The Grim Effect Delta's ESA Lawsuit Will Have on Travel

A man who was severely mauled by an emotional support animal on a Delta flight in 2017 is suing the airline and the dog’s owner for damages. An in-depth reading of the suit delivers some disturbing takeaways about the future of air travel for both humans and animals. 

That attack occurred in June 2017, when Marlin Jackson boarded a flight in Atlanta only to find a 50-pound Lab mix in the lap of Ronald Mundy, who was sitting in the seat next to his. According to the lawsuit, which was filed in Fulton County, Georgia, in May, Jackson had to squeeze past the dog to reach his window seat, at which point the dog started growling. Mundy reassured Jackson twice that the dog was safe, but suddenly, it attacked, pinning Jackson against the window while biting his face, according to court documents. The incident resulted in wounds that took 28 stitches to close and allegedly left permanent scaring and a loss of sensation on Jackson’s face. (Jackson’s lawyer’s released pictures of the wounds. You can see them here, but beware: they are nasty.) 

The incident is one of the reasons I sat down and wrote “Stop Faking Service Dogs” a couple of months later, and it’s why I’ve kept covering the emotional-support-animal scourge ever since. To recap: There are three laws governing access for service and support dogs in the U.S. They’re all intentionally vague and overlap in some confusing ways. And that vagueness and confusion seems to have combined with an overwhelming degree of selfishness to create a phenomenon in which public places are being flooded with fake service dogs and flights suddenly feel like barnyards. 

First, the Americans with Disabilities Act attempts to provide equal access to public places for people with disabilities. It also defines a service animal as any dog or miniature horse specifically trained to perform a task in the aid of a disabled person. The ADA mandates access to public places for service animals and states that business owners can only ask if such an animal is trained to perform a task in aid of a disability, as well as what that task is. No other proof—including vests or IDs—can ever be required. The ADA specifically excludes access for support animals, however, defining them as creatures whose mere presence provides benefit. Therefore any so-called emotional support animal you see in a public place is inherently a fake service animal. 

Second, the Fair Housing Act governs access to housing. Importantly, it mandates that landlords allow access for both service and emotional support animals, and it allows landlords to ask for both proof of someone’s disability or diagnosis, as well as the animal’s ability to help with either or both. 

Finally, the Air Carrier Access Act governs air travel. Like the FHA, it allows for both service and support animals, and it allows airlines to request proof. The trouble is, such proof can be delivered in the form of a letter signed by any health professional, and that can be purchased online for a few bucks—or just faked in Photoshop. And armed with only that fake or purchased letter, you can fly with your dog in the cabin with you. 

Which brings us to 2017, the year Jackson was mauled and Delta says it transported 250,000 service and support dogs on its flights. That was a 150 percent increase from the previous record year, 2015, so Delta changed its policy. Initially, it required people traveling with both service and support animals to upload their documentation at least 48 hours in advance of each flight. This was obviously an attempt to reduce the number of animals on its flights by creating a burden, and since the ADA dictates that you can’t create such a burden for disabled people, lawsuits were threatened, and Delta amended the policy to where it stands today: only support dogs need documentation submitted in advance, and they are banned in the cabin on flights over eight hours.

Neither change would have saved Jackson from the mauling, so it’s time to discuss the lawsuit. 

The first notable thing about Jackson’s suit is that it exists. People obviously sue airlines all the time, and it seems to be standard practice for the industry to settle meritorious claims out of court. Doing so saves everyone involved time and money, and it saves face for the airline. Take the case of David Dao, who was assaulted by security staff aboard a United Airlines flight in 2017. After suffering an overwhelming backlash on social media, United quickly reached a confidential settlement with the passenger. One rumor pegged the amount at $140 million. The amount of damages Jackson is seeking is unspecified in legal filings. But if he and his lawyers were offered a settlement by Delta, and if they turned that down in favor of pursuing the costly and lengthy jury trial they’re now demanding, then they must feel that they have a strong case. And they’re probably seeking a very large sum. 

Another notable result of the Dao case is also relevant here. Immediately following the incident, United initiated sweeping changes across its security, rebooking, and ticketing procedures, all in an effort to reassure passengers that a similar incident wouldn’t happen to them. If Jackson’s suit proves costly for Delta, will it be forced to implement similar changes to its service- and support-animal policies? If it does, the text of the lawsuit provides some disturbing indications of what those changes might be. 

Specifically, Marlin Jackson v. Delta Airlines, Inc, and Ronald K. Mundy claims that the airline was negligent in the following ways:

• Allowing Mundy’s dog to sit in his lap, rather than being secured on the floor or kept in a kennel 
• Failing to verify the presence of “proper” restraints on the animal
• Failing to adequately ascertain the dog’s level of training, which it says should have been proven through documentation
• Failing to warn guests of the dangers represented by animals on the flight “so that they could protect themselves”
• Failing to train its staff to evaluate animals for signs of aggression and take action to prevent animal attacks
• Failing to protect Jackson from “reasonably foreseeable harm,” which it goes on to define as “subjecting passengers and animals to close physical interaction”

If we extrapolate those specific allegations to potential future policies, we get a dystopian vision of future air travel. If a court rules that Delta was negligent in failing to ensure that Mundy’s dog was secured to the floor, will airlines create a policy where all support and service dogs must be tethered to the floor or contained in a kennel? Will the strength and appropriateness of those restraints need to be certified by an independent body, then printed on a certificate you’ll need to present to airline staff before boarding a flight and chaining your Pomeranian to the floor? Will an independent body need to be created to administer behavior tests to all service and support animals, certifying their suitability for air travel? Will warnings be issued on each flight about the presence of potentially dangerous animals and your need to protect yourself from them? Will flight attendants need to pursue additional training in animal psychology and dog wrestling? Will emergency dog restraints need to be carried on airplanes?

In separate remarks, Jackson’s lawyer said that the dog in question should have been fitted with a muzzle. Will service and support dogs need to be fitted with muzzles on future flights? What would that do to a genuine service dog’s ability to perform tasks in aid of its owner? 

Perhaps most disturbing of all, though, is the implication that placing passengers in close physical interaction with animals is inherently dangerous. That could lead to dog-specific seating areas on planes or even rule out the presence of support and service dogs on flights altogether. 

You may think all of this sounds ridiculous and could never come to pass, but I’d point out that all of us now take for granted a system that forces us to remove our shoes, dispose of liquids, and subject ourselves to radiation blasts, yet provides zero demonstrable security benefit in return, before crawling all over each other inside a crowded metal tube and risking getting beaten up by security, all for the chance to spend several hours breathing each other’s farts. That a dog might need to be fitted with a muzzle or chained to the floor under your seat both seem positively reasonable in comparison. 

And while it might be disturbing to think of a pet you love (so dearly that you fake a doctor’s letter in order to take it on vacation) being muzzled or chained, the implications for service dogs, and the disabled people who count on them to protect their lives, are much more serious. No matter what happens, it seems as if airline policies are going to have to get tighter. Some breeds of dog have already been banned. Some documentation is already required. Every time these regulations grow tighter, they make flying a bigger challenge for the disabled. 

Should you blame this lawsuit for those inevitable restrictions? I think the real blame lies at the feet of all the selfish people gaming the system for nothing but their short-term, personal benefit. They’re what’s going to ruin flying for all of us.