December 16, 2016

SCOTUS Denies Review of Third Circuit’s Rejection of FAA Preemption of State Law Products Liability Claims

Holland & Knight Aviation Law Blog
Judy R. Nemsick

The U.S. Supreme Court recently denied a petition for certiorari review of the Third Circuit Court of Appeal's decision in AVCO Corporation v. Sikkelee,1 which held that the Federal Aviation Act (FAA) and its related regulations do not impliedly preempt state law product liability claims.2  In denying review, the Court passed on an opportunity to resolve a recurring and disputed preemption issue that has plagued the federal and state courts and resulted in divergent rulings.

Although several federal Circuit Courts of Appeals recognize that federal regulations impliedly preempts state law standards of care in the field of aviation safety, the scope of that preemption remains in question.  As explained by petitioner, the Second and Tenth Circuits have relied on the FAA's comprehensive regulatory scheme to hold that the Act preempts the entire field of aviation safety.3  Both the First Circuit and Fifth Circuit likewise have indicated that the scope of FAA preemption extends beyond the specific areas at issue in those cases, i.e., pilot certification and pre-flight warnings.4  In contrast, the Ninth and Eleventh Circuits have concluded that the FAA does not preempt the field of aviation safety in regard to design defect claims.5  The Sixth Circuit has taken a different approach, finding a failure to warn claim preempted by federal law but applying state law standards of care to the manufacturing defect claims.6  Federal district courts likewise disagree on the scope of FAA preemption.7

The Third Circuit's decision added to the confusion by retreating from its seminal ruling in Abdullah v. Am. Airlines, Inc.8, and drawing a distinction between claims based on "in-air operations" and those based on design defects.9  Applying a presumption against federal preemption, the Third Circuit held that the FAA and its regulations "do not purport to govern the manufacture and design of aircraft per se or to establish a general standard of care but rather establish procedures for manufacturers to obtain certain approvals and certificates from the [government]."10  While the court rejected FAA field preemption, it recognized that conflict preemption principles may apply where a manufacturer's compliance with both the type certificate and a state law standard of care is a physical impossibility, or would pose an obstacle to Congress's purposes and objectives.11

The Supreme Court's denial of review will likely result in continued uncertainty and disparate holdings among state and federal courts.  However, another opportunity for review may present itself.  The Washington Supreme Court will soon decide whether the FAA and its related regulations impliedly preempt state law standards of care for an allegedly defective component part.12  In that case, the intermediate appellate court had affirmed dismissal of the assembler and welder of a carburetor float contained in the aircraft engine.13  The appeals court held that federal law pervasively regulated the engine fuel system and its component parts, including the carburetor's delivery of air and fuel to the engine, and therefore precluded the application of a state law standard of care.14  The fact that there were no specific regulations directed to carburetor floats was "of no consequence" because the focus for purposes of implied preemption was on the engine's fuel system.  Oral argument was held on November 8, 2016 and a decision is expected during the first quarter of 2017.

1 No. 16-323 (Nov. 28, 2016).

2 Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 709 (3d Cir.), reh'g denied (3d Cir. June 7, 2016) (holding that "[t]he field of aviation safety we identified as preempted in Abdullah does not include product manufacture and design, which continues to be governed by state tort law, subject to traditional conflict preemption principles").

3 See, e.g., Goodspeed Airport LLC v. E. Haddam Inland Wetlands & Watercourses Comm'n, 634 F.3d 206, 210-11 & n.5 (2d Cir. 2011) (joining sister circuits in holding that the FAA preempts the entire field of air safety); US Airways, Inc. v. O'Donnell, 627 F.3d 1318, 1326 (10th Cir. 2010) (holding that "federal regulation occupies the field of aviation safety to the exclusion of state regulations"). 

4 See Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004) (recognizing extensive federal safety-related regulations, including in area of pre-flight warnings and instructions to passengers); French v. Pan Am Express, Inc., 869 F.2d 1, 6-7 (1st Cir. 1989) (FAA's "comprehensive legal scheme" and regulations regarding pilot qualifications confirmed that "Congress intended to occupy the field of pilot regulation related to air safety").

5 See Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806, 811-12 (9th Cir. 2009) (rejecting manufacturer's reliance on federal certification process for aircraft design and finding no preemption of design defect claim because federal regulations did not comprehensively regulate design of air stairs); Public Health Trust of Dade Cty, Fl. v. Lake Aircraft, Inc., 992 F.2d 291, 292, 295 (11th Cir. 1993) (holding FAA did not preempt defective seat design claim).  But see Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (9th Cir. 2007) (stating that the FAA preempts the entire field of aviation safety).

6 Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784, 788–89 (6th Cir. 2005).

7 Cf. Morris v. Cessna Aircraft Co., 833 F. Supp. 2d 622, 633-37 (N.D. Tex. 2011) (finding no congressional intent to preempt the field of air safety or aircraft design in products liability claims); McWilliams v. S.E., Inc., 581 F. Supp. 2d 885 (N.D. Ohio 2008) (finding FAA preempted failure to warn claim against harness manufacturer but not design defect claims because no significant harness regulations) with Younan v. Rolls-Royce Corp., 2013 WL 1899919 (S.D. Cal. May 7, 2013) (referencing pervasive regulations relating to information provided by type certificate holder to conclude that federal law exclusively establishes the standards of care for failure to warn claim). 

8 181 F.3d 363, 364 (3d Cir. 1999) (finding "implied federal preemption of the entire field of aviation safety").  Petitioner had argued that, under Abdullah, federal design standards impliedly preempt state standards of care in design defect cases such that a type certificate from the FAA serves as conclusive proof that a manufacturer complied with those standards.  

9 822 F.3d at 689. The appeals court explained that Abdullah (i) discussed a catch-all standard of care in FAA regulations for in-air operations (not applicable to design or manufacturing), and (ii) relied on regulations and other opinions relating only to in-air operations.   See also Elassaad v. Indep. Air, Inc. 613 F.3d 119, 128, 130  (3d Cir. 2010) (although the court recognized that the field of air safety includes FAA certification and airworthiness requirements, it nonetheless found that negligence claims for injuries incurred while disembarking fell outside Abdullah's scope which it held was "limited to in-air operations").

10 822 F.3d at 694.  

11 Id. at 703.

12 Estate of Becker v. Forward Technology Indus, Inc , No. 92972-6, 2016 WL 4127908 (Aug. 3, 2016) (granting review).

13 192 Wash. App. 65, 365 P.3d 1273 (Wash. Ct. App. 2015).

14 Id. at 1279-80.

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