Spinrad v. Comair, Inc.
Filing
59
MEMORANDUM AND ORDER denying 53 Motion for Summary Judgment. Ordered by Senior Judge Jack B. Weinstein, on 11/23/2011. (Barrett, C)
FILED
IN CLERK'S OFFIce
U.S.DISTRICTCOURTe.D.N.y.
*
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOV 232011
*
MEMORAN~~BYN OFFICE
MIRIAM SPINRAD,
ORDER
Plaintiff,
- against-
09-CV-4111
COMAIR, INC.,
Defendant.
Appearances:
For the Plaintiff:
Peter A. Frankel
Law Offices of Peter A. Frankel
New York, NY
For the Defendant:
George P. McKeegan
McKeegan & Shearer, P.C.
New York, NY
JACK B. WEINSTEIN, Senior United States District Judge:
Table of Contents
Introduction ............................................................................................................................. 2
II. Facts and Procedural History .................................................................................................. 3
III.
Summary Judgment Standard .............................................................................................. 5
IV.
Choice of Law ...................................................................................................................... 6
New York Choice of Law Doctrine ...................................................................... 6
A.
B.
Potentially Applicable Tort Law ........................................................................... 7
1.
New York Negligence Standard ........................................................................ 7
2.
Virginia Negligence Standard ........................................................................... 7
C.
Virginia Law Applies ............................................................................................ 7
V. Preemption Doctrine ............................................................................................................... 8
A.
General Principles ................................................................................................. 8
B.
Express Preemption ............................................................................................. 10
1.
1
C.
Implied Preemption ............................................................................................. 10
I.
Field Preemption.............................................................................................. 11
2.
Conflict Preemption ......................................................................................... 12
VI. Relevant Federal Law ........................................................................................................ 12
A.
The Federal Aviation Act .................................................................................... 12
B.
The Airline Deregulation Act .............................................................................. 14
I.
General Principles ............................................................................................ 14
2.
Relevant Statutory Terms: "Related To" and "Service" ................................. 15
C.
Implementing Regulations .................................................................................. 19
VII. Plaintiffs State-Law Negligence Claim is Not Preempted by Federal Law ..................... 20
A.
The Federal Aviation Act.. .................................................................................. 20
B.
The Airline Deregulation Act... ........................................................................... 24
VIII.
Comair is Not Entitled to Summary Judgment on Plaintiffs Negligence Claim .......... 27
IX. Conclusion ......................................................................................................................... 27
I.
Introduction
This case presents a close question on preemption. It falls within the ill-defined
borderland between areas subject to exclusively federal regulation and those in which the states
have traditionally exercised their powers by way of the common law.
Defendant Comair, Inc. ("Comair") moves for summary judgment dismissing the statelaw negligence claim of plaintiff Miriam Spinrad. Plaintiff slipped, fell, and was injured while
disembarking from defendant's airplane. She claims that defendant failed to take reasonable care
to ensure that she could leave the airplane safely. In the present motion, defendant contends that
any and all state-law negligence claims asserted by plaintiff are preempted by federal law.
Alternatively, defendant argues that, even if the court concludes that plaintiffs state-law action
is not preempted by federal law, summary judgment is appropriate since no reasonable jury
could conclude that any negligence by Comair was the proximate cause of Spinrad' s injuries.
Summary judgment is denied. For the reasons explained below, federal preemption does
not bar plaintiff s claim, based on state common law: plaintiff provides substantial evidence
supporting her claim that defendant should have provided safer means, and assisted her, in
2
disembarking. The Federal Aviation Act (the "FAA"), 49 U.S.C. §§ 40101 et seq., neither
explicitly nor impliedly bars Spinrad from bringing a negligence claim based on the abovedescribed theories against Comair, although it would bar a claim based on a theory of defective
design. And the Airline Deregulation Act's (the "ADA") express preemption clause, 49 U.S.C. §
41713(b), does not preempt plaintiff's claim. As to the negligence claim itself, summary
judgment is inappropriate, because a reasonable jury could conclude that Comair's alleged
failure to take adequate care to ensure that plaintiff could safely exit their airplane was the
proximate cause of Ms. Spinrad's injuries.
II.
Facts and Procedural History
Plaintiff Miriam Spinrad, now seventy-two years of age, was a passenger on a July 2008
flight operated by defendant; she and her husband were traveling from New York to Florida. See
Defendant's Local Civil Rule 56.1 Statement ~ I; Plaintiff's Local Rule 56.1 Responses and
Statements of Additional Material Facts ~ I. Ms. Spinrad and her husband boarded the plane via
a portable staircase after being taken by elevator to the tarmac and to the plane by bus. See Dep.
of Miriam Spinrad ("M. Spinrad Dep.") 30 (Def. Ex. E); Dep. of Bernard Baruch Spinrad ("B.
Spinrad Dep.") 9 (Def. Ex. F). Defendant was aware that plaintiff and her husband would need
assistance boarding and exiting the plane and with their luggage. See Passenger History Record
(Def. Ex. 0).
While the plane was en route to its destination in Florida, another passenger became ill,
and the flight was diverted to Norfolk, Virginia, for an emergency landing. M. Spinrad Dep. 3839. Plaintiff and her fellow passengers remained seated while the passenger who had taken ill
was removed from the plane. The passengers were then asked to leave the airplane so that it
could be serviced. See id. at 39-40.
3
Because the flight on which plaintiff traveled had been diverted to Norfolk-and such
flights often leave the airport at which they have had an unscheduled landing shortly after their
arrival, with little notice-it was decided that the passengers were to exit the plane via its
"integral airstairs," rather than by jetway or by truck-mounted stairs, both of which are normally
used at the plane's expected termination point. See Dep. of Davor Ilic 11-18 (Def. Ex. H).
Integral airstairs are stairs built into the inside of the main cabin door of the plane. They are used
so that airplane passengers are able to exit a plane without utilizing ground support or a jetway
connected directly to an airport terminal. See Dep. of Mary Arbogast ("Arbogast Dep.") 27, 2930 (Def. Ex. G). The latter permits passengers to step directly out of the plane without traversing
any steps.
As the passengers began to leave the airplane, a Comair flight attendant standing in the
main cabin door urged them to be careful as they exited. While the parties disagree on the
evidence, there is support for the plaintiff's contention that no appropriate employee was present
at the bottom of the stairs to direct or assist her, although having an employee at the bottom of
the stairs is a common practice, see id at 42-45; a Delta ramp agent, responsible for securing the
plane and removing bags, was present, although it appears from the record that he stood some ten
to fifteen feet away from the exiting passengers and was not charged with helping passengers
exit. See Dep. of Davor Ilic 5, 31-32. Passengers leaving the plane were able to hold onto a
handrail, but it terminated several steps above the end of the airstairs closest to the ground. See
M. Spinrad Dep. 49. Approximately a foot of space existed between the final step ofthe airstairs
and the tarmac-a drop greater than that of the risers on the stairs above. See Arbogast Dep. 46;
see also Photographs of Aircraft Stairs (Def. Ex. N).
4
Plaintiff-then sixty-eight years old, and accompanied by her husband, who needed a
cane- carried a small bag on her shoulder as she exited the plane after her spouse. She and her
husband had not asked for special assistance in getting off of the aircraft, although, as already
noted, the airline had been informed that the couple needed special assistance exiting the plane
and with their luggage. As plaintiff reached the bottom of the airstairs, she stepped forward, lost
her balance, and fell. Two bones in her left leg and a bone in her right foot were broken. See M.
Spinrad Dep. at 43, 58. She was treated at a hospital in Norfolk, Virginia, and then flown to a
hospital in Manhattan, where she spent three nights. No surgery was required, see id at 59-60,
63,67, but physical therapy was required. A cane is now required when plaintiff leaves her
house. See id. at 69, 72-73.
Spinrad sued Comair in a New York state court in August 2009, alleging in her singlecount complaint that her injuries were caused by defendant's negligence. See Complaint 1-3
(Def. Ex. A). Comair removed the case to this court. See 28 U.S.C. §§ 1332, 1441. Defendant
now moves for summary judgment.
III.
Summary Judgment Standard
Summary judgment is appropriate if "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 5 (2d Cir. 1999). After construing the evidence in the light most favorable to the
non-moving party and drawing all reasonable inferences in its favor, if there is no genuine issue
as to any material fact and the movant is entitled to judgment as a matter of law, summary
judgment is to be granted. Fed. R. Civ. P. 56(a); see Anderson, 477 U.S. at 247-50, 255. In
determining whether the party seeking summary judgment has met its burden, "the court is
5
required to resolve all ambiguities and credit all factual inferences that could be drawn in favor
of the party against whom summary judgment is sought." Vivenzio v. City ofSyracuse, 611 F.3d
98, 106 (2d Cir. 20 I 0).
IV.
Choice of Law
A. New York Choice of Law Doctrine
A federal court sitting in diversity applies the choice-of-law rules of the state in which it
sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Fieger v. Pitney Bowes
Credit Corp., 251 F.3d 386, 393 (2d Cir. 2001). In New York, the "first step in any case
presenting a ... choice oflaw issue is to determine whether there is an actual conflict between
the laws of the jurisdictions involved." In re Allstate Ins. Co., 613 N.E.2d 936, 938 (N.Y. 1993).
Assuming that an actual conflict exists between the laws of jurisdictions with interests in having
their law applied to the case, the court is to apply interest analysis to determine which
jurisdiction has the greatest interest in having its law applied to the dispute. See, e.g., Padula v.
Warn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994). In applying interest analysis, two
separate inquiries are required: (1) the determination of the significant contacts and their
locations; and (2) the determination of whether the relevant law is to conduct-regulating or lossallocating. See id. "If conflicting conduct-regulating laws are at issue, the law of the jurisdiction
where the tort occurred will generally apply because that jurisdiction has the greatest interest in
regulating behavior within its borders." Id. (internal quotation marks omitted); see, e.g.,
Babcock v. Jackson, 191 N.E.2d 279, 285 (N.Y. 1963)(Fuld, J.).
Implied consent is sufficient to establish the applicable choice oflaw. See, e.g., Arch Ins.
Co. v. Precision Stone, Inc., 584 F.d 33,39 (2d Cir. 2009); Golden Pac. Bancorp v. FDIC, 273
F.3d 509,514 n.4 (2d Cir. 2001).
6
B. Potentially Applicable Tort Law
1. New York Negligence Standard
To make out a claim of negligence under New York law, a plaintiff must "establish (1)
that the defendant owed him or her a cognizable duty of care; (2) that the defendant breached
that duty; and (3) that the plaintiff suffered damage as a proximate result of that breach." Di
Benedetto v. Pan Am. World Serv., Inc., 359 F.3d 627, 630 (2d Cir. 2004) (citing Solomon ex reI.
Solomon v. City a/New York, 489 N.E.2d 1294, 1294 (N.Y. 1985». The state applies "the
traditional, basic negligence standard of reasonable care under the circumstances" to common
carriers, such as airlines. Bethel v. NYC. Trans. Auth., 703 N.E.2d 1214, 1215 (N.Y. 1998); see
also Plagianos v. Am. Airlines, Inc., 912 F.2d 57, 58 (2d Cir. 1990) (per curiam) (applying New
York law).
2. Virginia Negligence Standard
Under Virginia law, to make out a claim of negligence, a plaintiff must demonstrate (1) a
legal duty on the part of the defendant; (2) breach of that duty; and (3) a showing that
defendant's breach was the proximate cause of damage to the plaintiff. See, e.g., Blue Ridge
Servo Corp. a/Va.
V.
Saxon Shoes, Inc., 624 S.E.2d 55, 62 (Va. 2006). It is "well-settled" as a
matter of Virginia law "that a common carrier must exercise the highest degree of practical care
for the safety of its passengers." Jones
V.
Wash. Metro. Area Trans. Auth., 378 F. Supp. 2d 718,
722 (E.D. Va. 2005) (applying Virginia law) (internal quotation marks omitted). "This
heightened standard of care ... imposes liability on carriers for passenger injuries resulting from
even the slightest negligence." Id. (internal quotation marks omitted).
C. Virginia Law Applies
7
To the extent that the relevant law of New York and Virginia diverge, Virginia law
applies in this case. That is where the accident occurred. New York's primary interest was
exhausted when plaintiff boarded the plane successfully in that state.
The parties agree that Virginia law applies if plaintiff's claim is not preempted. See
Memorandum of Law in Support of Comair, Inc.'s Motion for Summary Judgment ("Def.
Mem.") 24; Plaintiff's Memorandum of Law in Opposition to Comair, Inc.'s Motion for
Summary Judgment ("PI. Mem.") 17.
V.
Preemption Doctrine
A. General Principles
"The preemption doctrine is rooted in the Supremacy Clause of the Constitution."
Wachovia Bank, N.A. v. Burke, 414 F.3d 305, 313 (2d Cir. 2005). That clause provides, in
relevant part, that "the Laws of the United States ... shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding." U.S. Const. art. VI., cl. 2. The "Clause invalidates state
~aws
that 'interfere with, or are contrary to,' federal law." Hillsborough Cnty. v. Automated
Med. Labs., Inc., 471 U.S. 707, 712 (1985) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) I,
211 (1824».
The "purpose of Congress is the ultimate touchstone of pre-emption analysis." Cipollone
v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (internal quotation marks omitted); see, e.g.,
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). "Congress' intent may be 'explicitly stated in
the statute's language or implicitly contained in its structure and purpose.'" Cipollone, 505 U.S.
at 516 (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977». "[I]ntent ... primarily is
discerned from the language ofthe pre-emption statute and the statutory framework surrounding
8
it." Lohr, 518 U.S. at 486 (internal quotation marks omitted). "Also relevant, however, is the
structure and purpose of the statute as a whole, as revealed not only in the text, but through the
reviewing court's reasoned understanding of the way in which Congress intended the statute and
its surrounding regulatory scheme to affect business, consumers, and the law." Id at 486
(internal quotation marks and citation omitted).
The Supreme Court has "long presumed that Congress does not cavalierly pre-empt statelaw causes of action." Id. at 485. Thus, in "all pre-emption cases, and particularly in those in
which Congress has legislated in a field which the states have traditionally occupied, [courts]
start with the assumption that the historic police powers of the States [a]re not to be superseded
by the Federal Act unless that was the clear and manifest purpose of Congress." Id (internal
quotation marks, citation, and ellipses omitted). This presumption against preemption "does not
rely on the absence of federal regulation"; instead, it "accounts for the historic presence of state
law." Wyeth v. Levine, 555 U.S. 555, 565 n.3 (2009).
Because of "the historic primacy of state regulation of matters of health and safety,"
Lohr, 518 U.S. at 485, courts are to assume "that state and local regulation related to matters of
health and safety can normally co-exist with federal regulations." Hillsborough Cnty. v.
Automated Med Labs., Inc., 471 U.S. 707, 718 (1985).
"A federal agency may preempt state regulation and hence render unenforceable state or
local laws that are otherwise not inconsistent with federal law provided the agency is acting
within the scope of its congressionally delegated authority." City ofNew York v. Permanent
Mission ofIndia to the United Nations, 618 F.3d 172, 187 (2d Cir. 2010) (internal quotation
marks omitted). "Federal regulations have no less preemptive effect than federal statutes." Fid
Fed Sav. & Loan Ass 'n v. de la Cuesta, 458 U.S. 141, 153 (1982).
9
"Preemption can generally occur in three ways: where Congress has expressly preempted
state law, where Congress has legislated so comprehensively that federal law occupies an entire
field of regulation and leaves no room for state law, or where federal law conflicts with state
law." Wachovia Bank, N.A. v. Burke, 414 F.3d 305, 313 (2d Cir. 2005). These categories are
not "rigidly distinct"; "field preemption may be understood as a species of conflict pre-emption:
A state law that falls within a pre-empted field conflicts with Congress' intent (either express or
plainly implied) to exclude state regulation." English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5
(1990).
B. Express Preemption
"Express preemption arises when a federal statute expressly directs that state law be
ousted." Island Park, LLC v. CSXTransp., 559 F.3d 96,101 (2d Cir. 2009). "When a federal
law contains an express preemption clause, [the court must] 'focus on the plain wording of the
clause, which necessarily contains the best evidence of Congress' preemptive intent. ", Chamber
o/Commerce o/the
u.s. v.
Whiting, 131 S. Ct. 1968, 1977 (2011) (quoting CSXTransp., Inc. v.
Easterwood, 507 U.S. 658, 664 (1993».
C. Implied Preemption
"Even where a federal law contains an express preemption clause, the court may still be
required to consider implied preemption as it considers 'the question of the substance and scope
of Congress' displacement of state law.'" N. Y. SMSA Ltd. P'ship v. Town o/Clarkstown, 612
F.3d 97,104 (2d Cir. 2010) (quoting Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008». If
"explicit pre-emption language does not appear" in a federal statute, "or [the language] does not
directly answer the question," a court "must consider whether the federal statute's structure and
10
purpose, or nonspecific statutory language, nonetheless reveal a clear, but implicit, pre-emptive
intent." Barnett Bank o/Marion Cnty., NA. v. Nelson, 517 U.S. 25, 31 (1996).
State law is impliedly preempted by federal law if (1) "Congress has legislated so
comprehensively that federal law occupies an entire field of regulation and leaves no room for
state law," or (2) "federal law conflicts with state law." Pac. Capital Bank, NA. v. Connecticut,
542 F.3d 341, 351 (2d Cir. 200S). The former variant is known as "field preemption"; the latter,
"conflict preemption." See, e.g., Town o/Clarkstown, 612 F.3d at 104.
1. Field Preemption
"When Congress intends federal law to occupy the field, state law in that area is
preempted." Crosby v. Nat 'I Foreign Trade Council, 530 U.S. 363, 372 (2000) (internal
quotation marks omitted). Field preemption is to be "implied when the pervasiveness of the
federal regulation precludes supplementation by the States, where the federal interest in the field
is sufficiently dominant, or where the object sought to be obtained by federal law and the
character of obligations imposed by it reveal the same purpose," Air Transp. Ass 'n
0/Am.
v.
Cuomo, 520 F.3d 2lS, 221-22 (2d Cir. 200S) (per curiam) (internal quotation marks and ellipses
omitted); "state law is preempted when the scheme of federal regulation is so pervasive as to
make reasonable the inference that Congress left no room for the States to supplement it."
Freeman v. Burlington Broads., Inc., 204 F.3d 311, 320 (2d Cir. 2000) (internal quotation marks
and bracketing omitted).
In determining whether a federal statute or regulation has field-preemptive effect, "the
inquiry is twofold": a court must (1) determine not only that Congress possessed the requisite
"intent to preempt," as well as (2) "the scope of that preemption." Goodspeed Airport LLC v.
East Haddam Inland Wetlands & Watercourses Comm'n, 634 F.3d 206, 211 (2d Cir. 2011).
11
2. Conflict Preemption
Conflict preemption "occurs when compliance with both state and federal law is
impossible, or when the state law stands as an objective to the accomplishment and execution of
the full purposes and objective of Congress." SPGGC, LLC v. Blumenthal, 505 F.3d 183, 188
(2d Cir. 2007) (internal quotation marks omitted). "State law is in 'irreconcilable conflict' with
federal law, and hence [is] preempted by federal law, when compliance with the state statute
would frustrate the purposes of the federal scheme." Pac. Capital Bank, NA. v. Connecticut,
542 F.3d 341, 351 (2d Cir. 2008) (quoting Rice v. Norman Williams Co., 458 U.S. 654, 659
(1982)).
"[P]reemption [will be found] where it is impossible for a private party to comply with
both state and federal law, and where under the circumstances of a particular case, the challenged
state law stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress. What is a sufficient obstacle is a matter of judgment, to be informed by
examining the federal statute as a whole and identifYing its purpose and intended effects."
Crosby v. Nat 'I Foreign Trade Council, 530 U.S. 363, 372-73 (2000) (internal quotation marks,
citation, and other punctuation omitted).
VI.
Relevant Federal Law
A. The Federal Aviation Act
The FAA, 49 U.S.C. §§ 40101 et seq., "was enacted to create a 'uniform and exclusive
system offederal regulation' in the field of air safety." Air Transp. Ass 'n ofAm., Inc. v. Cuomo,
520 F.3d 218, 224 (2d Cir. 2008) (per curiam) (quoting City ofBurbankv. Lockheed Air
Terminal, Inc., 411 U.S. 624, 639 (1973)). Shortly after it became law in 1958, the United States
Court of Appeals for the Second Circuit "noted that the FAA 'was passed by Congress for the
12
purpose of centralizing in a single authority-indeed, in one administrator-the power to frame
rules for the safe and efficient use of the nation's airspace. '" Id (quoting Air Line Pilots Ass 'n,
Int'l v. Quesada, 276 F.2d 892, 894 (2d Cir. 1960». "Congress and the Federal Aviation
Administration have used this authority to enact rules addressing virtually all areas of air safety."
Id The Court of Appeals for the Second Circuit recently joined a number other circuits in
concluding that, by enacting the FAA, "Congress intended to occupy the field of air safety."
Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Comm 'n, 634 F.3d
206,211 (2d Cir. 2011).
The Court of Appeals for the Second Circuit has "acknowledged that the FAA does not
preempt all state law tort actions," id. (citing In re Air Crash Disaster at John F. Kennedy Int'l
Airport on June 24, 1975,635 F.2d 67, 75 (2d Cir. 1980»; the statute's savings clause
"specifically preserves these actions." Id; see 49 U.S.C. § 40120(c) ("A remedy under this part
is in addition to any other remedies provided by law."); Martin ex rei. Heckman v. Midwest
Express Holdings, Inc., 555 F.3d 806, 809 (9th Cir. 2009) (citing Am. Airlines, Inc. v. Wolens,
513 U.S. 234 & n.9 (1995), and noting that Wolens suggests that "the airline regulatory statutes
leave room for personal injury claims" (internal quotation marks omitted».
Air Transport Association declined to "address the scope of any FAA preemption." Air
Transport Ass 'n, 520 F.3d at 224. And Goodspeed concluded only that Connecticut statutes and
municipal regulations requiring a local airport to obtain a permit before removing trees on
protected land were not field-preempted by the FAA, because those generally-applicable laws
did not come within the scope of the preempted field-aviation safety-"in either their purpose
or in their effect." Goodspeed, 634 F.3d at 211; see id at 208-12.
13
Confronting a claim brought as a result of injuries suffered from the use of airstairs, the
United States Court of Appeals for the Ninth Circuit concluded that the FAA does not impliedly
field-preempt such state common-law-based claims, stating that
Airstairs are not pervasively regulated; the only regulation on airstairs is
that they can't be designed in a way that might block the emergency
exists. 14 C.F.R. § 25.810. The regulations have nothing to say about
handrails, or even stairs at all, except in emergency landings. No federal
regulation prohibits airstairs that are prone to ice over, or that tend to
collapse under passengers' weights. The regulations say nothing about
maintaining the stairs free of slippery substances, or fixing loose steps
before passengers catch their heels and trip. It's hard to imagine that any
and all state tort claims involving airplane stairs are preempted by federal
law. Because the agency has not comprehensively regulated airstairs, the
FAA has not preempted state law claims that the stairs are defective.
Martin, 555 F.3d at 812 (emphasis added).
B. The Airline Deregulation Act
1. General Principles
The ADA was enacted in 1978, reflecting Congress' determination that "maximum
reliance on competitive market forces would best further efficiency, innovation, and low prices
as well as variety and quality of air transportation services." Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 378 (1992) (internal quotation marks and punctuation omitted). "To ensure
that the States would not undo federal deregulation with regulation of their own, the ADA
included a pre-emption provision." Id. That provision covers state law affecting prices, routes,
and services:
a State, political subdivision of a State, or political authority of at least 2
States may not enact or enforce a law, regulation, or other provision
having the force or effect of law related to a price, route, or service of an
air carrier that may provide air transportation under this subpart.
49 U.S.C. § 41713(b) (emphasis added). The term "State" is defined to include the District of
Columbia and territories or possessions of the United States. See id. § 41713(a).
14
2. Relevant Statutory Terms: "Related To" and "Service"
Skeptically, the Court of Appeals for the Second Circuit has remarked that the ADA's
preemption clause provides courts with an '''illusory test'" that requires case-by-case analysis to
determine whether a given state-law cause of action is preempted. Abdu-Brisson v. Delta
Airlines, Inc., 128 F.3d 77,85-86 (2d Cir. 1997) (quoting Cal. Div. ofLabor Standards
Enforcement v. Dillingham Constr., NA., Inc., 519 U.S. 316, 335 (1997) (Scalia, J., concurring)).
Morales provides important guidance regarding the scope of the ADA's express
preemption provision. The opinion discusses at some length what is required for a state
enforcement action to be "related to" prices, routes, or services. See Morales, 504 U.S. at 38384. The Court explained that Congress' use of the statutory term "related to" serves to broadly
preempt "[s]tate enforcement actions having a connection with or reference to airline rates,
routes, or services." Id. at 384 (emphases added, internal quotation marks omitted). But the
Morales Court was explicit about the limited reach of its conclusion, suggesting that the ADA's
preemption provision does not bar state enforcement actions-and presumably other lawsuitsaffecting airline rates, routes, and services in a "tenuous, remote, or peripheral" manner. Id. at
390 (internal quotation marks omitted). And, the Court noted, state laws of general applicability,
as applied to airlines, were likely not preempted. See id.
The Court of Appeals for the Second Circuit has recently somewhat clarified the meaning
of the word "service" as used in the ADA. In Air Transport Association, it noted that it had "not
yet defined 'service' as it is used in the ADA," but had "little difficulty concluding that [a New
York statute that] requir[ed] airlines to provide food, water, electricity, and restrooms to
passengers during lengthy ground delays relate[d] to the service of an air carrier." Air Transport
Ass 'n ofAm., Inc. v. Cuomo, 520 F.3d 218, 222 (2d Cir. 2008) (per curiam).
15
In construing the ADA's preemption provision, the Court of Appeals for the Second
Circuit relied upon Rowe v. N.H Motor Transp. Ass 'n, 552 U.S. 364 (2008). See Air Transport
Ass 'n, 520 F.3d at 222-24. In Rowe, the Supreme Court addressed the effect of the preemption
provision contained in the Federal Aviation Administration Authorization Act of 1994 (the
"Authorization Act'') on two provisions of a Maine tobacco law that regulated "the delivery of
tobacco to costumers within the State." Rowe, 552 U.S. at 367. The Rowe Court, interpreting
the Authorization Act's substantially identical preemption provision, see 49 U.S.C.
§ 14501(c)(I), began by reiterating its conclusions from Morales, a decision interpreting the
ADA's preemption clause:
In Morales, the Court determined: (I) that state enforcement actions having a
connection with, or reference to carrier rates, routes, or services are preempted;
(2) that such preemption may occur even if a state law's effect on rates, routes, or
services is only indirect; (3) that, in respect to pre-emption, it makes no difference
whether a state law is consistent or inconsistent with federal regulation; and (4)
that pre-emption occurs at least where state laws have a significant impact related
to Congress' deregulatory and pre-emption related objectives.
Rowe, 552 U.S. at 370-71 (internal quotation marks, punctuation, citation, and emphases
omitted).
Additionally, Rowe noted that "Morales said that federal law might not pre-empt state
laws that affect [airline] fares in only a tenuous, remote, or peripheral manner, such as state laws
forbidding gambling," Id. at 371 (internal quotation marks and ellipses omitted, emphasis
added). But Morales "did not say where, or how, it would be appropriate to draw the line, for
the state law before it did not present a borderline question." Id. (internal quotation marks
omitted). The Court concluded that Maine's tobacco laws were preempted because (I) the
statutes had direct connections with motor carrier services; (2) they had a significant and adverse
impact on the Authorization Act's ability to achieve its preemption-related objectives; and (3)
16
the Court disagreed with Maine's argument that the Authorization Act contained an implied
exception to preemption for state laws dealing with public health issues. See id. at 371-77.
In Air Transport Association, the Court of Appeals for the Second Circuit noted that "[a1
majority of the circuits [that] have construed 'service' [in the ADA] have held that the term
refers to the provision or anticipated provision of labor from the airline to its passengers and
encompasses matters such as boarding procedures, baggage handling, and food and drinkmatters incidental to and distinct from the actual transportation of passengers." Air Transport
Ass'n ofAm., Inc. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008) (per curiam) (collecting cases). It
agreed with those circuits, explicitly disavowing the approach taken by the United States Courts
of Appeals for the Third and Ninth Circuits; those courts have narrowly construed the term
"service" in 49 U.S.C. § 41 713(b). See id. at 223. And it noted that the challenged New York
law was "indistinguishable" from the Maine statute at issue in Rowe; the New York law
"substitute[d] New York's commands for competitive market forces, requiring airlines to provide
the services that New York specifies during lengthy ground delays and threatening the same
patchwork of state service-determining laws, rules, and regulations that concerned the Court in
Rowe." Id. at 223-24. The court held "that requiring airlines to provide food, water, electricity,
and restrooms to passengers during lengthy ground delays does relate to the service of an air
carrier and therefore falls within the express terms of the ADA's preemption provision." As a
result, it concluded, New York's passenger benefits statute was preempted. See id. Ultimately,
however, Air Transport Association is not particularly useful in determining the meaning of
"service"; it concluded only that, whatever the meaning of the term, New York's law "requiring
airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground
delays relate[dl to the service of an air carrier." Id. at 222.
17
Goodspeed is similarly of little help with regard to this question; there, the Court of
Appeals for the Second Circuit discussed the ADA's preemptive effect only briefly, and
concluded that the ADA did not preempt the challenged statutes and regulations because their
"impact on air carriers, if any, is remote." Goodspeed Airport LLC v. East Haddam Inland
Wetlands & Watercourses Comm 'n, 634 F.3d 206, 212 (2d Cir. 2011).
While the Court of Appeals for the Second Circuit has provided limited guidance
regarding the meaning of the term "service," district courts in this circuit have tried their hand at
crafting a test to determine whether a state-law claim relates to a "service" and is thereby
preempted by the ADA. "Where a state law claim is said to relate to an airline service, courts in
this and other circuits apply a tripartite test for preemption." In re Jetblue Airways Corp.
Privacy Litig., 379 F. Supp. 2d 299,315 (E.D.N.Y. 2005) (citing Rombom v. United Air Lines,
Inc., 867 F. Supp. 214 (S.D.N.Y. 1994)); see also Donkor v. British Airways, Corp., 62 F. Supp.
2d 963, 972 n.5 (E.D.N.Y. 1999) (collecting cases in which Rombom's three-part test has been
cited). In applying this three-part test, a court first "must determine whether the activity at issue
in the claim is an airline service." Jetblue, 379 F. Supp. 2d at 315 (internal quotation marks
omitted). "Second, if the activity implicates a service, the court must then determine whether the
claim affects the airline service directly or tenuously, remotely, or peripherally. If the effect is
only incidental, the state law claim is not preempted." Id at 315-16 (internal quotation marks,
citation, and bracketing omitted). Third, if "the activity in question directly implicates a
service," the court must determine "whether the underlying tortuous conduct was reasonably
necessary to the provision of the service." Id at 316 (internal quotation marks omitted). "If the
challenged conduct did not occur during the course of the service in question or did not further
the provision of the service in a reasonable manner, then there is no express preemption and the
18
state court action should continue." Id. The court has been unable to find a case in this circuit
that deals directly with the airstairs problem.
The FAA's savings clause, discussed in Part VI.A of this memorandum, supra, applies as
a limit on the ADA's express preemption clause. See 49 U.S.C. § 40120(c).
C. Implementing Regulations
The Administrator ofthe Federal Aviation Administration is required by statute to
prescribe "minimum standards required in the interest of safety ... for the design, material,
construction, quality of work, and performance of aircraft." 49 U.S.C. § 44701(a)(1), as well as
"regulations and minimum standards for other practices, methods, and procedure the
Administrator finds necessary for safety in air commerce and national security." Id.
§ 44701(a)(5). The regulations promulgated by the Federal Aviation Administration governing
the design of commercial aircraft are voluminous. See generally 14 C.F.R. pt. 25. "Congress
and the Federal Aviation Administration have used [their) authority to enact rules addressing
virtually all areas of air safety. These regulations range from a general standard of care for
operating requirements, to the details of the contents of mandatory onboard first-aid kits, to the
maximum concentration of carbon monoxide permitted in suitably vented compartments." Air
Transport Ass'n ofAm., Inc. v. Cuomo, 520 F.3d 218, 224-25 (2d Cir. 2008) (per curiam)
(internal quotation marks and citation omitted). The Federal Aviation Administration's "power
extends to grounded planes and airport runways." Id. at 225.
The Federal Aviation Administration has set forth limited regulations governing the
design of integral airstairs. See 14 C.F.R. § 25.8 I O(e). "If an integral stair is installed in a
passenger entry door that is qualified as a passenger emergency exit, the stair must be designed
so that ... the effectiveness of passenger emergency egress will not be impaired." Id. And
19
another Federal Aviation Administration regulation-potentially but not clearly applicable
here-requires that airline emergency exits "be of such length after full deployment that the
lower end is self-supporting on the ground." Id. § 25.810(a)(I)(iii).
No regulations, however, appear to explicitly regulate airlines' use of airstairs-as
opposed to their design-and the regulations are not explicitly preemptive of state-law claims.
VII.
Plaintiff's State-Law Negligence Claims Are Not Preempted by Federal Law
A. The Federal Aviation Act
Defendant contends principally that the FAA preempts the entire field of aviation
safety-a field that defendant appears to assume includes plaintiff's negligence claim offailure
to provide a safe means of egress and to assist her properly in deplaning-by way of implied
field preemption. As a result, Comair asserts, the FAA and the Federal Aviation
Administration's implementing regulations are not subject to supplementation by state law. See
Def. Mem. 11. The Court of Appeals for the Second Circuit, defendant argues, has strongly
implied that it would hold "that Congress intended to occupy the entire field of air safety." Id at
12. Because "standards in the design or manufacture of airplanes are established through
extensive federal regulation," Comair contends, "supplementation or modification" of those
standards "by state law or state law standards of care is anathema." !d. The rest of the relevant
portion of defendant's memorandum oflaw describes at some length the extensive regulations,
set forth by the Federal Aviation Administration, that govern the design and manufacture of
aircraft like the one in which plaintiff was a passenger. See id. at 13-22.
Plaintiff's contention, essentially, is that defendant failed to take due care in helping her
to disembark from the aircraft, and that her Virginia cause of action is not preempted by federal
law. See PI. Mem. 18. She responds to defendant's memorandum by describing the case at a
20
different level of generality. According to Spinrad, "[a]irstairs are not pervasively regulated by
the Federal Aviation Administration. Since the agency has not comprehensively regulated
airstairs, the Federal Aviation Act does not preempt state law tort claims that the airstairs, as
provided, were not safe for use by the general public for routine disembarkation." PI. Mem. 9.
"In areas without pervasive regulations or other grounds for preemption," she asserts, "the state
standard of care remains applicable." Id. at II. She largely disagrees with defendant regarding
the pervasiveness of the Federal Aviation Administration's regulatory scheme, and asserts that
the "certification process does not constitute a pervasive regulatory scheme evidencing an intent
by Congress to preempt the field of aviation safety." Id. Her contention is that that "[t]here are
no mandated federal certification standards for the airstairs" controlling the design of airstairs
relevant to the instant case. Id. at 12. Nothing in the regulations, plaintiff asserts, requires
airstairs or the handrails thereon to be designed in a particular fashion. See id. In short, plaintiff
contends, while federal law may govern exclusively in the context of in-flight safety, the
supervision of the disembarkation process by flight crews is a matter unregulated-and therefore
not preempted-by the Federal Aviation Act. See id. at 14-16.
Implied field preemption does not bar plaintiff's Virginia-law claim of negligence insofar
as it is based on either Comair's failure to use alternative means of disembarkation or its failure
to assist plaintiff in exiting the aircraft. "The FAA was enacted to create a uniform and exclusive
system offederal regulation in the field of air safety." Air Transport Ass 'n ofAm., Inc. v.
Cuomo, 520 F.3d 218, 224 (2d Cir. 2008) (per curiam) (emphasis added, internal quotation
marks omitted); see also Goodspeed Airport LLC v. East Haddam Inland Wetlands &
Watercourses Comm 'n, 634 F.3d 206,211 (2d Cir. 2011). But this is not a case that falls within
21
the field of air safety. It concerns a defendant's conduct aboard a non-airborne plane, and
plaintiff's claim does not depend on a theory of defective design.
The claim is not field-preempted by the FAA. The relevant statutory and regulatory
framework concerns principally the airworthiness of transport planes and the in-flight conduct of
airplane crew and passengers. See generally Elassaad v. Independence Air, Inc., 613 F.3d 119,
124-31 (3d Cir. 2010). A review of the legislative history is not iJlwninating. The Senate
committee report merely states that the 1958 statute contained an "appropriate" savings clause.
See S. Rep. No. 85-1811, at 4 (1958). And the House committee report states similarly that the
statute "contains •saving provisions' of the usual type." H. Rep. No. 85-2360, at 20 (1958).
Thus, accepting the Supreme Court's instruction that federal courts are to preswne that
"Congress does not cavalierly pre-empt state-law causes of action," Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996), as well as the absence of any indication within the text or the framework
of the statute that Congress meant to preclude plaintiffs like Ms. Spinrad from bringing state-law
claims essentially unrelated to in-flight aircraft operations or aircraft design, this particular
plaintiff's claim of negligence is not impliedly preempted. Cf Abdu-Brisson v. Delta Airlines,
Inc., 128 F.3d 77,86 (2d Cir. 1997) (noting that Congress' preemptive intent should not be
"broadly interpreted without clear justification").
The statute's savings clause provides important support for the conclusion of nonpremption. See 49 U.S.C. § 40 I 20(c); see also Air Transport Ass'n v. Cuomo, 520 F.3d 218, 225
(2d Cir. 2008) (per curiam) (noting that "the FAA does not preempt all state law tort actions.").
Congress apparently intended to preserve some state law causes of action against airlines by
conswners. It is difficult to imagine state-law causes of action by aircraft passengers that would
not be preempted if defendant's theory were to carry the day, since plaintiff's theory is
22
essentially unrelated to the design or operation of the aircraft, and is premised on allegedly
negligent conduct that occurred after the plane had landed, not while it was in flight. Since it is a
commonly accepted rule of construction that a court must "give effect, if possible, to every
clause and word of a statute," United States v. Menasche, 348 U.S. 528, 538-39 (1955) (internal
quotation marks omitted), this court will not adopt a construction of the statute that would render
the FAA's savings clause superfluous. Cf Duncan v. Walker, 533 U.S. 167, 174 (2001).
The additional points raised by Comair do not compel a different conclusion. Comair is
undoubtedly correct that plaintiff's action would be preempted if it were premised solely the
theory that the airstairs were defectively designed for use as an emergency exit. Assuming that
the airstairs qualify as an emergency exit within the meaning of 14 C.F.R. § 25.81O(a)(I)(iii),
they satisfy that regulation's requirement that they "be of such length after full deployment that
the lower end is self-supporting on the ground." See November 22,2011 Hearing Transcript.
And the Federal Aviation Administration has certified that the airplane is airworthy. See
Standard Airworthiness Certificate (Def. Ex. L). But these facts only serve to make it clear that
any claim based on defective design is preempted; for the reasons stated above, Spinrad' s
contentions that defendant should have used alternative means of disembarkation and that
Comair should have had an employee at the bottom of the airstairs to assist passengers in exiting
the plane are not. Comair's arguments regarding the airworthiness of the plane are relevant to
the FAA's preemptive effect on state-law claims based on a defective design theory; they are
beside the point here.
In sum, although it is clear that "Congress intended to occupy the field of air safety,"
Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Comm 'n, 634 F.3d
206, 211 (2d Cir. 2011), in essence, this is not an "air safety" case. It arises out of conduct
23
occurring while the relevant aircraft was not airborne, and the complaint essentially concerns
defendant's conduct during that time-the lack of personnel at the bottom of the stairs and the
means used to help passengers exit-as opposed to the design of the plane. The FAA does not
preempt plaintiff's state-law negligence claim.
B. The Airline Deregulation Act
Neither Spinrad nor Comair discuss in their memoranda oflaw the ADA's express
preemption clause. The ADA's preemption provision is arguably relevant to the disposition of
this case. But see Martin ex reI. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806, 808
(9th Cir. 2009) (concluding that the ADA's preemption clause did not apply in similar
circumstances).
The ADA does not expressly preempt plaintiff's claim. As noted above in Part VI.B.J,
supra, the ADA provides in relevant part that a "State ... may not enact or enforce a law,
regulation, or other provision having the force or effect of law related to a price, route, or service
of an air carrier that may provide air transportation under this subpart." 49 U.S.C. § 4l713(b).
As an initial matter, it is unclear from the face of the statute whether the express
preemption clause even applies in this case. Chief Judge Kozinski of the United States Court of
Appeals for the Ninth Circuit appears to have concluded in a similar case that it is irrelevant. See
Martin, 555 F.3d at 808. This may have been because is not obvious that a state common-law
cause of action is a "law" or "other provision" within the meaning of the statute; certainly, one
does not normally speak of state common law as having been "enact[ed]" by the courts or
legislature of a state. See, e.g., Black's Law Dictionary 546 (7th ed. 1999) (defining "enact," a
verb, as "1. To make into law by authoritative act; to pass . 2. (Of a statute) to provide"); cf Julius Goebel Jr., Cases and
24
Materials on the Development of Legal Institutions 298-300 (1946) (noting that the Ordinances
of the Virginia Convention of May 1776 and Article 35 of the New York Constitution of 1777
continued pre-Founding practices and effected "a most complete absorption" of the common law
of England). It is similarly unclear from the statute whether an action by a private plaintiff
seeking to recover monetary damages pursuant to a state common-law rule can fairly be said to
be "State ... enforce[ment] of a law"; that provision seems to instead proscribe actions taken by
a State on its own behalf to enforce, for example, state consumer protection laws. Indeed, such
laws were the subject of Morales. See Morales v. Trans WorldAirlines, Inc., 504 U.S. 374, 37880 (1992).
The statute's legislative history suggest that removing the barriers to competition created
by state statutory and regulatory law of this type was Congress' principal object in drafting the
ADA's preemption clause; Congress does not appear to have considered the effect of state
common-law tort claims. See S. Rep. No. 95-165, at 197-98 (1978); H. Rep. No. 95-1211, at 1516 (1978) (noting, inter alia, that "when a carrier operates under authority granted pursuant to ..
. the Federal Aviation Act, no State may regulate the carrier's routes, rates, or services."
(emphasis added)). Unfortunately, the statute's definitional section does not define any of the
above-quoted terms. See 49 U.S.C. § 40102.
Even assuming that the ADA's preemption clause is applicable, it does not bar plaintiff
from bringing her action. Plaintiff's claim, ifit can legitimately be predicted to affect Comair's
prices, routes, or services at all, only will do so, if at all, in a "tenuous, remote, or peripheral"
way. See Morales, 504 U.S. at 390 (internal quotation marks omitted). Plaintiff's claim will
presumably have a minimal impact, if any, on defendant's prices; defendant likely already
carries liability insurance, as it is required to by statute, see 49 U.S.C. § 41112(a), and with the
25
exercise of minimal care, defendant can ensure that claims such as plaintiff's arise rarely, if ever.
It is already defendant's general practice to have its employees assist passengers when they
disembark by way of airstairs, see Arbogast Dep. 45; similarly, it is already defendant's practice
to use jetways to help passengers exit its planes. See Dep. of Davor Ilic 11, 19. While it appears
that all jetways were then in use at the airport, there is no indication that one could not have been
made available or that safer portable steps could not have been used.
It is similarly implausible that the relatively minimal economic impact of plaintiff's claim
will have an impact on defendant's routes. Finally, even assuming that the disembarkation of
passengers constitutes a "service" within the meaning of the statute, plaintiff's claim will likely
have a similarly minimal impact, if any, on defendant's services. As noted above, defendant
already has general practices of assisting passengers disembark when airstairs are used and of
usingjetways; defendant can easily prevent claims like this one simply by following its normal
practices.
It is noteworthy that plaintiff's claim is brought pursuant to a state common law of
general applicability. Morales suggests that courts should be cautious in concluding that actions
brought pursuant to laws of general applicability are preempted by the ADA. See Morales, 504
U.S. at 390. Given the minimal impact ofplaintiff's action on defendant's prices, routes, and
services--even assuming that plaintiff's action is covered by the ADA's preemption clause-it
would be inappropriate for the court to so conclude.
Because of the de minimis effect plaintiff's claim is likely to have on defendant's rates,
routes, or services, the court need not engage in the three-part analysis adopted by other district
courts within this Circuit. See Part Vl.B.2, supra.
26
For the reasons set forth above, the ADA's express preemption clause does not bar
plaintiff's claim.
VIII. Comair is Not Entitled to Summary Judgment on Plaintiff's Negligence Claim
Defendant argues finally that it is entitled to summary judgment on plaintiff's negligence
claim as a matter of Virginia law. See Def. Mem. 25-26. "Summary judgment is particularly
inappropriate in negligence actions." Cook v. Baker Equip. Eng'g Co., Inc., 582 F.2d 862, 865
(4th Cir. 1978) (citing Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir. 1951) (applying Virginia
law)). Here, there is at the very least an open question offact regarding the cause of plaintiff's
fall. Accordingly, defendant's motion for summary judgment on this ground is denied.
IX.
Conclusion
Defendant's motion for summary judgment is denied.
o ORDERED.
Jack B. Weinstein
Senior United States District Judge
Date: November 23, 2011
Brooklyn, New York
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