A split has developed among the circuit courts regarding a federal statute that provides airlines discretion to refuse to allow passengers to board and to remove passengers from airplanes.1 The statute amended the Federal Aviation Act in 1961 after a spate of airline hijackings, and provides that “any air carrier is authorized to refuse transportation to a passenger…when, in the opinion of the air carrier, such transportation would or might be inimical to safety of flight.” The central dispute is whether, in amending the act, Congress immunized airlines from liability unless they act in an “arbitrary and capricious” manner or if airlines remain liable to passengers under traditional common law tort rules, which look to whether conduct is “reasonable” under the circumstances. Congress did not address the standard of care that airlines owe to passengers before refusing to transport them, leaving the question to the courts.

Circuit Court Rulings

The U.S. Court of Appeals for the Second Circuit addressed the airlines’ obligations in the 1975 decision Williams v. TWA,2 where an airline refused boarding to a man who raised a string of red flags: He faced a kidnapping charge, had booked his ticket under an assumed name, and was described in an FBI bulletin as a “schizophrenic” who “possessed a large quantity of firearms,” “threatened violence” and should be “considered armed and extremely dangerous.”3 The man sued the airline alleging discrimination, false imprisonment and breach of contract.4

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