[Cite as Eastman v. FedEx Corp., 2014-Ohio-4213.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 100873 

STEPHANIE EASTMAN

PLAINTIFF-APPELLANT

vs. 

FEDEX CORPORATION

DEFENDANT-APPELLEE

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-12-796388 

BEFORE: Boyle, A.J., Celebrezze, J., and Stewart, J. 

RELEASED AND JOURNALIZED: September 25, 2014 
ATTORNEYS FOR APPELLANT 

Charles V. Longo 

Matthew D. Greenwell 

Charles V. Longo Co., L.P.A. 

25550 Chagrin Boulevard 

Suite 320 

Beachwood, Ohio 44122

ATTORNEYS FOR APPELLEE

Colleen D. Hitch Wilson 

Robert R. Ross 

3620 Hacks Cross Road 

Building B 

Memphis, Tennessee 38125 
MARY J. BOYLE, A.J.: 

{¶1} Plaintiff-appellant, Stephanie Eastman, appeals from the trial court’s 

decision granting summary judgment to defendant-appellee, Federal Express Corporation 

(“FedEx”). She raises the following three assignments of error for our review: 

1. The trial court erred when it granted defendant-appellee FedEx Corp.’s 

motion for summary judgment because plaintiff-appellant’s claims are not 

preempted by the Airline Deregulation Act. 

2. The trial court erred when it granted defendant-appellee FedEx Corp.’s 

motion for summary judgment because plaintiff-appellant presented 

sufficient evidence demonstrating that defendant-appellee FedEx Corp. is 

liable for their [sic] breach of contract. 

3. The trial court erred when it granted defendant-appellee FedEx Corp.’s 

motion for summary judgment because plaintiff-appellant presented 

sufficient evidence demonstrating that defendant-appellee FedEx is liable 

for Consumer Sales Practice Act violations. 

{¶2} Finding no merit to her appeal, we affirm. 

Procedural History and Factual Background

{¶3} In November 2012, Eastman filed a complaint against FedEx, setting forth 

the following facts (none of which FedEx disputes). Eastman sold a diamond ring to 

Ashton Roberts for $6,850. In May 2010, Eastman contracted with FedEx to ship the 

diamond ring from a FedEx located in Beachwood, Ohio, to a FedEx located in Houston, 

Texas. Eastman shipped the ring using FedEx’s priority overnight service, listing 

Roberts as the recipient. She requested that FedEx hold the package at the Houston 

location for pick up. Eastman also contracted with FedEx, using its collect on delivery 
(“C.O.D.”) service, to collect a secured payment of $6,850 for the ring in the form of a 

cashier’s check before releasing the ring. 

{¶4} In her complaint, Eastman further alleged that Roberts hired a courier to 

pick up the diamond ring and deliver the cashier’s check to FedEx. The courier 

delivered the cashier’s check to FedEx and signed for the ring. FedEx delivered the 

cashier’s check to Eastman. Eastman later learned from her bank that the cashier’s 

check was fraudulent. Eastman brought claims against FedEx for negligence, breach of 

contract, and violations of Ohio’s Consumer Sales Practices Act (“CSPA”). 

{¶5} FedEx moved for summary judgment in May 2013. In its summary 

judgment motion, FedEx argued that Eastman’s negligence and CSPA claims were 

preempted by the Airline Deregulation Act. With regard to Eastman’s breach of 

contract claims, FedEx argued that it was not liable because the contract specifically 

provided that Eastman was “solely responsible for any loss associated with a fraudulent 

check,” and that FedEx did 

not breach the contract of carriage by delivering the ring to, and collecting a 

cashier’s check from, a courier rather than the addressee, because the 

contract of carriage expressly allowed FedEx to deliver the ring to someone 

other than the designated recipient. 

 

{¶6} The trial court granted FedEx’s summary judgment motion. It is from this 

judgment that Eastman appeals. 

Standard of Review

{¶7} An appellate court reviews a decision granting summary judgment on a de 

novo basis. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 
(1996). Summary judgment is properly granted when (1) there is no genuine issue as to 

any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 

reasonable minds can come to but one conclusion, and that conclusion is adverse to the 

party against whom the motion for summary judgment is made. Civ.R. 56(C); State ex 

rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 654 (1996). 

{¶8} The moving party carries an initial burden of setting forth specific facts that 

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio 

St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, 

summary judgment is not appropriate, but if the movant does meet this burden, summary 

judgment will be appropriate only if the nonmovant fails to establish the existence of a 

genuine issue of material fact. Id. at 293. 

Airline Deregulation Act

{¶9} In her first assignment of error, Eastman maintains that the trial court erred 

when it granted FedEx’s summary judgment motion because her breach of contract, 

negligence, and CSPA claims are not preempted by the Airline Deregulation Act. 

FedEx concedes, and the trial court held, that one of Eastman’s claims, namely, her 

breach of contract claim, is not preempted by the ADA. Thus, we must determine 

whether Eastman’s remaining negligence and CSPA claims are preempted by the ADA. 

{¶10} Until 1978, airlines were regulated by the Federal Aviation Act (“FAA”), 

which did not prohibit persons or entities from bringing common law or statutory claims 

against airlines. Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 222, 115 S.Ct. 817, 130 
L.Ed.2d 715 (1995). In 1978, however, Congress enacted the Airline Deregulation Act. 

Id. The enactment was motivated by congressional belief that “‘maximum reliance on 

competitive market forces’ would best further ‘efficiency, innovation, and low prices’ 

as well as ‘variety [and] quality * * * of air transportation services.’” Morales v. Trans 

World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting 

the ADA). To prevent “states from undoing federal deregulation with regulation of their 

own,” Congress included a preemption clause in the ADA. Wolens at 222 (internal 

quotation marks omitted). 

{¶11} The ADA’s preemption clause provides, in relevant part, that “a State * * * 

may not enact or enforce a law, regulation, or other provision having the force and effect 

of law related to a price, route, or service of an air carrier that may provide air 

transportation under this subpart.” 49 U.S.C. 41713(b)(1). The Supreme Court has 

broadly construed the statute’s preemption clause, concluding that the “relating to” 

language means “having a connection with, or reference to, airline ‘rates, routes, or 

services.’” Wolens at 223, quoting Morales at 378. It further explained that “enacting 

or enforcing any law ‘relating to rates, routes, or services’ is most sensibly read, in light 

of the ADA’s overarching deregulatory purpose, to mean ‘States may not seek to impose 

their own public policies or theories of competition or regulation on the operations of an 

air carrier.’” Id. at 229. 

{¶12} Applying the “connection with” or “reference to” standard, the Morales

court held that the ADA preempted state enforcement of advertising regulations. Id. at 
391. The court reasoned that the advertising provisions related to fares within the 

meaning of the ADA not only because they expressly referred to them, but also because 

they reduced the incentive to price competitively. Id. at 388 (“‘where consumers have 

the benefit of price advertising, retail prices often are dramatically lower than they would 

be without advertising.’”). 

{¶13} Similarly, in Wolens, the court held that the ADA preempted a claim that 

American Airlines’ retroactive modification of its frequent-flyer program violated the 

Illinois Consumer Fraud and Deceptive Business Practices Act. Wolens, 513 U.S. 219, 

222, 228, 115 S.Ct. 817, 130 L.Ed.2d 715. The court concluded with no difficulty that the 

“claims relate to ‘rates,’ i.e., American’s charges in the form of mileage credits for free 

tickets and upgrades, and to ‘services.’” Id. at 226. 

{¶14} In Wolens, the court further held that contract claims relating to 

frequent-flyer benefits did not involve the enactment or enforcement of state laws, 

reasoning that the terms and conditions airlines offer and passengers accept are privately 

ordered obligations “and thus do not amount to a State’s ‘enactment or enforcement [of] 

any law, rule, regulation, standard or other provision having the force and effect of law.’” 

Wolens at 228-229 (citation omitted). 

{¶15} After review, we agree with FedEx that Eastman’s CSPA claims are 

preempted by the ADA. Eastman alleged that FedEx committed unfair and deceptive 

acts or practices by accepting money from her for a specific service, and then failing to 

comply with its own policies, representations, and practice. There is no question that 
Eastman’s FedEx claims “relate to” FedEx’s service, and seek to “enforce an enactment” 

of Ohio’s CSPA. These facts are directly on point with the facts in Wolens.

{¶16} Whether Eastman’s negligence claim is preempted by the ADA is a more 

difficult question. Neither Morales, 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 

157, nor Wolens directly answers this question. We point out that within her argument, 

Eastman does not argue that the trial court erred when it found that her negligence claim 

was preempted by the ADA. She does not cite to any cases or make any argument that 

support her position that her negligence claims are not preempted by the ADA. 

Nonetheless, in the interest of providing a complete analysis, we will address this issue 

despite the deficiencies in her brief. 

{¶17} Despite the limited applicability of the facts in Morales and Wolens to state 

tort claims, the Supreme Court has stated several principles helpful in applying the 

ADA’s preemption clause. First, even when Congress enacts an express preemption 

clause, its interpretation must begin with the “presumption that Congress does not intend 

to supplant state law.” New York State Conference of Blue Cross & Blue Shield v. 

Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). Second, 

there is clearly a limit to the breadth of the ADA’s preemption clause because some state 

law claims may affect airline fares or services “in too tenuous, remote, or peripheral a 

manner to have preemptive effect.” Morales at 390 (internal quotation marks omitted). 

Finally, in drawing the line between preempted claims and tenuously related claims, 

courts should consider the purpose behind the preemption clause, which was to “promote 
maximum reliance on competitive market forces” and prevent state interference with 

federal deregulation of airlines. Wolens, 513 U.S. at 230, 115 S.Ct. 817, 130 L.Ed.2d 

715 (citing 49 U.S.C. 1302(a)(4)); Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 

1265 (9th Cir.1998). 

{¶18} “The Sixth Circuit has not decided when to apply the ADA’s preemption 

clause to state tort claims, and there is no consensus among the other circuits.” 

Universal Coin & Bullion, Ltd. v. FedEx Corp., W.D.Tenn. No. 12-2778, 2013 U.S. Dist. 

LEXIS 130431, *12 (Sept. 12, 2013), citing Hammond v. N.W. Airlines, E.D.Mich. No. 

09-12331, 2009 U.S. Dist. LEXIS 110127 (Nov. 25, 2009). The court in Universal Coin

went on to review how various federal courts have decided the issue, which we will quote 

in full because it thoroughly explains how some federal courts have interpreted and 

applied the ADA to state tort claims: 

The Ninth Circuit focuses on the economic deregulation of the 

airline industry, construing “services” narrowly on the basis that, “when 

Congress enacted federal economic deregulation of the airlines, it intended 

to insulate the industry from possible state economic regulation as well[.] 

It did not intend to immunize the airlines from liability for personal injuries 

caused by tortious conduct.” Charas, 160 F.3d at 1266 (emphasis in 

original). 

The Seventh Circuit has similarly considered the economic impact of 

state claims, concluding that the ADA did not preempt claims by a travel 

agency alleging that an airline uttered slanderous statements because the 

claims did not directly relate to or have the “forbidden significant 

[economic] effect” on airline rates, routes, or services. Travel All Over 

The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1431 (7th 

Cir.1996) (citation omitted). See also S.C. Johnson & Son, Inc. v. 

Transport Corp. of America, Inc., 697 F.3d 544, 553 (7th Cir.2012). 

The Third Circuit has also construed the ADA’s preemption clause 
to exclude from preemption state tort laws that do not have a “regulatory 

effect.” Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 194 

(3d Cir.1998). In Taj Mahal Travel, the court held that the ADA did not 

preempt state defamation claims because such claims do not “frustrate * * * 

deregulation by interfering with competition” and do not amount to “public 

utility-style regulation.” Id. 

The Fifth Circuit has applied the ADA’s preemption clause by 

defining “services” to include only activities “appurtenant and necessarily 

included with the contract of carriage between the passenger or shipper and 

the airline.” Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th 

Cir.1995) (en banc). Under this view, “federal preemption of state laws, 

even certain common law actions ‘related to services’ of an air carrier, does 

not displace state tort action for personal physical injuries or property 

damage caused by the operation and maintenance of aircraft.” Hodges, 44 

F.3d at 336. In Hodges, the Fifth Circuit held that the ADA did not 

preempt a state tort claim against Delta Airlines for negligently allowing 

storage of a box in an overhead compartment because that storage was not 

an element “of the air carrier service bargain * * * such as ticketing, 

boarding procedures, provision of food and drink, and baggage handling, in 

addition to the transportation itself.” Id. at 336, quoting Hodges v. Delta 

Airlines, Inc., 4 F.3d 350, 354 (5th Cir. 1993). The Hodges court 

supported its narrow definition of “services” by citing other provisions of 

the airline regulatory code that require air carriers to carry insurance “for 

the loss of or damage to property of others, resulting from the operation or 

maintenance of aircraft.” Id. at 338. 

The Southern District of New York has concluded that three primary 

factors emerge from the case law construing the preemption clause. 

Rombom v. United Air Lines, Inc., 867 F.Supp. 214, 221 (S.D.N.Y. 1994). 

The threshold question is (1) whether an activity at issue is an airline 

“service.” If the activity is not a service, state laws are not preempted. If 

the activity is a service, the question is (2) whether the plaintiff’s claims 

affect the service directly or merely tenuously. If the claim does affect the 

service directly, the court asks (3) whether “the underlying tortious conduct 

was reasonably necessary to the provision of the service.” Id. 

Universal Coin at *12-15. 

{¶19} After reviewing the various federal district court and circuit court decisions, 

the court in Universal Coin concluded in its case that the ADA did not preempt Universal 
Coin’s state common law tort claims for the alleged mishandling of private customer 

information. It reasoned: 

Congress enacted the ADA’s preemption clause to prevent states 

from burdening air carriers with invasive regulations that would frustrate 

the federal regulatory scheme. The ADA preempts state common law tort 

claims only when those claims are sufficiently related to the air carrier’s 

rates, routes or services to “undo federal deregulation with regulation of 

their own.” See Wolens, 513 U.S. at 222. Here, FedEx’s alleged 

mishandling of UCB’s customer information, which allowed the defrauding 

of UCB’s customers and a significant reduction in sales, falls within the 

category of claims that are “too tenuous, remote, or peripheral” to aviation 

regulation to be preempted by the ADA. See Morales, 504 U.S. at 390. 

Universal Coin at *17-18. 

{¶20} In the case before us, however, we conclude that Eastman’s negligence 

allegations are sufficiently related to FedEx’s “rates, routes, and services.” Indeed, they 

relate directly — and only — to FedEx’s C.O.D. service. Because of this, her 

negligence claims are not “too tenuous, remote, or peripheral,” and are therefore 

preempted by the ADA. 

{¶21} Accordingly, we agree with the trial court that Eastman’s negligence and 

CSPA claims are preempted by the ADA. We therefore overrule Eastman’s first 

assignment of error. 

Breach of Contract Claim

{¶22} In her second assignment of error, Eastman argues that the trial court erred 

when it granted summary judgment to FedEx on her breach of contract claim. 

{¶23} In support of its summary judgment motion, FedEx submitted an affidavit 

from Paula Cates, a senior paralegal employed in the legal department at its corporate 
headquarters in Memphis, Tennessee. She averred that she had personal knowledge of, 

and was the custodian of, records that FedEx submitted in support of its motion. She 

also identified each document that was attached as a true and accurate copy of a business 

record of FedEx. 

{¶24} FedEx submitted a copy of an air carrier certificate from the Federal 

Aviation Administration, establishing that FedEx Express “met the requirements of the 

Federal Aviation Act,” was certified to operate as an air carrier, and was certified to 

“conduct common carriage operations in accordance with the Act.” 

{¶25} FedEx also attached a copy of the “C.O.D. airbill” that Eastman filled out 

when she shipped the diamond ring on May 10, 2010. Eastman listed Roberts as the 

recipient of the package. Rather than list Roberts’s address, Eastman listed FedEx’s 

Houston address and wrote “HOLD AT LOCATION.” She filled in the “C.O.D. 

amount” as $6,850, and checked the box “secured payment” as the “acceptable payment 

type.” Secured payment types included “money order, cashier’s check, [or an] official 

check.” Eastman chose cashier’s check as her acceptable payment type. 

{¶26} The front of the C.O.D. airbill stated that “[b]y using this airbill you agree to 

the service conditions on the back of this airbill and in our current service guide, 

including terms that limit our liability.” Cates averred that the January 4, 2010 edition 

of FedEx’s service guide was the service guide that was in effect at the time Eastman 

contracted with FedEx to ship the ring. 

{¶27} The reverse side of the C.O.D. airbill listed “C.O.D. Terms and Conditions.” 
 In the section, “Agreement to Terms,” it states: “By giving us your package to deliver, 

you agree to all the terms on this Airbill and in our current Service Guide, which is 

available on request.” In the section “C.O.D. Service/C.O.D Amount,” it states that “All 

checks and money orders are collected at your risk, including risk of nonpayment and 

forgery.” 

{¶28} The FedEx service guide further explains terms and conditions related to 

“Collect on Delivery (C.O.D.) Service.” It states that “[i]f the shipper marks SECURED 

PAYMENT on the C.O.D. airbill, we will collect a cashier’s check, official check, or 

money order.” It then states, “Checks (including cashier’s, official, certified, business 

and personal checks) and money orders for the C.O.D. amount will be collected at the 

shipper’s sole risk, including, but not limited to, all risk of nonpayment, fraud, and 

forgery. FedEx has no liability with respect to any such instrument.” 

{¶29} The FedEx service guide explains in its “Pickup and Delivery” section that 

“[w]e do not offer a restricted-delivery service and may deliver to someone other than the 

person or entity named as the recipient.” 

{¶30} With respect to the “Hold at FedEx Location” service selected by plaintiff 

at the time of the shipment at issue, Fedex.com advised customers that “A 

government-issued photo ID is required to pick up packages.” 

{¶31} In response to FedEx’s summary judgment motion, Eastman attached the 

same C.O.D. airbill that FedEx attached to its motion. She further attached an unsworn 

affidavit, and what appeared to be unauthenticated documents that she obtained from 
FedEx’s website. FedEx objected to Eastman’s unsworn affidavit and unauthenticated 

documents, and the trial court refused to consider them. Accordingly, this court will not 

consider Eastman’s affidavit or unauthenticated documents either (although we note that 

even if we did consider them, they would not change the outcome of this appeal). 

{¶32} The crux of Eastman’s entire argument is that FedEx breached its contract 

with her because it permitted a courier, who her recipient hired, to pick up the package for 

the recipient from FedEx. Eastman maintains that because FedEx released the package 

to the courier, she received a fraudulent cashier’s check. 

{¶33} After review, we conclude that there are no genuine issues of material fact 

as to whether FedEx breached its contract with Eastman; it did not. 

{¶34} The contract at issue is the C.O.D. airbill. On the front of the airbill, it 

states that the shipper agrees to the terms and conditions set forth on the back of the 

airbill, as well as the provisions stated in the current service guide. The service guide 

that was in effect when Eastman contracted with FedEx explicitly states that FedEx “may 

deliver to someone other than the person or entity named as the recipient.” Further, the 

terms and conditions on the back of the airbill state that “[a]ll checks and money orders 

are collected at your risk, including risk of nonpayment and forgery.” The service guide 

repeats the same term, i.e., that FedEx bears no responsibility for the risk of nonpayment, 

including fraud and forgery. These terms are not ambiguous. 

{¶35} Eastman’s argument that a question of fact remains because she did not 

declare the ring to be worth $1,000 is irrelevant. According to the terms and conditions 
set forth on the reverse side of the C.O.D. airbill, FedEx could have been liable had the 

ring been lost, misdelivered, not delivered, damaged, or if there had been a delay in 

delivery. FedEx also could have been liable had it not collected a check for the ring, or 

if it had collected the wrong type of payment or the wrong amount of payment. But 

none of those things occurred here. FedEx performed as it stated it would per the 

contract. It collected the cashier’s check, delivered the ring, and delivered the check to 

Eastman. Eastman’s claims are against Roberts, not FedEx. 

{¶36} Eastman’s second assignment of error is overruled. 

{¶37} Eastman’s third assignment of error is moot based on our analysis in the first 

assignment of error where we found that her CSPA claims were preempted by the ADA. 

{¶38} Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, ADMINISTRATIVE JUDGE 

FRANK D. CELEBREZZE, JR., J., and 

MELODY J. STEWART, J., CONCUR