The Fifth Circuit Court of Appeals (New Orleans) has revived a lawsuit accusing United Continental Holdings Inc. employees of deliberately embarrassing gay passengers by taping a sex toy to their luggage, ruling that an international law governing air travel does not apply, thus reversing a south Texas federal district court’s dismissal of the lawsuit.

Case: Christopher J. Bridgeman et al. v. United Continental Holdings Inc. et al., case number 12-20836, in the U.S. Court of Appeals for the Fifth Circuit.

In May 2011, Christopher J. Bridgeman and Martin A. Borger took a United Continental flight from Costa Rica to Norfolk, Virginia, with a layover at George Bush International Airport (IAH) in Houston. Upon arriving in Houston, Plaintiffs went through customs, rechecked their bags, and continued their trip to Norfolk.

The court opinion reads:

After arriving at the Norfolk airport, Plaintiffs exited the aircraft and went to the baggage-claim area to retrieve their bags. As Plaintiffs’ bags came around the carousel, they discovered, to their surprise and horror, that a sex toy had been removed from one of their bags, covered in a greasy foul-smelling substance, and taped atop the bag. After observing the bag and being extremely embarrassed by the surprised and laughing faces of onlookers, Plaintiffs called two friends who assisted them out of the airport and to their home.

Bridgeman and Borger sued United in Texas state court, claiming that one or more airline employees was responsible for the acts, which were allegedly “directed towards them because they are homosexuals and male.” The case was moved to federal court and United moved for dismissal under the assertion that an international treaty trumped a state law action.

Location, Location, Location. Where an alleged injury took place during a trip may make a big difference in which laws apply.

Location, Location, Location. Where an alleged injury took place during a trip may make a big difference in which laws apply.

The suit for intentional infliction of emotional distress, invasion of privacy, and negligence is not pre-empted by an airline liability treaty (Montreal Convention), because the alleged acts occurred independent of air travel, according to the unpublished decision (PDF).

Defendants (United Continental Holdings, Inc. and Continental Airlines) were previously successful in the Federal District Court of Southern Texas in dismissing the claims under a jurisdictional argument that the claims were preempted by Article 17(1) or Article 17(2) of the Montreal Convention (formally, the Convention for the Unification of Certain Rules for International Carriage by Air) because it calls for imposing liability on airlines for injuries to passengers and damage to bags.

The court explained:

Like the Warsaw Convention, its predecessor, the Montreal Convention “governs the rights and liabilities of passengers and carriers in international air transportation.” [cite omitted]. The Montreal Convention was intended to “reform the Warsaw Convention ‘so as to harmonize the hodgepodge of supplementary amendments and intercarrier agreements of which the Warsaw Convention system of liability consists.” [cite omitted].

But  the 5th Circuit said the convention does not apply to the plaintiffs’ claims because the treaty covers only incidents that take place on board an aircraft or over the course of the embarking or disembarking of a plane. Rather, the emotional distress the passengers allegedly suffered occurred in the baggage area.

Any connection between the alleged misconduct — the display of plaintiffs’ bag in the baggage-claim area — and the ‘operations of embarking or disembarking’ is tenuous at best,” the court’s November 4, 2013 decision said. “The alleged misconduct in this case simply does not relate to any damage to plaintiffs’ duffel bag, which they admit is ‘just fine’ and undamaged; rather, plaintiffs seek a remedy for the way in which their bag was utilized to inflict personal injury.”


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