Rodriguez v. Southwest Airlines Co. CA2/2 ( 2022 )

Filed 4/22/22 Rodriguez v. Southwest Airlines Co. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MIGUEL RODRIGUEZ, B311405
Plaintiff and Appellant,
(Los Angeles County
v.
Super. Ct. No.
SOUTHWEST AIRLINES CO., 18STCV03694)
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles
County. Stephen I. Goorvitch, Judge. Affirmed.
Schneberg Law, Kyle Schneberg; Jeff Lewis Law, Jeffrey Lewis
and Sean C. Rotstan for Plaintiff and Appellant.
Jetstream Legal and Richard G. Grotch for Defendant and
Respondent.
__________________________________________
During boarding, airline passenger Eric Lopez (Lopez) refused to
comply with preflight safety protocols for stowing baggage or to
disembark voluntarily. Police were called, and all other passengers
began to disembark. Another passenger, Trenton Scott Pickett-Evans
(Pickett-Evans), approached and assaulted Lopez, causing injury to
passenger Miguel Rodriguez (Rodriguez), who then sued the airline for
negligence. The trial court granted the airline summary judgment,
finding the airline owed no duty to protect Rodriguez from Pickett-
Evans’s unforeseeable assault. We agree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Assault
On March 2, 2018, Rodriguez and his friend Lopez boarded a
Southwest Airlines Co. (Southwest) plane in Dallas, Texas to fly to Los
Angeles. The two men had seats in the same row; Rodriguez sat down
in the window seat and Lopez took the aisle seat. The middle seat
between them was empty.
Toward the end of the boarding process, a woman entered the
plane pulling a roller carry-on suitcase. Southwest Customer Service
Supervisor Chad Hardin (Hardin) began helping the woman stow her
suitcase in the overhead compartment above Lopez’s seat. Hardin
discovered two small bags in the compartment. He asked to whom the
bags belonged, explained he needed to make room for the suitcase, and
removed them.
Rodriguez and Lopez identified themselves as the owners of the
bags. Hardin asked the men to stow the bags underneath the seats in
front of them. Rodriguez complied, but Lopez refused, stating he “had a
right” to keep his bag in the compartment “to maintain his leg room.”
Hardin gave Lopez the choice of stowing his bag as directed or
deplaning voluntarily. Lopez rejected both options, and the two men
argued. Rodriguez believed Hardin’s behavior was unnecessarily rude
and aggressive. Lopez grew angrier and raised his voice.
Hardin stepped off the plane to call for police assistance and to
advise the operations department the flight may be delayed. Hardin
then announced to the passengers that he had been involved in an
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“issue” or an “argument” with a passenger and “everyone would
possibly have to deplane.” Hardin remained at the bottom of the jet
way or just outside the front aircraft exit to wait for the police.
Passengers were clearly upset by Hardin’s announcement. A
flight attendant in the back of the plane heard Lopez and Rodriguez
using “loud profanity.” She walked over and offered to help. Lopez
angrily responded that Hardin should not have “ ‘touched my shit.’ ”
The flight attendant returned to the back of the aircraft.
By now passengers were milling about the cabin and beginning to
disembark. The aisles were crowded; no flight attendants were nearby.
Passengers from the back of the plane moved toward the front exit,
directing negative comments to Lopez and Rodriguez.
Passenger Pickett-Evans was seated a few rows behind Lopez
and Rodriguez. As he was deplaning, Pickett-Evans stopped next to
Lopez’s seat and demanded that Lopez leave the aircraft. The two men
argued. Several passengers attempted to alert flight attendants to the
confrontation.
Pickett-Evans then took a “fight stance,” and Rodriguez stood.
Picket-Evans pushed Lopez. In response, Lopez stood and raised his
hands “defensively.” Pickett-Evans punched Lopez several times in the
forehead. He also struck Rodriguez’s arm. Lopez lost his balance and
toppled onto Rodriguez, who in turn fell and seriously injured his knee.
Rodriguez described the incident as “happen[ing] pretty fast.”
Rodriguez estimated the time from Pickett-Evans’s initial approach to
his assault on Lopez was one to two minutes.
Some passengers managed to restrain Pickett-Evans. The aisle
cleared, and a flight attendant was able to approach. Shortly
thereafter, the police arrived and escorted Lopez and Pickett-Smith off
the plane. The remaining passengers disembarked. Rodriguez, who
was unable to stand, left the plane in a wheelchair. He received
medical attention before traveling to Los Angeles on a later flight.
II. The Lawsuit
Rodriguez filed suit against Lopez and Southwest for personal
injury damages. Rodriguez asserted one cause of action for negligence,
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alleging Southwest breached its duty of care as a common carrier by
failing to “control . . . the circumstances of [Rodriguez’s] transportation
while a passenger.”
Southwest filed an answer, denying liability and asserting
various affirmative defenses.
III. The Summary Judgment Motion
Southwest moved for summary judgment, arguing in part it had
no duty to protect Rodriguez from an unforeseeable intentional act of
harm by a fellow passenger.1
Rodriguez filed opposition. He argued: (1) Southwest, as a
common carrier, had a duty to protect passengers from assaults by
fellow passengers; and (2) there were triable issues whether Southwest
reasonably exercised that duty by failing to foresee the likelihood of a
physical altercation between passengers and Rodriguez’s resulting
injury.
Following a hearing, the trial court granted Southwest’s
summary judgment motion. The court found that although common
carriers like Southwest have a duty to protect passengers from assaults
by fellow passengers, there were no triable issues of material fact
indicating that (1) the assault was reasonably foreseeable to Southwest;
and (2) Southwest would have been able to prevent Rodriguez’s injury.
Thus, the court determined Southwest did not have a duty to protect
Rodriguez from the harm he suffered in this instance.
After judgment was entered on the ruling, Rodriguez filed this
appeal.
DISCUSSION
I. Summary Judgment
“A defendant is entitled to summary judgment if it can ‘show that
there is no triable issue as to any material fact.’ [Citation.] The
defendant bears the initial burden of establishing that the plaintiff’s
cause of action has ‘no merit’ by showing that the plaintiff cannot
1
Lopez had not been served with the complaint when
Southwest’s summary judgment motion was filed.
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establish ‘one or more elements of [the] cause of action.’ [Citation.] If
this burden is met, the ‘burden shifts’ to the plaintiff ‘to show that a
triable issue of one or more material facts exists as to that cause of
action.’ ” (Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) 63
Cal.App.5th 917, 924, fn. omitted.) We independently review a grant of
summary judgment. (Hampton v. County of San Diego (2015) 62
Cal.4th 340, 347.)
II. Southwest Had No Duty To Protect Rodriguez
Rodriguez contends Southwest Airlines was negligent in failing
protect him from being injured by the assault because it was
foreseeable.
To establish a cause of action for negligence, a plaintiff must
allege facts showing a legal duty to use due care, breach of the duty,
causation, and damages. (Kesner v. Superior Court (2016) 1 Cal.5th
1132, 1158.) Duty is a threshold issue, a question of law for the court,
and reviewed de novo on appeal. (Id. at p. 1142.) Every person has a
duty in his or her activities to exercise reasonable care for the safety of
others. (Civ. Code, § 1714, subd. (a).) Yet this duty “is not absolute”; a
defendant does not necessarily owe every plaintiff a duty of care.
(Brown v. USA Taekwondo (2021) 11 Cal.5th 204; 215 (Brown).)
Generally, “ ‘one owes no duty to control the conduct of another, nor to
warn those endangered by such conduct.’ ” (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 619 (Regents); accord,
Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 [“as a general
matter, there is no duty to act to protect others from the conduct of
third parties”].)
But there are exceptions. Whether a defendant is obligated to
protect a plaintiff from third party harm involves a two-part inquiry:
“First, the court must determine whether there exists a special
relationship between the parties or some other set of circumstances
giving rise to an affirmative duty to protect. Second, if so, the court
must consult the factors described in Rowland [v. Christian (1968) 69
Cal.2d 108, 113 (Rowland factors)] to determine whether relevant
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policy considerations counsel limiting that duty.” (Brown, supra, 11
Cal.5th at p. 209.)
A. The Common Carrier-Passenger Special
Relationship
A special relationship “is typically where the plaintiff is
particularly vulnerable and dependent upon the defendant, who,
correspondingly, has some control over the plaintiff’s welfare.”
(Kockelman v. Segal (1998) 61 Cal.App.4th 491, 499.) The special
relationship exception may also apply when the defendant is able to
control the conduct of the dangerous third party. (Brown, supra, 11
Cal.5th at p. 211.)
The relationship between common carriers and their passengers
is a classic example of a special relationship. (Regents, supra, 4 Cal.5th
at p. 620; see Civ. Code, § 2100 [common carrier “must use the utmost
care and diligence for [passengers’] safe carriage, must provide
everything necessary for that purpose, and must exercise to that end a
reasonable degree of skill”].) Thus, the first part of the inquiry has
been met. As a common carrier Southwest would ordinarily owe a duty
to protect its passengers on the aircraft from third party harm and to
control dangerous third party passengers.
B. The Rowland Factors
For the second part of the inquiry, the Rowland court instructs us
to balance foreseeability-related factors and public policy factors in
deciding whether, in these circumstances, to depart from an implicated
duty of care. (See Brown, supra, 11 Cal.5th at pp. 217–218; Cabral v.
Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.) Guided by these
factors, we conclude that expecting an airline to protect a passenger
from a fellow passenger’s unforeseeable assault in these circumstances
would impose an untenable burden on both the airline industry and
airline passengers.
1. The Rowland Foreseeability-related
factors
The foreseeability-related factors are “the foreseeability of harm
to the plaintiff, the degree of certainty that the plaintiff suffered injury,
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[and] the closeness of the connection between the defendant’s conduct
and the injury suffered.” (Rowland, supra, 69 Cal.2d at p. 113; see
Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at p. 771.) Of these
three factors, whether the injury was foreseeable is the most
important in determining whether an exception should exist to the
duty to protect. (Regents, supra, 4 Cal.5th at p. 629.) Our task “ ‘is
not to decide whether a particular plaintiff’s injury was reasonably
foreseeable in light of a particular defendant’s conduct, but rather to
evaluate more generally whether the category of negligent conduct at
issue is sufficiently likely to result in the kind of harm experienced that
liability may appropriately be imposed.’ ” (Cabral, at p.772; accord,
Regents, at p. 629.) We do, however, evaluate the kind of third party
conduct involved in light of all the surrounding circumstances as
probative in assessing generally whether the category of Southwest’s
alleged negligent conduct is sufficiently likely to result in the kind of
harm plaintiffs experienced. “What is ‘sufficiently likely’ means what
is ‘ “likely enough in the setting of modern life that a reasonably
thoughtful [person] would take account of it in guiding practical
conduct.” ’ ” (Martinez v. Bank of America (2000) 82 Cal.App.4th 883,
895.)
Common carriers have never been considered as insurers of
passenger safety. (Lopez v. Southern Cal. Rapid Transit Dist. (1985)
40 Cal.3d 780, 785.) For this reason, a common carrier’s duty to protect
has been limited to foreseeable third party harm. (Terrell v. Key Sys.
(1945) 69 Cal.App.2d 682, 686.) The record shows Lopez’s belligerent
refusal either to comply with the boarding safety regulations
concerning baggage or to voluntarily leave the plane posed a
foreseeable risk of harm. Southwest had in place procedures to deal
with an unruly passenger in this situation. Those procedures included
clearing the plane of all passengers and seeking the assistance of law
enforcement to remove the unruly passenger. (See, e.g., Rubin v.
United Air Lines (2002) 96 Cal.App.4th 364, 382–385; 49 U.S.C.
§ 44902 [authorizes an airline to “refuse to transport a passenger or
property the carrier decides is, or might be, inimical to safety”].)
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Southwest employees began to implement these procedures, which
meant Lopez ultimately was to be taken off the aircraft. Accordingly,
Southwest was fulfilling its obligation as a common carrier to protect
its passengers from foreseeable harm by ensuring the boarding safety
regulations were enforced and controlling the unruly passenger’s
dangerous behavior.
What happened next in this case, however, was unforeseeable—
that Pickett-Evans would take it upon himself to interfere with
Southwest’s procedures concerning Lopez by attacking him. Although
Rodriguez maintains the assault was foreseeable, he can point to no
evidence to support his claim. First, the record fails to show any
preexisting animosity between the two men. They were seated rows
apart, and there was no suggestion that Pickett-Evans and Lopez had
interacted prior to the confrontation. Nor was there evidence of any
drunken or violent speech or actions by Pickett-Evans toward anyone
either on the plane or prior to boarding that would put Southwest on
notice of his potentially combative behavior. (Terrell v. Key Sys., supra,
69 Cal.App.2d at pp. 684–685 [train operator liable for injuries caused
during an onboard fight based on train personnel’s failure to respond
to passengers’ drunk, boisterous and abusive behavior and previous
onboard fights under similar circumstances].)
Second, there were no records of similar incidents that may have
made it sufficiently likely an assault would occur in these
circumstances. Rodriguez offered no reports of fistfights having
previously erupted on Southwest or other airlines when passengers
were forced to disembark for safety reasons. (Cf. Lopez v. Southern
Cal. Rapid Transit Dist., supra, 40 Cal.3d at p. 791 [bus company liable
for passenger’s assault by fellow passenger based on history of such
assaults on the bus route and driver’s failure to act to protect
passengers or maintain order when notified the assault was occurring];
Regents, supra, 4 Cal.5th at pp. 629–630 [task force reports and
incidents of unprovoked student violence placed postsecondary schools
on notice of possible on-campus student attacks]; Doe v. Roman
Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 676
8
[Archdiocese’s receipt of numerous reports of sexual assaults by clergy
in parish schools made foreseeable a priest’s sexual abuse of plaintiff at
parish school].)
Finally, as the trial court observed, the attack happened in a
setting in which airline employees could not control the attacking
passenger. It is uncontroverted that Pickett-Evans punched Lopez
during deplaning, when passengers were standing, jamming the aisles,
and slowly exiting the plane. Further, as Rodriguez testified during his
deposition, the entire incident—from confrontation through attack—
lasted just one to two minutes, and no crew members were in the
vicinity.
The third foreseeability-related factor is the closeness of the
connection—or causal nexus—between the defendant’s conduct and the
injury suffered. In cases like this one involving third party criminal
conduct, “the existence of an intervening act does not necessarily
attenuate a defendant’s negligence. Rather, ‘the touchstone of the
analysis is the foreseeability of that intervening conduct.’ ” (Regents,
supra, 4 Cal.5th at p. 631; see Kesner v. Superior Court, supra, 1
Cal.5th at p. 1148.) We see no nexus between the efforts of Southwest
employees to ensure passenger safety and the injury sustained by
Rodriguez from Pickett-Evans’s random attack. In sum, the
foreseeability-related factors counsel against imposing a duty on
airlines to protect passengers from assaults by fellow passengers in
these circumstances.
2. The Rowland public policy factors
The public policy factors are “the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the extent of
the burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for breach, and
the availability, cost, and prevalence of insurance for the risk involved.”
(Rowland, 69 Cal.2d at p. 113; Cabral v. Ralphs Grocery Co., supra, 51
Cal.4th at 781; accord, Issakhani v. Shadow Glen Homeowners Assn.,
Inc., supra. 63 Cal.App.5th at pp. 927–928.) The public policy factors
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also counsel against imposing a duty on airlines to protect passengers
from third party assaults in these circumstances.
Moral blame, the first public safety factor, “has been applied to
describe a defendant’s culpability in terms of the defendant’s state of
mind and the inherently harmful nature of the defendant’s acts. To
avoid redundancy with the other Rowland factors, the moral blame
that attends ordinary negligence is generally not sufficient to tip the
balance of the Rowland factors in favor of liability. [Citation.] Instead,
courts have required a higher degree of moral culpability such as where
the defendant (1) intended or planned the harmful result [citation];
(2) had actual or constructive knowledge of the harmful consequences
of their behavior [citation]; (3) acted in bad faith or with a reckless
indifference to the results of their conduct [citations]; or (4) engaged in
inherently harmful acts.” (Adams v. City of Fremont (1998) 68
Cal.App.4th 243, 270.) Rodriguez offered no evidence that would
attribute moral blame to Southwest.
As for the policy of preventing future harm, undoubtedly the
airline industry, passengers, and government agree that the need to
prevent unruly airline passenger conduct is critical. That need is
growing as more airline passengers have returned to flying following
the pandemic-related drop in ridership and the number of onboard
unruly passenger incidents has increased dramatically. (Bart Elias,
Congressional Research Service, Addressing Unruly Airline Passengers
(Oct. 19, 2021) p. 1 [as of Mar. 11,
2022], archived at .) The “Federal
Aviation Administration (FAA) received more than 4,000 reports of
unruly behavior onboard aircraft” in the first nine months of 2021.
During that same period, the FAA “initiated more than 800
investigations of unruly passenger conduct,” “more than a five-fold
annualized increase compared to recent years in which annual totals
were below 200.” (Ibid.)
The question, however, is whether mandating that airlines be
responsible for preventing fistfights between passengers like the one in
this case is feasible without imposing an unrealistic and unacceptably
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heavy burden on both airlines and passengers. Short of having airlines
require that passengers (1) be screened for emotional stability before
boarding; (2) remain strapped in their seats under the watchful eye of
onboard security guards; (3) and submit to having security guards
escort them to and from the rest rooms and the aircraft, we can
envision no practical, cost effective, and tolerable means of
safeguarding passengers from such unforeseen attacks and controlling
such unforeseen attackers.
Rodriguez responds with three arguments. First, he contends
that Hardin breached his duty as an operations agent by failing to
follow Southwest’s Ground Operations Manual to “provide[] friendly
service to and [to] maintain[] positive relationships with all internal
and external Customers.” Rodriguez contends Hardin’s rude and
aggressive behavior was a substantial factor “in causing the totality of
circumstances surrounding [his] injury.” Second, Rodriguez contends
Hardin breached his duty by not following procedures for removing
unruly passengers as specified in the manual. Third, Rodriguez
contends the flight attendant in the back of the plane was unprepared
for the assault. The crux of Rodriguez’s argument is the employees’
breach of their duties and failure to maintain order caused rising
tensions among the passengers, making the assault foreseeable.
The problem with Rodriguez’s argument is that it is addressed to
the elements of breach and causation for a negligence cause of action,
not to the element of duty, which is to be established first. And while a
workplace manual may be used as evidence of breach of duty, it cannot
substitute for the judicial determination of whether a duty was owed.
(Minch v. Department of California Highway Patrol (2006) 140
Cal.App.4th 895, 908; see also Fireman’s Fund Ins. Co. v. Security
Pacific Nat’l Bank (1978) 85 Cal.App.3d 797, 829.) Otherwise,
Rodriguez has not engaged in a duty analysis. To be sure he refers to
the Rowland factors. But he fails to consider the foreseeability-related
factors and public policy factors in the context of this case to determine
whether to depart from the duty to protect that is implicated by the
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special relationship. The summary judgment motion was properly
granted.
DISPOSITION
The judgment is affirmed. Southwest Airlines Co. is to recover
its costs on appeal.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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