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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION SHIRLEY COHEN AND HANNAH COHEN, Plaintiffs, v.
NO. 2:16-CV-2529
TRANSPORTATION SECURITY ADMINISTRATION, MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY, AND MEMPHIS INTERNATIONAL AIRPORT POLICE DEPARTMENT, Defendants. ________________________________________________________________ DEFENDANT MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT ________________________________________________________________ COMES NOW, Defendant Memphis-Shelby County Airport Authority (“Airport Authority”), by and through its counsel of record, pursuant to the Federal Rules of Civil Procedure and the Tennessee Governmental Tort Liability Act, T.C.A. §§ 29-20-101, et seq., and hereby
files
its
Answer
to
the
Second
Amended
Complaint
of
Plaintiffs and would show the following: FIRST DEFENSE The Second Amended Complaint fails to state a claim upon which relief can be granted. SECOND DEFENSE The Airport Authority relies upon Tennessee Code Annotated § 29-20-205.
In particular, the Airport Authority alleges that it
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is immune from the allegations contained in this lawsuit because the allegations arise out of the exercise or performance of a discretionary function. THIRD DEFENSE The Airport Authority relies upon Tennessee Code Annotated S§ 29-20-201, et seq. as amended. FOURTH DEFENSE This Court lacks subject matter jurisdiction over this matter pursuant to the requirements of Tenn. Code Ann. § 29-20-307, which provides
that
jurisdiction
the over
Tennessee any
Circuit
action
Courts
brought
under
have the
original Tennessee
Governmental Tort Liability Act, Tenn. Code Ann. §§ 20-20-101, et seq., as amended. FIFTH DEFENSE The Second Amended Complaint fails to state a claim upon which relief can be granted against the Airport Authority in as much as it is a public governmental entity as defined under and governed
by
the
Tennessee
Governmental
Tort
Liability
Act
(“TGTLA”), T.C.A. §29-20-101, et. seq., and the Second Amended Complaint fails to overtly allege a tort committed by that entity or any of its employees or agents said to be within the classes excepted by this statute from the governmental immunity conferred upon it by the State of Tennessee under the TGTLA.
2
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SIXTH DEFENSE The Airport Authority asserts the affirmative defense of self-defense and defense of others. SEVENTH DEFENSE The Airport Authority asserts the affirmative defense of lawful arrest. EIGHT DEFENSE The Airport Authority asserts the affirmative defense of justification. NINTH DEFENSE The Airport Authority asserts the affirmative defense of sudden emergency. TENTH DEFENSE The Airport Authority now answers the enumerated allegations set out in Plaintiffs’ Second Amended Complaint as follows: 1.
The
Airport
Authority
admits
the
allegations
in
the
allegations
in
the
allegations
in
the
allegations
in
Paragraph 1 of the Second Amended Complaint. 2.
The
Airport
Authority
admits
Paragraph 2 of the Second Amended Complaint. 3.
The
Airport
Authority
denies
Paragraph 3 of the Second Amended Complaint. 4.
The
Airport
Authority
admits
Paragraph 4 of the Second Amended Complaint.
3
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5.
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The Airport Authority lacks sufficient knowledge or
information to form a belief as to the truth of the allegations in Paragraph 5 of the Second Amended Complaint regarding the residency of Plaintiff Hannah Cohen and, therefore, denies same, and demands strict proof thereof. 6.
The Airport Authority lacks sufficient knowledge or
information to form a belief as to the truth of the allegations in Paragraph 6 of the Second Amended Complaint regarding the residency of Plaintiff Shirley Cohen and whether she is Hannah Cohen’s mother and, therefore, denies same, and demands strict proof thereof. 7.
The
Airport
Authority
admits
the
allegations
in
the
allegations
in
the
allegations
in
Paragraph 7 of the Second Amended Complaint. 8.
The
Airport
Authority
admits
Paragraph 8 of the Second Amended Complaint. 9.
The
Airport
Authority
admits
Paragraph 9 of the Second Amended Complaint. 10.
The Airport Authority lacks sufficient knowledge or
information to form a belief as to the truth of the allegations in Paragraph 10 of the Second Amended Complaint and, therefore, denies same and demands strict proof as to all particulars. 11.
The
Airport
Authority
denies
the
Paragraph 11 of the Second Amended Complaint.
4
allegations
in
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12.
The
Airport
Authority
denies
the
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allegations
in
Paragraph 12 of the Second Amended Complaint. 13.
The Airport Authority admits that on June 30, 2015
Plaintiffs
were
at
commercial flight.
the
Memphis
International
Airport
for
a
The Airport Authority admits that, pursuant
to federal law, Plaintiffs were required to go through a security checkpoint manned by employees of the Transportation Security Administration (“TSA”) before being allowed to enter the secure area where they would board their flight.
See Affidavit and
Contract attached hereto as Exhibit A. The Airport Authority denies the remaining allegations in Paragraph 13 of the Second Amended Complaint. 14.
The Airport Authority admits that Plaintiff Hannah
Cohen went through a scanner at the TSA checkpoint. Authority
admits
that
Hannah
Cohen
triggered
The Airport
the
scanner’s
sensors. The Airport Authority denies that any of its employees or personnel man the subject security checkpoint.
See Affidavit and
Contract attached hereto as Exhibit A. The
Airport
Authority
lacks
sufficient
knowledge
or
information to form a belief as to the truth of the remaining allegations in Paragraph 14 of the Second Amended Complaint and, therefore,
denies
same
and
demands
particulars. 5
strict
proof
as
to
all
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15.
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The Airport Authority denies that Plaintiff Hannah Cohen
had an obvious disability on the date of the incident. The
Airport
Authority
lacks
sufficient
knowledge
or
information to form a belief as to the truth of the remaining allegations in Paragraph 15 of the Second Amended Complaint and, therefore,
denies
same
and
demands
strict
proof
as
to
all
particulars. 16.
The Airport Authority denies that any of its employees
or agents assaulted Hannah Cohen at the checkpoint causing her physical and emotional injury, or emotional injury to Plaintiff, Shirley Cohen. The Airport Authority further denies that Plaintiff Shirley Cohen tried to tell any of its employees or agents about her daughter’s brain tumor and disabilities. The
Airport
Authority
lacks
sufficient
knowledge
or
information to form a belief as to the truth of the remaining allegations in Paragraph 16 of the Second Amended Complaint and, therefore,
denies
same
and
demands
strict
proof
as
to
all
particulars. All statements in the Second Amended Complaint which allege direct or proximate injury, damage, or loss to the Plaintiffs due to any act of omission or commission on the part of the Airport Authority are denied. The Airport Authority denies that the Plaintiffs suffered any injuries or damages or losses of any nature whatsoever as a result 6
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of any act of omission or commission on the part of the Airport Authority. The Airport Authority denies that the Plaintiffs were injured or damaged or sustained losses in the manner or to the extent alleged in the Second Amended Complaint. 17.
The Airport Authority admits that the Airport Police
Officer involved in the incident had to use reasonable force to subdue Plaintiff Hannah Cohen after she attacked him. The Airport Authority denies the remaining allegations in Paragraph 17 of the Second Amended Complaint. All statements in the Second Amended Complaint which allege direct or proximate injury, damage, or loss to the Plaintiffs due to any act of omission or commission on the part of the Airport Authority are denied. The Airport Authority denies that the Plaintiffs suffered any injuries or damages or losses of any nature whatsoever as a result of any act of omission or commission on the part of the Airport Authority. The Airport Authority denies that the Plaintiffs were injured or damaged or sustained losses in the manner or to the extent alleged in the Second Amended Complaint. 18.
The Airport Authority admits that the Airport Police
Officers arrested Plaintiff Hannah Cohen.
The Airport Authority
denies that she was transferred to the Memphis Police Department. 7
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The
Airport
Authority
lacks
sufficient
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knowledge
or
information to form a belief as to the truth of the remaining allegations in Paragraph 18 of the Second Amended Complaint and, therefore,
denies
same
and
demands
strict
proof
as
to
all
particulars. 19.
The
Airport
Authority
denies
the
allegations
in
Paragraph 19 of the Second Amended Complaint. All statements in the Second Amended Complaint which allege direct or proximate injury, damage, or loss to the Plaintiffs due to any act of omission or commission on the part of the Airport Authority are denied. 20.
The
Airport
Authority
denies
the
allegations
in
Paragraph 20 of the Second Amended Complaint. All statements in the Second Amended Complaint which allege direct or proximate injury, damage, or loss to the Plaintiffs due to any act of omission or commission on the part of the Airport Authority are denied. 21.
The
Airport
Authority
denies
the
allegations
in
Paragraph 21 of the Second Amended Complaint. All statements in the Second Amended Complaint which allege direct or proximate injury, damage, or loss to the Plaintiffs due to any act of omission or commission on the part of the Airport Authority are denied.
8
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The Airport Authority denies that the Plaintiffs suffered any injuries or damages or losses of any nature whatsoever as a result of any act of omission or commission on the part of the Airport Authority. The Airport Authority denies that the Plaintiffs were injured or damaged or sustained losses in the manner or to the extent alleged in the Second Amended Complaint. 22.
The
Airport
Authority
denies
the
allegations
in
Paragraph 22 of the Second Amended Complaint. All statements in the Second Amended Complaint which allege direct or proximate injury, damage, or loss to the Plaintiffs due to any act of omission or commission on the part of the Airport Authority are denied. The Airport Authority denies that the Plaintiffs suffered any injuries or damages or losses of any nature whatsoever as a result of any act of omission or commission on the part of the Airport Authority. The Airport Authority denies that the Plaintiffs were injured or damaged or sustained losses in the manner or to the extent alleged in the Second Amended Complaint. 23.
The
Airport
Authority
denies
the
allegations
in
Paragraph 23 of the Second Amended Complaint. All statements in the Second Amended Complaint which allege direct or proximate injury, damage, or loss to the Plaintiffs due 9
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to any act of omission or commission on the part of the Airport Authority are denied. The Airport Authority denies that the Plaintiffs suffered any injuries or damages or losses of any nature whatsoever as a result of any act of omission or commission on the part of the Airport Authority. The Airport Authority denies that the Plaintiffs were injured or damaged or sustained losses in the manner or to the extent alleged in the Second Amended Complaint. 24.
The
Airport
Authority
denies
the
allegations
in
Paragraph 24 of the Second Amended Complaint. All statements in the Second Amended Complaint which allege direct or proximate injury, damage, or loss to the Plaintiffs due to any act of omission or commission on the part of the Airport Authority are denied. The Airport Authority denies that the Plaintiffs suffered any injuries or damages or losses of any nature whatsoever as a result of any act of omission or commission on the part of the Airport Authority. The Airport Authority denies that the Plaintiffs were injured or damaged or sustained losses in the manner or to the extent alleged in the Second Amended Complaint. 25.
The
Airport
Authority
denies
the
Paragraph 25 of the Second Amended Complaint. 10
allegations
in
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All statements in the Second Amended Complaint which allege direct or proximate injury, damage, or loss to the Plaintiffs due to any act of omission or commission on the part of the Airport Authority are denied. Additionally, the Airport Authority denies that Plaintiffs are entitled to punitive damages under either Tennessee or Federal law. 26.
The
Airport
Authority
denies
the
allegations
in
Plaintiffs
are
Paragraph 26 of the Second Amended Complaint. 27.
The
Airport
Authority
denies
that
entitled to the relief sought or prayed for in their Second Amended Complaint and prays that this cause be dismissed at Plaintiffs’ cost and for all other general and specific relief to which it may be entitled. 28.
All allegations in the Second Amended Complaint which
are not admitted, explained, or denied herein above, are now generally denied, and denied as though specifically, singularly and categorically denied. AFFIRMATIVE DEFENSES 29.
The Airport Authority affirmatively alleges that the
burden of proof is on the Plaintiffs in any and all particulars alleged or relied upon in the Second Amended Complaint. 30.
The Airport Authority affirmatively alleges that the
doctrine of comparative fault applies in this cause. 11
Relying upon
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this
doctrine,
without
limitation,
the
Airport
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Authority
affirmatively alleges as follows: A.
If this Defendant was at fault in any way, which this Defendant denies, that a comparison of the Plaintiffs’ conduct with the conduct of this Defendant establishes that the fault of Plaintiffs was equal to or greater than the fault of the Defendants so that Plaintiffs are barred from any recovery in this cause;
B.
Alternatively, if this Defendant was at fault in any way, which this Defendant denies, then a comparison of Plaintiffs’ conduct with the conduct of this Defendant establishes that any recovery by Plaintiffs should be reduced by the extent that Plaintiffs were at fault; and
C.
If Plaintiffs received any injuries or incurred any damages or losses as a result of the incident described in Plaintiffs’ Second Amended Complaint, such injuries, damages, or losses are directly and proximately caused by the fault of other parties or non-parties for which or for whom this Defendant is not responsible, and that portion of fault attributable to other parties or nonparties, should reduce recovery for damages or losses, if any, against this Defendant.
31.
If Plaintiffs received any injuries or incurred any
damages or losses as a result of the alleged incident described in Plaintiffs’ Second Amended Complaint, such injuries, damages or losses were directly and proximately caused or contributed to by the negligence of Plaintiff Shirley Cohen in one, more, or all of the following particulars in that she: a.
Failed to act with due care under the circumstances then and there existing;
b.
Failed to follow TSA guidelines prior to the subject incident;
12
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c.
Failed to exercise control to avoid the alleged incident and the resulting injuries and damages complained of when there was adequate opportunity to do so;
d.
Failed to prevent officer of the law;
e.
Assumed the risk under existing conditions; and
f.
Failed to warn employees and agents at the subject checkpoint of any special needs of Hannah Cohen.
32.
If Plaintiffs received any injuries or incurred any
Hannah
Cohen
from
attacking
an
damages or losses as a result of the alleged incident described in Plaintiffs’ Second Amended Complaint, such injuries, damages or losses were directly and proximately caused or contributed to by Plaintiff Hannah Cohen in one, more, or all of the following particulars in that she: a.
refused to submit to lawful instructions by a police officer attempting to do his job of protecting persons in a secure public terminal;
b.
exhibited and displayed disorderly conduct in a secure public facility;
c.
engaged in overt violence against police officers attempting to perform their sworn duty to uphold the law;
d.
vehemently resisted lawful arrest;
e.
became irrational and exhibited threatening behavior at an airport serving air carriers;
f.
refused to obey official orders of
g.
created hazardous and physically offensive conditions by actions that served no legitimate purpose;
h.
intentionally and violently attempted to prevent her lawful arrest; 13
arresting officers;
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i.
intentionally obstructed law enforcement officers in the performance of their duty;
j.
knowingly hindered security procedures at an airport designed to protect members of the general public; refused to submit to additional screening by TSA or leave the secure area; and
k. l.
failed to follow TSA guidelines prior to the subject incident.
33.
Defendant affirmatively alleges that it is immune from
suit with respect to the state law allegations in the Second Amended Complaint, pursuant to the Tennessee Governmental Tort Liability
Act,
Common
Law,
and
Tennessee
Appellate
Court
decisions. 34.
At the time and place of the incident described in the
Second Amended Complaint, the following statutes of the State of Tennessee were in full force and effect, and the Plaintiff, Hannah Cohen, was guilty of violating one, more, or all of them, and that such violation is negligence per se, and this negligence, and the intentional acts of the Plaintiffs herein described were the sole, direct and proximate cause of the injuries, damages and losses complained of: T.C.A. 39-16-602. Resisting stop, frisk, halt, arrest or search - Prevention or obstruction of service of legal writ or process. - (a) It is an offense for a person to intentionally prevent or obstruct anyone known to the person to be a law enforcement officer, or anyone acting in a law enforcement officer’s presence and at such officer’s direction, from effecting a stop, frisk, halt, arrest or search of any person, including the defendant, 14
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by using force against the law enforcement officer or another. T.C.A. 39-17-305. Disorderly conduct. - (a) A person commits an offense who, in a public place and with intent to cause public annoyance or alarm; (1) Engages in fighting or in violent or threatening behavior; (2) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard, or other emergency; or (3) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose. (b) A person also violates this section who makes unreasonable noise which prevents others from carrying on lawful activities. 35.
By way of an Affirmative Defense, the Airport Authority
would show the Court that it is a public governmental entity as defined under T.C.A. §§ 29-20-101, et. seq., and it is entitled to all the rights and defenses available under the Tennessee Government Tort Liability Act, and relies upon the Tennessee Government Tort Liability Act in its entirety as set forth in T.C.A. §§ 29-20-101, et. seq. 36.
The Airport Authority affirmatively alleges that it is
immune from suit pursuant to the applicable provisions of the Tennessee Governmental Tort Liability Act; T.C.A. § 29-20-201 General Rules Of Immunity From Suit Exception: (a) Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities, wherein such governmental 15
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entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary. . . . (c) 37.
When immunity is removed by this chapter, any claims for damages must be brought and strict compliance of the terms of this chapter. The Airport Authority affirmatively alleges that it is
immune from suit pursuant to the applicable provisions of the Tennessee Governmental Tort Liability Act; T.C.A. § 29-20-205, Public officers and employees; negligent acts or omissions: Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury arises out of: (1) The exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused; 38.
The
Airport
Authority
affirmatively
alleges
that
punitive damages are not recoverable against it under either state or federal law. 39.
The Airport Authority states that in any event recovery
for damages is limited, pursuant to the applicable provisions of the TGTLA, T.C.A. §29-20-101, et. seq., should judgment be entered against it. 40.
The Airport Authority affirmatively alleges that it does
not maintain or control the subject checkpoint and it has no control over the screening procedures at the checkpoint.
16
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41.
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The Airport Authority reserves the right to amend its
Answer in all respects following discovery. WHEREFORE, Defendant Memphis-Shelby County Airport Authority prays that this cause be dismissed at Plaintiffs’ cost and for all other general and specific relief to which it is entitled. Respectfully submitted, PETKOFF AND FEIGELSON, PLLC /s/James L. Cresswell, Jr. James L. Cresswell, Jr. (#26257) David I. Feigelson (#20350) Logan A. Klauss (#34311) 305 Washington Avenue Memphis, Tennessee 38103-1911 (901) 523-1050 Attorneys for Memphis-Shelby County Airport Authority CERTIFICATE OF SERVICE I hereby certify that on July 29, 2016 a copy of the DEFENDANT MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail. Parties may access this filing through the Court’s electronic filing. Mr. William Hardwick Ms. Kelly Pearson 4745 Poplar Avenue, Suite 201 Memphis, Tennessee 38117
[email protected] [email protected] Attorneys for Plaintiff /s/James L. Cresswell, Jr. Certifying Attorney 17
