UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ANDREW E. DILLDINE,

Plaintiff,

vs.

AMERICAN AIRLINES, INC., et al.,

Defendants.

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Case No. 3:18-cv-00178

District Judge Thomas M. Rose

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

Plaintiff Andrew I. Dilldine flew from Dayton, Ohio to North Carolina on a regional 

jet operated by Defendant PSA Airlines, Inc. Defendant PSA is a wholly owned subsidiary 

of Defendant American Airlines, Inc. Dilldine’s flight did not go well. Defendants 

allegedly damaged his personal property—including his medications—and allegedly caused 

him serious and permanent personal injury that required hospitalization.

Dilldine’s Complaint advances two claims: negligence and breach of a contract of 

carriage. Notably, his negligence claim rests on his assertion that Defendants “owed 

specific duties to [him] from the Air Carrier Access Act...,” and related regulations. (Doc. 

#2, PageID #31, ¶15).

Defendants contend—and Dilldine disagrees—that dismissal of Dilldine’s claims is

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
2

warranted under Fed R. Civ. P. 12(b)(6).

II. Rule 12(b)(6)2

Dismissal of a complaint under Rule 12(b)(6) is appropriate when it “lacks ‘sufficient 

factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Brent 

v. Wayne Cnty. Dep’t of Human Services, 901 F.3d 656, 675-76 (6th Cir. 2018) (quoting 

Marie v. Am. Red Cross, 771 F.3d 344, 361 (6th Cir. 2014) (citation omitted). Facial 

plausibility is present if the moving party “pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678. 

Generally, where “matters outside the pleadings are presented to and not excluded by 

the court,” a Rule 12(b)(6) motion must be converted to a motion for summary judgment 

under Rule 56. See Fed. R. Civ. P. 12(d). Yet in limited situations, the Court may take into 

account materials outside the complaint such as public records, exhibits attached to the 

complaint or to a defendant’s motion to dismiss, and “items appearing in the record of the 

case ....” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) 

(citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)). This extra-pleading study

is permissible—and conversion to summary-judgment is unnecessary—when public 

records, exhibits, or other items are “referred to in the Complaint and are central to the 

claims contained therein.” Id.

 2 Defendants filed an Answer in response to Dilldine’s Complaint. They subsequently filed their presently pending 

Rule 12(b)(6) Motion. Their Motion “was more appropriately captioned a motion for judgment on the pleadings under 

Federal Rule of Civil Procedure 12(c). Nevertheless, the standard of review is the same under both Rule 12(b)(6) and 

12(c).” Kuczak v. City of Trotwood Police Department, 3:13cv101, 2016 WL 4987170, at *3 (S.D. Ohio 2016) (Rice, 

D.J.) (citing Lindsay v. Yates, 498 F.3d 434, 437 n.5 (6th Cir. 2007)); see Fritz v. Charter Tp. of Comstock, 592 F.3d 

718, 722 (6th Cir. 2010).
3

Defendants have attached to their Rule 12(b)(6) Motion a document referred to as 

“the American Airlines Conditions of Carriage ...” that was in effect on the date (May 4, 

2017) Dilldine flew to North Caroline with his ill-fated medications. (Doc. #12, PageID 

#102, ¶2). The Complaint refers to this document, and the parties agree that it is central to 

Dilldine’s claim for breach of contract of carriage. (Doc. #12, PageID #86; Doc. #13, 

PageID #153). It is therefore proper to consider it as part of Defendants’ Rule 12(b)(6) 

Motion without converting it into a motion for summary judgment. See Bassett, 528 F.3d at 

430.

Because Defendants seek dismissal under Rule 12(b)(6), the Court accepts as true the 

Complaint’s factual allegations, construes the Complaint in Dilldine’s favor, and draws all 

reasonable inferences in his favor. Bickerstaff v. Lucarelli, 830 F.3d 388, 396 (6th Cir. 

2016). Reading his Complaint in the above manner and considering its attached documents 

reveals the following.

III. Dilldine’s Complaint

Dilldine purchased a ticket for an American Airlines flight that departed on May 4, 

2017 from Dayton International Airport and traveled to Charlotte Douglas International 

Airport in North Carolina. He boarded his flight with his “life sustaining assistive devices, 

specifically multiple sterile Total Parenteral Nutrition bags, and multiple vials of liquid 

vitamins and other medications [], all of which are medications essential to [his] ability to 

function and receive nourishment.” (Doc. #2, PageID #30). The Complaint does not 

identify Dilldine’s medical problems. Defendants state that he “is a severely 

immunocompromised cancer patient who, at the time of his flight, had only recently been 
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discharged from the hospital after a serious bout of pancreatitis.” (Doc. #15, PageID #169).

Dilldine stored his medication and ice packs in a clean cooler that complied with the 

size and weight restrictions for carry-on items. His medication cooler was also secured in 

compliance with the procedures mandated by the Transportation Security Administration 

(TSA)—it was marked as “medical supplies” and had been inspected by TSA and taped 

shut. (Doc. #2, PageID #s 30-31).

Despite taking these steps, Dilldine encountered a problem when he reached the 

boarding gate: An American Airlines or PSA employee told him that his cooler would not 

fit in the aircraft’s overhead compartments “and would have to be checked.” Id. at 31. 

Dilldine informed the employee that he was disabled and that his cooler contained lifesustaining assistive devices and needed to be kept clean and cold. Dilldine followed the 

employee’s instructions. The employee tagged his cooler, and he watched other American 

Airlines and PSA employees load the cooler onto the aircraft. This solved the immediate 

problem about where to store Plaintiff’s cooler and medication. But another problem soon 

arose.

Upon Dilldine’s arrival in North Carolina, his cooler was empty. It had been 

“manually opened and/or unzipped, the tape removed, the plastic bags were missing.” Id. at 

31. Most significantly, his “multiple bags and vials of Medication and ice packs were 

strewn throughout the baggage storage area of the aircraft, baggage cart, and/or on the 

unloading equipment, such that they were not maintained in a cold, sterile environment and 

were contaminated.” Id.

The haphazard storage of the cooler and its contents—and the resulting 
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contamination of Dilldine’s medication—caused him to “sustain[ ] property damage and 

severe personal injuries, including a severe infection requiring hospitalization....” Id. He 

consequently “incurred medical expenses, physical pain, and mental anguish.” Id.

IV. Discussion

A. Negligence

Defendants contend that the ACAA bars Dilldine’s negligence claim because the 

ACCA does not create a private right of action; instead, “Congressional intent in enacting 

the ACCA was to create a powerful administrative structure for its implementation and 

enforcement.” (Doc. #12, PageID #94). Defendants point out Dilldine availed himself of 

this administrative remedy by filing a Complaint with the Department of Transportation 

(DOT). And Defendants argue that there is no statutory provision for a private right of 

action after he pursued his Complaint with the DOT. (The record lacks information about 

the current status of those administrative proceedings or any administrative remedy Dilldine 

might have received.)

Dilldine rejects Defendants’ foundational assertion that he is asserting a private cause 

of action under the ACCA itself. He explains that he cited the ACCA to establish the duty 

Defendants owed him and their breach of that duty—essential elements of his negligence 

claim.

On (and since) the date Dilldine flew to North Carolina, the ACAA prohibited air 

carriers from discriminating against an “otherwise qualified individual” on the ground that 

“the individual has a physical or mental impairment that substantially limits one or more of 

life’s major activities.” 49 U.S.C. § 41705(a)(1) (effective December 12, 2003).
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Defendants do not dispute that “Dilldine is a qualifying passenger as contemplated by 

the ACAA, in view of the long-term, unfortunate illnesses which he was courageously 

battled.” (Doc. #12, PageID #92). Rather, Defendants contend that Dilldine does not have 

a private right of action under the ACAA pursuant to Alexander v. Sandoval, 532 U.S. 275 

(2001). They emphasize that since Sandoval, not a single federal court has found that a 

private right of action is available under the ACAA. 

Dilldine, however, is not advancing a private cause of action under the ACAA. (Doc. 

#23, PageID #150). He asserts his negligence claim under state common law, and he does 

not seek damages under the ACCA. 

“Ohio maintains the traditional elements for negligence: duty, breach, causation, and 

harm.”3

 Ross v. PennyMac Loan Services LLC, 761 F. App’x 491 (6th Cir. 2019) (citing 

Stefansky v. Cantina Laredo Columbus/Nashville, L.P., 72 N.E.3d 97, 103 (Ohio Ct. App. 

2016)) (other citation omitted). Dilldine’s negligence claim derives from duties arising 

under the ACAA and its accompanying regulations. These duties concern elements one and 

two of his negligence. Yet he must still establish causation and harm to ultimately prove his 

negligence claim. See id. In lockstep with this, Ohio law carefully distinguishes private 

statute-based causes of action from negligence claims:

A plaintiff attempting to assert a private right of action under a statute is 

asserting that a violation of the particular statute, standing alone, entitles her to 

a remedy. Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144, 

146 (Ohio 1976)4

; Cort v. Ash, 422 U.S. 66, 77, 95 S.Ct. 2080, 45 L.Ed.2d 26 

 3 The parties do not discuss which state’s common law applies to Dilldine’s negligence claim. Applying 

Ohio common law is therefore presently warranted.3

 Savedoff v. Access Group, Inc., 524 F.3d 754, 762 (6th 

Cir. 2008) (“We generally apply the substantive law of the forum state to actions brought pursuant to our 

diversity jurisdiction.” (citing See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817 (1938)). 4

 superseded by statute on other grounds, see Kohmescher v. Kroger Co., 61 Ohio St.3d 501, 503 n.2 (1991).
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(1975). Negligence per se, on the other hand, merely satisfies the duty and 

breach elements of a negligence claim. Pond v. Leslein, 72 Ohio St.3d 50, 647 

N.E.2d 477, 479 (Ohio 1995); Sikora [v. Wenzel], 88 Ohio St.3d 493, 727 

N.E.2d [1277,] 1281 [(Ohio 2000)]. The plaintiff still must meet her proofs on 

proximate cause and damages. Pond, 647 N.E.2d at 479.

Parker v. Miller, No. 2:16-cv-1143, 2018 WL 3743981, at *7 (S.D. Ohio 2018) (Smith, 

D.J.) (footnote added) (quoting Thornton v. State Farm Mut. Auto Ins. Co., No. 1:06-CV00018, 2006 WL 3359448, at *14 (N.D. Ohio 2006).

As in Parker, Dilldine has simply asserted a straightforward common-law negligence 

claim whose first two elements, he contends, may be satisfied by Defendants’ duties arising 

under the ACAA and its regulations, and breaches thereof. See id.; see also Doc. #2, ¶s 17-

19. In this situation, “[t]he availability of a private right of action under the regulations is 

... irrelevant.” Parker, 2018 WL 3743981, at *7; cf. Gilstrap v. United Airlines, Inc., 709 

F.3d 995, 998 (9th Cir. 2013) (declining to determine if the ACAA provides a private cause 

of action “because Gilstrap does not allege a cause of action under the ACAA.”).

Still, it remains to be seen whether Dilldine may rest his common-law negligence 

claim upon duties owed him under the ACAA and its regulations. This is a question of 

preemption.

“There is no doubt that Congress may withdraw specified powers from the States by 

enacting a statute containing an express preemption provision.” Arizona v. United States, 

567 U.S. 387, 399, 132 S.Ct. 2492, 2500-01 (2012). “Courts also will find that Congress 

has preempted state law in at least two other circumstances. ‘First, the States are precluded 

from regulating conduct in a field that Congress, acting within its proper authority, has 

determined must be regulated by its exclusive governance.’ ‘Second, state laws are 
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preempted when they conflict with federal law.’” Mik v. Federal Home Loan Mortg. Corp., 

743 F.3d 149, 164 (6th Cir. 2014) (quoting, in part, Arizona, 132 S.Ct. at 2501).

Defendants do not argue that the ACAA and the Federal Aviation Act (FAA) 

expressly preempt Dilldine’s common-law negligence claim.

5

 See Doc. #15, PageID #174. 

They instead argue that the ACAA implicitly preempts his negligence claim. They propose 

that “Congress ... intended federal law to completely occupy the field of aviation safety, 

and allowing a state-based negligence claim, even where one purportedly applies a federal 

standard of care, runs the risk of creating conflicting bodies of law in various jurisdictions, 

frustrating the fundamental purpose of the FAA and ACAA in ensuring consistency in 

regulation of the air transportation system.” Id. at 175.

There is merit in Defendants’ reasoning as to aviation safety under Sixth Circuit case 

law: “We agree with the Third Circuit’s reasoning in Abdullah [v. American Airlines, Inc., 

181 F3d 363 (3rd Cir. 1999)] that federal law establishes the standards of care in the field of 

aviation safety and thus preempts the field from state regulation.” Greene v. B.F. Goodrich 

Avionics Systems, Inc., 409 F.3d 784, 795 (6th Cir. 2005). There is no doubt, then, that 

Dilldine’s negligence claim is preempted to the extent he grounds it on standards of care for 

aviation safety entrenched in the ACAA and its regulations.

This leads to a dispositive question: Whether Dilldine’s negligence claim concerns

matters of aviation safety? Cf. Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 

555 F.3d 806, 811 (9th Cir. 2009) (“when the agency issues ‘pervasive regulations’ in an 

 5 The ACAA amended the FAA’s anti-discrimination provisions in 1986. See Gilstrap, 709 F.3d at 999-

1000.
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area, like passenger warnings, the FAA preempts all state law claims in that area.” Id. at 

811. (emphasis in original). Defendants say, yes. They contend that Dilldine’s “claims 

necessarily implicate American’s employee training standards, cabin baggage policies[,] and 

cargo baggage policies, all of which have unmistakable bearing on safety.” (Doc. #15, 

PageID #174).

Defendants are correct. Dilldine’s Complaint connects certain duties of due care to 

federally regulated aviation activities—loading, transporting, stowing, and offloading 

baggage, including assistive devices and/or medications for individuals, particularly 

Dilldine, who are under a disability. See Doc. #2, PageID ¶16. The need for uniform 

federal regulatory control over these activities derives from the dangers to persons and 

property posed by haphazard performance of these activities by airline personnel. This need 

becomes acute as to disabled airline passengers whose health and well-being depend upon 

assistive devices or medications.

Viewed another way—what pilot wants to fly a passenger jet without the baggage 

well secured? Certainly, no well-trained pilot, given the dangers improperly loaded and 

unsecured aviation cargo present to the airworthiness of aircraft and, in turn, to life and limb

of anyone onboard the aircraft while it is in flight. These dangers increase for disabled 

passengers, like Dilldine, who depend on medications or other assistive devices to treat 

serious health problems, to maintain their abilities to perform daily activities, or to stay 

alive. This is doubtlessly why one of the ACAA regulations Dilldine relies on to support his 

negligence claim requires carriers to return assistive devices to passengers in the condition 

in which the carrier received them. See 14 C.F.R. 382.129; see also Doc. #2, ¶ 17.
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Compliance with this regulation promotes safety of disabled passengers while noncompliance threatens pernicious outcomes—as Dilldine allegedly experienced.

Accordingly, the ACAA and its accompanying regulations preempt Dilldine’s state 

common-law negligence claim.

B. Breach of Contract of Carriage

Dilldine asserts in his Complaint that the ticket he purchased before his flight created 

a contract of carriage with the express or implied duty to safely deliver him and his 

medications and assistive devices to Charlotte, North Carolina. He claims that Defendants 

breached these duties and as direct result, he suffered injuries, losses, and damages.

Defendants contend that Texas law applies to Dilldine’s breach of contract claim 

under a choice-of-law provision in the contract of carriage. The contract of carriage does 

indeed identify Texas law as governing its terms and interpretations. (Doc. #12, PageID

#128). Such choice of law provisions in a contract are generally enforced in diversity cases. 

See Savedoff, 524 F.3d at 762. Dilldine does not address whether Texas law applies to his 

breach-of-contract claim and does not object to Defendants’ reliance on Texas law. It is 

therefore assumed for present purposes that Texas law applies to his breach-of-contract 

claim.

Defendants contend that its Conditions of Carriage6 limits Dilldine’s recovery “for 

loss, damage or delayed delivery of checked baggage, including transfer baggage, to the 

actual value of the baggage or $3,500, whichever is less ....” (Doc. #12, PageID #88) 

 6 The contract identified in Dilldine’s Complaint contains a section titled, “Conditions of Carriage.”
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(quoting PageID #114). Relying on Casas v. American Airlines, Inc., 304 F.3d 517 (5th 

Cir. 2002), Defendants contend that the Fifth Circuit Court of Appeals have found baggageliability limitations within airline contracts of carriage valid and enforceable.

Dilldine finds distinguishing features in Casas and argues that Defendants are 

required to show—and have not done so—that they provided him with adequate notice of 

the monetary limitations in Defendants’ contract of carriage. (Doc. #13, PageID #s 154-55)

The parties’ arguments overlook that although the contract of carriage generally 

limits Defendant American’s liability for loss, damage or delayed delivery of checked 

baggage, these limitations are subject to an exception: “Customers with disabilities 

travelling with wheelchairs or other assistive devices are exempt from liability restrictions 

for loss, damage or delays to these items.” (Doc. #12, PageID #115). This provision 

applies in the present case for several reasons. First, it is doubtlessly included in the 

contract of carriage to temper its liability limitations so as not to run afoul of the ACAA’s 

anti-disability discrimination provisions and goals.

Second, Dilldine’s “assistive devices,” including his medications, fit within this 

exemption from liability limitations. See 14 C.F.R. 382.3 (defining “assistive device” to 

include “any piece of equipment that assists a passenger with a disability to cope with the 

effects of his or her disability. Such devices are intended to assist a passenger with a 

disability to hear, see..., or perform other functions of daily life, and may include medical 

devices and medications.”).

Third, Dilldine’s Complaint asserts sufficient facts to plausibly show that at least his 

medications are assistive devices. He alleges that he boarded the flight with “life sustaining 
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assistive devices, specifically multiple sterile Total Parenteral Nutrition bags, and multiple 

vials of liquid vitamins and other medications [], all of which are medications essential to 

[his] ability to function and receive nourishment.” (Doc. #2, PageID #30). He further 

alleges that his medications were “strewn throughout the baggage storage area and were 

contaminated.” Id. at 31. These allegations bring his breach-of-contract claim within the 

contract of carriage’s exclusion from its liability limitations for loss, damage or delays to a 

Dilldine’s assistive devices.

* * *

One final disagreement remains. Dilldine’s Complaint seeks to recover—as a direct 

result of Defendants’ breach of contract—his “injuries, losses and damages ....” (Doc. #2, 

PageID #34). These damages partially include his “reasonable and necessary medical

expenses in excess of $82,547.32.” Id.

Defendants realize that Dilldine seeks personal-injuries damages, including his 

medical expenses, as a remedy for the purported breach of contract. Such damages, 

according to Defendants, are consequential in nature and inconsistent with controlling Texas 

law and forbidden under the terms of the Conditions of Carriage.

Dilldine asserts that his breach-of-contract damages, including his medical expenses, 

are direct and non-consequential. He finds that “Texas courts have construed damage 

distinctions as being fluid.” (Doc. #13, PageID #156). 

The cases on which the parties rely shine a dim light on whether, under Texas law, 

the remedy of personal-injury damages (such as Dilldine’s medical expenses) is available 

for a breach of contract. Instead, the cases discuss the distinctions between direct and 
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consequential damages in situations other than the remedies for breach of contract. 

Defendants state that actual damages under Texas common law are either direct or 

consequential. In support, they cite a concurring opinion in Henry S. Miller Co. v. Bynum, 

836 S.W.2d 160, 163 (Tex. 1992) (Phillips, C.J., concurring). Bynum, however, involved 

the damages available for violations of the Texas Deceptive Trade Act, Tex. Bus. & Com.

Code § 17.41, et seq., and did not address whether personal-injury damages (like Dilldine’s 

medical expenses) are available for a breach of contract. See id. at 162-63. Defendants’ 

remaining cases either involved the Texas Deceptive Trade Act or breach-of-contract 

claims. None of their cases involved whether personal-injury damages are available, or 

were awarded, for breach of contract. See Southwind Aviation, Inc. v. Avendano, 776 

S.W.2d 734 (Tex. App. 1989); see also Haynes & Boone v. Bowser Bouldin, Ltd., 896 

S.W.2d 179, 182 (Tex. 1995), abrogated by Ford Motor Co. v. Ledesma, 242 S.W.3d 32 

(Tex. 2007); Mead v. Johnson Group, Inc., 615 S.W.2d 685 (Tex. 1981); Southwestern Bell 

Telephone Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex. 1991) (discussing breach of 

contract or negligence; no discussion of personal-injury damages flowing from a breach of 

contract); Airborne Freight Corp., Inc. v. C.R. Lee Enterprises, Inc., 847 S.W.2d 289, 293-

96 (Tex. App. 1992) (discussing tort or contract; no discussion of personal-injury damages 

flowing from a breach of contract).

The case Dilldine cites regarding breach-of-contract damages suffers the same 

silence on the issue of whether Texas common law allows personal-injury damages (like 

Plaintiff’s medical expenses) for breach of contract. See DaimlerChrysler Motors Co., LLC 

v. Manuel, 362 S.W.3d 160, 179-81, 183-85 (Tex. App. 2012).
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Without a more specific discussion in parties’ cases, or in the parties’ memoranda, it 

is premature to resolve whether, as a matter of Texas law, Dilldine may recover his 

personal-injury damages, including his medical expenses, under a breach-of-contract theory.

IT IS THEREFORE RECOMMENDED THAT:

Defendants’ Motion to Dismiss Under Fed. R. Civ. P. 12(B)(6) (Doc. #12) be 

GRANTED, in part, and Plaintiff’s negligence claim be dismissed; and, Defendants’ Motion 

to Dismiss be otherwise DENIED.

June 19, 2019 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise 

directs. A party may respond to another party’s objections within FOURTEEN days after 

being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).