Privacy Law

Travelers may sue airline for alleged sex-toy prank, 5th Circuit says

A federal appeals court has ruled that a lawsuit against an airline for allegedly taping a sex toy to the top of a checked bag should survive a motion to dismiss.

The suit for intentional infliction of emotional distress, invasion of privacy, and negligence is not pre-empted by an airline liability treaty, according to the unpublished decision (PDF) by the New Orleans-based 5th U.S. Circuit Court of Appeals. Texas Lawyer has a story.

The plaintiffs are two travelers who contend airline employees targeted them because they are gay males. The suit says the sex toy had been removed from their luggage, covered in a greasy foul-smelling substance and taped to the top of one of their bags. The bag was circulating on the luggage carousel at the Norfolk Airport when the travelers discovered it.

The defendants are United Continental Holdings, Inc. and Continental Airlines.

The airline had contended the plaintiffs’ suit was pre-empted by Article 17 of the Montreal Convention, which governs airline liability, including liability for damage to baggage. But the 5th Circuit said the convention does not apply to the plaintiffs’ claims.

“The alleged misconduct in this case simply does not relate to any damage to plaintiffs’ duffel bag, which they admit is ‘just fine’ and undamaged; rather, plaintiffs seek a remedy for the way in which their bag was utilized to inflict personal injury,” the court said in the Nov. 4 opinion.

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