Appeal from the United States District Court for the Northern District of Illinois, Eastern division. No. 72 C 2190 THOMAS J. McMILLEN, Judge.
Swygert, Chief Judge, Fairchild and Sprecher, Circuit Judges. Fairchild, Circuit Judge (dissenting).
We are asked to consider a unique diversity case involving the standard of care required to be observed by an airline in the terminal toward a previously disabled victim confined to a wheelchair and attempting to return home.
On September 3, 1970, Mrs. Suarez, who was then in Chicago, suffered an angina attack and was admitted to Resurrection Hospital in Chicago. She and her husband were residents of Springfield, Virginia, he being employed as a law enforcement officer with the United States Bureau of Indian Affairs. Although Mrs. Suarez had been hospitalized on two previous occasions due to her angina condition, she had never suffered a heart attack.
On September 7, Mrs. Suarez' attending physician informed her that she had recovered sufficiently to return home but that she should refrain from becoming emotionally upset, should "take it easy," should not walk and should use a wheelchair for a few days. Mrs. Suarez reported this information to her husband who had remained at their home in Virginia.
In two separate telephone calls to the same agent of TWA in Washington, D.C., within fifteen to twenty minutes of each other, Mr. Suarez reserved a one-way first-class passage for Mrs. Suarez on flight 424 from Chicago to Washington; told the agent that his wife had been ill, was being released from the hospital and needed a wheelchair when she arrived at the airport; and informed the agent that the ticket would be paid for with an American Express card by Mrs. Suarez. The TWA agent told Mr. Suarez that "it would all be taken care of" and that Mrs. Suarez' ticket would be ready for her. Mr. Suarez reported these facts to Mrs. Suarez in the hospital.
TWA flight 424 was scheduled to leave O'Hare Airport about 4:45 in the afternoon. Mrs. Suarez was released from the hospital at 2:00 P.M. on September 7, was driven to the airport by a nurse, and arrived at the airport about 3:00 P.M. The nurse procured the assistance of TWA skycap Frederick Rolland who brought a wheelchair to the automobile where he and the nurse assisted Mrs. Suarez into the chair. Mr. Rolland wheeled Mrs. Suarez to the line in front of the TWA ticket counter and stayed with her until she reached the ticket agent, Judy Keri. He told Mrs. Keri to let him know when she was finished with Mrs. Suarez and he would then return and take Mrs. Suarez out to the departure gate.
Mrs. Keri testified that after Mrs. Suarez identified herself, she confirmed that she had a reservation but she had no advance information about her being ill or that she would arrive in a wheelchair.She then prepared a ticket, took the American Express card from Mrs. Suarez and had Mrs. Suarez sign the receipt, but her signature did not match that of Mr. Suarez on the card.
Mrs. Suarez testified that Mrs. Keri said, "I can't take this card. It is not made out to you. I have no proof that you are Mrs. Suarez." Mrs. Suarez answered: "I just got out of the hospital. I have been ill. I have my card. I have proof I am Mrs. Suarez. I have used it many times before and I see no problem." Mrs. Keri said: "I don't know that your American Express bill is even paid." Mrs. Suarez replied: "Well, I even have proof of that." Mrs. Suarez said that Mrs. Keri was very irritated, became abusive and spoke in a louder than normal tone. A line had formed behind her.
According to Mrs. Keri, Mrs. Suarez then requested Mrs. Keri to telephone someone at American Express and ask that person to telephone her husband. Mrs. Keri telephoned someone at American Express but that person refused to check with Mr. Suarez. Mrs. Keri then sought the aid of her TWA supervisor, Mrs. Mary LeBaron, who explained to Mrs. Suarez that TWA could not issue the ticket.
Mrs. Suarez then asked Mr. Rolland to take her to a telephone to call her husband. Rolland noticed that she was crying when she spoke to her husband and he asked Mrs. LeBaron to help her, but apparently she did nothing to attempt to solve the problem.
Then as stated in plaintiffs' brief, "Mrs. Suarez was left to sit alone in the wheelchair in the crowded, noisy Labor Day lobby for almost two hours, not knowing what her status was."
In the meantime, Mr. Suarez called TWA and reached a supervisor in Philadelphia, who suggested a prepaid ticket which Mr. Suarez procured. The supervisor called Mr. Suarez back later and informed him that the prepaid ticket had reached O'Hare Airport but that TWA personnel could not find Mrs. Suarez. This was despite the fact that Mr. Rolland checked on Mrs. Suarez from time to time and, after Mr. Suarez had informed her of the prepaid ticket arrangement, he took her back to the general vicinity of the TWA ticket counter.
Finally about two hours later, Miss Carol White, a TWA ground hostess, saw Mrs. Suarez sitting alone in the wheelchair in the airport lobby and told her about the receipt of the prepaid ticket but that she had missed her flight. Hearing this, Mrs. Suarez stood up in the wheelchair, suffered a heart attack and collapsed. An ambulance was summoned and she was taken to the hospital.
A cause of action based upon negligence and wilful and wanton conduct resulted in a jury ...