Elassaad v. Independence Air Inc.

• Decision Date: 06 July 2010
• Docket Number: No. 08-3878.,08-3878.
• Citation: 613 F.3d 119
• Parties: Joseph ELASSAAD, Appellant v. INDEPENDENCE AIR, INC.; Delta Air Lines, Inc.
• Court: U.S. Court of Appeals — Third Circuit

613 F.3d 119

Joseph ELASSAAD, Appellant
v.
INDEPENDENCE AIR, INC.; Delta Air Lines, Inc.

No. 08-3878.

United States Court of Appeals,Third Circuit.

Argued Jan. 28, 2010.
Filed July 6, 2010.

613 F.3d 120

COPYRIGHT MATERIAL OMITTED.

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Eugene F. Jarrell, III, Esq., [Argued], Media, PA, for Appellant.

Jonathan M. Stern, Esq., [Argued], Schnader Harrison Segal & Lewis LLP, Washington, DC, for Appellee Independence Air Inc.

Before RENDELL and JORDAN, Circuit Judges, and AMBROSE, District Judge. ^*

SUR PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING IN BANC

Upon consideration of the Petition of Appellee, Independence Air, Inc., for Rehearing En Banc or Panel Rehearing, it is hereby ORDERED that the said petition is GRANTED to the extent it seeks panel rehearing, and the precedential opinion of this Court filed on May 12, 2010 is hereby VACATED.

Petitioner has urged that our opinion in this case failed to acknowledge its argument regarding conflict preemption. The panel's Amended Opinion, filed contemporaneously herewith, includes a discussion of this issue and vacates the order of the District Court.

AMENDED OPINION OF THE COURTRENDELL, Circuit Judge.

Joseph Elassaad appeals from an order granting summary judgment in favor of Independence Air, Inc., with respect to his negligence claim for injuries sustained when he fell while disembarking from an airplane at the Philadelphia International Airport. His appeal requires us to consider the extent to which the Federal Aviation Act (“Aviation Act”), 49 U.S.C. § 40101 et seq., preempts state law concerning tort claims arising from an air carrier's conduct in overseeing the disembarkation of passengers. Although we stated in Abdullah v. American Airlines, Inc., 181 F.3d 363, 365 (3d Cir.1999), that the Aviation Act preempts “the entire field of aviation safety” from state regulation, we hold that the “field of aviation safety” does not include a flight crew's oversight of the disembarkation of passengers once a plane has come to a complete stop at its destination. Abdullah therefore does not control the instant case. We also hold that the Aviation Act and the regulations promulgated thereunder do not preempt state tort law with respect to such negligence claims. Moreover, we conclude that the federally enacted Air Carrier Access Act (“ACAA”), 49 U.S.C. § 41705 et seq., and its implementing regulations do not control the standard of care from the standpoint of airline safety. As a result, we conclude that the standard of care in Elassaad's negligence claim is not preempted by federal law, and we will reverse the grant of

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summary judgment for Independence and remand for further proceedings.

I. Background

Elassaad's right leg was amputated above the knee in 1978, and he relies on a pair of crutches to walk. On February 9, 2004, he boarded a Boston-to-Philadelphia flight operated by Independence under the auspices of Delta Air Lines. The flight was on a Dornier 328, a small commuter jet, which passengers boarded from the tarmac via a 3 1/2-foot long flight of steps built into the door of the aircraft. After arriving at his seat without incident, Elassaad attempted to place his crutches in the overhead bin, which was not long enough to accommodate them. Adrien Lavoie, the lone flight attendant on the plane, then took the crutches and stowed them in the baggage area for the duration of the flight.

Upon landing in Philadelphia, Lavoie asked Elassaad to stay in his seat until the other passengers had deplaned. Lavoie then returned the crutches to Elassaad, who used them to approach the aircraft door. At that point, despite having boarded the aircraft by the same staircase, Elassaad noticed for the first time that the stairs were narrow. ¹ The staircase had a railing on the left side, but not on the right. Though Elassaad recognized that he “needed assistance” to descend the staircase, App. 117, he chose not to request help because he believed the only aid the airline could offer would be to carry him down the stairs. Elassaad testified that he would have declined such assistance due to his perception of it as demeaning. ² However, he would have accepted the assistance of a wheelchair or an electronic lift had he known that this type of assistance was available to him. ³

As Elassaad began to descend the stairs, he lost his balance and fell off the right side of the staircase, striking his shoulder on the pavement. According to his complaint, this resulted in severe injuries, including torn cartilage in his shoulder that required surgical repair.

Elassaad commenced this lawsuit in the Court of Common Pleas of Philadelphia County, Pennsylvania, advancing three separate negligence claims under Pennsylvania law against Independence and Delta: that the airlines were negligent in (1) operating an aircraft made defective by design features of the aircraft steps; (2) failing to inspect and maintain the steps; and (3) failing to offer and render personal assistance to Elassaad as he disembarked from the jet. The case was removed to the United States District Court for the Eastern

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District of Pennsylvania on May 18, 2005, based on diversity of citizenship. Shortly thereafter, on June 14, 2005, Elassaad voluntarily dismissed Delta from the suit. Independence then moved for partial summary judgment with respect to the first claim. The District Court granted Independence's motion as unopposed. By that time, Elassaad had withdrawn his second claim, which was based on Independence's alleged failure to inspect and maintain the steps, leaving, in the words of the District Court, “the sole liability issue [as] whether [Independence] negligently failed to assist [Elassaad] in disembarking the airplane, including, without limitations, making available all appropriate safety measures and devices.” App. 3.

Independence moved for summary judgment on Elassaad's remaining claim, arguing that the controlling standard of care, dictated by federal law, obligates an airline to provide assistance only upon request, and that it is undisputed that Elassaad did not ask for assistance. Specifically, Independence argued that the regulations implementing the ACAA, ⁴ which address air carriers' conduct toward the disabled, see 14 C.F.R. §§ 382.1- .70 (2004), preempt state law negligence standards. The ACAA regulations require air carriers to “provide assistance requested by or on behalf of qualified individuals with a disability, or offered by air carrier personnel and accepted by qualified individuals with a disability, in enplaning and deplaning.” 14 C.F.R. § 382.39(a) (2004). ⁵ Neither the ACAA nor its regulations expressly require air carriers to offer assistance, and Elassaad made no such request for assistance. Nor do the ACAA regulations obligate carriers to inform a disabled passenger of available assistive measures unless the passenger states the need for a wheelchair. See 14 C.F.R. § 382.45(a)(2) (2004). ⁶

Elassaad responded to Independence's motion for summary judgment by asserting that the ACAA and its regulations were intended only to prevent discrimination against disabled passengers, not to establish standards for the safe operation of an aircraft. He argued that air carriers could be held liable for failing to affirmatively offer assistance to disabled passengers, notwithstanding the ACAA, if that failure compromised passenger safety. Elassaad noted that the Federal Aviation Administration (“FAA”), which has the authority to establish air safety standards, has not promulgated any safety regulations describing what, if any, assistance air carriers must offer passengers when deplaning. In the absence of a controlling federal safety regulation, Elassaad argued, state negligence law governs an air carrier's duty of care in that situation, and the failure of Independence to offer him aid constituted negligence under Pennsylvania common law. Alternatively, Elassaad argued that, if the Aviation Act does control, the general standard of care set forth in 14 C.F.R. § 91.13, which prohibits carriers from operating an aircraft in a “careless or reckless manner,” imposed a duty of care on Independence to offer him deplaning assistance and that the airline consequently breached that duty when it failed to offer him such assistance.

The District Court concluded that, under our holding in Abdullah, federal law

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dictated the standard of care for Elassaad's negligence suit. The District Court adopted Independence's view of the applicable standard of care, as found in the ACAA regulations. The District Court concluded that the ACAA and its regulations impose no affirmative duty to offer assistance to a disabled airline passenger, and that, even if the standard under 14 C.F.R. § 91.13 applied, Elassaad had failed to “point[ ] to caselaw or expert testimony to establish that the failure of Independence to offer assistance to [Elassaad] constituted careless or reckless conduct.” App. 6-7. The District Court granted Independence's motion for summary judgment, and Elassaad filed a timely appeal.

II. Jurisdiction and Standard of Review

Independence removed the present action to federal court under 28 U.S.C. § 1441. The District Court exercised diversity jurisdiction under 28 U.S.C. § 1332. Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo district court orders granting or denying summary judgment. See Levy v. Sterling Holding Co., 544 F.3d 493, 501 (3d Cir.2008). We also exercise de novo review of a preemption determination, as it is a question of law. See Horn v. Thoratec Corp., 376 F.3d 163, 166 (3d Cir.2004).

Summary judgment is proper where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Because summary judgment was entered against Elassaad, we view any disputed facts in...