in this case.

OPINION AND DECISION IN THE

COURT OF APPEALS

The Opinion (863 F.2d 11) and Judgment of the

Fifth Circuit Court of Appeals, together with the Opinion

and Order denying Petitioner’s Petition for Rehearing,

are printed in the Appendix.

2

JURISDICTION

The Trial Court’s jurisdiction of this case arises from

28 U.S.C.A. § 1322. The Court of Appeals’ jurisdiction

is based on 28 U.S.C.A. § 1291.

Jurisdiction of this Court is invoked under 28 U.S.C.A.

§ 1254. The Judgment of the Fifth Circuit Court of

Appeals was entered on January 12, 1989. Petitioner’s

Petition for Rehearing was denied on February 9, 1989.

This Petition is timely filed pursuant to 28 U.S.C.A.

§ 2101(c) and Rule 20, U.S.S.C.R.

STATUTES INVOLVED IN THIS CASE

49 U.S.C.A. § 1305 provides as follows:

“(a) PREEMPTION

“(1) Except as provided in paragraph (2) of

this subsection, no State or political subdivision

thereof and no interstate agency or other political

agency of two or more States shall enact or enforce

any law, rule, regulation, standard, or other pro-

vision having the force and effect of law relating

to rates, routes, or services of any air carrier having

authority under subchapter IV of this chapter to

provide air transportation.

“(2) Except with respect to air transportation

(other than charter air transportation) provided

pursuant to a certificate issued by the Board under

section 1371 of this title, the provisions of paragraph

(1) of this subsection shall not apply to any trans-

portation by air of persons, property, or mail con-

ducted wholly within the State of Alaska.

“(b) PROPRIETARY POWERS AND RIGHTS

“(1) Nothing in subsection (a) of this section

shall be construed to limit the authority of any

re

State or political subdivision thereof or any inter-

state agency or other political agency of two or

more States as the owner or operator of an airport

served by any air carrier certificated by the Board

to exercise its proprietary powers and rights.

“(2) Any aircraft operated between points in the

same State (other than the State of Hawaii) which

in the course of such operation crosses a boundary

between two States, or between the United States

and any other country, or between a State and the

beginning of the territorial waters of the United

States, shall not, by reason of crossing such bound-

ary, be considered to be operating in interstate or

overseas air transportation.

“(c) EXISTING STATE AUTHORITY

“When any intrastate air carrier which on August

|, 1977, was operating primarily in intrastate air

transportation regulated by a State receives the au-

thority to provide interstate air transportation, any

authority received from such State shall be con-

sidered to be a part of its authority to provide air

transportation received from the Board under sub-

chapter IV of this chapter, until modified. suspended,

amended or terminated as provided under such sub-

chapter.

“(d) DEFINITION

“For purposes of this section, the term ‘State’

means any State, the District of Columbia. the

Commonwealth of Puerto Rico, the Commonwealth

of the Northern Mariana Islands, Guam, the Virgin

Islands, and any territory or possession of the

United States.”

(Pub.L. 85-726, Title I, § 105, as added Pub.

95-504, § 4(a), Oct. 24, 1978, 92 Stat. 1708. and

amended Pub.L. 98-443, $9(u), Oct. 4. 1984.

98 Stat. 1709.)

Ss

4

49 U.S.C.A. § 1506 provides as follows:

“Nothing contained in this chapter shall in any

way abridge or alter the remedies now existing at

common law or by statute, but the provisions of

this chapter are in addition to such remedies.”

(Pub.L. 85-726, Title XI, § 1106, Aug. 23, 1958,

72 Stat. 798.)

STATEMENT OF THE CASE

This is a suit under Texas common law by Melvin

O’Carroli (O’Carroll), a passenger, against Chaparral

Airlines, Inc. (Chaparral), a common carrier, for neg-

ligence occurring on September 14, 1986, at Dallas-Fort

Worth Airport (DFW) and the damages proximately

caused thereby.

O’Carroll contends that Chaparral had a duty under

Texas common law to exercise a high degree of care

toward him in view of the passenger-carrier relationship

that existed on the occasion in question. O’Carroll further

contends that that duty was breached by Chaparral and

its crew when:

(1) they accused O’Carroll of having an invalid ticket

when in fact the ticket was admittedly valid;

(2) they accused O’Carroll of intoxication without

justification; and,

(3) they had O’Carroll removed from the aircraft,

arrested and jailed by airport police.

Finally, O’Carroll contends that the Texas common

law under which this suit was filed and tried was not

pre-empted by 49 U.S.C.A. § 1305. There is a complete

5

absence of any clear indication of Congressional intent

to pre-empt the common law of the various states by

such section. In addition, the provisions of 49 U.S.C.A.

§ 1506 clearly preserve O’Carroll’s common law remedies.

REASONS FOR ALLOWANCE OF THE WRIT

As part of the “Federal Aviation Act of 1958,”

Congress enacted 49 U.S.C.A. § 1506, entitled “Remedies

Not Exclusive,” and quoted above. Of course. the refer-

ences in this Section, as set forth in U.S.C.A.. to “chapter”

include the entire Federal Aviation Act, as shown by

the language of the Act as passed in 1958.

“REMEDIES NOT EXCLUSIVE

“Sec. 1106. Nothing contained in this Act shall in

any way abridge or alter the remedies now existing

at common law or by statute, but the provisions

of this Act are in addition to such remedies.”

(Public Law 85-726, Sec. 1106), U.S. Code Cong.

and Ad. News (1958) at p. 931.

The contention that the Federal Aviation Act pre-

empts state-based common law actions by passengers for

| airline negligence arises from the addition of § 1305

(quoted above) in the 1978 amendments to the Act.

However, § 1506 has not been repealed or amended

since 1958.

It is submitted that the retention of § 1506, coupled

with the complete absence of any stated Congressional

intention that § 1305 pre-empts all state-based common

law actions, indicate that such common law actions have

not been pre-empted.

a

6

The effect of § 1506 has been assessed by this Court

in Nader v. Alleghany Airlines, Inc., 426 U.S. 290

(1976). In Nader, this Court found that there was no

“absolute inconsistency” or “irreconcilable conflict” be-

tween a common law tort action for fraudulent mis-

representation by an air carrier (overbooking) and 49

U.S.C.A. § 1381. That Section gives authority to the

Board to investigate and decide cases of “unfair or

deceptive practices or unfair methods of competition”

by air carriers and ticket agents. Nader’s complaint

asserted a common law claim for damages arising out of

“deceptive practices” by Alleghany, as well as a statutory

claim. 426 U.S. at p. 295. The Court noted, in response

to the pre-emption defense made by the carrier, that:

Under the circumstances, the common-law

action and the Statute are not ‘absolutely inconsis-

tent’ and may co-exist as contemplated by § (1506).

‘In sum, § (1381) confers upon the Board a new

and powerful weapon against unfair and deceptive

practices that injure the public. But it does not

represent the only, or best, response to all chal-

lenged carrier actions that result in private wrongs.”

426 U.S. at pp. 300, 303 (Insertions and Emphasis

Added).

The action asserted here, and the remedy sought by

O’Carroll, are “private” in nature. The events of Sep-

tember 14, 1986, directly affected and damaged O’Car-

roll’s “private interests.” Those interests are protected

by Texas common law which imposes a duty on common

carriers, such as Chaparral, to exercise a high degree

of care toward their passengers.

7

See, also: Manfredonia vy. American Airlines, Inc.,

416 N.Y.S. 2d 286 (Ct. App., 1979) at p. 290; Lefko-

witz v. Daro Chartours, Inc., 422 N.Y.S. 2d 146 (Ct.

App., 1979) at p. 148; American Express Co. vy. Teitel,

464 N.Y.S. 2d 947 (N.Y. Civ. Ct.. 1983) at pp. 950,

951; Brunwasser v. Trans World Airlines, Inc., 541 F.

Supp. 1338 (W.D., Pa., 1982) at pp. 1356, 1356;

Porter v. Southeastern Aviation, Inc., 191 F. Supp. 42

(M.D., Tenn., 1961) at p. 43: and, In Re Air Crash

Disaster, 635 F.2d 67 (2d Cir., 1980) at pp. 74-76.

The basic provisions of 49 U.S.C.A. § 1305 prohibit

State or agency enactment and enforcement of laws. rules.

regulations, standards or other provisions relating to

rates, routes or services. Undoubtedly, Congress could

and would have included “common law actions for

negligence” in this list of prohibitions if that were what

it intended. Obviously, it did not intend to pre-empt

such actions, but sought only to prohibit the states or

other Federal agencies from attempting to regulate air-

lines as to their “rates, routes or services.” The continued

presence of § 1506 in the statutory system underscores

these clear limitations on the effect of § 1305, and the

absence of Congressional intention to pre-empt private

actions to remedy airline negligence.

Likewise, no mention is made in any of the relevant

statements of legislative purpose that Congress intended,

in any way, to pre-empt State common law by enacting

these statutes or authorizing action by a Federal Board.

See, e.g., U.S. Cong. and Ad. News. (1961) at pp. 520,

522, 2563-2566; (1974) at pp. 465, 3989: (1978) at

pp. 1705, 1744, 3737, 3751, 3752, 3773-3775. Surely,

if Congress had intended to wipe out State doctrines of

8

common law negligence, such a dramatic undertaking

would at least have been mentioned somewhere.

The pre-emption argument in this case is centered on

the claimed pursuit of “uniformity.” That position con-

veniently ignores the fact that the common law of the

various states uniformly holds carriers to a duty to

exercise a high degree of care toward their passengers.

See, e.g., Law of Torts, Prosser (1971 Ed.) § 34 at

pp. 180-183. Texas is, of course, part of that uniformity.

See, e.g., 11 Tex. Jur. 3d (1981 Ed.) “Carriers” § 160

at pp. 188, 189.

That argument also ignores the absence of any holding

that Federal pre-emption has denied open courts to those

damaged as a result of the Delta Airlines crash at Dallas-

Fort Worth Airport and the Pan American World Air-

ways crash near the New Orleans Airport, among many

others. This Court can take judicial notice that cases

arising out of those two incidents alone have already

been tried or are awaiting trial with no contention of

pre-emption. See, e.g., In Re Air Crash Disaster, 767

F.2d 1151 (Sth Cir., 1985): In Re Air Crash, 861 F.2d

814 (Sth Cir., 1988). Certainly, Melvin O’Carroll cannot

be more of a concern to Federal authorities than the

respective passengers aboard those fatal flights. Clearly,

landings (Delta) and takeoffs (Pan American) are part

of “. . . the duty resting upon air carriers to perform

their services with the highest possible degree of safety

in the public interest .. .” 49 U.S.C.A. § 1421(b).

In the course of this incident, even uninvolved fellow

passengers were arrogantly threatened with removal and

jail by Chaparral’s flight attendant simply because they

were supportive of O’Carroll in his plight (Tr. Sup. A-16,

9

17; Tr. Sup. B-9). It is submitted that the Congress

could never have intended to give air carriers an es-

sentially free rein to abuse their Passengers in the name

of “safety’—the obvious end result would be just the

opposite.

O’Carroll respectfully submits that the Texas law pro-

tecting passengers from common carrier negligence is not

inconsistent with airline safety. In the absence of such

common law protection, there would be a crazy-quilt of

“protection ¥s. non-protection” based on whether you

were an interstate airline passenger, an intrastate airline

passenger, an airborne passenger or still sitting at the

airport, a train passenger, a bus passenger, or any one

of a myriad of combinations thereof. And. under the

Opposing position, a passenger damaged by airline neg-

ligence would be without any private remedy. Obviously,

such a scheme would not encourage airline safety. The

Texas law is consistent with. and directly compliments,

the concept of air safety that prompted the passage of

the Federal Aviation Act and its later amendments.

It is respectfully submitted that the Federal law arising

under that legislation does not pre-empt the Texas law

involved in this case and does not eliminate private

causes of action for damages arising from airline neg

ligence.

CONCLUSION AND PRAYER

Petitioner, Melvin O’Carroll, respectfully submits that

the Federal Aviation Act does not pre-empt his private

remedy under Texas common law for the negligence of

Chaparral Airlines, Inc. Petitioner respectfully prays that

this Court issue a Writ of Certiorari to review the Judg-

10

ment and Opinion of the Fifth Circuit Court of Appeals

and for such other and further relief to which he may

be justly entitled.

Respectfully submitted,

MARCH H. COFFIELD

SEALE, STOVER, COFFIELD,

GATLIN & BISBEY

P. O. Box 480

950 North Wheeler

Jasper, Texas 75951

(409) 384-3463

SBN: 04491000

Counsel for Petitioner,

Melvin O’Carroll

1]

CERTIFICATE OF SERVICE

I hereby certify that I am a member of the United

States Supreme Court bar and counsel of record for the

Petitioner herein and that, on the day of March,

1989, three (3) copies of the above and foregoing

Petition for Writ of Certiorari were served on each

party represented herein, pursuant to United States Su-

preme Court Rules 19, 21, by depositing same in the

United States Post Office, Jasper. Texas, with postage

prepaid, Certified Mail, Return Receipt Requested, and

properly addressed to counse! of record for Respondent,

to wit: Mr. Stuart J. Starry, First InterState Tower.

24th Floor, 1300 Post Oak Boulevard, Houston. Texas

77056, and Mr. Mark Dombroff, 1275 Pennsylvania

Avenue, N.W., Suite 301, Washington, D. C. 20004.

MARCH H. CoFFIELD

A-|

APPENDIX

Melvin O’CARROLL,

Plaintiff-Appellee,

v.

AMERICAN AIRLINES, INC

Defendant.

Chaparral Airlines, Inc.,

Defendant-Appellant

No. 88-2560

Summary Calendar

United States Court of Appeals,

Fifth Circuit

Jan. 12, 1989.

Ticket holder brought action against airline for wrong-

ful exclusion from flight. The United States District

Court for the Eastern District of Texas, J. Michael

Bradford. United States Magistrate, entered judgment

on jury verdict in favor of ticket holder. Airline appealed.

The Court of Appeals held that Federal Aviation Act

preempted state law claim for allegedly wrongful ex-

clusion.

Vacated.

A-2

Appeal from the United States District Court for the

Eastern District of Texas.

Before CLARK, Chief Judge, JOHNSON, and JOLLY.

Circuit Judges.

PER CURIAM:

Defendant Chaparral Airlines appeals the district

court’s judgment on the jury verdict in favor of the

plaintiff. Concluding that the district court lacked subject

matter jurisdiction, we vacate.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Melvin O’Carroll (O’Carroll) held a valid

flight ticket issued by Chaparral Airlines (Chaparral)

for passage between Portland, Maine and Alexandria,

Louisiana. The entire trip was to have taken several

hours, and was comprised of three flight segments:

Portland to Boston, Boston to Dallas (DFW) and DFW

to Alexandria. Early in his journey, O’Carroll met a

cousin, Robert Rollins (Rollins), and the two traveled

together consuming a number of beers en route. Shortly

after O’Carroll and Rollins boarded the Chaparral flight

at DFW for the final leg of their journey, a commotion

arose on the aircraft. Testimony at trial indicated that

O’Carroll and Rollins asked a flight attendant for liquor

immediately after boarding and were loud, boisterous and

intoxicated. At one point, Rollins advised the pilot that

he (Rollins) would “help him fly the plane.” During

the ensuing chain of events. Chaparral discovered an

irregularity with O’Carroll’s ticket. A flight attendant

asked O’Carroil to deplane and check with the gate

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agent regarding the ticket mix-up; O’Carroll, however,

uttering obscenities, refused to move. Ultimately, after

being summoned by the Chaparral Captain, the: police

arrived and removed O’Carroll and Rollins from the

aircraft. The two were thereafter charged with disorderly

conduct and jailed.

O’Carroll brought the instant action in United States

District Court asserting various state law claims because

of what O’Carroll alleged to be his wrongful exclusion

from the Chaparral flight. Jurisdiction of the district court

was based entirely on diversity of citizenship. After a

trial before a jury, a verdict was returned which awarded

O’Carroll $260,273.23 in damages. The Magistrate denied

Chaparral’s subsequent Motion for Judgment Notwith-

standing the Verdict and Chaparral’s Rule 12(b)(6)

Motion to Dismiss. Thereafter, the Magistrate entered

judgment on the jury’s verdict and Chaparral timely

perfected this appeal.

II. DISCUSSION

Chaparral argues that the state law claims which

formed the basis of O’Carroll’s action are preempted

by federal law. We agree. There are three instances

where federal law will be found to preempt state law.

First, Congress may expressly preempt state law. Shaw

v. Delta Air Lines, 463 U.S. 85, 95, 103 S. Ct. 2890,

2899, 77 L.Ed.2d 490, 500 (1983). Second, congres-

sional intent to preempt may be inferred, generally from

the pervasiveness of the federal regulatory scheme. Rice

v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct.

1146, 1152, 91 L.Ed. 1447, 1459 (1947). Third, when

state law conflicts with federal law or interferes with

Os

the achievement of neression byectives, preemption

occurs even though state law may not be displaced in its

entirety. Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132, 142-43, 83 S. Ct. 1210, 1217, 10 L.Ed.2d

248, 257 (1963): Hines v. Davidowitz, 312 U.S. 52,

67-68, 61 S. Ct. 399, 404, 85 L.Ed. 581, 587 (1941).

The existence of any of these circumstances is sufficient

to establish preemption. See Michigan Canners & Freezers

Assn v. Agricultural Marketine & Bareainine Board,

467 U.S. 461, 469, 104 S. Ct. 2518, 2523, 81 L.Ed.2d

399, 406 (1984) (summarizing three types of preemp

tion).

There can be no question that the Federal Aviation

Act applies to the regulation of air travel. Section 1511

vests an air carrier with broad discretion with respect

to whom will be granted or denied passage. Section 1511

reads in part:

Subject to reasonable rules and regulations prescribed

by the Secretary of Transportation, any such carrie

may also refuse transportation of a passenger or

property when. in the opinion of the carrier, such

transportation would or might be inimical to safety

of flight.

49 U.S.C. App. § 1511(a). The discretion conferred by

the above section, while decidedly expansive, is not un-

fettered. Section 1374 provides that all air carriers must

provide safe and adequate service, equipment, and

facilities land] establish. observe, and enforce

just and reasonable . rules, regulations and prac

tices relating to [air travel]. No carrier or

foreign air cart shall make, give, or cause any

undue or unreasonable preie renc or advantage to

A-5

any particular person . . . or subject any particular

person . . . to any unjust discrimination or any

undue or unreasonable prejudice or disadvantage in

any respect whatsoever.

49 U.S.C. App. §§ 1374(a)(1) & 1375(b). Further,

an implied cause of action against an air carrier under

section 1374 for abuse of the discretion accorded it by

virtue of section 1511 has been recognized. See Diefenthal

v. C.A.B., 681 F.2d 1039, 1050 (Sth Cir. 1982): see

also Mason vy. Belieu, 543 F.2d 215 (D.C. Cir. 1987)

cert. denied, 429 U.S. 852, 97 S. Ct. 144, 50 L.Ed.2d 127.

While the pervasive breadth of the Act as discerned

from the language quoted above would tend to indicate

congressional preemptive intent, there is no need to rely

upon inference alone as section 1305, which is entitled

“Federal Preemption,” expressly preempts state law and

reads in pertinent part as follows:

[N]Jo State . . . shall enact or enforce any law, rule,

regulation, standard, or other provision having the

force and effect of law relating to rates, routes, or

services of any air carrier having authority under

subchapter IV of this chapter to provide air trans-

portation.

49 U.S.C. App. § 1305(a)(1). In view of this explicit

manifestation of congressional intent, we conclude that

O’Carroll’s common law claims are preempted by section

1305 and thus the district court lacked subject matter

jurisdiction over the instant action. See also Cippollone

v. Liggett Group, Inc., 593 F.Supp. 1146 (D.C. N.J.

1984), rev'd on other grounds, 789 F.2d 181. Conse-

quently, we need not reach any other issues raised on

appeal.

A-6

lil. CONCLUSION

Because O’Carroll, in his complaint, alleged only state

law based claims, and because we have determined that

Congress intended through section 1305 to preempt state

law based claims, we conclude that the district court

lacked jurisdiction over the instant suit. The judgment

of the district court is therefore vacated

VACATED

UNITED STATES COURT OF APP]

FOR THE FIFTH CIRCUIT

ALS

MELVIN O’CARROLI

Plaintiff-Appellee

V

AMERICAN AIRLINES, IN¢

Defendant,

CHAPARRAL AIRLINES, IN¢

Defendant-Appellant

lidge, JOHNSON, and JOLLY.

cause came on to be heard on the

On

A-8

appeal and was taken under submission on the briefs

on file.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the District Court in this cause is vacated, and the

cause is remanded to the District Court for further pro-

ceedings in accordance with the opinion of this Court

IT IS FURTHER ORDERED that each party bears

its own costs on appeal.

January 12, 1989

ISSUED AS MANDATE: February 21, 1989

A-9

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-2560

MELVIN O’CARROLL,

Plaintiff-Appellee,

Va

AMERICAN AIRLINES, INC.,

Defendant,

CHAPARRAL AIRLINES, INC.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(February 9, 1989)

Before CLARK, Chief Judge, JOHNSON, and JOLLY,

Circuit Judges.

PER CURIAM:

On petition for rehearing, appellant Melvin O’Carroll

contends that 49 U.S.C. § 1506 preserves his state law

based negligence claims. Section 1506 reads as follows:

Nothing contained in this chapter shall in any way

abridge or alter the remedies now existing at com-

A-10

mon law or by statute, but the provisions of this

chapter are in addition to such remedies.

49 U.S.C. § 1506. In making this contention, however,

O’Carroll overlooks the fact that section 1305, entitled

“Federal Preemption” was enacted by Congress well after

section 1506. Therefore, we conclude that section 1305

is a clear indication of congressional intent to preempt

and is controlling. The petition for rehearing is DENIED.

ENTERED FOR THE COURT:

/s/ SAM JOHNSOIN

United States Circuit Judge

2-3-89

A-11

SUMMARY OF THE RECORD

Chaparral Airlines, Inc. is a commuter airline supply-

ing connecting service to American Airlines under the

name “American Eagle.” Among its flights is a direct

flight from Dallas-Fort Worth Airport (DFW) to Alex-

andria, Louisiana.

Melvin O’Carroll had been working in Maine and on

September 14, 1986, he was traveling from Portland,

Maine, back to his home in Oakdale, Louisiana. near

Alexandria (Tr. 24, 25, 27, 28).

The ticket on which O’Carroll was traveling on Sep-

tember 14, 1986, is in evidence as Pl. Ex. 1. It cost a

total of $444.00, and was prepaid by O’Carroll’s em-

ployer (Tr. 26, 33). The ticket was signed by O’Carroll

as the passenger and was non-transferable and non-

refundable (Tr. 26, 33, 34). This ticket covered O’Car-

roll’s entire trip from Portland, Maine, to Alexandria,

Louisiana, with legs from Portland to Boston, Boston to

DFW, and DFW to Alexandria (Tr. 27).

On the morning of the incident made the basis of this

suit, O’Carroll began his trip at 5:30 A.M. (Eastern

Time) with a bus ride to the local airport for a flight

to Portland (Tr. 31). The trip was scheduled to end

with arrival in Alexandria at approximately 9:00 P.M.

(Central Time) (Tr. 36). The incident in question oc-

curred at approximately 7:00 P.M. (Central Time) at

DFW (Pl. Ex. 5, 6).

While in Boston awaiting his flight to DFW, O’Carroll

met his cousin, Robert Rollins (Tr. 32). They flew on

the same flight to DFW, but were not seated together

(Tr. 34).

A-12

During the course of this day-long trip, until he went

to Chaparral’s terminal area at DFW, O’Carroll drank

four or five beers (Tr. 35, 69).

O’Carroll and his cousin. Rollins, boarded Chaparral’s

flight to Alexandria together and they were assigned

seats at the front of the plane, near the cockpit. (Tr.

37-39). O’Carroll had no idea as to what, or how much,

Rollins had had to drink during the day. (Tr. 40).

Prior to boarding Chaparral’s aircraft at DFW, O’Car-

roll went through Chaparral’s terminal area, and pre-

sented his ticket (Tr. 36; Tr. Sup. B-1). O’Carroll’s

boarding pass is in evidence as Pl. Ex. 2.

As he entered the plane, O’Carroll had to pass the

flight attendant, Morris (Tr. Sup. B-1). He sat in his

seat (Tr. 38, 39), and aside from asking “When do we

get our drinks?” the flight attendant noted nothing about

O’Carroll or his conduct, and assumes he remained seated,

until the question arose about O’Carroll’s ticket (Tr.

Sup. B-2, 3).

Just before take-off, the young lady who had taken

O’Carroll’s ticket prior to boarding, came aboard the

plane and told O’Carroll his ticket was no good and that

he would have to get off (Tr. 41, 52). Although she

had the ticket in her hand, she did not explain what

the problem with the ticket was (Tr. 42). She told

O’Carroll he would have to take a flight the next day

(Tr. 42).

O’Carroll refused to leave the plane because he be-

lieved his ticket was good and, since he only had $13.45

in cash, he did not want to be stuck at the airport over-

night. (Tr. 41-44; Pl. Ex. 6 [p. 3—*“Book-In Report”]).

A-13

None of Chaparral’s personnel advised O’Carroll that

the airline would take care of his overnight expenses

if he would deplane to have the ticket checked out (Tr.

47), Chaparral’s flight attendant, Morris, did not know

the company’s policy or procedure for handling such

matters (Tr. Sup. B-5). Chaparral’s gate attendant, Mary

Beth Hopkins, was not called to testify by Chaparral.

The only contact O’Carroll had with the plane captain

was when the pilot told O’Carroll the ticket was no good

and threatened to call security (Tr. 46). O’Carroll

thought such a call would be a good thing since security

might be able to straighten matters out (Tr. 46, 47).

Chaparral’s captain, Steven Zeigler, was not called to

testify by Chaparral although he was present in the

Courtroom (Tr. 14) and was the “Complainant” on the

“Arrest Record” arising out of this incident (Pl. Ex. 5-7).

Before O’Carroll was removed from the airplane by

the security personnel, Chaparral’s employees had deter-

mined that the ticket was in fact valid (Tr. 128; Tr. Sup.

B-5, 6). In the meantime, Chaparral’s flight attendant,

Morris, decided O’Carroll was intoxicated, but made no

tests to aid himself in that decision (Tr. Sup. B-6, 7).

Chaparral’s second officer, Ramsey, testified about his

observations, but he was not shown as a “witness” on

the “Arrest Report” arising out of this incident (PI.

Ex. 5-7).

Ramsey’s further testimony revealed that O’Carroll was

seated throughout the time Ramsey was observing him

(Tr. 126). Ramsey did not talk to O’Carroll (Tr. 127).

Ramsey’s observation of O’Carroll lasted 10 to 15 seconds

(Tr. 127, 129).

A-14

The initial complaint made to DFW police by Captain

Zeigler was that O’Carroll was “disorderly and intoxi-

cated” (Tr. Sup. B-14; Pl. Ex. 6, 8). However, O’Carroll

was not charged with “intoxication” (Tr. Sup. B-22, 25).

The initial “Arrest Report” was changed by Officer

Savino, as to the “Narrative” in Section 41 of the Report,

to remove references to O’Carroll being “disorderly” and

“intoxicated” (Pl. Ex. 5-7). O’Carroll was shown as

being “Non-Ticketed,” and having “none” under “Ticket

No.” (Pl. Ex. 5-7 [Section 42]). However, there is no

dispute that he was ticketed and his ticket is shown on

the “Book-In Report” (Pl. Ex. 6).

The “Arrest Record” shows, that in the officer’s opin-

ion, O’Carroll was “Active” (as opposed to “Unconsci-

ous,” “Passive” or “Hostile”’) and “Drinking” (as op-

posed to “Drunk”) (Tr. Sup. B-23; Pl. Ex. 5-7 [Section

43, 44]).

O’Carroll was never told by the Captain, or any of

Chaparral’s personnel, that they thought he was drunk,

or that he was a threat to the safety of the airplane or

the other passengers (Tr. 48, 49).

O’Carroll left the airplane after being told by one of

the security officers that Captain Zeigler still claimed his

ticket was no good and after the officer put his hand on

his blackjack and said “Now, you get up and come on”

(Tr. 48, 50, 51). O’Carroll was taken to the police car

where he was frisked and handcuffed, then taken to the

DFW jail (Tr. 52, 53).

When he was checked in at the DFW jail, O’Carroll

had $13.45, his plane ticket and no knife or whiskey

(Tr. 54; Pl. Ex. 6). He was fingerprinted, had a “mug

A-15

shot” taken and was placed in an 8-foot-square cell

with 3, later 4, other men (Tr. 55). O’Carroll was in

that cell for about 3 hours, and, although he was cold,

was refused his jacket (Tr. 55, 56). He was then moved

to another, bigger cell (Tr. 56). No tests were performed

on him by the police to determine if he was intoxicated

(Tr. 56).

Because the DFW personnel told his employer that he

had been arrested for being drunk and disorderly, O’Car-

roll’s employer would not post bond for him and refused

his later call for help (Tr. 56, 58).

Sometime around 1:30 or 2:00 A.M. on the morning

of September 15, 1986, O’Carroll was again handcuffed

and moved to the Grapevine, Texas, City Jail (Tr. 58;

Pl. Ex. 7). There, he was fingerprinted and photographed

again (Tr. 58).

Prior to this incident, O’Carroll had never been

frisked, handcuffed or put into a police car (Tr. 53).

Prior to this incident, O’Carroll had never been finger-

printed or booked into a jail (Tr. 55). At the time of

his arrest and book-in, O’Carroll had no outstanding

warrants, holds or record (Tr. Sup. B-19, 26).

While O’Carroll was being jailed, his family was await-

ing his arrival at the Alexandria airport (Tr. 95). Al-

though Mrs. O’Carroll inquired about his situation at

Chaparral’s ticket counter there, she was given no in-

formation (Tr. 95).

Later the morning of September 15th, O’Carroll was

allowed another telephone call and was able to contact

his wife, who borrowed the money and posted his bond

(Tr. 60). He was released from the Grapevine jail on

A-16

the afternoon of September 15, 1986 (Tr. 60). He

walked approximately two miles from the jail back to

Chaparral’s terminal at DFW (Tr. 60).

O’Carroll then flew to Alexandria on the same Chapar-

ral flight from which he had been removed 24 hours

earlier, using the same ticket alleged to have been invalid

the day before (Tr. 61, 62).

This suit, based on Texas common law, was filed on

November 12, 1986 (R. 1). O’Carroll contended that

as a passenger aboard Chaparral’s aircraft, he was en-

titled to Chaparral’s exercise of a high degree of care,

and that such duty was breached when he was accused

of having an invalid ticket, then being intoxicated, then

removed from the aircraft and arrested at the direction

of Chaparral’s personnel (Tr. 195).

This case was tried in the Court of Magistrate J.

Bradford in the Eastern United States District of Texas,

befor ury on August 25 and 26, 1987 (Tr. 2, 149)

Following presentation of the evidence, argument of

counsel and submission of the Court’s charge, the jury

) <

und Chaparral negligent, O’Carroll not negligent, and

yast damages of $75,000.00 and future damages

213)

swarded

aw dal UCU

$177.500.00 (Tr

Following the filing of post-trial motions and the

ys thereon, the Trial Court entered judgment on

m March 14, 1988 (R. 561, 562).

The Fifth Circuit Court of Appeals vacated that judg-

ment on January 12, 1989, and denied O’Carroll’s Peti-

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