United Airlines Loses Bid To Bar Recovery Of Passengers Targeted With Homophobic Prank With Sex Toy At Airport

220px-Baggage_reclaim_hahn_airport220px-United_Airlines_-_N14219_-_Flickr_-_skinnylawyer_(1)The United States Court of Appeals for the Fifth Circuit has handed down an important ruling in favor of two gay men who were the targets of a foul joke by employees of United Continental airlines. Baggage handlers removed a sex toy from the luggage of Christopher J. Bridgeman and Martin A. Borger, covered it with a brown greasy substance and taped it to the outside their bag. It was then sent on the baggage carousel in front of all of the passengers. What is most striking about this case is not only the refusal of United Continental to settle the case but the sweeping argument the airlines tried to make to strip passengers of the ability to seek damages for such outrageous and disturbing conduct by airlines.

Bridgeman and Borger were returning to the United States on a flight from Costa Rica to Norfolk, Virginia, with a layover at George Bush International Airport in Houston. They had to recheck their bags in Houston. It was at Norfolk that the bags were placed on the carousel. The sex toy had been removed from the bag and was taped to the top “covered in a greasy foul-smelling substance.”

The men sued for intentional infliction of emotional distress, invasion of privacy, and negligence. United tried to get the court to adopt an argument that passengers had no right to recover for damages even from such outrageous and insulting conduct. It relied on Article 17(1) or Article 17(2) of the Montreal Convention to say that such claims are preempted. The Montreal Convention is a multilateral treaty governing the rights and liabilities of passengers and carriers in international air transportation. United argued that Article 17 of the Montreal Convention only allows for damages for injuries to passengers (Article 17(1)) and for damage to baggage (Article 17(2)). Neither it claimed covered this injury. The court found that the convention did not apply under Article 17(1) because this injury was not suffered on the flight or as part of exiting or disembarking. Thus, it remained subject to state law. On Article 17(2), the court ruled:

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. Accordingly, we decline to shoehorn Plaintiffs’ claims into the substantive scope of Article 17(2) merely because a bag is central to their factual basis. Instead, we reach our conclusion based on a natural reading of Article 17(2)’s text

The claims are therefore not preempted by the convention.

United Continental in the meantime showed that, once again, airlines treat passengers as voiceless, rightless living luggage. If they had prevailed, passengers would have been barred from seeking relief in state courts for even the most egregious conduct by airline employees.

Here is the opinion.

12 thoughts on “United Airlines Loses Bid To Bar Recovery Of Passengers Targeted With Homophobic Prank With Sex Toy At Airport”

  1. Aside from the fact that the word “homophobia” is a useless, meaningless cliche used only by special interest groups to target and discriminate against certain people who have differing views, I’m not seeing how this would be classified as any kind of phobia. The primary reason why the word “homophobe” is a useless word is because phobia implies some sort of fear, but the emotion of the general consensus regarding homosexuality isn’t a fear, but disgust. The employees simply did a disgusting prank about a disgusting lifestyle choice. Bottom line.

  2. Gun owners view laws that only let you purchase “one gun a month” as “Second Amendment injury” – even though constitutional harm/injury is not Webster’s definition of harm or injury – harm or injury is required for a plaintiff’s lawsuit to go forward.

    If this case has taxpayer dollars or TSA involved in the equation, the airline passengers (gay couple) could possibly claim “Fourth Amendment injury” even though it may be viewed as harmless.

    In constitutional cases, injury or harm can mean “violation” and not the conventional definition that most people would view as harm or injury.

  3. Let me get this straight. Some baggage guy attaches some shoehorn with grease on it to the outside of the bag. Then the owner of the bag has to claim the bag so he is identified by those watching as the owner of the so called sex toy. Is there any proof that those watching knew who the bag owner was? So, he was embarrassed. For awhile. By an evil joke. Small claim case in some local court. Bunch of BS.

  4. ” but the sweeping argument the airlines tried to make to strip passengers of the ability to seek damages for such outrageous and disturbing conduct by airlines.”

    Let’s be honest here. The airline did not perform any sort of outrageous or disturbing conduct. No doubt the actions by the two individuals are specifically against company policy. I am assuming that the airline was unaware of any previous such “pranks”.

    Of course the airlines have the deep pocket so no one cares about who actually committed the wrongful, vile action.

    Let this be an open call for any airline employee. If you are willing to get fired and are willing to embarrass me, I’ll split my lawsuit winning with you.

  5. If there are taxpayer dollars/TSA in the equation, there could be some creative new legal precedents created:

    Title 42 US Code 14141
    Title 18 US Code (sections 241-245)
    Defamation of character

    “Constitutional” cases are able to create new precedents if the existing precedents are deemed to unconstitutional. If taxpayer dollars are involved, for example you could say the airline passengers (taxpayers) paid their tax dollars to fund an unconstitutional practice that discriminated against them. Would the Civil Rights Act protect an African-American couple from similar treatment? Some interesting questions that could be argued in court!

  6. Tony, good points but if the TSA is involved or the airlines receives taxpayer dollars through federal DHS Preemption & Prevention grants – there would be a potential Fourth Amendment conflict.

    Maybe you’re correct, couldn’t tell from the article but would be surprised if there weren’t taxpayer dollars and the TSA involved on some level.

    The U.S. Supreme Court hasn’t yet ruled explicitly but it appears government funded private contractors/surrogates are also bound by the U.S. Constitution. Congress moved in that direction when it banned private contractors from performing interrogations and torture, restricting those authorities to constitutional officers.

  7. One of the judges on the three-judge panel was a female.

    Two, including her, were appointed by Bush II. The third judge on the panel was appointed by Reagan.

    The case is not published.

    They reversed the Federal District Court for the Southern District of Texas, which had dismissed the case under FRCP 12 holding that as a matter of law the claims were barred by the Montreal Convention.

  8. Ross, I don’t see what this has to do with post-9/11. The Montreal Convention dates from 1999. Whoever did this sickening act clearly didn’t do it under cover of law.

  9. I am a supporter of Unions. A friend of mine after 14 years of good and loyal employment at United, has opted for the out, due to the conditions of this contract. In 6 regions ROC being the one I’m in, American eagle has taken over the work of United. Outsourcing has reduced the pay and benefits of these local United employees.
    Corporations are centering their bottom line to increase managerial profit, at the expense of workers, and the service to customers. Ksera sera. The wall between the working person and the wealth gatherers grows higher. Brick by brick by brick.

    Members in TUS, CVG, GRR, ALB, MDT, and ROC have completed their decisions regarding their furlough options. 43 members have opted to exercise their seniority and transfer to new stations. Other people have elected to participate in the Early Out program and will be receiving their entitled bonus payment and leaving United. The remaining employees have accepted furlough and will retain their recall rights. In accordance with the newly ratified contract, we have begun discussions regarding these stations and the possibility of amending work rules, benefit levels, and/or wage rates in order to keep the stations operating with the current United/IAM employees. During our negotiations this week the company informed us they were not willing to change the effective date of closing these stations and turning the work over to American Eagle as planned on November 15th. They are committed to having the furlough date remain as well. We have told the company we still want to explore every possibility of having this work performed by those employees that are being forced out of their home stations, even if that means we have to find a way to return them to these cities at a later date. The fundamental problem we face with these 6 stations is that the company made the decision to outsource them before any contract language was in place that would require them to give the Union advance notice of their intent to contract out the work. In these particular stations we are not on a level field with the vendors now; we are trying to undue what has already been done. Our commitment to these members remains the same – we will consider every option possible to return these jobs to them.

    I in no way support the actions of the employee(s) that took this disgusting action. They are hurtful to united and should be terminated.
    I do find United disgusting in not immediately compensating these two passengers for (“The men sued for intentional infliction of emotional distress, invasion of privacy, and negligence.”)

    Corporate greed is destroying service and the middle class.
    ….The voices of Labor, Customers, and the Middle Class must be raised and respected. The tactical strategy of the oligopoly to divide and conquer the 99% is working today. Speak up people, speak truth to power, demand full and equal rights from our Government and Constitution. Corporations are not people. Only people are. We must be heard.

    …… Remove soapbox before I get dizzy. :o)

  10. Another example of gross “mission-creep” exploiting post-2001 powers for “non-terrorism” and even “non-criminal” activities, violating the Fourth Amendment in the process.

    Our U.S. Constitution is also a wartime charter designed to be followed during wartime also with emergency wartime clauses already built in – without a Patriot Act.

    It also shows that the billions of tax dollars exploited didn’t use it on training or teaching proper constitutional boundaries to these officials.

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