Plaintiff's Trial Brief: Estate of Bernice Kekona v. Alaska Airlines, Inc.

1 The Honorable Suzanne Parisien
Trial Date: February 8, 2021

2
7
IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
8
9
Estate of BERNICE KEKONA by and NO. 17-2-33240-2 SEA
10 through its Personal Representative, Darlene
Bloyed, PLAINTIFF’S TRIAL BRIEF
11
Plaintiff,
12
v.
13 ALASKA AIRLINES, INC., an Alaska
Corporation,
14
Defendant.
15
16
Plaintiff, by and through her counsel of record, hereby submits her trial brief as requested
17
by the Court in its Case Scheduling Order.
18
Section III below addresses several rulings previously made by Judge Jim Rogers and
19
their impact on the evidence and legal issues at trial.
20
In addition, and further referenced herein, other legal memoranda filed by plaintiff inform
outstanding legal and evidentiary issues in this case, including: Memorandum of Plaintiff Re
21
Burden of Proof (Dkt. 154); Plaintiff’s Memorandum Regarding Huntleigh’s 30(B)(6) Designee,
22
Gary Wolf, Deposition Testimony (Dkt. 171); Plaintiff’s Memorandum Regarding Inapplicability
23
LUVERA LAW FIRM
24 PLAINTIFF’S TRIAL BRIEF - 1 ATTORNEYS AT LAW
6700 COLUMBIA CENTER • 701 FIFTH AVENUE

SEATTLE, WASHINGTON 98104
(206) 467-6090
1 of 14 C.F.R. § 382.29 Relating to Safety Assistants) (Dkt. 172); Plaintiff’s Memorandum Re
2 Relevance of Cognitive Issues (Dkt. 178); and Plaintiff’s Renewed Motion for Order Excluding
3 Evidence of or Reference to Alleged Fault of Family Members, filed 2/3/21.
4 I. INTRODUCTION
5 Darlene Bloyed – acting in her capacity as the personal representative of the Estate of
6 Bernice Kekona – brings this negligence lawsuit against Alaska Airlines, Inc. seeking damages for
7 personal injury and loss of consortium for statutory beneficiaries. The Estate of Bernice Kekona
8 is the plaintiff because Mrs. Kekona died from the injuries suffered from the incident which is the
9 subject of this case.
10 Alaska was required by the Air Carrier Access Act to provide gate-to-gate escort services
11 to Mrs. Kekona, a vulnerable, disabled traveler. Gate-to-gate escort services had been requested
12 by Mrs. Kekona and her family multiple times as documented in Alaska’s computer system.
13 However, Alaska completely failed to communicate those requests to its service provider,
14 Huntleigh USA Corporation; therefore, the services were not offered or provided to Mrs. Kekona
15 upon her arrival in Portland on June 7, 2017. Alaska abandoned Mrs. Kekona inside the Portland
16 International Airport where she attempted to navigate the airport alone in her electric wheelchair.
17 In doing so, Mrs. Kekona took a horrific fall down an escalator, sustaining injuries that eventually
18 led to her death on September 20, 2017.
19 At trial, Ms. Bloyed will present ample evidence for the jury to conclude Alaska was
20 negligent and that such negligence was the proximate cause of Mrs. Kekona’s significant injuries
and eventual death. The Huntleigh employees tasked with providing gate-to-gate escort services
21 at the Portland airport for Alaska were not given the information gathered by Alaska that Mrs.
22 Kekona needed and requested gate-to-gate escort services. That failure to communicate is a breach
23 of the duty owed to Mrs. Kekona.

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1 Following that failure, Huntleigh did not provide the requested gate-to-gate escort service
2 to Mrs. Kekona, but rather directed her to the baggage claim area believing she had completed her
3 travel. That failure to provide the requested gate-to-gate escort service is an additional breach of
4 the duty owed to Mrs. Kekona.
5 These breaches of duty owed by Alaska Airlines and its agent Huntleigh were proximate
6 causes of Mrs. Kekona’s fall down the escalator, which occurred as she attempted to travel
7 unassisted between her gates. It is undisputed that Mrs. Kekona’s fall down the escalator resulted
8 in injuries which led to her death months later, after she incurred substantial pain and suffering.
9 The Estate of Bernice Kekona is entitled to recover reasonable compensation for these injuries and
10 the damages caused by Alaska’s negligence, including the loss of consortium of Mrs. Kekona’s
11 eight children.
12 II. FACTS
13 A. Gate-to-Gate Escort Service was Repeatedly Requested on Behalf of Mrs. Kekona

Prior to Her Arrival in Portland.
14
On March 12, 2017, Mrs. Kekona, with the assistance of her granddaughter, purchased an
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on-line, round-trip ticket from Alaska for transportation between Spokane and Maui to visit her
16
family. At the time of purchase, they electronically requested Alaska provide Mrs. Kekona with
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gate-to-gate escort assistance between her connecting flights. Immediately after the on-line
18
purchase, Mrs. Kekona’s granddaughter called Alaska to confirm gate-to-gate service would be
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provided to Mrs. Kekona. On May 6, 2017, when checking Mrs. Kekona in for her flight to Maui
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the family again confirmed gate-to-gate assistance with the ticket agent.
On June 6, 2017, the day before Mrs. Kekona’s return to Spokane from Maui, her grandson,
21
who worked at the Maui airport, confirmed for a third time with an Alaska agent that she would
22
receive gate-to-gate assistance in Portland. Lastly, on June 7, 2017, just prior to departure, a
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1 different grandson confirmed at the Maui airport counter that Alaska would provide a gate-to-gate
2 escort in Portland. This last confirmation led to the Alaska gate agent placing a custom “need”
3 entry in Mrs. Kekona’s passenger record to “double check” the escort assistance would be provided
4 in Portland. The grandson also had his name and contact number added to the reservation in case
5 any issues arose.
6 Alaska’s records include a Special Services Request (“SSR”) showing two separate
7 requests for gate-to-gate escort assistance:
8 (1) “WCHR ASSIST TO AND FROM GATES AT ALL POINTS;” and
9 (2) “NN ASSISTANCE TO GATES AT ALL POINTS.”
10 Alaska admits these requests required gate-to-gate escort assistance be provided in
11 Portland.
12 B. Alaska Never Informed Huntleigh of Mrs. Kekona’s Need for Gate-to-Gate Escort
Assistance.
13
Huntleigh was Alaska’s agent for providing all wheelchair services at the Portland Airport.
14
However, Alaska never informed Huntleigh that Mrs. Kekona needed gate-to-gate escort
15
assistance in Portland. The Huntleigh dispatch wheelchair log does not show a request for gate-
16
to-gate assistance for Mrs. Kekona’s flight, a request always recorded on the log.
17
C. Huntleigh’s Communications with Mrs. Kekona Did Not Relate to Gate-to Gate
18 Assistance.
19 Huntleigh’s two wheelchair attendants, Nandi Pokhrel and Ruslan Dudko, were only
20 dispatched to perform an aisle chair service for Mrs. Kekona – i.e., transport her from the plane to
her electric wheelchair in a small uncomfortable chair specially designed for airplane aisles. Mr.
21 Pokhrel will testify there was no discussion with Mrs. Kekona about whether she needed gate-to-
22 gate assistance to her next flight. This is because he was never told that gate-to-gate service was
23 requested. Mr. Pokhrel believed Portland was Mrs. Kekona’s final destination and did not know
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1 she had a connecting flight to Spokane. Mr. Pokhrel testified that once the aisle chair service was
2 performed, he believed he had fully accomplished his task.
3 Huntleigh employees are trained to ask passengers after an aisle chair transfer whether they
4 are comfortable. Mr. Pokhrel complied with that training. Mr. Pokhrel specifically identifies that
5 his passing comment to Mrs. Kekona of “you need more help?” related to Mrs. Kekona’s
6 “comfort” in her chair following the transfer, and in no way related to the gate-to-gate services.
7 It is also notable that English is not Mr. Pokhrel’s primary language. He moved from Nepal
8 to the United States in 2009. His strong accent makes it difficult to understand him. Mr. Pokhrel
9 testified that he was not sure if Mrs. Kekona could hear him.
10 If Mr. Pokhrel had been aware Mrs. Kekona requested gate-to-gate assistance, that would
11 have triggered a series of questions and actions such as checking her boarding pass, flight
12 number/gate number, and further conversation with the gate agent, among other actions. Had
13 Alaska informed the Huntleigh agents that there was a contact number on her record, the Huntleigh
14 agents may also have contacted the family.
15 The second Huntleigh wheelchair attendant, Mr. Dudko, filled out a Voluntary Statement
16 on the night of the incident that made no reference to Mrs. Kekona declining assistance or refusing
17 gate-to-gate service in any manner. Mr. Dudko states that he (incorrectly) directed Mrs. Kekona
18 to leave the secured area and exit the airport. Mr. Dudko explains that he provided this incorrect
19 direction because he did not know that she had requested gate-to-gate assistance. Had Alaska
20 communicated to Mr. Dudko that Mrs. Kekona had requested gate-to-gate assistance, he would
have escorted her to her next gate, without question. It is Huntleigh’s practice when providing
21 gate-to-gate assistance to direct the passenger to the elevator and away from the escalators.
22 Huntleigh’s investigation revealed that Mrs. Kekona was only offered direction to
23 baggage/exiting the airport. Huntleigh’s wheelchair log for that night referenced the abbreviation
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1 “GA,” meaning “give away.” If Mrs. Kekona had declined gate-to-gate assistance, Huntleigh
2 would not use the abbreviation GA.
3 D. Huntleigh Wheelchair Attendants Provide Gate-to-Gate Services Without

Questioning When Informed That It Has Been Requested.
4
Alaska and Huntleigh agree it is important for the wheelchair attendants to know gate-to-
5
gate service has been requested. When informed of a gate-to-gate assistance request, Huntleigh
6
has trained its attendants to provide the service without questioning the passenger. Both wheelchair
7
attendants for flight 862 would have escorted Mrs. Kekona to her next gate without questioning
8
her if they had been informed such service had been requested in advance.
9
E. Alaska’s Records Show that Mrs. Kekona Was Never Offered Gate-to-Gate
10 Assistance.
11 In Alaska’s first contact with the family on the night of Mrs. Kekona’s fall, Alaska
12 inaccurately accused the family of not requesting gate-to-gate service. Alaska made the same
13 claim in its first contact with Maui personnel.
14 On the night of the fall, acting Alaska Manager Joy Drechsler assumed responsibility for
15 investigating Mrs. Kekona’s fall. She sent an email that night summarizing her investigation:
16 After speaking with the family and investigating the situation, it appears there was
a request for Meet and Assist at all points (see attached SSR comments) but
17 obviously there was no Huntleigh rep with her at the time. I followed up with the
Huntleigh supervisor who confirmed that a Huntleigh rep was dispatched to help
18 with aisle chair for Mrs. Kekona and the transfer to her scooter. The Huntleigh
rep then asked if she needed assistance down to baggage service (not realizing
19 she was connecting) and she replied “no” so he left. This Huntleigh rep is
supposed to be providing a written statement.
20
Alaska never documented that Mrs. Kekona purportedly declined the service. Alaska’s
own investigation concluded that Mrs. Kekona was only offered help to baggage, and when she
21
said no, the Huntleigh representatives left her. This conclusion is corroborated by Mr. Dudko’s
22
Voluntary Statement on the night of the incident in which he stated he directed Mrs. Kekona to
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1 leave the secured area and exit the airport, presumably to baggage. Alaska does not doubt the
2 accuracy of Ms. Drechsler’s investigation or email.
3 That same night, Alaska’s Lead Customer Service Agent Yuko Tacha spoke with gate
4 agent Robert Scarbrough, who told her that nothing out of the ordinary had occurred that evening.
5 After speaking with Mr. Scarbrough, Huntleigh and Ms. Drechsler, Ms. Tacha sent an email to her
6 supervisors at the conclusion of her investigation stating there was a possible service failure and
7 recommended further investigation—which never occurred.
8 Similarly, on the night of Mrs. Kekona’s fall, Lead Customer Service Agent Mahea
9 Kahoana for DGS, Alaska’s agent for ticketing and gate services at the Maui Airport where Mrs.
10 Kekona departed from, investigated what happened to Mrs. Kekona. This investigation occurred
11 during Ms. Kahoana’s shift as Alaska’s agent. Sasha Tabon, Ms. Kahoana’s supervisor at the time,
12 assisted in the investigation and oversaw Ms. Kahoana’s efforts.
13 Ms. Kahoana called Alaska’s “ops center” in Portland and was informed by an Alaska
14 representative that she had spoken with Scarbrough, and “the gate agent did not remember a
15 passenger with a scooter and any details.” Ms. Kahoana was then told by a separate Alaska
16 employee that Mrs. Kekona had been abandoned, which she documented in Alaska’s Passenger
17 Name Record (“PNR”):
18 PAX TRAVELING WITH ELECTRIC SCOOTER. FAMILY CALLED IN ONE

DAY BEFORE THE FLIGHT AND HAD ALL WCHR ASSISTANCE CODES
19 ADDED TO HER RESERVATION. SHE CHECKED IN AT THE OGG [MAUI]
COUNTER AND ONCE AGAIN MADE SURE ALL SSRS WERE IN HER
20 RESERVATION. UPON ARRIVAL INTO PDX SHE WAS LEFT WITH HER
SCOOTER AND NO ONE TO ASSIST HER TO HER CONNECTION GATE.
SHE ATTEMPTED TO GET TO HER CONNECTION GATE HERSELF.
21 This information came from Alaska personnel in Portland on the night of the fall. There
22 was no mention that Mrs. Kekona declined gate-to-gate service. These notes were entered during
23 Ms. Kahoana’s shift as Alaska’s agent through her access to the PNR as part of her employment.
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1 Alaska’s agents are trained to accurately record information in the PNR and to document refusals
2 of special services that are requested in advance. However, Mr. Scarbrough did not document
3 anything in Mrs. Kekona’s PNR.
4 F. Mrs. Kekona Was Abandoned in Portland.
5 Mrs. Kekona had accepted and received gate-to-gate assistance on past several airline
6 flights. In 2016, she traveled to Maui and back by herself on Delta Airlines using gate-to-gate
7 assistance without issue or injury. On the trip in question, she also accepted and received gate-to-
8 gate assistance in Seattle on her flight to Maui without incident or injury.
9 Following her injury at the Portland airport, Mrs. Kekona told her daughters Darlene
10 Bloyed and Mary Kekona that the Huntleigh wheelchair attendants put her in her wheelchair in
11 the sky bridge, pointed toward the top of the sky bridge, and when she got to the top of the sky
12 bridge nobody was there to escort her and she became confused. She also told them she mistakenly
13 took the escalator while looking for the elevator. Similarly, Mrs. Kekona told her granddaughter
14 Danielle Kekahuna that after being put in her wheelchair in the sky bridge, the people just pointed,
15 she followed in the direction they pointed and no one was there, and they left. Mrs. Kekona told
16 Danielle she followed the crowd and then got to the escalator thinking it was the elevator.1
17 At no time did Mrs. Kekona ever indicate to any witness that she declined the gate-to-gate
18 service. Instead, she consistently stated that Alaska abandoned her. Without the requested escort,
19 and as demonstrated in the Port of Portland surveillance videos, Mrs. Kekona became confused
20 and began wandering through the airport trying to find her way, stopping at the airport store and
security for directions before ending up on the escalator thinking it was the elevator.
21
1
Mrs. Kekona’s post-incident conversations with her daughters and with plaintiff’s expert Joellen
22 Gill were excluded under the Court’s orders on Defense MIL No. 5, but plaintiff may ask for
reconsideration of that ruling in the context of other evidence presented at trial.
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1 G. Mrs. Kekona’s Family Informed Alaska Airlines When Booking Her Flight that Mrs.
Kekona Could Become Confused In Unfamiliar Places.
2
Alaska was informed that Mrs. Kekona could become confused in unfamiliar places, but
3
failed to communicate that to Huntleigh and/or the gate agent in Portland. Mrs. Kekona’s family
4
requested gate-to-gate assistance because she was elderly, diabetic, wore glasses, had trouble
5
hearing, had an amputated leg, had partial paralysis on one side of her body, spoke in broken
6
English and could become confused in unfamiliar places, such as the Portland Airport. Bernice
7
would also have trouble operating her electric wheelchair at times. Immediately after booking Mrs.
8
Kekona’s flight, her granddaughter called Alaska to confirm gate-to-gate service would be
9
provided and told the Alaska reservation agent that Mrs. Kekona could become confused.
10
According to Alaska, the custom special service entry on Mrs. Kekona’s SSR “NN Assistance to
11
gates at all points” indicates that she needed gate-to-gate assistance because she had a potential
12
“cognitive impairment.”
13
H. Alaska’s Inadequate Procedures Regarding Special Services Requests.
14
Alaska provided no training or procedure guidelines to its gate agents on how to correctly
15
or uniformly communicate special service requests to Huntleigh. Alaska had no written policies
16
or procedures requiring that gate agents inform Huntleigh in writing or digitally of special services
17
requested in advance. In fact, Alaska claims it is not required to communicate gate-to-gate requests
18
made in advance to Huntleigh at all--a contention previously rejected by the Court on summary
19
judgment. Further, Alaska provides no training to Huntleigh, its agent, regarding the ACAA,
20
despite Alaska’s nondelegable duty to ensure they meet its requirements as if Alaska itself had
provided them.
21
III. COURT’S EVIDENTIARY AND LEGAL RLINGS
22
Judge Rogers has issued several orders on Alaska’s legal duties and the admissibility of
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1 related evidence which are summarized here:
2 1. Court orders Alaska had duty to communicate requested services to contractor

carrying out the service.
3
On September 23, 2019, the Court denied Alaska’s summary judgment motion, finding
4
admissible evidence existed which, if interpreted in plaintiff’s favor, demonstrated “that Alaska
5
allows parties to book with requested gate-to-gate assistance, that Alaska failed to communicate
6
that Ms. Kekona was booked with this request, and that if Huntleigh representatives had known
7
this they would have, without asking the passenger, escorted that passenger to the next gate.”
8
9/23/19 Order Denying Defendants’ Motion for Summary Judgment and Motion to Strike In Part.
9
Alaska sought clarification of the Court’s September 23, 2019 order, arguing it had no duty
10
under the federal regulations to actually communicate gate-to-gate service requests to Huntleigh.
11
The Court granted Alaska’s motion for clarification, but rejected its argument, ordering that once
12
Alaska gathered gate-to-gate requests from passengers (as it did for Mrs. Kekona), Alaska
13
“undertook a duty per the Code of Federal Regulations to communicate that information to its
14
contractor as if Alaska had provided the service itself.” 11/1/2019 order granting Alaska’s motion
15
for clarification/reconsideration. Alaska tried to revisit this issue through its motion in limine No.
16
21, but the Court refused: “Denied. The Court previously ruled on this issue in its Order on Alaska's
17
Motion for Reconsideration/Clarification.” See 1/14/20 order on Alaska’s motions in limine, at 5.
18
Thus, the law of the case is that Alaska owed a duty to communicate Mrs. Kekona’s request to its
19
contracted service provider, Huntleigh.
20
2. Statements by Alaska employees and agents, including Huntleigh, Horizon, and
DSG, are admissible admissions of party opponents.
21 Judge Rogers initially ruled on this issue at the dispositive motion stage and then reiterated
22 his ruling during motions in limine on January 7, 2020:
23 The statements are attributed to Huntleigh’s employees, Horizon employees and

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1 Alaska employees. These are all admissions of party opponents, ER 801(d)(2),
even if they are in multiple levels of hearsay in the emails, see ER 805. They
2 are admissible. It is true that one of the Huntleigh employees is not identified by
name in an email. This goes to weight, not admissibility. Alaska objects that
3 Huntleigh employees’ statements cannot be a “party opponent” admission. The
Court has already ruled that they are.
4
See 1/7/20 Order on Reserved Motions in Limine (emphasis added). Judge Rogers added a
5
footnote:
6
Alaska also argues that a person that works for Horizon cannot make a party
7 opponent statement. That cannot be a serious argument. Alaska owns Horizon and
used a Horizon employee to investigate this Alaska accident.
8
Id.
9
3. Joy Drechsler’s email and Yuko Tacha’s shift summary email are admissible.
10
In the September 23, 2019 Order Denying Defendants’ Motion for Summary Judgment and
11
Motion to Strike in Part, Judge Rogers held:
12
The Court rules that Drechsler’s e-mail is admissible because the multiple
13 layers of hearsay are met through admissions of a party opponent. The
litigation postures of the parties are not relevant now, but relevant at the time the
14 statements were made, and at that time there was no conflict.
15 (emphasis added).
16 Joy Drechsler, the author of the email addressed above, was a Horizon manager who
17 investigated Mrs. Kekona’s fall the night of the incident for Alaska (she was the only
18 Alaska/Horizon on duty at the time). The email in question includes, in part, statements from
19 Huntleigh employees whom Ms. Drechsler spoke with while investigating Mrs. Kekona’s fall. In
20 ruling the email admissible, the Court recognized that it is irrelevant that Huntleigh and Alaska
may now blame each other for Mrs. Kekona’s fall. The relevant timeframe in analyzing exclusions
21 from hearsay under ER 801(d)(2) is when the statements were made, and at the time all statements
22 in question were made, Huntleigh and Alaska were aligned.
23 At motions in limine, Judge Rogers revisited the admissibility of Ms. Drechsler’s email
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1 along with the testimony of Yuko Tacha, an Alaska employee, and Ms. Tacha’s shift summary
2 email from the night of the incident. The Court repeated its prior ruling that ER 801(d)(2)—
3 admission by party opponent—applied to statements made by Huntleigh, Horizon, and Alaska
4 employees, meaning such statements were admissible “even if they are in multiple levels of
5 hearsay in the emails,” and even though one of the Huntleigh employee’s name was unknown. See
6 1/7/20 Order on Reserved Motions in Limine, at 4.
7 The Court qualified its prior rulings in two regards, but made clear these limited
8 qualifications only applied to use of the “Drechsler and Tacha evidence as substantive evidence.”
9 Id. First, the Court ruled that the brief summaries of what happened contained in the emails require
10 foundation to be admitted as substantive evidence. The Court acknowledged that Ms. Drechsler’s
11 firsthand knowledge of the accident provides foundation for some portions of her brief summary.
12 Second, the Court ruled the “recommendations for next action” are:
13 opinions not typically admissible. Nor do they appear to be the statement of an

agent on behalf of a principal. Plaintiff must demonstrate relevance here, which
14 has not been done thus far. Once again, for substantive purposes only, these
portions of the statements are not admissible.
15
Id.
16
4. Mahea Kahoana’s testimony and electronic notes are admissible.
17
The Court rules that Mahea Kahoana’s notes are admissible. While she may have
18 entered notes motivated in part by her relationship to the family, the relevant
inquiry is whether she would have acted in the same way in any case in the course
19 of her work. The plaintiff has proffered sufficient foundation to meet this burden
on the prima facie basis.
20
9/23/19 Order Denying Defendants’ Motion for Summary Judgment and Motion to Strike In Part.
Alaska contracted with DSG to provide gate services at the Maui Airport. Ms. Kahoana
21
was a lead customer service agent for DSG. During her shift the night of Mrs. Kekona’s fall, she
22
investigated the incident through phone conversations with Alaska representatives located in
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1 Portland. She recorded portions of those calls in typed, electronic notes maintained in Alaska’s
2 Passenger Name Record (PNR) electronic system. As ruled by the Court, those notes are
3 admissible pursuant to ER 801(d)(2).
4 Judge Rogers reiterated his ruling regarding the admissibility of Ms. Kahoana notes when
5 ruling on Alaska’s motions in limine:
6 Ms. Kahoana is a fact witness. Plaintiff cannot ask her hypothetical questions that
border on expert testimony. Ms. Kahoana can, however, testify regarding what she
7 does as part of her employment. To the extent this motion seeks to alter or amend
the Court’s summary judgment order, the motion is denied.
8
See 1/14/20 order on Alaska’s motions in limine, at 4.
9
IV. SUMMARY OF TRIAL ISSUES
10
The issues for the jury to determine in this case are set forth in Plaintiffs’ Proposed Jury
11
Instruction No. 5. In accordance with that instruction, set forth below, Alaska is negligent for
12
breaching any of the below duties imposed under the ACAA, which set forth where and when
13
assistance must be provided to passengers between flights, and the heightened care owed by
14
common carrier with respect to a disabled passenger whose known disabilities increase the hazards
15
of travel:
16
As a common carrier, Alaska Airlines has the following duties under the federal
17 Air Carrier Access Act regarding when and where it must provide assistance to
passengers moving through the airport before, between, and after flights:
18
(1) Alaska Airlines must provide or ensure the provision of assistance requested by or
19 on behalf of a passenger with a disability in transportation between gates to make
a connection to another flight;
20
(2) Alaska Airlines personnel must have awareness and appropriate responses to
passengers with physical, sensory, mental, and emotional disabilities, including
how to distinguish among the differing abilities of individuals with such
21 disabilities; and
(3) Alaska Airlines must ensure that its contractors that provide services to the public
22
comply with the Air Carrier Access Act.
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1 In addition, as a common carrier, Alaska Airlines also has the following duties under
Washington law regarding how airline agents interact with passengers with disabilities who
2 request assistance in moving through the airport:
3 (1) Alaska Airlines must exercise the highest degree of care consistent with
operation of its type of transportation and its business as a common carrier
4 to protect its passengers from harm; and
5 (2) When it is aware that a passenger is mentally or physically disabled so that the
hazards of travel are increased as to that passenger, Alaska Airlines must provide
6 that amount of additional care which is reasonably required under the circumstances
consistent with the practical operation of its type of transportation and its business
7 as a common carrier.2
8 The failure of Alaska Airlines to comply with any of the foregoing duties is negligence.
9 In addition to disputing violation of these duties, Alaska denies that their breach caused
10 injury. It has asserted an affirmative defense of fault against Mrs. Kekona for “driving her electric
11 wheelchair onto an escalator”, alleging that act was a superseding cause of her injuries. In addition,
12 Mrs. Kekona has asserted claims of fault against three of her family members who held a durable
13 power of attorney for her at the time of this incident. While the Court reserved ruling on the
14 admissibility of any argument or evidence directed at such fault, plaintiff has filed a renewed
15 motion for resolution of this issue to avoid prejudicial error at trial. See Plaintiffs’ Renewed
16 Plaintiff’s Renewed Motion for Order Excluding Evidence of or Reference To Alleged Fault Of
17 Family Members, filed 2/3/21.
18 V. AIR CARRIER ACCESS ACT
19 The federal Air Carrier Access Act (“ACAA”) prohibits an air carrier’s discrimination
20 against disabled travelers. 49 USC § 41705. The parties agree that the ACAA establishes the
specific duties owed by Alaska to Mrs. Kekona. See, Gilstrap v. United Air Lines, Inc., 709 F.3d
21 995, 1010 (9th Cir. 2013). Violations of Department of Transportation regulations codified at 14
22
2
The authority and analysis supporting this instruction, including application of Washington
23 common carrier standards, is set forth in the citations to this proposed instruction.
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1 CFR § 382 are violations of the ACAA, and no proof of intent to discriminate is required. Rowley
2 v. Am. Airlines, 885 F. Supp. 1406, 1410-11 (D. Ore. 1995).
3 Alaska breached the ACAA established standard of care by failing to provide requested
4 gate-to-gate escort services to Mrs. Kekona, in violation of 14 CFR § 382.91(a), and by failing to
5 communicate the special service requests it gathered from Mrs. Kekona, and her family, to its
6 service provider Huntleigh, in violation of 14 CFR § 382.15.
7 The source of Alaska's nondelegable duty is 14 C.F.R. § 382.15, which provides in relevant
8 part:
9 (a) As a carrier, you must make sure that your contractors that provide services to
the public (including airports where applicable) meet the requirements of this
10 part that would apply to you if you provided the services yourself.
11 (b) As a carrier, you must include an assurance of compliance with this part in your
contracts with any contractors that provide services to the public that are subject
12 to the requirements of this part. Noncompliance with this assurance is a material
breach of the contract on the contractor's part.
13
(1) This assurance must commit the contractor to compliance with all applicable
14 provisions of this Part in activities performed on behalf of the carrier.
15 ***
16 (c) You remain responsible for your contractors' compliance with this part and
for enforcing the assurances in your contracts with them.
17
14 C.F.R. § 382.15 (emphasis added).
18
Section 14 C.F.R. § 382.91 of the ACAA titled “What assistance must carriers provide to
19
passengers with a disability in moving within the terminal,” imposes a specific nondelegable duty
20
on Alaska with respect to gate-to-gate service requests, mandating that it "provide or ensure" that
a request for gate-to-gate service made by or on behalf of a passenger with a disability, is met:
21
(a) As a carrier, you must provide or ensure the provision of assistance
22 requested by or on behalf of a passenger with a disability, or offered by carrier
or airport operator personnel and accepted by a passenger with a disability, in
23 transportation between gates to make a connection to another flight.
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1 (emphasis added).
2 The ACAA regulations at issue impose a number of non-delegable duties upon Alaska,
3 including providing gate-to-gate assistance to disabled passengers when requested; ensuring AA
4 contractors are “trained to proficiency” on regulations affecting disabled passengers; and ensuring
5 AA contractors meet all ACAA regulatory requirements. 14 C.F.R. § 382.91(a); 382.27(e);
6 382.141(a)(1) and (2). At all times, the carrier remains responsible for contractor compliance. 14
7 C.F.R. § 382.15.3
8 It is worth noting the special services at issue in this case were “requested by or on behalf
9 of” Mrs. Kekona; therefore, the duty to provide gate-to-gate service arises at the time of the request
10 and the offer and acceptance portion of the regulation, which is set off by commas, is not necessary
11 or applicable to this situation. Additionally, 14 CFR § 382.11(a)(2) is not applicable because it
12 relates to forcing disabled individuals to use services “the individual does not request,” and in this
13 case it is undisputed the gate-to-gate escort services had been requested.
14 As a matter of law (and common sense), Alaska cannot “ensure” requested assistance
15 without communicating the request to the employees or agents it has designated to provide them.
16 This duty of reasonable care in handling service requests -- by whatever means received -- is
17 consistent with Alaska's non-delegable duty to ensure service requests are fulfilled. See Gilstrap
18 v. United Air Lines, Inc., 709 F.3d 995, 1010 (9th Cir. 2013) (tort plaintiffs may incorporate the
19 ACAA regulations as describing the duty element of negligence, and rely on state law for “the
20 other negligence elements (breach, causation, and damages); Glass v. Nw. Airlines, Inc., 798 F.
3
Although the Court dismissed plaintiff’s independent “failure to train” claims on summary
21 judgment based on LaPlant v. Snohomish Cty., 162 Wn. App. 476, 480 (2011) (holding that a
claim for negligent hiring, training, and supervision is generally improper where agent’s actions
22 concededly occurred within the course and scope of agency), evidence as to required proficiency
of Alaska’s contractors when dealing with disabled passengers remains relevant and admissible to
23 prove breach of Alaska’s nondelegable duties of performance.
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1 Supp. 2d 902, 912 (W.D. Tenn. 2011) (“Northwest arguably assumed a duty to provide a
2 wheelchair for Glass based on Plaintiff's having requested wheelchair service when she purchased
3 his ticket on August 28, 2011”). In accordance with this authority, the Court has already ruled on
4 summary judgment that Alaska’s solicitation of gate-to-gate requests during the booking process
5 required that those requests be conveyed to its contractors like Huntleigh, and plaintiff has
6 proposed a jury instruction regarding that established duty. Dkt. 65.
7 The ACAA statutory and regulatory language does not directly address a disabled
8 passenger declining special services previously requested. DOT guidance on implication of the
9 ACAA includes detailed guidelines for how airline personnel should interact with persons with
10 disabilities. Air carriers, and their agents, are required to “make a reasonable judgment considering
11 all available information.” Nondiscrimination on the Basis of Disability, 70 FR 41482-01, 41486-
12 87, 2005 WL 1667262 (July 19, 2005). This reasonable judgment includes asking “an individual’s
13 ability to perform specific air travel-related functions, such as…walking through the airport, etc.”
14 Id. at 41489. Examples include, asking the passenger detailed questions such as “Can you walk
15 from this gate to your connecting gate?” Id. This also includes specifically asking a person needing
16 transportation between gates “if the person would prefer to be pushed or not.” Id. at 41506.
17 Airlines are required to train their employees to be aware of passengers with physical and mental
18 disabilities and how to appropriately and effectively communicate with those passengers. Id. at
19 41510. These guidelines substantiate the relevance of the information provided to Alaska by Mrs.
20 Kekona’s family regarding her confusion in unknown environments. See Dkt. 178 (Memorandum
of Plaintiff Re Relevance of Cognitive Issues).
21 It is undisputed that Alaska owed Mrs. Kekona’s duties pursuant to the ACAA, and that a
22 breach of those duties is recoverable through a state negligence action. Ms. Bloyed will establish
23 at trial Alaska’s breach of multiple duties owed to Mrs. Kekona to support the Estate’s claim of
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1 negligence.
2 VI. CAUSATION
3 “A proximate cause is one that in natural and continuous sequence, unbroken by an
4 independent cause, produces the injury complained of and without which the ultimate injury would
5 not have occurred.” Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929, 935 (1982). Proximate cause
6 has two elements: factual “but for” causation and legal causation. Schooley v. Pinch's Deli Mkt.,
7 Inc., 134 Wn.2d 468, 474 (1998). While factual cause is based on an actual connection between
8 an act and an injury, “legal cause is grounded in policy determinations as to how far the
9 consequences of a defendant's acts should extend.” Id. at 478. Proper analysis of proximate cause
10 looks to “whether the result of the act is within the ambit of the hazards covered by the duty
11 imposed upon defendant.” Id.; see Rikstad v. Holmberg, 76 Wn.2d 265, 269 (1969) (It is only
12 necessary that the injury fall within the “general field of danger”).
13 Recently, the Washington Supreme Court discussed proximate cause in detail in the
14 criminal case of State v. Frahm, 193 Wn.2d 590 (2019) and affirmed a finding that a defendant
15 who caused a motor vehicle accident and fled the scene proximately caused the subsequent death
16 of a passerby who was rendering aid and was struck by a different vehicle after the defendant fled.
17 Considering the Supreme Court’s broad application of the proximate cause analysis, Mrs.
18 Kekona’s fall was clearly within the “general field of danger” presented by negligently failing to
19 communicate requested special services and failing to provide gate-to-gate service to an easily
20 confused and potentially cognitively impaired, elderly passenger.
Had Alaska informed Huntleigh that Mrs. Kekona had requested gate-to-gate assistance,
21 Huntleigh confirms it would have escorted her to her next gate, without question. Even Alaska’s
22 human factors expert believes that Mrs. Kekona’s fall was likely a result of her cognitive
23 limitations. Likewise, Plaintiff’s human factors expert will opine that Mrs. Kekona’s fall, and
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1 other accidents like her fall, were foreseeable. To that end, Plaintiff’s human factors expert JoEllen
2 Gill opined that it was reasonably foreseeable that someone with cognitive and visual impairments
3 who has asked for assistance to travel between gates and is left on her own could drive onto the
4 escalator and get hurt, and that it is reasonably foreseeable, without the assistance of a gate-to-gate
5 escort, Mrs. Kekona would become confused in a large airport she has never been to that requires
6 a change in levels to reach the departure gate, and that Mrs. Kekona did not knowingly and
7 voluntarily encounter the escalator believing it was the elevator. Ms. Gill also opines that the
8 escalator is a reasonably foreseeable mechanism of injury where the elevator is hidden around the
9 corner, that the escalator was not an open and obvious risk to Mrs. Kekona who suffered from
10 cognitive and visual impairments, but instead, a foreseeable risk, and that such failure to properly
11 communicate requested services and provide Mrs. Kekona gate-to-gate escort service caused her
12 injuries.
13 Legal causation is a policy judgment to assure defendant’s conduct is sufficiently related
14 to the injury to justify imposition of responsibility. M.H. v. Corp. of Catholic Archbishop of
15 Seattle, 162 Wn. App. 183 (2011). “Consequently, the existence of legal causation between two
16 events is determined on the facts of each case upon mixed considerations of logic, common sense,
17 justice, policy and precedent.” Skeie v. Mercer Trucking Co., 115 Wn. App. 144, 151 (2003). A
18 major consideration in determining legal causation is whether the conduct of the negligent party
19 was the type of conduct that increased the risk of this particular injury, or whether the connection
20 between the two may be “the merest of chances.” Channel v. Mills, 77 Wn. App. 268, 274 (1995).
Mrs. Kekona’s injuries occurred in close proximity in time and place to Alaska’s
21 negligence. Alaska’s failure to properly communicate requested services to its service provider,
22 and failure to provide the requested gate-to-gate escort, drastically increased the risk that a disabled
23 person, such as Mrs. Kekona, could get injured due to confusion while moving from her arrival
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1 gate to her departure gate. The connection between Alaska’s negligence and the resulting injuries
2 is logical and common sense, sufficient to support legal causation. Anderson v. Dreis & Krump
3 Mfg. Corp., 48 Wn. App. 432, 443 (1987) (“a defendant will not be relieved of responsibility
4 simply because the exact manner in which the injury occurred could not be anticipated”; sequence
5 of events need not be foreseeable).
6 Ms. Bloyed will establish at trial that Alaska’s breach of its duties owed to Mrs. Kekona
7 were proximate causes of Mrs. Kekona’s fall down the escalator and related injuries sufficient to
8 support the Estate’s negligence claim. Because there may be more than one proximate cause of
9 injury, the jury may consider under WPI 15.01 whether Mrs. Kekona’s alleged comparative fault
10 was an additional cause of injury. However, as her fall does not constitute a superseding cause of
11 injury, WPI 15.05 or 15.01.01 should not be given.
12 VII. ALLEGED DECLINATION OF REQUESTED GATE-TO-GATE ESCORT
13 The ACAA statutory language, and enacting regulations, do not address, in any manner, a
14 disabled person declining a previously requested special service. Throughout this litigation,
15 Alaska attempts to expand 14 C.F.R. § 382.11(a)(2) to apply to such a situation, but it does not,
16 because that portion of the regulation specifically references special services “that the individual
17 does not request.” As indicated above in Section IV, the ACAA does directly require that
18 requested special services must be provided, and the failure to do so is an act of discrimination. 14
19 CFR § 382.91(a). Therefore, what amounts to declining a requested special service, so as to
20 alleviate an air carrier from its duties under the ACAA, is not a matter of direct statutory
interpretation, and Alaska’s arguments that service was declined must be considered in the context
21 of the evidence of Alaska’s and its agents’ interactions with Ms. Kekona, the affirmative training
22 duties and the heightened standard owed by a common carrier. See Plaintiff’s Proposed Instruction
23 No. 5 and citations thereto. Jury instructions attempting to define a declination of service are
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(206) 467-6090
1 unsupported by regulation and improperly
2 Guidance on implementing the ACAA from the DOT does encourage air carriers and
3 service providers to dialogue with the passenger in relation to the passenger’s needs. Airlines are
4 required to “make a reasonable judgment considering all available information.”
5 Nondiscrimination on the Basis of Disability, 70 FR 41482-01, 41486-87, 2005 WL 1667262 (July
6 19, 2005). This reasonable judgment includes asking “an individual’s ability to perform specific
7 air travel-related functions, such as…walking through the airport, etc.” Id. at 41489. Examples
8 include, asking the passenger detailed questions such as “Can you walk from this gate to your
9 connecting gate?” Id. This also includes specifically asking a person needing transportation
10 between gates “if the person would prefer to be pushed or not.” Id. at 41506. Airlines are required
11 to train their employees to be aware of passengers with physical and mental disabilities and how
12 to appropriately and effectively communicate with those passengers. Id. at 41510.
13 VIII. CONCLUSION
14 Mrs. Kekona was a lively, loving mother and grandmother who treasured the ability to visit
15 her family in Maui. However, due to her disabilities she required assistance from her air carrier to
16 travel safely. The federal government enacted the ACAA to assure that air carriers provide such
17 assistance, when requested, so that travelers like Mrs. Kekona can enjoy the benefits of air travel
18 in the United States. Sadly, Alaska completely failed to appreciate the requirements of the ACAA,
19 failed to inform its service provider of Mrs. Kekona’s requested gate-to-gate escort service, and
20 failed to provide the needed assistance. Abandoned in the Portland airport by Alaska, Mrs. Kekona
tragically fell down an escalator attempting to make it to her connecting gate. Her injuries from
21 the fall failed to resolve, leading to infection, an amputation, and her death.
22 Ms. Bloyed, the Personal Representative of Mrs. Kekona’s Estate, will present ample
23 evidence at trial that Alaska’s negligence was a proximate cause of Mrs. Kekona’s injuries, and
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(206) 467-6090
1 subsequent death. She will ask the jury to hold Alaska responsible for its blatant violations of
2 federally required assistance to a disabled passenger. She will request an award of significant
3 monetary damages, including, but not limited to, compensation for Mrs. Kekona’s months of
4 horrific pain and suffering, significant medical costs, and the loss of consortium of Mrs. Kekona’s
5 eight children. This was an accidental fall that is so tragic because it so easily could have been
6 avoided if Alaska had simply provided the requested assistance.
7 DATED this 3rd day of February, 2021.
8 RANDALL | DANSKIN, P.S. LUVERA LAW FIRM
9 /s/ Brook L. Cunningham /s/ Robert N. Gellatly

Brook L. Cunningham, WSBA #39270 Robert N. Gellatly, WSBA #15284
10 Shamus T. O’Doherty, WSBA #43082 Deborah L. Martin, WSBA #16370
601 W. Riverside Avenue, Suite 1500 701 Fifth Avenue, Suite 6700
11 Spokane, WA 99201 Seattle, WA 98104
Phone: 509-747-2052 Telephone: (206) 467-6090
12 Fax: 509-624-2528 Facsimile: (206) 467-6961
blc@randalldanskin.com robert@luveralawfirm.com
13 sto@randalldanskin.com deborah@luveralawfirm.com
Attorneys for Plaintiff Attorneys for Plaintiff
14
AHREND LAW FIRM PLLC
15
/s/_George M. Ahrend__________________
16 GEORGE M. AHREND, WSBA 25160
Ahrend Law Firm PLLC
17 P.O. Box 816
Ephrata, WA 98823-0816
18 Phone: (509) 764-9000
gahrend@ahrendlaw.com
19
Attorney for Plaintiff
20
21
22
23
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(206) 467-6090
1 CERTIFICATE OF SERVICE
2
I certify that a true and correct copy of the foregoing was sent to the following parties in
3
the manner indicated below:
4
John Fetters X E-Service
5 Caryn Geraghty Jorgensen X Electronic Mail
Brett MacIntyre
☐ Fax Transmission
6 Stokes Lawrence, P.S.
1420 Fifth Avenue, Ste. 3000 ☐ First Class Mail
7 Seattle, WA 98101 ☐ Messenger Service
john.fetters@stokeslaw.com ☐ Overnight Delivery
8 caryn.jorgensen@stokeslaw.com
brett.macintyre@stokeslaw.com
9
Attorneys for Defendant Alaska Airlines, Inc.
10
I declare under penalty of perjury, under the laws of the State of Washington that the
11
foregoing is true and correct.
12
Executed this 3rd day of February, 2021, in Seattle, Washington.
13
14 /s/ Heather D. Thweatt

LUVERA LAW FIRM
15 6700 Columbia Center
701 Fifth Avenue
16 Seattle, WA 98104
Telephone: (206) 467-6090
17 Facsimile: (206) 467-6961
Heather@LuveraLawFirm.com
18
19
20
21
22
23
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Plaintiff&#39;s Trial Brief: Estate of Bernice Kekona v. Alaska Airlines, Inc.

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Plaintiff&#39;s Trial Brief: Estate of Bernice Kekona v. Alaska Airlines, Inc.

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1 The Honorable Suzanne Parisien

Trial Date: February 8, 2021

6700 COLUMBIA CENTER • 701 FIFTH AVENUE

3 Evidence of or Reference to Alleged Fault of Family Members, filed 2/3/21.

9 subject of this case.

18 led to her death on September 20, 2017.

23 of the duty owed to Mrs. Kekona.

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4 the duty owed to Mrs. Kekona.

13 A. Gate-to-Gate Escort Service was Repeatedly Requested on Behalf of Mrs. Kekona

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5 any issues arose.

7 requests for gate-to-gate escort assistance:

8 (1) “WCHR ASSIST TO AND FROM GATES AT ALL POINTS;” and

9 (2) “NN ASSISTANCE TO GATES AT ALL POINTS.”

10 Alaska admits these requests required gate-to-gate escort assistance be provided in

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2 performed, he believed he had fully accomplished his task.

14 agents may also have contacted the family.

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2 would not use the abbreviation GA.

3 D. Huntleigh Wheelchair Attendants Provide Gate-to-Gate Services Without

13 claim in its first contact with Maui personnel.

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2 accuracy of Ms. Drechsler’s investigation or email.

7 recommended further investigation—which never occurred.

12 assisted in the investigation and oversaw Ms. Kahoana’s efforts.

17 Name Record (“PNR”):

18 PAX TRAVELING WITH ELECTRIC SCOOTER. FAMILY CALLED IN ONE

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3 anything in Mrs. Kekona’s PNR.

4 F. Mrs. Kekona Was Abandoned in Portland.

8 gate assistance in Seattle on her flight to Maui without incident or injury.

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2 1. Court orders Alaska had duty to communicate requested services to contractor

22 his ruling during motions in limine on January 7, 2020:

23 The statements are attributed to Huntleigh’s employees, Horizon employees and

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22 in question were made, Huntleigh and Alaska were aligned.

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3 admission by party opponent—applied to statements made by Huntleigh, Horizon, and Alaska

6 1/7/20 Order on Reserved Motions in Limine, at 4.

13 opinions not typically admissible. Nor do they appear to be the statement of an

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3 admissible pursuant to ER 801(d)(2).

5 ruling on Alaska’s motions in limine:

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17 Family Members, filed 2/3/21.

18 V. AIR CARRIER ACCESS ACT

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2 v. Am. Airlines, 885 F. Supp. 1406, 1410-11 (D. Ore. 1995).

6 service provider Huntleigh, in violation of 14 CFR § 382.15.

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3 including providing gate-to-gate assistance to disabled passengers when requested; ensuring AA

5 AA contractors meet all ACAA regulatory requirements. 14 C.F.R. § 382.91(a); 382.27(e);

11 or applicable to this situation. Additionally, 14 CFR § 382.11(a)(2) is not applicable because it

13 case it is undisputed the gate-to-gate escort services had been requested.

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6 proposed a jury instruction regarding that established duty. Dkt. 65.

11 all available information.” Nondiscrimination on the Basis of Disability, 70 FR 41482-01, 41486-

of Plaintiff Re Relevance of Cognitive Issues).

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3 “A proximate cause is one that in natural and continuous sequence, unbroken by an

Plaintiff's Trial Brief: Estate of Bernice Kekona v. Alaska Airlines, Inc.

Plaintiff's Trial Brief: Estate of Bernice Kekona v. Alaska Airlines, Inc.