February 24, 2016 Practice Points

Expansion of Preemption and Congress's Intent to Occupy Entire Field of Air Safety

By Jonathan E. DeMay, Jane M. Sigda, Erika Maurice

There is an important and developing line of authority concluding that the Federal Aviation Act of 1958 (FAA) and the associated regulatory regime set forth in the Federal Aviation Regulations (FARs) establish Congress’s intent to occupy the entire field of air safety and thereby preempt product-liability claims arising from aviation accidents. See Sikkelee v. Precision Airmotive Corp., 45 F. Supp. 3d 431 (M.D. Pa. 2014); Becker v. Forward Techs., Inc., ___ P.3d ___, 2015 WL 9461623 (Wa. Ct. App. Dec. 28, 2015); Bowe v. Air Methods Corp., No. 2015 CV 30147, 2016 WL 95979 (Colo. Dist. Ct. Jan. 5, 2016).

It is beyond the scope of this article to examine all of these decisions. Instead, our discussion addresses certain issues germane to the appeal before the U.S. Court of Appeals for the Third Circuit in Sikkelee, No. 14-1493 (argued June 24, 2015), and the Bowe decision.

Sikkelee involved a wrongful-death lawsuit against the Lycoming Engines Division of AVCO Corp., which manufactured the engine installed on the Cessna 172N Skyhawk piloted by the decedent when it crashed. The plaintiff alleged that an engine fuel delivery system (carburetor) defect caused the crash.

Lycoming moved for summary judgment. The court granted summary judgment on all but one of the plaintiff’s claims of product defect after finding that the type certificate issued to the engine manufacturer established that the manufacturer complied with the applicable federal standard. The court found that it was bound by the Third Circuit decision in Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), which involved personal-injury lawsuits against an airline arising out of a severe turbulence incident. Sikkelee, 45 F. Supp. 3d at 447. The Abdullah court had found that “any state or territorial standards of care relating to aviation safety are federally preempted.” 181 F.3d at 371. The issue whether federal standards of care govern aviation product-liability claims has been fully briefed in Sikkelee and is awaiting decision by the Third Circuit.

Bowe involved the crash of an Airbus AS350B3e model helicopter. The plaintiffs, who were injured in the crash, brought suit against, inter alia, defendants Airbus Helicopters, Inc. and Airbus Helicopters SAS, asserting alleged design-defect and failure-to-warn claims relating to the helicopter’s systems and operating instructions.

The defendants moved to dismiss for failure to state a claim upon which relief can be granted, arguing that a federal standard of care, not the alleged state tort standards, must be applied to the plaintiffs’ claims.

The court noted that a number of federal circuit courts, including the Tenth Circuit, had concluded that the entire field of aviation safety is preempted by federal law. The court found that the Tenth Circuit decision in US Airways, Inc. v. O’Donnell, 627 F.3d 1318 (10th Cir. 2010) had “very clearly reasoned that ‘the comprehensive regulatory scheme promulgated pursuant to the FAA evidences the intent for federal law to occupy the field of aviation safety exclusively.’” Bowe, 2016 WL 95979, at *3 (quoting US Airways, 627 F.3d at 1327). The court rejected the plaintiffs’ argument that it should rely on Cleveland ex rel. Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1444 (10th Cir. 1993), a product defect case which had found that Congress did not indicate “‘a clear and manifest’ intent to occupy the field of airplane safety to the exclusion of state common law.” The court concluded that Cleveland had been called into question and disregarded it as “outdated.” Bowe, 2016 WL 95979, at *4.

The Bowe court ruled that

Plaintiffs’ claims in this case concerning the design, certification, flight and performance characteristics and operating instructions of the AS350B3e model helicopter involved in the accident are preempted by federal regulations. The FAA and FARs establish the standard of care for these claims. Since none of the counts in Plaintiffs’ Complaint against [defendants] are based on a violation of a FARs [sic] or a federal standard of care, each count could be dismissed for failure to state a claim upon which relief can be granted.

Id. at *5.

On January 19, 2016, the plaintiffs moved for reconsideration or, alternatively, for certification to file an interlocutory appeal about whether state laws that seek to regulate air safety are preempted by the FAA.

The development of this line of authority, including the outcome of the Sikkelee appeal, could have a profound impact on future mass-accident litigation and product-liability claims.

Jonathan E. DeMay, Jane M. Sigda, Erika Maurice, Condon & Forsyth LLP, New York, NY


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