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ATTORNEYS FOR APPELLANT ATLANTIC COAST AIRLINES
Bruce L. Kamplain Joseph P. Maguire Norris Choplin & Schroeder, LLP Indianapolis, Indiana

PRO SE ATTORNEYS FOR APPELLEE
Bryan L. Cook Jennifer L. Cook Indianapolis, Indiana

ATTORNEYS FOR APPELLANT DELTA AIRLINES
John D. Papageorge Sommer Barnard Ackerson, P.C. Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE INSURANCE INSTITUTE OF INDIANA, INC. AND INDIANA LEGAL FOUNDATION
Robert B. Clemens George T. Patton, Jr. Bryan H. Babb Bose McKinney & Evans LLP Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S02-0505-CV-253 ATLANTIC COAST AIRLINES, DELTA AIRLINES, AND GLOBE SECURITY SERVICES, INC., Appellants (Defendants below), v. BRYAN L. COOK AND JENNIFER L. COOK, Appellees (Plaintiffs below). _________________________________ Interlocutory Appeal from the Marion Superior Court, No. 49D10-0208-CC-01463 The Honorable David J. Dreyer, Judge _________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0401-CV-77 _________________________________ December 6, 2006 Rucker, Justice.

In an action to recover damages for the negligent infliction of emotional distress, Indiana's modified impact rule requires a claimant to demonstrate a direct physical impact resulting from the negligence of another. Where the physical impact is slight, or the evidence of the physical impact is tenuous, we evaluate the alleged emotional distress to determine whether it is not likely speculative, exaggerated, fictitious, or unforeseeable. In this case, we conclude that the emotional distress or mental anguish allegedly suffered by the plaintiffs is speculative, and thus their claim for emotional distress damages must fail.

Facts and Procedural History

This case arises from a passenger's behavior onboard an aircraft five months after the September 11th terrorist hijackings of airplanes and less than two months after Richard Reid lit a match onboard a flight from Paris to Miami and attempted to detonate explosives hidden in his shoe. On February 8, 2002 Bryan and Jennifer Cook arrived at the Indianapolis International Airport for a direct flight to New York City. Delta Airlines handled ticket arrangements, and Atlantic Coast Airlines operated the flight. Globe Security Services, Inc. provided security for the airport. While passengers waited to board, a man later identified as French national Frederic Girard ran toward the gate and abruptly stopped. Mr. Cook observed that the unaccompanied Girard had two tickets in his possession for the flight and that airline security had detained Girard at the boarding gate before allowing him onto the airplane. He further noticed that Girard's face was red and his eyes were bloodshot and glassy.

While boarding the Fairchild Dornier 328, a small airplane with a capacity for thirty-two passengers, Girard ran up the steps and jumped inside. Rather than proceeding to his assigned seat, he attempted to sit in a seat nearest the cockpit but the flight attendant instructed him to sit in the back row. Girard took a seat in the rear of the aircraft but repeatedly pressed the attendant call button and light switch above his head. Prior to take-off, Mr. Cook approached the flight 2

attendant and expressed concern that Girard was a possible security threat. The attendant acknowledged as much and explained that he had directed Girard to sit in the rear of the plane so he could keep an eye on him.

During take-off Girard disregarded instructions to remain seated with his seatbelt fastened. Then during the flight Girard lit a cigarette, disregarding directives from the flight attendant that smoking onboard was prohibited. Despite this admonition Girard was permitted to retain his lighter. Mr. Cook approached three male passengers and asked for their assistance in protecting the flight in the event Girard's behavior grew dangerous. Girard moved about the plane, sat in various empty seats and finally walked up the aisle toward the cockpit. Mr. Cook blocked his path and instructed him to sit. Without any physical contact with Mr. Cook, Girard returned to his seat and lit another cigarette. The flight attendant again told him to extinguish the cigarette, and in response Girard stood and shouted, "Get back! Get back!" At this, Mr. Cook and other passengers approached Girard and ordered him to sit down. Instead Girard stomped his feet and shouted in French. Discernable to the Cooks were the words "World Trade Center," "Americans," and "New York City." Eventually a Delta Airlines employee convinced Girard to sit after speaking to him in French. The employee spent the remainder of the flight sitting across from Girard in the rear of the plane. Ultimately the pilot diverted the flight to Cleveland, Ohio where police placed Girard under arrest. The flight then continued to New York City.

Recalling the events of September 11th, and recalling also a passenger's attempt to detonate a shoe bomb aboard an airplane with the use of a match, the Cooks described their ordeal as one in which they "have never been so scared in their entire lives." Br. of Appellee at 8. The husband and wife filed a complaint in the Perry Township Small Claims Court in Marion County, Indiana, naming as defendants Delta Airlines, Atlantic Coast Airlines, and Globe Security Services, Inc. The Cooks pursued their claim on theories of negligence and breach of contract. They also sought damages for the negligent infliction of emotional distress. The small claims court entered judgment against the Cooks, and they appealed to the Marion County Superior Court. 1 After both sides conducted discovery, during which the trial court entered an

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At the time the Cooks filed their complaint, Indiana Code section 33-11.6-4-14 provided, "All appeals from judgments of the [Marion County] small claims court shall be taken to the superior court of the county and tried de novo." Retaining the identical language, the Legislature re-codified the statute in 2004 as Indiana Code section 33-34-3-15(a).

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order granting the Cooks' motion to compel discovery of Atlantic Coast's passenger manifest, 2 the defendants filed motions for summary judgment. Atlantic Coast alleged that it was entitled to judgment as a matter of law because the Cooks' negligence claim as well as their breach of contract claim was preempted by federal law, that the Cooks' complaint was barred for failure to file their appeal timely with the Marion Superior Court, and that the Cooks were not entitled to damages under Indiana's modified impact rule. In a joint filing Delta Airlines and Globe Security alleged that they were entitled to judgment as a matter of law because the Cooks were not entitled to damages under Indiana's modified impact rule, that the undisputed evidence showed there was no breach of contract, and that the undisputed evidence showed that Delta Airlines and Atlantic Coast were not partners as the Cooks alleged in support of their negligence claim.

After a hearing the trial court granted in part and denied in part the defendants' motions for summary judgment. More specifically, the trial court determined that the Cooks' complaint was not barred for failure to appeal timely to the Marion Superior Court, that neither Delta Airlines nor Atlantic Coast breached their contracts with the Cooks, that federal law did not preempt the Cooks' negligence claims, and that the Cooks' claims were not precluded under Indiana's modified impact rule. Delta Airlines and Atlantic Coast filed an interlocutory appeal and the Cooks cross-appealed. Globe Security did not challenge the trial court's order and has not otherwise participated in this appeal.

On review the Court of Appeals affirmed in part and reversed in part the judgment of the trial court. The Court of Appeals held: (1) the trial court did not err when it concluded that the Cooks' appeal of the small claims court's decision was timely; (2) the Cooks' tort claims are not preempted by federal law; (3) the Cooks' claims for the negligent infliction of emotional distress are not precluded under Indiana's modified impact rule; (4) the trial court correctly granted the Cooks' motion to compel discovery; (5) there are genuine issues of material fact regarding whether Delta Airlines and Atlantic Coast breached their contracts with the Cooks; and (6) the Cooks waived appellate review of whether the trial court erred in entering summary judgment in favor of Delta Airlines on the Cooks' negligence claims. Delta Airlines v. Cook, 816 N.E.2d 448 (Ind. Ct. App. 2004).
Atlantic Coast sought interlocutory review of the trial court's order, which the Court of Appeals accepted. The Court of Appeals addressed this claim in the instant appeal.
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Atlantic Coast sought rehearing complaining that the Court of Appeals' opinion abrogated the modified impact rule. In response, the court granted rehearing for the limited purpose of addressing this issue, but reaffirmed its opinion. Delta Airlines v. Cook, 821 N.E.2d 400 (Ind. Ct. App. 2005). Having previously granted Atlantic Coast's petition to transfer, we now affirm in part and reverse in part the judgment of the trial court. Having previously denied Delta Airlines' petition to transfer, see Delta Airlines v. Cook, Case No. 49S02-0505-CV-253 at 1 (Ind. May 26, 2005) (unpublished order), we summarily affirm those portions of the Court of Appeals' opinion relating to Delta Airlines. See Ind. Appellate Rule 58(A)(2).

Discussion I.

In its petition to transfer Atlantic Coast makes three claims: (1) the Cooks' claim for emotional distress damages is precluded by Indiana's modified impact rule; (2) the Court of Appeals erred in reversing summary judgment in favor of Atlantic Coast on the Cooks' breach of contract claim because "[t]here is absolutely no evidence in the record what the exact contract was and exactly how Delta and [Atlantic Coast] breached their contract," Atlantic Coast's Pet. to Trans. at 13; and (3) the Cooks' negligence claim is preempted by federal law. 3

In addressing the question of whether federal law preempts state law negligence claims, the Court of Appeals noted the split of authority on this issue. 4 After a lengthy discussion the court held that the decision to allow an apparent security risk to board an airplane does not "relate to" an airline's "services" within the meaning of section 1305 of the federal Airline

Atlantic Coast does not challenge the Court of Appeals' determination regarding the discovery order, and the Cooks do not challenge the determination that they waived appellate review of the trial court's grant of summary judgment in favor of Delta Airlines on the Cooks' negligence claim. Compare, for example, Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3rd Cir. 1999) (holding that federal law establishes the applicable standards of care in the field of aviation safety generally and thus preempts the entire field from state regulation), and O'Carroll v. Am. Airlines, Inc., 863 F.2d 11 (5th Cir. 1989), cert. denied, 490 U.S. 1106 (1989) (airline passenger's state law claims following removal from flight for disorderly conduct expressly preempted by federal law), with Smith v. Am. W. Airlines, Inc., 44 F.3d 344, 346 (5th Cir. 1995) ("Neither the language nor history of the ADA implies that Congress was attempting to displace state personal injury tort law concerning the safety of the airline business."), and In re Air Disaster, 819 F. Supp. 1352 (E.D. Mich. 1993) (negligence claims arising from an airplane crash, alleging negligent operation of airplanes, not preempted by ADA).
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Deregulation Act of 1978. Delta Airlines, 816 N.E.2d at 458. See 49 U.S.C.

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