United States: Magistrate Judge Recommends That Plaintiffs' Overreaching Claims For Sexual Assault Be Curtailed, And Rejects Attempt For Class Action

In Ramsay v. Frontier Inc., two female passengers commenced litigation to recover for sexual assaults they allegedly suffered while on board Frontier flights. The complaint asserted causes of action for (1) negligence, (2) negligent infliction of emotional distress, (3) intentional infliction of emotional distress, (4) willful and wanton conduct, and (5) injunctive/ equitable relief.

The lawsuit also was brought as a class action on behalf of all passengers who flew on Frontier on or after December 16, 2017. Though purportedly brought on behalf of all passengers, the request for class action status was based on allegations that sexual assaults have become more prevalent on commercial flights and that Frontier either had inadequate policies to protect against or handle such assaults or failed to properly enforce the policies it did have.

Frontier moved to dismiss the complaint for failure to state a claim and, alternatively, to strike the class allegations. After oral argument, the Magistrate Judge issued a Report and Recommendation recommending dismissal of all but the negligent infliction of emotional distress cause of action and striking the class allegations.

The causes of action for willful and wanton conduct and for injunctive relief were easily resolved. The former on the basis that Colorado law does not provide for such a cause of action and the latter because the plaintiffs failed to allege any immediate threat and significant risk of irreparable harm, a required element for injunctive relief. The Court alternatively found that the claims for injunctive relief would be preempted by the Airline Deregulation Act ("ADA").

The Report and Recommendation also recommended dismissal of the negligence cause of action. Though Frontier, as a common carrier, owes the highest standard of care to its passengers, the negligence cause of action failed as a matter of law because the complaint lacked any allegation from which it could be inferred that Frontier could or should have been aware that the passengers sitting next to the plaintiffs were sexual predators or otherwise posed any greater risk to the plaintiffs than the millions of other passengers who travel on commercial flights. Simply put, there was nothing from which it could be inferred that the sexual assaults resulted from Frontier's negligence.

The only cause of action found to be properly stated in the complaint was that for negligent infliction of emotional distress. This claim arose not out of the sexual assaults themselves but from the Frontier flight crew's alleged failure to take action after being advised during the flights of the assaults. The complaint specifically alleged that the plaintiffs advised the flight crew of the assaults immediately after they occurred and that the flight crew failed to take action to redress the situations. This was sufficient to state a claim for negligent infliction. The Court additionally found that this cause of action was not preempted by the ADA. The Court did, however, recommend dismissal of the intentional infliction claim, finding that there was no allegation of outrageous (as opposed to negligent) conduct sufficient to meet the higher standard for this cause of action.

Finally, the Court recommended that the class allegations be stricken, as there could be no proper basis for allowing a class involving all Frontier passengers in what amounts to a case by two plaintiffs for personal injuries caused by sexual assault. The Court went so far as to indicate that even a class limited just to Frontier passengers who suffered a sexual assault would not be permitted, as each case would have to be decided on its specific facts.

Both parties filed Objections to the Magistrate's Report and Recommendations, and the plaintiffs moved for leave to file an amended complaint. Plaintiffs' proposed amendments include allegations as to why the particular sexual assaults on the plaintiffs were foreseeable and should have been prevented, and thus might be deemed sufficient to state a claim for negligence. With that possible exception, it is very likely that the Magistrate's Report and Recommendation will be adopted by the District Court. Ramsey v. Frontier Inc., Civil Action No. 19-cv-03544- CMA-NRN, 2020 U.S. Dist. LEXIS 151176 (D. Colo. July 30, 2020).

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