Case 2:16-cv-02529-SHL-cgc Document 21 Filed 07/29/16 Page 1 of 18

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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 INTERNATIONAL AIRPORT POLICE DEPARTMENT’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT ________________________________________________________________ COMES NOW, Defendant Memphis International Airport Police Department

(“Airport

Police

Department”),

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. §§ 2920-101, 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 Police Department relies upon Tennessee Code Annotated

§

29-20-205.

In

particular,

the

Airport

Police

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Department alleges that it 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 Police Department 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

brought

Courts 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 Police Department 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 Tennessee Governmental Tort Liability Act. 2

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SIXTH DEFENSE The Airport Police Department asserts the affirmative defense of self-defense and defense of others. SEVENTH DEFENSE The Airport Police Department asserts the affirmative defense of lawful arrest. EIGHT DEFENSE The Airport Police Department asserts the affirmative defense of justification. NINTH DEFENSE The Airport Police Department asserts the affirmative defense of sudden emergency. TENTH DEFENSE The Airport Police Department now answers the enumerated allegations set out in Plaintiffs’ Second Amended Complaint as follows: 1.

The Airport Police Department admits the allegations in

Paragraph 1 of the Second Amended Complaint. 2.

The Airport Police Department admits the allegations in

Paragraph 2 of the Second Amended Complaint. 3.

The Airport Police Department denies the allegations in

Paragraph 3 of the Second Amended Complaint. 4.

The Airport Police Department admits the allegations in

Paragraph 4 of the Second Amended Complaint. 3

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5.

The

Airport

Police

Department

lacks

PageID 89

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 Police Department 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 Police Department admits the allegations in

Paragraph 7 of the Second Amended Complaint. 8.

The Airport Police Department admits the allegations in

Paragraph 8 of the Second Amended Complaint. 9.

The Airport Police Department admits the allegations in

Paragraph 9 of the Second Amended Complaint. 10.

The Airport Police Department 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 Police Department denies the allegations in

Paragraph 11 of the Second Amended Complaint.

4

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12.

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The Airport Police Department denies the allegations in

Paragraph 12 of the Second Amended Complaint. 13.

The Airport Police Department admits that on June 30,

2015 Plaintiffs were at the Memphis International Airport for a commercial flight.

The Airport Police Department 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

Police

Department

denies

the

remaining

allegations in Paragraph 13 of the Second Amended Complaint. 14.

The Airport Police Department admits that Plaintiff

Hannah Cohen went through a scanner at the TSA checkpoint.

The

Airport Police Department admits that Hannah Cohen triggered the scanner’s sensors. The Airport Police Department denies that any of its employees or personnel man the subject security checkpoint.

See Affidavit

and Contract attached hereto as Exhibit A. The Airport Police Department 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 Police Department denies that Plaintiff

Hannah Cohen had an obvious disability on the date of the incident. The Airport Police Department 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 Police Department denies that any of its

employees or agents assaulted Plaintiff Hannah Cohen, at the checkpoint,

causing

her

physical

and

emotional

emotional injury to Plaintiff Shirley Cohen.

injury,

or

The Airport Police

Department 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 Police Department 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 Police Department are denied.

6

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The Airport Police Department 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 Police Department. The Airport Police Department 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 Police Department admits that the Airport

Police Officer involved in the incident had to use reasonable force to subdue Hannah Cohen after she attacked him. The

Airport

Police

Department

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 Police Department are denied. The Airport Police Department 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 Police Department. The Airport Police Department denies that the Plaintiffs were injured or damaged or sustained losses in the manner or to the extent alleged in the Second Amended Complaint.

7

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18.

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The Airport Police Department admits that the Airport

Police Officers arrested Plaintiff Hannah Cohen.

The Airport

Police Department denies that she was transferred to the Memphis Police Department. The Airport Police Department lacks sufficient 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 Police Department 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 Police Department are denied. 20.

The Airport Police Department 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 Police Department are denied. 21.

The Airport Police Department denies the allegations in

Paragraph 21 of the Second Amended Complaint.

8

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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 Police Department are denied. The Airport Police Department 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 Police Department. The Airport Police Department 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 Police Department 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 Police Department are denied. The Airport Police Department 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 Police Department. The Airport Police Department denies that the Plaintiffs were injured or damaged or sustained losses in the manner or to the extent alleged in the Second Amended Complaint. 9

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23.

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The Airport Police Department 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 to any act of omission or commission on the part of the Airport Police Department are denied. The Airport Police Department 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 Police Department. The Airport Police Department 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 Police Department 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 Police Department are denied. The Airport Police Department 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 Police Department.

10

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The Airport Police Department 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 Police Department denies the allegations in

Paragraph 25 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 Police Department are denied. Additionally,

the

Airport

Police

Department

denies

that

Plaintiffs are entitled to punitive damages under either Tennessee or Federal law. 26.

The Airport Police Department denies the allegations in

Paragraph 26 of the Second Amended Complaint. 27.

The Airport Police Department denies that Plaintiffs are

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.

11

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AFFIRMATIVE DEFENSES 29.

The Airport Police Department 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 Police Department affirmatively alleges that

the doctrine of comparative fault applies in this cause. upon

this

doctrine,

without

limitation,

the

Airport

Relying Police

Department 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 12

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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;

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 Hannah Cohen from attacking an 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

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 obey lawful instructions of 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; 13

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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;

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;

k.

refused to submit to additional screening by TSA or leave the secure area; and

l.

failed to follow TSA guidelines prior to the subject incident.

33.

Defendant affirmatively alleges that it is immune from

arresting officers;

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: 14

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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, 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 Police

Department 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.

15

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36.

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The Airport Police Department 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 entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary. . . . (c) When immunity is removed by this chapter, any claims for damages must be brought and strict compliance of the terms of this chapter. 37.

The Airport Police Department 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 Police Department affirmatively alleges that

punitive damages are not recoverable against it under either state or federal law. 39. recovery

The Airport Police Department states that in any event for

damages

is

limited, 16

pursuant

to

the

applicable

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provisions of the TGTLA, T.C.A. §29-20-101, et. seq., should judgment be entered against it. 40.

The Airport Police Department affirmatively alleges that

it does not maintain or control the subject checkpoint, and it has no control over the screening procedures in the subject checkpoint. See Affidavit and Contract attached hereto as Exhibit A. 41.

The Airport Police Department reserves the right to

amend its Answer in all respects following discovery. WHEREFORE, Defendant Memphis International Airport Police Department 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 International Airport Police Department

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CERTIFICATE OF SERVICE I hereby certify that on July 29, 2016 a copy of the DEFENDANT MEMPHIS INTERNATIONAL AIRPORT POLICE DEPARTMENT’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

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