The Dangers of “Pre-Emption” In Your Aviation Lawsuit, Part 2
Given this, the preemption language of the FAAAA does not manifest a clear and manifest purpose to preempt state law for personal injury. As the District Court for Puerto Rico stated in Rodriguez v. American Airlines, Inc.: State personal injuries claims grounded on safety or lack thereof are not ‘related to’ ‘services’….This Court finds that personal injury claims under [state] substantive law are traditionally occupied by state law requiring a strong presumption against implied preemption, not overcome on this subject matter by a clear Congressional purpose….We find that the state damages set forth by plaintiffs…are not implied or expressly preempted….Rodriguez, 886 F. Supp. 967 at 971-972. Many other cases in the aviation context have likewise found that preemption did not apply in cases for personal injury under state law. For example, there was no preemption for personal injury in the following:
•O’Hern v. Delta Airlines, 838 F.Supp. 1264 (N.D. Ill 1993). No preemption for claimed permanent hearing damage resulting from alleged negligence including careless operation, maintenance, and/or control of the aircraft, failing to take precautions to ensure the aircraft was not flown under dangerous conditions, negligent hiring, failing to properly train, educate, advise or supervise its agents, and ascending the aircraft at too rapid a speed.
•Butcher v. City of Houston, 813 F. Supp. 515 (S.D. Tex. 1993). State law negligence claims for injuries from slip and fall at airport were not “related to airline services.” Court stated that “it is inconceivable that Congress intended to preempt state common law duties in this context.”
•Margolis v. United Airlines, Inc., 811 F. Supp. 318 (E.D. Mich. 1993). No preemption in personal injury negligence action, including negligent training and hiring, negligent maintenance, and negligent failure to warn passengers of unsafe condition, for injuries from luggage carrier that fell from overhead bin. The court stated that “[a] state common law claim based on negligence and the standard of reasonable care does not purport to regulate the services that air carriers provide to their customers in exchange for their fares.”
•Stone v. Frontier Airlines, Inc., 256 F. Supp. 2d 28 (D. Mass. 2002). Negligence for failure to carry a defibrillator resulting in failure to save passenger in cardiac arrest was distinct from a “service” and not preempted.
It was clear that the Rowe case was not on point in this case and did not require preemption. To begin with, Rowe did not involve a personal injury claim. Instead, it involved a Maine statute that forbade licensed tobacco retailers from employing a “delivery service” unless it followed particular delivery procedures. This had a “significant and adverse impact” regarding the Federal Act’s ability to achieve its preemption related objectives because it would require carriers to offer a system of services the market does not provide, producing the effect of a State substituting its commands for competitive market forces in determining to a significant degree what services the carrier will provide. Our case, on the other hand, is a personal injury tort claim dealing with issues of safety. Rowe was not dealing with such a tort case over safety issues, but instead a clear case where the state was trying to dictate how the carriers provided their “service.”
The district court ultimately ruled in our client’s favor and denied the defendant’s motion to dismiss. This was an important decision not only for our client’s case, but also for future plaintiffs who attempt to hold similar defendants responsible when they do business in a negligent, unsafe manner that cause harm on the roadways. Thankfully, as aviation attorneys we have collectively already “been there, done that” and blazed the trail for other areas of the law dealing with similar issues. Broker liability is a developing area in trucking law, and one where defendants will make any possible argument to avoid liability for their actions. Fortunately, aviation lawyers have already fought the battle on this issue.