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ABOUREZK v. NEW YORK AIRLINE

January 31, 1989

JAMES G. ABOUREZK, Plaintiff,
v.
NEW YORK AIRLINE, INC., Defendant


John Garrett Penn, United States District Judge.


The opinion of the court was delivered by: PENN

JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE

 This case comes before the Court on defendant's motion for summary judgment and plaintiff's motion for partial summary judgment and the responses thereto. The Court heard argument on the motion for summary judgment. The facts of the case are set forth below.

 I

 Plaintiff, James G. Abourezk (Abourezk), made a reservation on New York Air Flight 28 for October 3, 1985, which was scheduled to depart from Washington National Airport to LaGuardia Airport in New York City. Abourezk is an attorney and the purpose of his trip was to meet with a client and to attend a reception in the client's honor at the United Nations on the evening of October 3, 1985. The reception which plaintiff planned to attend was scheduled to end at about 8:00 p.m. and he intended to fly back to National Airport that same evening. Flight 28 was cancelled due to a mechanical problem and as a result of this change plaintiff boarded New York Air Flight 30, which was scheduled to depart from National Airport at 4:30 p.m. on October 3, 1985 destined for LaGuardia Airport. Flight 30 had many of the passengers for the earlier but cancelled Flight 28; it had 110 seats and there were 107 passengers aboard.

 Flight 30 left the gate *fn1" at approximately 4:35 p.m. Under the command of Captain Dunn, Flight 30 taxied onto the runway and assumed the number one position for takeoff. After Flight 30 arrived at this position, the Captain received word from the tower that there was an "indefinite hold" *fn2" on flights to LaGuardia Airport. Captain Dunn gave periodic announcements to the passengers that the plane was being delayed because of bad weather in New York City. After the delay began, Captain Dunn turned off the engines but left the air conditioning on. Passengers were allowed to walk around and to visit the cockpit to ask questions. After about an hour, he ordered the flight attendants to serve snacks and beverages.

 Abourezk recognized that Flight 30 would need to leave not later than 6:00 p.m. to arrive at LaGuardia Airport in time for him to attend the reception at the United Nations which was to begin at about 5:30 p.m. or 6:00 p.m. At about 5:30 p.m. but before 6:00 p.m., he went to the cockpit and explained this to Captain Dunn. Not long after 6:00 p.m., plaintiff again went to the cockpit and informed Captain Dunn that he no longer wanted to fly to New York. Captain Dunn said he was first in line for takeoff and did not want to lose his place in line, *fn3" but that he would see if he could obtain a car to come out to the runway to deplane plaintiff. Abourezk Dep. at 24. Not long after that, plaintiff went to the cockpit for the third time and told Captain Dunn he wanted to get off and asked if the Captain had been able to obtain a car. Captain Dunn responded that the Airport would not allow a car to come to the aircraft because of danger from jet drafts. Id. at 26. Dunn requested permission to go over to the hangar line to discharge the passenger. *fn4"

 Sometime after plaintiff's third visit to the cockpit, Captain Dunn conducted a poll of the passengers. According to plaintiff Dunn asked, "How many people still want to go to New York?" The poll was conducted by passengers raising their hands or saying "yes" very loudly if they wanted to go to New York. Captain Dunn took this poll over the public address system, but the cabin door was open and he could see the passengers. Captain Dunn stated that the result of the poll "left no doubt in my mind that the majority of the passengers wanted to go to New York and they wanted to go as quickly as possible." *fn5" Dunn Dep. at 64. At this time it was "rush hour" at the Airport. There were a great many airplanes waiting in line for takeoff, "as far as the eye could see," according to Captain Dunn. Id. at 68. Additionally the number of planes arriving exceeded those taking off.

 After a delay of about three hours, Flight 30 took off at 7:35 p.m. and landed an hour later at LaGuardia. Plaintiff arrived at LaGuardia too late to attend the reception at the United Nations. He waited in the terminal for over three hours until he was able to catch a flight back to National Airport. Abourezk arrived at his home at about 1:10 a.m. on October 4, 1985, whereas he had expected to get home by approximately 10:00 p.m. on October 3, 1985.

 At his deposition, plaintiff stated that he felt annoyed and frustrated by this experience. Abourezk Dep. at 38. Externally, he remained calm and he does not recall telling the pilot he was upset. At the time of the incident, plaintiff was on a medically prescribed liquid diet called "Optifast" a powder mixed with water, and also a potassium supplement, which he took five times a day to lose weight. He did not take this diet with him since he did not expect to stay overnight. Plaintiff usually took the last two doses of this diet at 11:00 p.m., but because of the delay he did not take them until he arrived home at 1:10 a.m. Plaintiff has not received any medical treatment, been hospitalized, or taken any medication as the result of his experience on Flight 30. He had not planned to eat any food on his trip and he did not ask for food during the period of the delay. No medication was taken by him during the delay, not even an aspirin. Abourezk sustained no physical injury and the incident did not aggravate any pre-existing condition. After the incident, he went off the diet for a week, but has since given it up entirely because it proved too difficult in view of his many speaking engagements.

 II

 After extensive discovery, defendant moved for summary judgment on all of the claims advanced by plaintiff. Relying on both District of Columbia and Virginia law, *fn6" defendant argues that plaintiff's claim fails to meet the applicable legal standards for false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and the award of punitive damages. Briefly, the relevant portions of defendant's arguments are set out below. *fn7"

 Defendant contends that the law of Virginia provides that false imprisonment is restraint of one's liberty without any sufficient cause, relying on Zayre of Virginia, Inc. v. Gowdy, 207 Va. 47, 147 S.E.2d 710, 713 (1966); Montgomery Ward and Co. v. Wickline, 188 Va. 485, 50 S.E.2d 387, 388 (1948). Similarly it is argued that the District of Columbia defines the tort to be restraint by one person of the physical liberty of another without consent or legal justification. Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147, 150 (D.C. App. 1979).

 Additionally, defendant relies on the principles set out in both the Restatement (Second) of Torts (hereinafter Restatement) and Prosser and Keeton, Law of Torts (5th Ed. 1984)(hereinafter Prosser), in support of its arguments on the issue of false imprisonment. Namely, "it seems reasonable to say that whenever a legal duty to release another from confinement can be made out, an intentional refusal to do so is sufficient for false imprisonment; ...


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