I. INTRODUCTION
Plaintiff Trini Tang brought this action against Defendant Hipster Airlines, Co., d/b/a Hipster an Illinois company arising out of an injury that occurred on February 1, 2015, in San Diego, California when Plaintiff was on Defendant’s aircraft. Plaintiff brings a claim for Negligence and Vicarious liability, both of which are premised on the allegation that Defendant's negligence was the cause of Plaintiff’s injuries. Defendant now moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12 (b) (6) for failure to state a claim upon which relief may be granted.
II. STATEMENT OF FACTS
Plaintiff Trini Tang (hereinafter referred to as “Plaintiff”) maintains her principal residence in the Southern District of California.
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Compl. ¶ 1. Defendant Hipster Airlines Co. (hereinafter referred to as “Defendant”) is an Illinois company with its headquarter in Chicago Illinois. Compl. ¶ 2. On February 1, 2015 Plaintiff boarded Defendant’s aircraft with her personal properties Compl. ¶¶ 7,8. Allegedly During the flight the engine of the aircraft exploded causing smoke in the cabin resulting in an emergency evacuation. Compl. ¶ 9. Plaintiff alleged that a flight attendant pushed her onto the emergency evacuation slide causing her severe injuries to her right ankle and shin. Subsequently she is unable to engage in her usual occupation and activities Compl. ¶ 10. Plaintiff alleged she was not compensated for her personal property damages. Compl. ¶ 11.As a result of her injuries, Plaintiff brings two causes of action against Defendant: 1) Negligence and 2) Vicarious Liability. III. ARGUMENTS A. A motion to dismiss should be granted where the Plaintiff fails to state a claim upon which relief can be awarded. Dismissal under Rule 12(b)(6) is proper where there is either “a lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). A sufficient complaint “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. The court need not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). B. Plaintiff Failed To Allege A Plausible Negligence Claim Against Defendant In order to properly assert a negligence claim Plaintiff must plead facts sufficient to show “the existence of duty, breach of that duty, causation, and damages” to survive a motion to dismiss. Saucedo v. Salvation Army, 24 P.3d 1274 (Ariz. Ct. App. 2001). Plaintiff alleged Defendant had a duty to protect her from foreseeable harm and any harm in the business of transporting passenger. Compl. ¶13. But, she failed to provide any facts to support that on what basis Defendant owed such duty to her Compl. ¶13. In Deann PATE, v.
Southwest Airline Co., Defendant operated Southwest Flight departing from Ontario, California to St. Louis, Missouri. Thirty minutes into the flight, the airplane headed into severe and turbulent weather, causing it to rock and lurch about violently for an extended period of time as a result, Plaintiff suffered serious and permanent injuries. The court found for the defendant reasoning that a commercial airline is a common carrier and subject to the duties and liabilities of common carriers. Cudney v.Midcontinent Airlines, 98 F. Supp. 403 (E.D. Mo. 1951). A common carrier must exercise the highest degree of care to its passengers while in transit. Behrenhausen, 967 S.W.2d at 217. However, “a carrier of passengers by airplane is not an insurer of the passenger's safety.” Cudney, 363 S.W.2d at 927. Thus, it is not presumed that every commercial aviation accident is the result of negligence. Id. This case signifies that Defendant does not have a duty to protect Plaintiff from any harm engaged in the business of transporting …show more content…
passengers. Plaintiff alleged that Defendant and operator of the aircraft, failed to exercise due care in operating and maintaining the aircraft to ensure proper functioning of the engine Compl. ¶14. This statement is conclusory, the Plaintiff did not explain how the Defendant failed to exercise due care, in addition Plaintiff failed to provide any facts to support that defendant has breached its duty. Under the first cause of action for negligence Plaintiff stated that as a direct and proximate cause of Defendant’s negligent the engine exploded and caused her to sustain serious injuries to her ankle and shin. Compl. ¶14. There are no facts supporting the direct causation between explosion of the engine and her injuries. On the other hand, under the second cause of action for vicarious liability Plaintiff claimed that the flight attendant’s negligent was the proximate cause of her injuries. Compl. ¶ 21. Plaintiff’s proximate and direct cause of injuries are misleading, ambiguous and fails to provide any facts supporting her allegation. Under California law, the proximate cause of an injury is a cause, which is a substantial factor in bringing about the injury.
Mitchell v. Gonzales, 54 Cal. 3d 1041, 1 Cal. Rptr. 2d 913, 819 P.2d 872 (1991). According to the plaintiff explosion of the engine only caused smoke inside of the cabin, she sustained injuries when the flight attendant pushed her. Compl. ¶ 9. Therefore the explosion of the engine cannot be the substantial cause of her injuries. Moreover, Plaintiff stated that she sustained serious injuries to her right ankle and shin Compl. ¶ 15 however she failed to narrow down the broad meaning of serious injuries to explain how her ankle was injured. This statement makes it difficult to understand the extent of her medical
expenses. Plaintiff also alleged that as a direct and proximate cause of defendant’s negligent she suffered loss wages from her employer Compl. ¶17 however she did not provide any facts such as name of her employment, amount of her salary or length of her hospital stay to support this allegation. Giving the substantial amount of damages Plaintiff is asking for the factual allegations are not sufficient. C. HIPSTER AIRLINES IS NOT VICARIOUSLY LABILE FOR PLAINTIFF’S INJURIES Under the theory of respondeat superior, an employer is vicariously liable for an employee's torts committed within the scope of employment. Perez v. Van Groningen & Sons, 41 Cal. 3d 962, 227 Cal. Rptr. 106, 719 P.2d 676 (1986). Plaintiff alleged that flight attendant breached a duty to exercise reasonable care by failing to adequately follow training policies and procedures Compl. ¶ 21 Plaintiff failed to explain what the training policies and procedures were that was breached. According to the National Transportation Safety Board “ The duties of a flight attendant in such an emergency evacuation may involve (4) The flight attendant may be called upon to pull, push, or drag passengers in the performance of emergency duties.” Harriss v. Pan Am. World Airways, 649 F.2d 670 (9th Cir. 1980) Plaintiff did not provide any description of how she was pushed, thus it is difficult to determine if the push was necessary. In addition, Plaintiff alleged that flight attendant failed to provide proper and effective instructions to passengers Compl. ¶ 21. Nevertheless she failed to describe what the instructions were, or what parts of the instruction were omitted. Moreover, Plaintiff alleged that the flight attendant failed to act as a reasonably prudent flight attendant. ”Compl. ¶21 Plaintiff’s claim for this allegation is lacking factual sufficiency, determination of what constitute an act of reasonably prudent flight attendant is contextual: “a person confronted with a sudden emergency that deprives him of time to contemplate the best reaction cannot be held to the same standard of care and accuracy of choice as one who has time to deliberate.” Myhaver v. Knutson, 189 Ariz. 286, 942 P.2d 445, 447 (1997). Since plaintiff did not establish that the flight attendant committed a tort, therefore Defendant cannot be vicariously liable. IV. Conclusion Based on the foregoing reasons, movant asks the Court to dismiss all allegations made against the Defendant.
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Recommendations: It is recommended that our law office regretfully deny service to Ms. Carry based upon the precedent in Kentucky. Based upon the analysis the issue, it is apparent that Ms. Carry would not receive a promising conclusion to her situation. Due to the facts involved and the cases discussed (which are somewhat on point) Ms. Carry does not make a claim in which relief can be granted.
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