Metropolitan News-Enterprise


Friday, September 21, 2001


Page 1


Request That Obese Woman Buy Second Airline Seat Not Bias—C.A.


By KENNETH OFGANG, Staff Writer/Appellate Courts


Southwest Airlines didn’t violate a state anti-discrimination law by asking an obese women to purchase a second seat for a crowded flight, the Court of Appeal for this district has ruled.

Div. Seven Wednesday affirmed a summary judgment rejecting Cynthia Luther’s suit against the airline. She claimed that Southwest discriminated against her in violation of the Unruh Civil Rights Act and caused her emotional distress as a result of the December 1999 incident.

Luther, who weighed over 300 pounds at the time, was planning to fly from Reno to Burbank the day after Christmas when an agent told her the flight was full and she would have to purchase a second seat or take a later flight.

There were no later flights that day, and Luther declined to fly the following morning, saying she had to be at work. Eventually, a friend who was sitting with her during the wait agreed to pay for her second seat.

The airline ultimately determined that she was able to fit in a single seat. Another passenger took the seat next to her and Southwest later sent her a refund and an apology.

Conduct Not Outrageous

Luther sued, saying she was humiliated and lost sleep and appetite for several months. Los Angeles Superior Court Judge Marilyn L. Hoffman, granting summary judgment, ruled that Luther had not been discriminated against on the basis of a disability and that the airline’s conduct wasn’t outrageous as a matter of law.

Hoffman was correct, Justice Earl Johnson Jr. said in an unpublished opinion for the appeals court.

The Unruh Act bars “all business establishments” from discriminating on the basis of sex, race, color, religion, ancestry, national origin, disability, or medical condition, the justice noted. Luther, however, testified that her obesity was not disabling, Johnson said.

He cited Cassista v. Community Foods, Inc, (1993) 5 Cal.4th 1050, which held that a health food store didn’t violate the Fair Employment and Housing Act by denying a job to a woman who claimed the only reason she wasn’t hired was that she was overweight.

The Unruh Act, Johnson noted, incorporates FEHA’s definition of disability—which requires a showing that the person has a “disease, disorder, condition, cosmetic disfigurement, or anatomical loss.”

Johnson wrote:

“Luther has not presented any evidence to establish her weight was the result of a physiological condition or disorder affecting one or more bodily systems....Instead, she contends she was treated differently solely because of her size.”

No Triable Issue

The justice went on to reject the contention that Luther had established a triable issue as to whether Southwest had engaged in outrageous conduct. There was no evidence that the airline had engaged in name calling or had acted rudely, the justice said, adding that California law requires that the defendant’s conduct be “atrocious and utterly intolerable” to support a claim of intentional infliction of emotional distress.

The airline’s policy, the justice noted, is to ask an extremely obese patron whose flight is close to full “discreetly and politely” to pay for a second seat or take a less-crowded flight. It was undisputed that the policy was followed, Johnson added.

Nor could Luther recover for negligent infliction of emotional distress, the justice went on to say, because there was no breach of duty.

The airline is morally blameless, Johnson wrote. “Southwest’s policy is designed to ensure the comfort of all its passengers, and Luther concedes its personnel were tactful and polite in their dealings with her,” the justice commented.

Nor was there any special relationship between the parties, Johnson said. “[T]he only relationship between the plaintiff and the defendant was contractual,” the jurist wrote, and Southwest’s obligation was to fly Luther to Burbank, not “to safeguard her emotional well-being.”

The case was argued by Robert S. Scuderi for Luther and by Arthur I. Willner of Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone for Southwest.

The case is Luther v. Southwest Airlines Co., B147399.


Copyright 2001, Metropolitan News Company