Tort: Father sues flight attendant for reporting possible sex abuse/trafficking

Where a flight attendant expressly told a captain that she was concerned a 13-year old passenger was being sexually abused or trafficked, but police determined there was no probable cause to charge or arrest her companion (her father),the Supreme Court of Virginia was asked to determine the scope of the good-faith provision in the Virginia Code.

Background

This suit arises from a report that a flight attendant made during a domestic flight expressing concern that a 13-year-old passenger was being sexually abused or trafficked. Flight attendant Cheryl Thomas reported what she saw to the captain of the flight, as Delta has a mandatory reporting policy. The captain relayed the information to a Delta station manager, and the station manager, in turn, called the police, who mobilized to meet the plane when it landed. Following the questioning, the police “determined that there was no probable cause to charge or arrest” Nicholas Cupp, and they released him.

Cupp then sued Thomas, Delta Air Lines and Endeavor Air Inc., a wholly owned subsidiary of Delta that jointly provides flights from Atlanta to Newport News. Based on Virginia Code §§ 63.2-1510 and 63.2-1512, the defendants argued that “[a]ll reports of child abuse or neglect are immune from all . . . liability unless it is proven that the reporter acted in bad faith or with malicious intent.” Maintaining that the allegations in Cupp’s complaint did not suggest that Thomas had “acted in bad faith or with malice,” the defendants argued that Thomas was immune and that Delta and Endeavor were similarly immune because all the claims in the suit arose from Thomas’s report.

Cupp argued that the defendants were not entitled to immunity under § 63.2-1512 because that provision was only applicable “to reports and complaints made to the Department of Social Services,” which was not alleged to have occurred in this case. He further asserted that even if the immunity statute were applicable, his complaint had sufficiently “allege[d] conduct in bad faith and with malicious intent.” The district court disagreed.

Analysis

Cupp first maintains that “the pertinent statute only immunizes complaints [of child abuse made] to the Virginia Department of Social Services,” whereas his complaint alleged that the reports in this case were made to law enforcement, not social services. Second and alternatively, he contends that even if a report to law enforcement could trigger application of the immunity statute, the district court erred in concluding that his complaint “did not adequately allege that the defendants acted in bad faith or with malicious intent.”

Focusing on the second argument, the court finds that “[t]he allegation that Defendant Thomas, an individual who did not know [Cupp] or his family or have any interaction with them until serving as their flight attendant, was motivated to single out [Cupp] and his family with a false child abuse report fails to meet the plausibility standard required under Rule 12(b)(6).”

The single question remains whether Thomas is entitled to immunity in the circumstances presented — namely, where she reported her concerns regarding potential child abuse to law enforcement officers but where there is no indication, at least at this stage of the proceedings, that she ever spoke with a Department of Social Services employee.

It is clear that when a member of the public, who is not a mandatory reporter, chooses to report suspected child abuse to a mandatory reporter, such as law enforcement, that report is reasonably calculated to reach the appropriate social services department.  What is less clear is the availability of immunity under § 63.2-1512 to a nonmandatory reporter of suspected child abuse who makes a good-faith report to a mandatory reporter.

If the mandatory reporter conveys the information to a social services department, is the original reporter entitled to immunity even though she did not make her complaint directly to a social services department? Alternatively, what if, after a limited investigation like the one alleged here, the mandatory reporter is confident that the original report was a false alarm and consequently decides that there is no need to alert social services — does the original reporter then lack any immunity because of the decision made by the mandatory reporter?

Given the importance of this issue to the operation of Virginia’s reporting statute and finding no controlling decisions by either the Supreme Court of Virginia or the Court of Appeals of Virginia, the court concludes that certification is warranted.

Cupp v. Delta Airlines Inc., Case No. 23-1342, Sept. 29, 2025. 4th Cir. (Niemeyer), from EDVA at Newport News (Allen). Cory R. Ford for Appellant. Kathryn Anne Grace for Appellees. VLW 025-2-375. 13 pp.