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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 2917 September Term, 2009

DEBORAH LAVINE, et al. v. AMERICAN AIRLINES, INC.

Graeff, Hotten, Kenney III, James A., (Retired, Specially Assigned), JJ.

Opinion by Kenney, J.

Filed: December 1, 2011 Chief Judge Peter B. Krauser did not participate in the argument or the decision in this case.

Appellants Deborah and Matt Lavine appeal the grant of summary judgment by the Circuit Court for Howard County in favor of appellee, American Airlines, Inc. ("American"). They present four questions 1 which we have consolidated and reordered as follows: (1) Did the circuit court grant summary judgment despite the existence of genuine disputes of material fact? (2) Was appellee entitled to judgment as a matter of law? For the reasons that follow, we answer question 1 in the negative and question 2 in the affirmative. We shall therefore affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND 2 On September 26, 2008, appellants purchased two round-trip airline tickets from American's website. Each ticket included two flights on the outbound leg: flights 1219 and 4941. Flight 1219 was from Reagan National Airport to Miami International Airport on

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As presented in appellants' brief, the questions are: (1) Did the lower court apply the wrong standard in reviewing a motion for summary judgment? (2) Did the misrepresentations by American Airlines constitute actionable elements? (3) Did the allegations of loss and injury identify damages sufficient to defeat a motion for summary judgment? (4) Does Federal law preempt Maryland from affording relief to customers of airlines?

We do not include alleged facts that were not included in the pleadings or affidavits before the circuit court at the time summary judgment was granted, but were alleged for the first time in either appellants' brief or the amended complaint (which the circuit court excluded). See Educ. Testing Serv. v. Hildebrant, 399 Md. 128, 140 (2007).

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December 21, 2008, with an estimated arrival time of 7:55 p.m. Flight 4941 was from Miami International Airport to Key West International Airport on December 21, 2008, with a departure time of 8:35 p.m. Thus, there was to be a 40 minute window between flights if flight 1219 arrived as scheduled and flight 4941 left as scheduled. Appellants had booked a hotel room in Key West for the night of December 21, 2008. After buying the tickets, appellants received an email, the subject line of which reads: "E-Ticket Confirmation." The headline is: "Itinerary & Receipt Confirmation." A line at the bottom states: "A summary of Terms and Conditions of travel is available by selecting the Conditions of Carriage button below." As shown in the email, this button is conspicuous. The referenced Conditions of Carriage clearly state that the ticket and the Conditions of Carriage "constitute the contract[.]" In the affidavit attached to his motion in opposition to summary judgment, appellant Matt Lavine, in reference to the Conditions of Carriage, stated that "I did not see or receive a document that looks like the" Conditions of Carriage.3 On December 21, 2008, after appellants arrived at Reagan National Airport for flight 1219, they were informed that the flight was delayed. Concerned that this delay would cause them to miss their connecting flight, appellants assert that they requested a refund or seats on another flight. "[Appellee] then represented that, despite the delay, [it] would provide

Appellee acknowledged at oral argument that a buyer is not explicitly presented with the Conditions of Carriage at purchase, but, according to the affidavit of Dale Norgard ("Norgard's affidavit"), an employee of appellee, submitted in support of the motion for summary judgment, "[t]he Conditions of Carriage may be viewed at any time prior and subsequent to the ticket purchase on [appellee's] website." 2

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[appellants] with the connecting flight from Miami to Key West. . . . Based on [appellee's] representation, [appellants] agreed to board the delayed flight." When flight 1219 arrived at Miami International Airport at 8:23 p.m, "[appellee] instructed [appellants] that they had fifteen minutes to traverse the airport to arrive at the departure point" for flight 4941. "[Appellants] ran through the airport. Construction was ongoing, and [appellants] inhaled debris." "Coughing," appellants arrived at the gate at 8:30 p.m., but were denied entry to flight 4941 because they did not arrive thirty minutes prior to the scheduled flight time. Appellants were also allegedly told that "the flight from Miami had departed prior to [appellants'] arrival at the departure point at the Miami Airport," but, "[i]n fact, the flight from Miami to Key West did not move for an hour past the time that [appellant] arrived." 4 "[Appellee] provided [appellants] with no substitute flight" that night, and "[appellants] purchased a hotel room in Miami. . . . [They] were unable to use the hotel room purchased in Key West." Appellee secured and paid for another hotel room for appellants, and provided them with a stipend for dinner and breakfast. On December 22, 2008, appellants boarded flight 4833 from Miami and arrived in Key West later that day. On May 11, 2009, appellants filed a five count complaint in the Circuit Court for Howard County for: (1) Negligent Misrepresentation

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