Hodges v. Delta Airlines, Inc., 91-6037

Citation4 F.3d 350
Decision Date14 October 1993
Docket NumberNo. 91-6037,91-6037
PartiesFrances S. HODGES, Plaintiff-Appellant, v. DELTA AIRLINES, INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Stuart J. Starry, Fleming, Hovenkamp & Grayson, Houston, TX, David W. Showalter, Bellaire, TX, for plaintiff-appellant.

Jeffrey Robert White, Washington, DC, for amicus curiae in favor of plaintiff-appellant (ATLA).

David R. Weiner, Dallas, TX, for amicus curiae in favor of plaintiff-appellant (TTLA).

Jennifer Bruch Hogan, William J. Boyce, Fulbright & Jaworski, Houston, TX, for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS and JONES, Circuit Judges, and PARKER *, District Judge.

EDITH H. JONES, Circuit Judge:

The question posed in this case is whether a tort claim for physical injury based on an unsafe condition in an airplane is preempted by Sec. 1305 of the Airline Deregulation Act of 1978. Bound by a previous unpublished opinion of this court, we must hold that it is. Baugh v. Trans World Airlines, Inc., 915 F.2d 693 (1990). The panel believes this is the wrong result and urges en banc review.

During a flight from the Caribbean to Miami, a fellow passenger opened the overhead compartment directly above Frances Hodges, dislodging and spilling a case containing several bottles of rum. The box fell on Hodges and lacerated her left arm and wrist. Before Hodges's profuse bleeding was brought under control, a significant amount of her blood mingled in the aisle with the puddle of rum and broken glass.

Hodges filed suit in federal court, complaining that Delta Airlines's negligence caused her injury and pain and high medical expenses. Delta argued successfully before the district court that Hodges's claims are preempted by section 1305 of the Airline Deregulation Act of 1978 (ADA), 49 U.S.C.App. Secs. 1301 et seq., and that the ADA contains no implied private right of action. We review the district court's consequent granting of a summary judgment de novo. If the panel were to decide the issue in the first instance, we would decide that there was no ADA preemption of this bodily injury tort case. As stated before, we may not do so.

DISCUSSION

The statute provides in pertinent part:

[N]o State ... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes or services of any air carrier having authority under Title IV of this Act to provide air transportation.

49 U.S.C.App. Sec. 1305(a)(1).

Although the ADA was passed in 1978, until recently no one even supposed that section 1305 preempts state tort claims. 1 The Seventh Circuit noted that "[s]tate courts award damages every day in air crash cases, notwithstanding that federal law preempts the regulation of safety in air travel," confidently adding that "[t]he Federal Aviation Act does not expressly preempt state damages remedies." Bieneman v. City of Chicago, 864 F.2d 463, 471 (7th Cir.1988). More recently, however, the airlines have begun to argue that various state-law tort claims are expressly preempted by section 1305, especially in the wake of Morales v. Trans World Airlines, Inc., --- U.S. ----, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).

State law is displaced by federal law under the supremacy clause where (1) Congress expressly preempts state law; 2 (2) congressional intent to preempt is inferred from the existence of a pervasive federal regulatory scheme; 3 or (3) state law conflicts with federal law or interferes with the achievement of congressional objectives. 4

"[T]he question whether a certain state action is pre-empted by federal law is one of Congressional intent. 'The purpose of Congress is the ultimate touchstone.' " 5 This case involves a claim of express preemption. We begin with the language of the statute.

In evaluating the scope of Sec. 1305(a) preemption, one must bear in mind its origin in the ADA, an economic deregulation statute. The Federal Aviation Act of 1958 (FAA), 72 Stat. 731, 49 U.S.C.App. Sec. 1301 et seq. (as amended), conferred on the Civil Aeronautics Board economic regulatory authority over interstate air transportation. The FAA did not expressly preempt state regulation of intrastate air transportation. In 1978, Congress amended the FAA after determining that efficiency, innovation, low prices, variety, and quality would be best furthered by reliance on competitive market forces in the airline industry. Congress enacted the ADA to dismantle the pervasive federal economic regulation of the interstate airline industry. To prevent the states from frustrating the goals of federal deregulation by establishing or maintaining economic regulations of their own, Congress included in the ADA section 1305, which preempts the states from enforcing any law "relating to rates, routes, or services" of any air carrier. Morales, --- U.S. at ----, 112 S.Ct. at 2034.

Morales informs but does not squarely resolve this case. In Morales, the Supreme Court held that the attempts of several state attorneys general to enforce state laws prohibiting deceptive advertising by the airlines were preempted by Sec. 1305(a). Morales first drew upon the broad construction of the phrase "relating to" in the ERISA cases. 6 Thus, the phrase "relating to" means "to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with." Morales, --- U.S. at ----, 112 S.Ct. at 2037 (quoting Black's Law Dictionary 1158 (5th ed. 1979)). Consequently, "state enforcement actions having a connection with or reference to airline 'rates, routes, or services' are preempted" under section 1305. Id.

As a necessary consequence of its broad interpretation, the Court rejected the argument that section 1305 preempts the states only from actually prescribing rates, routes, or services. --- U.S. at ---- - ----, 112 S.Ct. at 2037-38. The Court also rejected the notions that "only state laws specifically addressed to the airline industry are preempted" and that "preemption is inappropriate when state and federal law are consistent." Morales, --- U.S. at ----, 112 S.Ct. at 2038. Laws of general applicability, even those consistent with federal law, are preempted if they have "the forbidden significant effect" on rates, routes or services. --- U.S. at ----, 112 S.Ct. at 2039.

Morales acknowledged, however, that "[s]ome state actions may affect [airline services] in too tenuous, remote, or peripheral a manner" to have preemptive effect. Morales, --- U.S. at ----, 112 S.Ct. at 2040 (quoting Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21). Refusing to state exactly where the line would be drawn in a close case, the Court observed that the facts before it presented no close question of the connection between the regulation and air fares.

While under Morales the scope of state laws that "relate to" services must be broadly interpreted, the nature of the "services" preempted by Sec. 1305(a) is more narrow than might at first be supposed. Hodges contends Considering the definition of "services" that is most plausible in light of the ADA's purpose and historical regulatory antecedents, it appears that "services" is not coextensive with airline "safety". Therefore, insofar as state law or regulation imposes liability on airlines for breaching tort duties related to the safety of persons, it should not be preempted by Sec. 1305(a). 7 The intent of this distinction is to secure by federal preemption the benefits of economic deregulation of the airline industry, while maintaining the traditional role of state law in adjudicating bodily injury claims.

                that "services" must be so narrowly interpreted as to preempt no common law tort or negligence cause of action.  Delta argues the contrary, citing a dictionary definition of "services" as "useful labor that does not produce a tangible commodity."   Webster's Ninth New Collegiate Dictionary 1076 (1990).  We do not agree completely with either position
                

Carefully read, neither Delta's definition of "services" nor others in the dictionary are open-ended. Webster's Third New International Dictionary (1976) adds some of the following definitions:

An action or use that furthers some purpose; supply of needs [e.g., a vending machine for the service of passersby]; railroads and telephone companies produce services--useful labor that does not produce a good; provision for conducting a public utility [e.g., air freight service ]; regularly scheduled trip on public transportation ( [free air services ].

"Services" generally represent a bargained-for or anticipated provision of labor from one party to another. If the element of bargain or agreement is incorporated in our understanding of services, it leads to a concern with the contractual arrangement between the airline and the user of the service. Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself. These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline. It is these features of air transportation that we believe Congress intended to de-regulate as "services" and broadly to protect from state regulation.

This definition of services is consistent with congressional intent regarding the ADA, with the CAB's understanding of the ADA, and with other sections of the statute. Significantly, neither the ADA nor its legislative history indicates that Congress intended to preempt the application of general tort law to personal physical injury inflicted by an airline while providing its services, or that Congress even considered such preemption. 8 "This silence takes on added significance in light of Congress's failure to provide any federal remedy for persons injured by such...

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