Recent Developments in Aviation Litigation

• Pages: 267-290
• Date: 01 April 2022
• Published date: 01 April 2022
• Author: Vincent C. Lesch,Irene Firippis,Jennifer Steeve
• Subject Matter: Administrative & Public Law

267

Vincent Lesch is an Associate at Kreindler & Kreindler LLP in New York. His practice

encompasses state and federal matters involving aviation accidents. Irene Firippis is a trial

attorney at the U.S. Department of Justice, where she works in the Aviation, Space &

Admiralty Litigation Section. The views expressed herein are solely those of the author(s)

and not those of the Department of Justice. Jennifer Steeve is an associate in the Los Ange-

les/Irvine office of Riley Safer Holmes & Cancila, LLP, where her practice focuses on com-

plex commercial litigation, aviation defense, appellate work, and autonomous vehicles.

RECENT DEV ELOPMENTS IN AVIATION LITIGATION

Vincent C. Lesch, Irene Firippis, and Jennifer Steeve

I. Introduction .................................................................................268

II. Personal Jurisdiction ....................................................................268

A. Ford Motor Co. v. Montana Eighth Judicial District Court .......268

B. Cohen v. Continental Motors, Inc. ............................................271

C. Esquivel v. Airbus Americas, Inc. .............................................. 273

III. Federal Preemption ..................................................................... 273

A. Syed v. Frontier Airlines, Inc. ...................................................274

B. Day v. SkyWest Airlines, Inc. ................................................... 275

C. Jones v. Goodrich Corp. ............................................................276

IV. Government Liability—Federal Tort Claims Act

and the Discretionary Function Exception .................................278

A. Short v. United States..............................................................279

1. Judgment or Choice .........................................................280

2. Conduct Congress Intended to Shield ............................281

B. Mutchler v. United States ........................................................282

1. The United States’ Motion to Dismiss, and Motion

for Summary Judgment, in the Alternative ......................283

V. Trends in Aviation Security Risks ................................................286

A. Malware-Related Litigation .................................................286

1. Colonial Pipeline Example ...............................................286

2. Lessons for the Aviation Industry .................................... 288

B. Unmanned Aerial Systems Litigation ..................................288

1. Litigation Categories and Trends ....................................289

2. UAS Exposure and Security Concerns ............................290

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Tort Trial & Insurance Practice Law Journal, Spring 2022 (57:2)268

I. INT RODUCTIO N

This paper will discuss some brief updates and case overviews in aviation

and space law as well as recent developments in parallel and industry-

adjacent litigation that are being closely watched by the aviation bar. In

particular, we will address recent case law developments across three topics

that will be familiar to many aviation litigators and practitioners: (1) per-

sonal jurisdiction; (2) federal preemption; and (3) the Federal Tort Claims

Act (FTCA); as well as two trends in aviation security risks that may be

new: (1) malware-related litigation; and (2) litigation related to Unmanned

Aerial Systems.

II. PERSONA L JURISDIC TION

The Due Process Clause of the Fourteenth Amendment requires that

a court possess personal jurisdiction over the parties before they can be

“haled into court there.”1 Jurisdiction can either be all purpose, general

jurisdiction, or more frequently in aviation litigation, specific jurisdiction.2

The Supreme Court has offered many and varied opinions defining the

scope of specific jurisdiction, most recently in Ford Motor v. Montana Eighth

Judicial District Court,3 discussed below.

A. Ford Motor Co. v. Montana Eighth Judicial District Court

This most recent chapter in specific personal jurisdiction jurisprudence

stems from two appeals by Ford from state supreme court decisions in

Montana and Minnesota, which were consolidated before the Court. In

the Montana case, the plaintiff was killed when her Ford Explorer blew a

tire tread, spun out, and rolled into a ditch in her home state. The Mon-

tana Supreme Court held that its state courts had specific jurisdiction over

Ford to hear the plaintiff’s design defect, failure to warn and negligence

claims. In the Minnesota case, the in-state plaintiff was severely injured in

his home state when his friend’s Crown Victoria also crashed into a ditch

and the airbags failed to deploy. Minnesota’s courts similarly held that they

possessed specific jurisdiction over Ford.4

Ford argued that it was not subject to specific jurisdiction in either State

because there was no connection between its in-state contacts and the

plaintiffs’ claims. Ford asserted that this link must be causal in nature, such

that Ford’s forum conduct gave rise to the plaintiffs’ claims, and submitted

that such a link would only be present in the states where the particular

1. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 297 (1980).

2. Daimler AG v. Bauman, 571 U.S. 117, 118 (2014).

3. 141 S. Ct. 1017 (2021).

4. See id.

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