The Complaint Against Delta - Analysis & Discussion
Jackson v. Delta et al.
Atlanta, GA - A man viciously attacked in the face by an alleged "support" dog onboard a Delta aircraft in 2017 has sued Delta Air Lines and the owner of the dog. A lawsuit filed in Fulton County state court alleges that Marlin Jackson was in a window seat when a large dog seated on the lap of a man next to his repeatedly attacked his face while pining him against the window of the plane. This occurred just after Jackson asked the owner multiple times, "Is your dog going to bite me?"
Leading Up to the Complaint
After this attack, we wrote a special report detailing the widely abused loophole in three federal acts pertaining to service and emotional support animals (ESA); the unprovoked attack on Jackson by a large unrestrained "support" dog onboard Delta Flight 1430; the case against Delta Air Lines and competing public interests; the inconsistent federal and airline safety policies in regards to service animals and ESAs; and an addendum about psychiatric service animals.
Seven months after Jackson was attacked, Delta announced an increased screening process for in-cabin service animals and ESAs. Delta's "enhanced requirements" included requiring a signed Veterinary Health form, verifying basic vaccinations, and a signed Confirmation of Animal Training form declaring, "this animal has been trained to behave in a public setting" and that "if my service animal acts inappropriately" the animal can be denied boarding or removed from the aircraft.
In July 2018, Delta banned pit bull-type dogs as service and support animals and limited ESAs to one per person. "We must err on the side of safety," Delta said in a statement. "Most recently, two Delta employees were bit by a pit bull traveling as a support animal last week. We struggled with the decision to expand the ban to service animals," but determined that "untrained, pit bull-type dogs posing as both service and support animals are a potential safety risk," Delta stated then.
In December 2018, Delta announced that ESAs would no longer be allowed on flights over eight hours and banned alleged service and support animals under the age of four months on all flights. In April 2019, Delta updated its forms for passengers traveling with ESAs or psychiatric service dogs (PSAs) by adding one new form, the "Acknowledgement Form," as well as by beefing up its existing three forms by adding new declarations and animal specific details to attest to.
One new declaration pertains to the size of ESAs and PSAs: "I am not aware of any reason that this animal would be too large or heavy to be accommodated under the seat or within my foot space onboard a typical aircraft."
The other new declaration pertains to liability: "I assume full responsibility for the behavior of this animal ... I understand that I will be expected to reimburse Delta or its passengers for any loss, damage or expense resulting from any misbehavior by my animal." - Delta Confirmation of Animal Training form, April 2019
Aspects About the Complaint
Because this "detail" carries significance in the often-abused loophole in the Air Carrier Access Act (ACAA), we start by pointing out that according to Delta, the estimated 50-pound dog that attacked Jackson was a psychiatric service animal (PSA) not an ESA. In terms of airline requirements at that time (and still today) PSAs fall under the same flying requirements as ESAs. Delta provided this information in their public comments to the Department of Transportation in July 2018.
"In June 2017, a Delta passenger required 28 stitches after being attacked by a psychiatric service dog sitting on its owner's lap. We recently had another incident in June 2018 where an emotional support dog bit a flight attendant on the face, and then bit a customer service agent sent to resolve the situation." - Delta Air Lines public comments to DOT, July 10, 2018
Also, the Delta policies that were in place when Jackson was attacked are the main subject of this complaint. "The attack on Mr. Jackson would not have happened had Delta enforced their own pre-existing policies concerning animals in the cabin," Jackson's two attorneys, J. Ross Massey and Graham Roberts of Alexander Shunnarah and Associates said in a written statement. However, the complaint also claims that more measures by Delta "were feasible at the time."
The Complaint Against Delta
On June 4, 2017, at approximately 11:30 am, Jackson boarded Delta Flight 1430 in the Atlanta Hartsfield-Jackson Airport. He had been assigned a window seat in the 31st row. The complaint then spells out the escalating violent attack. The dog's owner, Ronald Kevin Mundy, Jr., then a 24-year old Marine Corps member, could not stop his dog from attacking, nor did Mundy heed the warnings Jackson asked him multiple times before the attack: "Is your dog going to bite me?"
The Complaint Alleges
"Upon approaching the three (3) seat row, Mr. Jackson encountered Defendant Mundy in the middle seat with his large dog attempting to sit in his lap. The animal was so large that it encroached into the aisle seat and window seat.
Despite Defendant Delta's stated policy for larger animals, to receive special seating accommodations onboard, Delta assigned Defendant Mundy and his large dog, a middle seat in the thirty first (31st) row.
Further, Defendant Delta's published policy states that animals, such as Defendant Mundy's dog, would be secured on the floor; however, Defendant Delta allowed the large animal to remain in Defendant Mundy' s lap while Delta employees passed through the area in open disregard of said policy.
Prior to taking his assigned seat, Mr. Jackson inquired of Defendant Mundy if the animal would bite. Defendant Mundy put his arms around the animal and indicated that it was safe for Mr. Jackson. As such, Mr. Jackson tentatively proceeded past Defendant Mundy and the animal and took his seat next to the window.
While Mr. Jackson was securing his seatbelt, the animal began to growl at Mr. Jackson and shift in Defendant Mundy's lap. Again Mr. Jackson asked if the dog was safe and Defendant Mundy again assured him that Mr. Jackson would be safe.
Suddenly, the animal attacked Mr. Jackson's face, biting Mr. Jackson several times while pining him against the window of the airplane.
The attack was briefly interrupted when the animal was pulled away from Mr. Jackson. However, the animal broke free and again mauled Mr. Jackson's face.
The attacks caused extensive facial damage including deep lacerations and punctures to the nose and mouth. In fact, Mr. Jackson bled so profusely that the entire row of seats had to be removed from the airplane." - Jackson v. Delta et al.
The complaint then lists the damages to Jackson, including that he suffered, "numerous lacerations and punctures to the face and upper body requiring twenty eight (28) stitches" and "permanent injury, scaring, and loss of sensation to the affected areas of his face." Jackson also endured "severe physical pain and suffering" along with sustaining loss of income and loss of life enjoyment. "His entire lifestyle has been severely impaired by this attack," states the complaint.
Allegations of Negligence
As we start to discuss the allegations of negligence against Delta, recall that the Federal Aviation Administration (FAA) and Delta restrict "lap infants" to under the age of two (about 30-pounds). Any child over this age is required to have its own seat. The FAA also recommends a government-approved child safety restraint system or device for young children instead of your lap because, "Your arms aren't capable of holding your child securely, especially during unexpected turbulence."
According to FAA regulations, the placement of lap-held service animals is reserved for service animals that need to be in a person's lap to perform a service for a person with a disability and "may sit in that person's lap for all phases of flight," provided that the "service animal is no larger than a lap-held child." Otherwise, service animals must be stowed underseat within the person's foot space or re-accommodated to a seat with more room if the service animal is larger.1
Count 1. Allegations of Negligence Against Delta
Count 1 of the complaint outlines why Delta breached the standard of care by failing to protect Jackson from reasonably foreseeable harm. "The harm of large, untrained, and unrestrained animals in the cabin of an airplane," states the complaint. Moreover, Delta "knew or should have known that subjecting passengers and animals to close physical interaction in the confined, cramped, and anxious quarters of the cabin, presented a reasonably foreseeable harm."
"Despite what Defendant Delta knew or should have known, it assigned Mr. Jackson a seat on an airplane confined between the window of the cabin on one side and a large animal without verified training on the other. Further, Delta allowed the large animal to encroach the space of others from the lap of its owner instead of being securely positioned on the floor." - Jackson v. Delta et al.
Count 1 also spells out how Delta violated their own policies and procedures intended to regulate animals traveling within the passenger cabin. This is the most irrefutable part of the complaint from our perspective -- Delta cannot skirt violating their own safety policies. "These safety policies, which were posted publicly for the protection of and reliance by all airplane occupants, serve as illustrative evidence of the standard of care and were violated as follows," states the complaint.
"Although Defendant Delta's policy states that 'no animals are allowed to occupy seats...' and that animals are, 'expected to be seated in the floor space below [your] seat', Delta allowed the large animal which attacked Mr. Jackson to remain in Defendant Mundy's seat during the boarding process;
Although Defendant Delta's policy states that with regards to 'larger service animals...[Delta] may need to re-accommodate...if the animal encroaches on other passengers', Delta failed to re-accommodate the large animal from its position in the middle seat, despite the animal, due to its size, noticeably encroaching the seats beside it;
Although Defendant Delta's policy states that Emotional Support Animals (hereinafter, 'ESA') 'must be trained to behave properly in public settings as service animals' and 'a kennel is not required' if the ESA is 'fully trained and meet(s) the same requirements as a service animal', Delta failed to require a kennel for the large animal and/or failed to verify that the large animal, allegedly an ESA, was trained and met the same requirements as a service animal." - Jackson v. Delta et al.
Count 2. Allegations of Negligence Against Delta
Count 2 of the complaint addresses hiring, training and employees. Delta was "negligent in hiring, training and supervising its employees working on the premises," alleges the complaint. Delta and its employees knew or should have known before and during the boarding process the animal would be on the plane, "thus presenting Delta's employees with numerous opportunities to evaluate the animal and take reasonable measures to ensure the safety" of its passengers.
"However, Defendant Delta's employees, who were in the area prior to the attack, failed to act reasonably in preventing the attack, including but not limited to, by failing to enforce Delta's own policies noted above. As such, Defendant's Delta's negligence in hiring, training and supervising its employees resulted in the vicious attack on Mr. Jackson." - Jackson v. Delta et al.
The Complaint Against Mundy
The allegations against Delta are re-alleged against Mundy along with several others, including that Mundy "knew or in the exercise of reasonable care, should have known that his large animal was foreseeably dangerous, especially when confined to the cramped and anxious quarters of the passenger cabin of an airplane," states the complaint. Finally, and horrifically, just after Mundy repeatedly assured Jackson his dog was safe, the dog viciously attacked him in the face.
"Subsequent to the animal's aggressive display of behavior, Mr. Jackson inquired of Defendant Mundy whether the animal was safe and/or would bite, at which time Defendant Mundy voluntarily undertook the responsibility for Mr. Jackson's safety by assuring Mr. Jackson that the dog was safe while physically securing the animal.
Subsequent to the initial assurance by Defendant Mundy, Mr. Jackson proceeded into the row and took his seat by the window. However, the animal's behavior became even more aggressive prompting Mr. Jackson to once again question Defendant Mundy regarding the likelihood of the animal to bite, only to be assured again that the animal was safe.
Mr. Jackson relied on Defendant Mundy's undertakings, prior to entering the row and then again prior to fastening his seatbelt, however Defendant Mundy failed to secure his animal and therefore was negligent under the principle of voluntary undertaking." - Jackson v. Delta et al.
Questions and Discussion
Discussion About Delta
Woven into the complaint are multiple claims of failure to verify training. "Delta took no action to verify or document the behavioral training of the large animal such as, but not limited to, requiring signed documentation that the animal is trained," states the complaint, and Delta "failed to verify that the large animal, allegedly an ESA, was trained and met the same requirements as a service animal." These measures were "feasible at the time but were not in effect until after this attack."
In other words, why weren't Delta's "enhanced requirements" in place to prevent Jackson's attack? Nine months after his attack, Delta began requiring passengers with ESAs and PSAs to sign a Confirmation of Animal Training form declaring, "I confirm that this animal has been trained to behave in a public setting and takes my direction upon command." Also, "I understand that if my service animal acts inappropriately" it can be denied boarding or removed from the aircraft.
When Delta published their comments to the Department of Transportation (DOT) in July 2018, they stated (pages 15-16) that DOT Guidance allowed for behavioral attestations because the key factor in "determining whether an animal presents a direct threat to others or a significant threat of disrupting operations" is to determine whether it has been properly trained and that "attestation forms are fully consistent with existing DOT's service animal regulations and Guidance."2
"In January 2018, when Delta announced modified procedures for bringing an ESA into the aircraft cabin, it added a requirement that those traveling with ESAs attest that their animal is trained to behave in public. As recognized by DOT Guidance, the key factor in determining whether an animal presents a direct threat to others or a significant threat of disrupting operations is whether it has been properly trained ... While behavioral attestation forms are fully consistent with existing DOT's service animal regulations and Guidance ... - Delta Air Lines public comments to DOT, July 10, 2018
While the complaint largely focuses on Delta's failure to comply with its existing safety policies, the complaint also sets forth that methods to verify training (attestations) were feasible when Jackson was attacked, but were not in effect until afterward. Delta's comments also provided statistical data about the number of pet "incidents" and "biting incidents" from 2014 to 2018. Both categories had been on the rise since 2014 (page 20). Could Delta have enacted the attestations sooner?
Discussion About Mundy
We only have one question regarding Mundy. Should the licensed medical or mental health professional who signed a letter authorizing his in-flight service animal be added to the complaint? Due to this signed letter, which presumably required no "airplane" training verification, Mundy was given permission to bring this untrained dog onboard any U.S. flight and keep it unrestrained in the cramped quarters of an aircraft cabin, as well as during high-pressured take offs and landings.3
These ethical questions are compounded by the fact that psychiatric service animals (PSAs) are treated differently under the ACAA than service dogs. Like ESAs, PSAs require a letter from a licensed mental health professional stating the passenger has a mental health-related disability. PSAs were not always treated differently than service dogs on airplanes. The letter requirement for in-flight PSAs only became necessary in 2008 after too many "fakers" abused the system.4
Delta might be concerned about these "letters" from mental health professionals too. Viewing Delta's 2018 vs. 2019 Medical/Mental Health Professional forms, one sees a critical difference. The new form requires the letter to "identify" the ESA or PSA accompanying the passenger. No longer can online letter mills be vague like in the Portland airport case, where the ESA letter only prescribed an "animal" for the owner, not even an animal type, much less the animal's name.
A Note About "Large" Dogs
After the attack, witness Bridget Maddox-Peoples estimated Mundy's dog weighed 50-pounds. Visual weight estimates of dogs are very difficult, even by police officers after a vicious attack. Some breeds, such as pit bull-types, have greater muscular density making them heavier than they appear too. Thus, it is unclear what the actual weight of Mundy's dog was. Some dog lovers will argue that 50-pounds is not "large," but it is large when the dog is sitting on your lap.
Labrador and golden retrievers, the most popular dog breeds in service work, average between 65 to 80-pounds for an adult male. Despite their size, well-trained service dogs curl up right beneath their partner's foot space or under the seat in front of them. Again, FAA regulations only allow lap-held service animals that are "no larger than a lap-held child," about 30-pounds or less. In the context of aircraft quarters, Mundy's dog was "large" and violated both FAA and Delta policies.
There appears to be little wiggle room for Delta by failing to abide by its own safety policies and procedures. As we noted in our July 2017 report, "Larger lap-held service animals may be a widespread practice too." Some airlines may not be re-accommodating these larger service and support animals to save money. We imagine those loose practices came to a resounding halt after Jackson was repeatedly attacked in the face by a large lap-held "psychiatric service animal."
A jury will determine whether Delta should have been requiring behavioral attestations prior to Jackson's attack and whether "the harm of large, untrained, and unrestrained animals in the cabin of an airplane was reasonably foreseeable to Delta." The loophole in the ACAA -- which favors "fakers" and frustrates airlines, who currently cannot ask for "certification of training" nor do they have a set of "clear standards" established by the DOT -- will also have to be examined by a jury.
What is undeniable is that Jackson suffered immensely during and after this vicious attack that pinned him against an airplane window -- he had no means of escape. "The area was completely covered in blood," witness Maddox-Peoples said. What is also undeniable is that Delta had a duty to enforce its own safety policies and procedures during the boarding process by requiring this larger-sized PSA to be stowed underseat or re-accommodated to a seat with more room.
"We are confident a jury of Mr. Jackson's peers will recognize the carelessness of Delta and Mr. Mundy and also appreciate the harm this needless danger caused Mr. Jackson," his attorneys provided in a statement to us. "Mr. Jackson is very appreciative of the encouragement received from so many air travelers, including those who regularly travel with service animals," added the statement. Our nonprofit prays Jackson is awarded all damages allowable under Georgia law.
1Flight Standards Information Bulletin for Air Transportation (FSAT 04-01A), Order 8400.10 (July 23, 2004) and Guidance Concerning Service Animals in Air Transportation, DOT, May 3, 2003 (govinfo.gov)
2First, there is DOT Guidance (nonbinding) and DOT regulations (binding). Existing governing DOT regulations, 14 C.F.R. § 382.117 (e), do not preclude airlines from requiring behavior attestation forms for passengers with ESAs and PSAs to substantiate they will behave properly in the cabin. Delta began using attestation forms on March 1, 2018, stating they are "fully consistent with existing DOT's service animal regulations and Guidance." On May 23, 2018, DOT issued an Interim Statement of Enforcement Priorities (currently, DOT has not issued a final rulemaking). The interim statement spells out what DOT intends to enforce or not while the rulemaking process (Traveling by Air with Service Animals) is ongoing. The statement said in part: "Enforcement Office does not intend to use its limited resources to pursue enforcement action against airlines for requiring proof of a service animal's vaccination, training, or behavior for passengers seeking to travel with an ESA or PSA. At present, the Enforcement Office is not aware of any airline requesting information from ESA or PSA users that would make travel with those animals unduly burdensome or effectively impossible." So, as of May 23, 2018, Delta was officially in the clear to use behavioral attestation forms. However, we also know that on July 10, 2018, Delta banned all pit bull-type dogs as service and support animals, which some groups will argue is inconsistent with existing DOT's service animal regulations. Delta did not wait for a DOT enforcement (or Guidance) response for either the attestation form requirements or banning pit bulls as service and support animals. So, how Delta responds to the complaint -- if Delta could have been requiring attestation forms nine months earlier -- will be interesting.
3It is unknown if Mundy's dog had ever flown in an airplane cabin before. Early news reports stated that Mundy "advised [police] that the dog was issued to him for support," implying a military issued ESA or PSA. While writing our July 2017 special report, we found no online documentation confirming that any U.S. military branch "issued" ESAs or PSAs. In fact, we wrote a whole addendum on PSAs, which noted that in 2012, the Department of Veterans Affairs (VA) stopped funding PSAs because the agency is authorized to only pay for evidence-based therapies. From 2011 to 2018, the VA underwent a study of the benefits of PSAs that had to be revamped due to contracts being terminated due to bites and aggression. The results of that study are not yet available.
4Nondiscrimination on the Basis of Disability in Air Travel, 73 FR 27613, May 13, 2008 (govinfo.gov)
03/04/19: Mother of Child Mauled by an 'Emotional Support' Pit Bull at Portland Airport Sues
07/05/18: Why Breed Matters in Service Dogs and Why Pit Bull Service Dogs are a Bad Idea
06/23/18: Delta Bans Pit Bull-Type Dogs as Service, Support Animals in the Cabin
01/25/18: Delta Tightens Reins on Untrained 'Support' Dogs in the Aircraft Cabin
07/14/17: Delta Passenger is Severely Attacked by an Unrestrained Emotional Support Dog