Airline mishandled shipment of pet cat, the container was damaged and cat escaped. Complaint on negligence and other grounds for $2.5 million in damages.
CALIFORNIA SUPERIOR COURT (UNLIMITED JURISDICTION)
FOR THE COUNTY OF SAN FRANCISCO
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ANDREW WYSOTSKI and LORI LEARMONT
Plaintiffs,
v.
AIR CANADA, CONTINENTAL AIRLINES and DOES 1-10,
Defendants. |
Case No.: __________________
COMPLAINT FOR DAMAGES
1. Negligence; 2. Negligence per se; 3. Negligent Infliction of Emotional Distress; 4. Fraud; 5. False Advertising; 6. Civil Code § 3340.
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Plaintiffs allege as follows:
1. Plaintiffs Andrew Wysotski and Lori Learmont are residents of Fairfield, County of Solano, State of California.
2. At all times mentioned herein, Defendant AIR CANADA was a corporation qualified to do business and doing business in the State of California, and a common carrier engaged in the business of airline transportation.
3. At all times mentioned herein, Defendant CONTINENTAL AIRLINES was a corporation qualified to do business and doing business in the State of California, and a common carrier engaged in the business of airline transportation.
4. The true names and capacities, whether individual, corporate or otherwise, of Defendants DOES 1 through 10 are unknown to Plaintiffs, who therefore sue said Defendants by such fictitious names and will request leave of court to amend this complaint to show their true names and capacities when the same are ascertained.
5. Defendants designated herein as DOES 1-10 are responsible in some manner and liable herein by reason of wrongful and unlawful conduct which proximately cause the injuries and damages to Plaintiffs as herein alleged.
6. At all times mentioned, all Defendants and each of them, were agents and employees of all other Defendants, and in doing the things hereinafter mentioned were acting within the course and scope of their authority as such agents and employees and with the consent and ratification of all other Defendants.
7. At all times mentioned herein, Defendant Air Canada contracted with Defendant Continental Airlines for the loading and unloading of airplanes at San Francisco Airport.
8. The acts complained of herein all took place in San Francisco County. This court is the proper court in which to file suit because the alleged injury to person or damage to personal property occurred in its jurisdictional area.
9. Plaintiffs were the owner, possessor and keeper of a female 14 year-old feline (cat) of peculiar value, named FU.
10. On or about August 23 , 2001, Plaintiffs Andrew Wysotski and Lori Learmont embarked upon a flight from Toronto, Canada, to San Francisco, California, on Defendant’s airline, Air Canada. Plaintiffs made these travel arrangements to fly with Plaintiffs’ cat FU, as well as Plaintiffs’ four other cats, via Air Canada.
11. In order to safely transport their cats, Plaintiffs placed FU in a special airline-approved crate designed for the safe transportation of animals. Plaintiffs placed a second cat in a separate special airline-approved crate designed for the safe transportation of animals, and they placed two cats together in a separate special airline-approved crate designed for the safe transportation of animals. Plaintiffs carried the fifth cat with them in the cabin of the airplane.
12. Plaintiffs were extremely concerned for the safety of their cat, FU, as well as their four other cats, and prior to the flight they spoke with Air Canada phone representatives about safety procedures for the transport of their cats. In response, Air Canada representatives represented to, promised, and assured Plaintiffs that their cats would be handled carefully and safely at all times during transit . Further, said representatives represented to, promised, and assured plaintiffs that the cats would be carried by hand into and off of the airplane. Said representatives also represented to, promised, and assured plaintiffs that the cats would be kept in a separate compartment from the other cargo on the airplane.
13. Before getting on the flight, while in Toronto, Plaintiffs were extremely concerned for the safety of their cat, FU, as well as their four other cats, and so advised Air Canada employees. Plaintiffs advised Air Canada employees that the cats were of the utmost value to plaintiffs. Plaintiffs also inquired several times as to how the cats would be handled on the aircraft. In response, Air Canada representatives and employees represented to, promised, and assured Plaintiffs that their cats would be handled carefully and safely at all times during transit . Further, said representatives and employees represented to, promised, and assured plaintiffs that the cats would be carried by hand into and off of the airplane.
14. In reliance on these promises, representations and assurances, Plaintiffs checked in the four cats, including FU, and entrusted their cats, including FU, to Air Canada for safe transit to San Francisco.
15. While checking in their cats, at the request of an Air Canada employee Plaintiffs removed the four wheels from the large crate carrying the two cats. The employee did not remove or ask Plaintiffs to remove the wheels from the crate carrying FU and the crate carrying the other cat.
16. On August 23, 2001 , Plaintiffs arrived at the Air Canada terminal in San Francisco. As they arrived at the baggage claim area, they notice the three crates they had checked in. One of the crates was extremely damaged, missing 10 of the 12 rivets that held the crate together. The cat was inside the crate. The crate with two cats in it was not broken, but cat litter was all over the crate and the water bowl was upside down in the litter. One of the cats in that crate had chipped a tooth during the transport. The third crate, which had contained FU, had a large hole in its corner, and the front door to the crate was broken and open . FU was not in the crate.
17. Plaintiffs allege, on information and belief, that the three crates were not hand-carried off of the airplane. The crates were placed on a steep ramp that led down from the airplane and the crates accelerated down the ramp, smashing into the ground.
18. Plaintiff Lori Learmont asked a representative and employee of Air Canada if she could search the area near the airplane and was allowed to search for seven minutes. She did not find FU.
19. Plaintiff Andrew Wysotski then asked a representative and employee of Air Canada if he could search the area near the airplane, since FU was familiar with and was most likely to respond to his voice. This request was denied. After waiting for an hour, he was allowed to search for twenty minutes. He did not find FU.
20. During the next days and weeks, plaintiffs placed flyers throughout the airport, spoke to employees from other airlines, hired professional dog sniffers, and placed humane traps at various locations in the airport in an attempt to locate FU. FU was not, and has never been, found .
FIRST CAUSE OF ACTION
Negligence
21. The allegations of paragraphs 1-20 are re-alleged and incorporated herein by reference.
22. Defendants breached their duty of care by negligently failing to cap the wheels on the carrier and by negligently failing to carry the crates off of the airplane by hand, and by allowing the crates to speed down the ramp and smash into the ground, allowing FU to leave the crate.
23. As a direct and legal result of Defendants’ actions, Plaintiffs’ cat FU was lost and not delivered to Plaintiffs.
SECOND CAUSE OF ACTION
Negligence Per Se (Violations of Regulations)
24. The allegations of paragraphs 1-20 are re-alleged and incorporated herein by reference.
25. As herein above alleged, Defendants, and each of their conduct, violated 9 Code of Federal Regulations sections 3.14, 3.18 and 3.19. Plaintiffs and their cat FU were within the class of persons and animals for whose protection said regulations were adopted. The loss of Plaintiffs’ cat FU was an occurrence of the nature of which said regulations were designed to prevent, and the injuries and damages complained of herein were legally and directly caused by said violations.
THIRD CAUSE OF ACTION
Negligent Infliction of Emotional Distress
26. The allegations of paragraphs 1-20 are re-alleged and incorporated herein by reference.
27. Defendants undertook to carry animals, including companion animals, as part of their business as a common carrier for valuable consideration.
28. This part of their business included representing, advertising and encouraging family members to travel and to carry their companion animals on these flights, and that these flights were safe for companion animals, including domestic cats.
29. Plaintiffs were in this class of solicited passengers and Plaintiffs relied upon the acts, advertising, and representations in choosing Air Canada for their flight to California, with their cats.
30. Defendants breached their duty of care by not informing Plaintiffs of the risk of such flight to their cats.
31. Defendants breached their duty of due care by failing to transport the crates by hand into and off of the cargo area of the airplane when they knew or should have known that failure to do so would result in the loss of FU. This was done negligently, carelessly, recklessly, and with gross negligence, in disregard of humanity.
32. Defendants breached their duty of due care by not allowing Plaintiffs ample opportunity to look for FU when she was initially missing. Defendant’s knew, or should have known, that any delay would greatly decrease the chance of finding FU. This was done negligently, carelessly, recklessly, with gross negligence, in disregard of humanity.
33. Plaintiffs suffered and continue to suffer serious emotional distress as a direct and legal result of the conduct of Defendants.
FOURTH CAUSE OF ACTION
Fraud
34. The allegations of paragraphs 1-20 are re-alleged and incorporated herein by reference.
35. Defendants undertook to carry animals, including companion animals, as part of their business as a common carrier for valuable consideration.
36. This part of their business included representing, advertising and encouraging family members to travel and to carry their companion animals on these flights, and that these flights were safe for companion animals, including domestic cats.
37. Plaintiffs were in this class of solicited passengers and Plaintiffs relied upon the acts, advertising, and representations in choosing Air Canada for their flight to California, with their cats.
38. Prior to Plaintiffs’ flight from Toronto to California via Air Canada, Plaintiffs repeatedly spoke with Defendants expressing their concern over the safety of their cats, including FU. Defendants repeatedly assured Plaintiffs that the cats would be carried by hand into and off of the airplane and that they were strictly monitored by animal welfare organizations. Based on Defendants’ assurances, Plaintiffs allowed FU and their other cats to be transported by Air Canada.
39. Defendants intended to deceive Plaintiffs by concealing the truth about the method of transportation for FU and their other cats. Defendants knew or should have known that Plaintiffs would rely upon such misrepresentations, especially considering that Plaintiffs expressed their serious concern over the safety of their cats, including FU. When Defendants made these representations, they knew them to be false and made them with the intention to defraud Plaintiffs and to induce Plaintiffs to act in reliance on these representations in the manner hereafter alleged, or with the expectation that Plaintiffs would so act. Had Plaintiffs known the actual facts, Plaintiffs would not have allowed FU and their other cats to fly in the airplane. Plaintiffs’ reliance on Defendants’ representations was justified because Air Canada is a reputable airline and, having superior knowledge over its services, made representations any passenger would believe to be true.
40. The aforementioned conduct of Defendants was an intentional concealment and misrepresentation of a material fact known to Defendants with the intention on the part of Defendants of thereby depriving Plaintiffs of property and causing emotional injury, and was despicable conduct that subjected Plaintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs’ rights, so as to justify an award of exemplary damages.
FIFTH CAUSE OF ACTION
False Advertising
41. The allegations of paragraphs 1-20 are re-alleged and incorporated herein by reference.
42. At all times herein mentioned, Defendants were engaged in the advertising of airline transportation services to the public.
43. On or about August 23, 2001, Defendants represented to the public, including Plaintiffs, through advertisements via pamphlets, mail, face-to-face solicitation, a web site, and other means, that animals are safe to fly on their aircraft.
44. On or about August 23, 2001, Defendants represented to the public, including Plaintiffs, through advertisements via pamphlets, mail, face-to-face solicitation, a web site, and other means, that they consider companion animals to be important members of the family, that live animals are a priority service, and that they pay extra-special attention to the safety, comfort and security of companion animals .
45. Defendants’ representations were untrue in that they did not treat Plaintiffs’ cats as members of the family, as a priority service or with extra-special attention to their safety, comfort and security.
46. Defendants made the representations herein alleged with the intention of inducing the public, including Plaintiffs, to fly their airline.
47. On or about August 23 , 2001, Plaintiffs believed and relied on Defendants’ advertising representations and, in reliance on them, purchased airline tickets from them to travel from Toronto to California with their companion animals, including FU.
48. At the time Defendants made the representations herein alleged, Defendants had no reasonable grounds for believing the representations to be true.
49. As a proximate and legal result of Defendants’ intentional misrepresentations, Plaintiffs were induced into buying seven airline tickets from Defendants, one for each human family member and one for each companion animal family member.
FACTS IN SUPPORT OF EXEMPLARY DAMAGES
Civil Code Section 3340
50. The allegations of paragraphs 1-20 are re-alleged and incorporated herein by reference.
51. Defendants knew that members of the public, including Plaintiffs, consider cats to be important members of the family.
52. Defendants knew the emotional harm to Plaintiffs that would be caused by the loss of one of their cats.
53. Despite this knowledge, Defendants failed to remove the wheels from two of the crates, failed to carry the crates off of the airplane by hand, as represented to Plaintiffs, and allowed the crates to speed down the ramp and smash into the ground, allowing FU to leave the crate. This was done willfully and by gross negligence, in disregard of humanity.
54. Despite this knowledge, Defendants, upon being informed by Plaintiffs that their cat was missing, at first allowed Plaintiffs only seven minutes to search for their cat. They then made Plaintiffs wait for an hour before allowing Plaintiffs to conduct another search, causing them to miss a critical opportunity to recover their cat. This was done willfully and by gross negligence, in disregard of humanity.
WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and severally, as follows:
1. For compensatory damages including the value of Plaintiff’s beloved companion animal, FU, in the amount of $2,500,000;
2. For Plaintiffs’ loss of companionship of as a companion animal in an amount according to proof;
3. For mental, physical and nervous pain and suffering and serious emotional distress in an amount according to proof;
4. For exemplary damages pursuant to Civil Code section 3340 in the amount of $2,500,000;
5. For exemplary damages pursuant to Civil Code section 3294 in an amount according to proof;
6. For costs of this action;
7. For such and further relief as the Court may deem proper.
Dated: August 15, 2002 _________________________
David Blatte
Attorney for Plaintiffs