Aviation Law: a Survey of Recent Trends and Developments - Jonathan R. Friedman and Joshua S. Wood

• Publication year: 2010

Aviation Law: A Survey of Recent Trends and Developmentsby Jonathan R. Friedman^* and Joshua S. Wood^**

This aviation law Article focuses on selected developments during a two-year survey period from June 1, 2007 to May 31, 2009. The first part of this Article discusses federal preemption of, and immunity from, state law tort claims. The second part examines recent aviation decisions involving jurisdiction, venue, and choice oflaw. The third part discusses discovery and evidence issues unique to aviation law. The fourth part reviews recent product liability decisions. The fifth and final part reviews important opinions analyzing aviation insurance.

I. Federal Preemption and Immunity

A. The Federal Aviation Act of 1958 and the Airline Deregulation Act of 1978

In Diana v. NetJets Services,¹ a Connecticut superior court denied the defendant's motion to dismiss a personal injury negligence claim asserted by an aviation school student who was allegedly struck by the wing of a taxiing aircraft while walking on an airport median.² The defendant argued that the Federal Aviation Act of 1958 (Aviation Act)³ or the Airline Deregulation Act of 1978 (ADA)⁴ preempted the negligence claim and that the doctrine of implied field preemption applied because the United States Congress had decided that a single, uniform system of regulation was necessary to promote air safety. The plaintiff argued that the claims were not preempted because there is no express preemption of negligence claims.⁵

The court ultimately adopted the preemption analysis of two other recent decisions:⁶ Aldana v. Air East Airways, Inc.⁷ and Abdullah v. American Airlines, Inc.⁸ The court explained that federal regulations impliedly preempted the field of aviation safety, so the standard of care is preempted even though the state remedy of a negligence claim is not.⁹ Whether the aircraft had been driven in a "careless or reckless" manner, as prohibited by 14 C.F.R. Sec. 91.13(a),¹⁰ was the appropriate standard ofcare.¹¹ Although the complaint did not cite to a federal standard, the court denied the motion to dismiss.¹² The court followed United States Supreme Court precedent,¹³ holding that Congress did not intend to preempt all tort actions.¹⁴ The savings clause of the Aviation Act¹⁵ expressly preserves state law remedies, including claims for personal injury.¹⁶

In Landis v. U.S. Airways, Inc.,¹⁷ a magistrate judge in the United States District Court for the Western District of Pennsylvania considered both a motion to dismiss and a motion for judgment on the pleadings filed by the defendants.¹⁸ The plaintiff allegedly sustained injuries from a nose gear collapse during pushback from the terminal. The plaintiffasserted that the defendant airline did not take necessary steps to prevent the accident, even after a crew member warned that the landing gear wheel was not oriented with the plane's nose during preflight inspection.¹⁹ The defendants successfully argued that the Aviation Act preempted the standard of care imposed by Pennsylvania common law and that the plaintiff failed to allege that the defendants violated a particular federal standard of care.²⁰ Even though the complaint referred to the Aviation Act and generally alleged facts demonstrating "careless and reckless" operation, the plaintiff failed to identify the specific regulation violated.²¹ Accordingly, the court held that in the absence of references in the pleadings to specific regulations, a complaint alleging "careless and reckless" operation fails to state a claim for relief.²²

In Glorvigen v. Cirrus Design Corp.,²³ the United States District Court for the District of Minnesota denied an aircraft manufacturer's motion for summary judgment that claimed the doctrines of "complete preemption" and "conflict preemption" applied.²⁴ The manufacturer alleged that the Aviation Act completely preempted the field of aviation safety and that conflict preemption barred the plaintiff's claims because it would be impossible "to comply both with FAA [Aviation Act] standards and state negligence standards."²⁵ For complete preemption to apply, the court explained, the federal statute must provide a remedial provision and clearly indicate that the provision is the exclusive remedy for the alleged harm.²⁶ The court then noted that the Aviation Act does not provide an express federal remedy for a violation of the standard of care and that Congress had expressed no federal intent for field preemption.²⁷ Instead, "[the FAA] regulations were intended to prevent accidents and not to 'provide a remedial mechanism for individuals injured by a violation of aviation safety standards,' and . . . 'state tort remedies remain for violation of the federally established standards of care.'"²⁸ In addition, the court explained that the savings clause evidences congressional intent against conflict preemption.²⁹ Thus, federal law did not preempt plaintiff's state law claims arising out of the crash.³⁰

In Wong v. Precision Airmotive, LLC,³¹ an injured pilot brought a state law product liability suit against an airplane parts manufacturer. The manufacturer moved for judgment on the pleadings, claiming that the Aviation Act impliedly preempted the action.³² The United States District Court for the District of Connecticut disagreed, holding that state law and federal regulations had long coincided in this field³³ and that in 1990 Congress rejected the creation of national products liability standards for the general aviation industry.³⁴ The court relied on decisions by the United States Courts of Appeals for the Tenth and Eleventh Circuits that rejected implied field preemption in state products liability cases based on Congress's express preemption of routes, services, and rates in the Aviation Act.³⁵

B. General Aviation Revitalization Act

The General Aviation Revitalization Act of 1994 (GARA)³⁶ provides immunity to aircraft manufacturers for accidents involving aircraft more than eighteen years old.³⁷ In Blazevska v. Raytheon Aircraft Co.,³⁸ the United States Court of Appeals for the Ninth Circuit applied GARA to preclude claims brought in the United States by family members of Macedonian residents who died in a 2004 crash in Bosnia.³⁹ The aircraft was manufactured and delivered in 1980, so the defendant invoked GARA's eighteen-year statute of repose as an affirmative defense. The defendant moved for summary judgment, and the district court entered judgment for the defendant on claims alleging product liability defects and lack of crashworthiness under Macedonian law.⁴⁰ The Ninth Circuit affirmed on appeal.⁴¹ The court rejected the plaintiffs' arguments that the presumption against extraterritorial application of federal law applied to GARA.⁴² The court held that GARA only regulates the ability of a party to sue in an American court, but it does not regulate conduct that occurs outside the United States.⁴³ The court noted that GARA "acts not just as an affirmative defense, but instead 'creates an explicit statutory right not to stand trial.'"⁴⁴

In Johnson v. Precision Airmotive, LLC,⁴⁵ the United States District Court for the Eastern District of Missouri held that, although GARA might apply, it did not support a stay of discovery.⁴⁶ The plaintiffs sued various companies involved in the manufacture, maintenance, and repair of an aircraft⁴⁷ that was more than eighteen years old at the time of the crash.⁴⁸ The defendants moved to stay discovery pending resolution of their summary judgment motion on the GARA issue, or in the alternative, to limit discovery to GARA-related issues. The plaintiffs argued that it was impossible without further discovery to ascertain the age of each replacement part, regardless of the original aircraft's age.⁴⁹

The court held that there was no basis to support the claim that the defendants "should not have to submit to discovery if, under GARA, they cannot be held liable for plaintiffs' claims."⁵⁰ Instead, the court explained that "GARA merely sets forth a defense to liability in cases where the relevant airplane parts are more than eighteen years old."⁵¹ The court concluded that it would be impossible to narrow discovery to GARA issues.⁵² "There [was] not merely one 'GARA issue' to resolve in this case, but rather a separate GARA issue for every part of the plane that [was] added since the plane was new."⁵³ Therefore, summary judgment was not appropriate because discovery was needed to determine facts about replacement parts less than eighteen years old.⁵⁴

C. The Federal Tort Claims Act

Generally, actions for damages against the government raise the question of sovereign immunity. The Federal Tort Claims Act (FTCA)⁵⁵ was passed in 1946⁵⁶ and waives, with certain exceptions, federal government immunity from tort liability for the acts of its officers, employees, and representatives.⁵⁷

In United States Aviation Underwriters Inc. v. United States,⁵⁸ the United States District Court for the Middle District ofGeorgia granted the Government summary judgment in an action alleging that the United States was negligent for failing to monitor turbulence advisories issued by meteorologists and failing to warn a flight crew of the possible turbulence.⁵⁹ The court explained that "forecasting turbulence is a discretionary function, and the FTCA exempts the Government from liability for discretionary acts."⁶⁰ The court noted, however, that if the Government had forecasted turbulence and issued warnings, then it had no discretion to fail to provide that information to the crew.⁶¹ The plaintiff asserted that the exception did not apply because there was an actual occurrence of clear air turbulence sufficient to warrant the issuance of warnings, thus depriving the forecasters of discretion.⁶² The court disagreed, however, and unequivocally held that weather diagnostics and forecasting are within the types of discretionary activities shielded under the exception.⁶³ Even if the Government was grossly negligent...