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08/19/94 TARIQ W. KHAN v. AMERICAN AIRLINES

August 19, 1994

TARIQ W. KHAN, PLAINTIFF-APPELLANT,
v.
AMERICAN AIRLINES, HERB BRIICK, AND SERVANT OF AMERICAN AIRLINES, AND BOB CONNORS, A SERVANT OF AMERICAN AIRLINES, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Odas Nicholson, Judge Presiding.

Released for Publication September 27, 1994.

Egan, McNAMARA, Rakowski

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

The plaintiff, Tariq Khan, appeals from an order dismissing his complaint pursuant to the motion of the defendants filed under section 2-615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2-615.) The plaintiff's claims were against the defendant, American Airlines (American) and two American employees for false imprisonment, malicious prosecution and intentional infliction of emotional distress.

Because this case was decided on a motion to dismiss, our review should be restricted to the allegations of the complaint. But we have had some difficulty in determining precisely what was considered by the trial Judge as assertions of fact, that is, whether she considered matters which the plaintiff now maintains she judicially noticed. We will proceed on the basis of the facts as they have been submitted to us in the parties' briefs.

Khan was on the premises of American, and the defendants Herb Briick and Bob Connors were employees of American, who were assigned security duties. American had in its possession an airline ticket believed to be stolen. American delivered the stolen ticket to Khan with the intent to entrap him and without facts to indicate that Khan knew the ticket was stolen when American, Briick and Connors delivered the ticket to him. After making the delivery, theyarrested Khan and had the Chicago police take him into custody and be confined in a police station and to be fingerprinted and photographed. The defendants had no factual basis or reason to believe Khan committed a crime; nonetheless they had him charged with the crime of theft. Briick signed a misdemeanor complaint for theft against Khan. On April 4, 1990, a trial Judge in criminal court entered an order of "stricken from docket with leave to reinstate. Defendant demands trial." As of June 14, 1991, the charge was not reinstated by the State.

In the second amended complaint, which is in issue here, count I charged American and Briick and Connors as servants of American with false imprisonment. Count II charged American and Briick and Connors as servants of American with malicious prosecution. Count III alleged that Briick acted alone or in concert with Connors or others and was guilty of false imprisonment of Khan. Count IV alleged that Briick was guilty of malicious prosecution. Count V and VI made the same allegations against Connors as it did against Briick in counts III and IV. Count VII alleged that American, Briick and Connors were guilty of intentional infliction of emotional distress because they arrested Khan knowing that he was en route to his father's funeral.

The Judge dismissed the entire complaint. The record does not contain a report of proceedings for the hearing at which she entered her order. Consequently, we are unable to determine the basis upon which she based her ruling.

American maintains that the entire complaint was properly dismissed because the causes of action asserted by the plaintiff have been preempted by the Federal Aviation Act. Section 1305 of the Act provides in part as follows:

"(a) Preemption

(1) * * * No State or political subdivision thereof and no interstate agency or other political agency of two or more States shall enact or enforce any law, rule, regulation, standard or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under subchapter IV of this chapter to provide air transportation." 49 U.S.C. § 1305(a)(1) (1988).

Section 1506 states that "nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to this chapter." (49 U.S.C. § 1506 (1988).) The issue before us is whether the claims made by the plaintiff relate "to rates, routes, or services of any air carrier." We Judge that they do not.

Before 1992, several of the cases involving the scope of section 1305 could be divided into two categories: economic or regulatory issues and personal injury or damage issues (which included tort claims under state law). Several of the claims in the former category were held to be preempted by the language of section 1305. In the area of state deceptive advertising or antitrust laws, courts relied on the term "relating to * * * rates" from section 1305 and reasoned that a state's attempt to regulate the dissemination of information for airline ticket prices or discounts related to or influenced "rates." (See Trans World Airlines, Inc v. Mattox (5th Cir. 1990), 897 F.2d 773 (state deceptive advertising laws); Illinois Corporate Travel, Inc. v. American Airlines, Inc. (7th Cir. 1989), 889 F.2d 751 (state consumer fraud laws).) In the same category, courts have relied on the phrase "relating to services" for the preemption of claims involving handicapped seating, smoking and boisterous or uncooperative passengers. See e.g., O'Carroll v. American Airlines, Inc. (5th Cir. 1989), 8 ...


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