by John M. Simpson.
An Alabama man recently filed a lawsuit in state court in Georgia against Delta Airlines, Inc., and another passenger, arising out of an alleged dog-biting incident that occurred on a Delta flight. Jackson v. Delta Air Lines, Inc., et al., No. 19EV00278, Complaint (Fulton Cty., Ga. May 24, 2019).
According to the Complaint, upon boarding a Delta flight from Atlanta to San Diego, for which plaintiff Jackson held a window seat ticket in Row 31, Jackson discovered individual defendant Mundy sitting in the middle seat of Row 31 “with his large dog attempting to sit in his lap.” Complaint ¶ 9. The Complaint then alleges the following sequence of events:
Prior to taking his assigned seat, Mr. Jackson inquired of Defendant Mundy if the animal would bite. Defendant Mundy put his arms around the animal and indicated that it was safe for Mr. Jackson. As such, Mr. Jackson tentatively proceeded past Defendant Mundy and the animal and took his seat next to the window.
While Mr. Jackson was securing his seatbelt, the animal began to growl at Mr. Jackson and shift in Defendant Mundy’s lap. Again Mr. Jackson asked if the dog was safe and Defendant Mundy again assured him that Mr. Jackson would be safe.
Suddenly, the animal attacked Mr. Jackson’s face, biting Mr. Jackson several times while pining [sic] him against the window of the airplane.
The attack was briefly interrupted when the animal was pulled away from
Mr. Jackson. However, the animal broke free and again mauled Mr. Jackson’s face.
The attacks caused extensive facial damage including deep lacerations and punctures to the nose and mouth. In fact, Mr. Jackson bled so profusely that the entire row of seats had to be removed from the airplane.
Complaint ¶¶ 14-18. The Complaint alleges counts of negligence against Delta and defendant Mundy and seeks an unspecified amount of damages. From the face of the Complaint, the status of the dog is unclear, but the plaintiff does allege that the dog was “neither a service animal nor had been verified by Delta to meet the training requirements of service animals.” Id. ¶ 12.
The allegations in this case serve to highlight some of the issues that are presented by a rulemaking proceeding currently pending before the U.S. Department of Transportation (DOT) under the Air Carrier Access Act. In May of last year, DOT issued a notice of proposed rulemaking soliciting comments in response to concerns expressed by various stakeholders that the current regulation on air travel with service animals “could be improved to ensure non-discriminatory access for individuals with disabilities, while simultaneously preventing instances of fraud and ensuring consistency with other Federal regulations.” Traveling by Air With Service Animals, 83 Fed. Reg. 23832 (May 23, 2018). Under the current DOT rule for air travel, the agency “considers a service animal to be any animal that is individually trained to assist a qualified person with a disability or any animal necessary for the emotional well-being of a passenger.” Id. at 23833. Thus, the rule is broader than how some other agencies have defined “service animal.” The DOT air travel rule extends to what is typically regarded as a service animal — one trained to perform a specific task for a passenger with a disability — but also covers animals providing mental or emotional support to a passenger with a mental or emotional disability but are not trained to perform specific tasks. Id.
The proposed rulemaking covers several areas, including: (1) complaints by passengers that air carriers are not accepting their animals for transport; (2) use of unusual species as service animals (e.g., peacocks, ducks, turkeys, pigs and iguanas); (3) false claims of service animal status for pets so that the passenger can take the animal in the cabin or avoid a fee; (4) misbehavior of service animals; and (5) differing access standards for service animals in terms of flying versus being allowed into the airport itself. Id. at 23834-35.
The comment period on the DOT proposed rule closed on July 9, 2018, and the matter remains pending before the agency. Given the importance of air travel and the competing interests involved, the outcome is bound to be noteworthy.