In the case of J.D. v. Price, No. 2:20-CV-749 (W.D. Pa. Nov. 3, 2021), the court determined that Defendant, Delta Airlines (“Delta”), owed a duty to J.D. to prevent an assault by another passenger, Defendant Price, who was obviously intoxicated when he boarded the aircraft.
J.D. was a female governmental law enforcement officer who was responsible for protecting the cockpit of a Delta Airlines’ flight from Pittsburgh to Atlanta. She was seated next to Price, who just prior to boarding the flight, and over the course of two (2) hours, consumed two 20-ounce beers, three two-ounce shots of 80-proof whiskey and a “cup full” of the 80-proof whiskey at the airport TGI Fridays, which was owned and operated by Defendant Host and HMSHost. (“Host”). J.D. noticed that when Price was boarding the aircraft he was "unstable as soon as he got onto the plane" and was staggering and grabbing a hold of other passengers' seats to prevent himself from falling over. J.D. noticed that Price had a strong odor of alcohol about him, his eyes were red and glassy, and he was having issues trying to get his seatbelt buckled.
The flight left the gate and Price "passed out." Just prior to descent, Price woke up and cupped J.D.'s vagina. He then placed his hand on the inside of J.D.'s thigh and rubbed down her thigh. J.D. took hold of Price's wrist for the entirety of the remainder of the flight and held onto him until the other passengers disembarked the plane. J.D., with assistance from Delta employees and the Atlanta Police Department, placed Price under arrest for public drunkenness; however, his blood-alcohol level was never taken.
J.D., and her husband, R.D., sued Price for assault and battery; and Delta and Host under Pennsylvania's Dram Shop Act, 47 P.S. § 4-493. During discovery, Price testified that he was substantially drunk during the flight. However, the Delta gate agent at Pittsburgh testified that she did not recall interacting with Price or observing him as he boarded the flight. She stated that if there would have been something alarming about Price, she would have remembered it, and documented it. Delta’s lead flight attendant testified that she spoke with Price about the incident with J.D. before he left the flight and did not observe any signs that Price was impaired. However, after Price exited the flight, a detective, a Georgia police officer, and an FBI Task Force Officer, observed, interacted with, and arrested Price after observing his intoxication. Moreover, a Delta security officer testified that Price exhibited numerous signs of intoxication upon landing at the Atlanta airport. Lastly, a Delta gate agent in Atlanta testified that upon landing in Atlanta, Price was red and slurring, and by his appearance would not be allowed to board her aircraft if he came to her gate.
Upon completion of discovery, Delta and Host filed motions for summary judgment, which was denied by the Court for the following reasons.
Pennsylvania's Dram Shop Act states in pertinent part:
It shall be unlawful—
(1) Furnishing Liquor or Malt or Brewed Beverages to Certain Persons. For any licensee or the board, or any employe[e], servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated...
47 Pa. Stat. Ann. § 4-493. Violation of Pennsylvania's Dram Shop Act is negligence per se, and a defendant will be held liable if the violation is the proximate cause of the injuries. Id. For civil liability to attach, evidence must be produced indicating that the patron was served alcohol at a time when he or she was visibly intoxicated. Holpp v. Fez, Inc., 656 A.2d 147, 149 (1995).
A party can overcome summary judgment by relying on circumstantial evidence, or "evidence based on inference and not on personal knowledge or observation" from which "a factfinder could reasonably conclude that the tortfeasor was served while visibly intoxicated." Poon v. Dom, 2017 WL 3267849, at *1 (W.D. Pa. July 31, 2017). Pennsylvania courts have considered the following factors when relying on circumstantial evidence to overcome summary judgment: (1) quantitative proof of heavy consumption of alcoholic beverages at the licensee's establishment; (2) visible signs of intoxication shortly after leaving the establishment; (3) visible signs of intoxication at the time of the accident or incident causing the plaintiff's injuries; and (4) proof that the last drink consumed prior to the accident/incident causing the plaintiff's injuries was provided at the licensee's establishment. See Couts v. Ghion, 421 A.2d 1184 (Pa. Super. 1980); Speicher v. Reda, 434 A.2d 183 (Pa. Super. 1981).
The Court concluded that while J.D. offered no direct evidence that Price was served alcohol at TGI Fridays while he was visibly intoxicated, she produced sufficient circumstantial evidence that creates a genuine issue of material fact as to whether Price was visibly intoxicated while being served alcoholic beverages at TGI Fridays.
J.D. also sued Delta for negligence and negligent infliction of emotional distress. In Pennsylvania, the elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal relationship between the breach and the resulting injury; and (4) actual loss or damage suffered by the plaintiffs. Orner v. Mallick, 527 A.2d 521, 523 (Pa. 1987). Common carriers, such as Delta, owe the "highest degree of care" to their passengers. Connolly v. Philadelphia Transp. Co., 216 A.2d 60, 62 (Pa. 1966). Pursuant to 14 C.F.R. § 121.575, "[n]o certificate holder may allow any person to board any of its aircraft if that person appears to be intoxicated."
The Court determined that part of the care Delta owed to J.D. was to protect her safety while she was on the flight from the reasonably foreseeable assaults of other passengers. The Court further concluded that genuine issues of material fact existed as to whether Price appeared intoxicated when boarding the Flight, and whether Price's assault on J.D. was reasonably foreseeable. Therefore, the Court denied Delta's motion for summary judgment.