9th Cir. limits preemption of airline injury suits

The Ninth Circuit held that the Federal Aviation Act (FAA) does not implicitly preempt aviation-related personal injury claims except in areas covered by “pervasive” federal regulations.

The court permitted an injured woman to sue on the ground that an airplane’s stairs should have had two handrails, saying federal regulations did not speak to such claims. A concurrence argued that the FAA imposes a federal common law standard of care in all aviation-related injury cases. Martin v. Midwest Express Holdings, Inc., --- F.3d ----, 2009 WL 292583 (9th Cir. Feb. 9, 2009) (No. 07-55063).

 

          This decision turns away from what previously appeared to be an adoption by the Ninth Circuit of very broad implied preemption of aviation injury claims. The concurrence by Judge Bea, however, proposes a radical approach whereby, in the absence of federal regulations, federal courts preserve the remedies prescribed by state law but develop federal common law standards of care. Because Judge Bea’s approach is based entirely on policy arguments, it appears that it could easily be applied to many other laws.

 

          Ms. Martin fell from an airplane’s stairs, injuring herself and her fetus. She sued the airline and the airplane’s manufacturer alleging that the stairs were defectively designed because they had only one handrail. Midwest Express settled for $8 million, and now seeks indemnity from the manufacturer. The FAA, 49 U.S.C. §§ 40101 et seq., contains limited preemption provisions not applicable here. See, e.g., Air Transport Ass'n of Amer. v. Cuomo, 520 F.3d 218 (2d Cir. 2008) (concerning preemption of regulation of rates and services; summary). Beyond the areas expressly covered, the panel notes that “the circuits have generally analyzed FAA preemption by looking to the pervasiveness of federal regulations in the specific area covered by the tort claim or state law at issue. Claims regarding airspace management, pilot qualifications and failure to warn have been declared preempted…[while] several defective product claims…have not.”

 

However, a Third Circuit opinion suggests that all aviation-related injury suits are, by virtue of preemption, governed by federal standards of care. Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999). A recent Ninth Circuit decision discussed Abdullah approvingly and stated that “federal law occupies the entire field of aviation safety.” Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007). The Montalvo court relied on this rationale to reject a claim based on failure to warn of the general risk of deep vein thrombosis to passengers; but at the same time, it permitted a claim based on unsafe seating configuration, saying only that it was not barred by one of the FAA’s express preemption provisions. It’s thus unsurprising that the panel split on the scope of Montalvo’s holding.

 

The majority held that despite some broad language, Montalvo’s implied preemption analysis “rested heavily” on the “pervasive” federal regulations governing warnings to passengers. At the same time, the court said that the mixed result in Montalvo made clear that not all safety-related claims are preempted. Indeed, an earlier en banc precedent stated that Congress “did not intend to preempt passengers’ run-of-the-mill personal injury claims.” Charas v. Trans World Airlines, 160 F.3d 1259 (9th Cir. 1998). The majority concluded that “when the [Federal Aviation Administration] issues ‘pervasive regulations’ in an area, like passenger warnings, the FAA preempts all state law claims in that area. In areas without pervasive regulations or other grounds for preemption, the state standard of care remains applicable.” Since no federal regulation governs the design of airplane stairs, the court found it “hard to imagine that any and all state tort claims” were preempted.

 

Judge Bea concurred in reversing the dismissal below, but would have drastically changed the nature of aviation-related litigation. He argued that based on Abdullah and Montalvo, the FAA preempted all state-law standards of care for all aviation-related injury claims. Under Bea’s approach, state law could define causation, affirmative defenses, and available remedies, but federal law would define the standard of care. Where no federal regulation exists to supply that standard, Bea argues that courts must develop (and plaintiffs must plead) federal common law standards, based on expert testimony concerning common industry practices. This approach has no basis in the FAA and is explicitly based on policy arguments.