Miezin v. Midwest Express Airlines, Inc.

• Decision Date: 17 May 2005
• Docket Number: No. 2004AP868.,2004AP868.
• Citation: 2005 WI App 120,284 Wis.2d 428,701 N.W.2d 626
• Parties: Jerome J. MIEZIN and Patricia Miezin, Plaintiffs-Appellants, v. MIDWEST EXPRESS AIRLINES, INC., Defendant-Respondent, ABC INSURANCE COMPANY, Defendant.
• Court: Wisconsin Court of Appeals

284 Wis.2d 428
2005 WI App 120
701 N.W.2d 626

Jerome J. MIEZIN and Patricia Miezin, Plaintiffs-Appellants,¹
v.
MIDWEST EXPRESS AIRLINES, INC., Defendant-Respondent,
ABC INSURANCE COMPANY, Defendant

No. 2004AP868.

Court of Appeals of Wisconsin.

Submitted on briefs March 1, 2005.

Decided May 17, 2005.

On behalf of the plaintiffs-appellants, the cause was submitted on the brief of James P. Brennan of Brennan & Collins of Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of Eric J. Van Vugt and Joshua B. Fleming of Quarles & Brady LLP of Milwaukee and Clem C. Trischler of Pietragallo, Bosick & Gordon of Pittsburgh, Pennsylvania.

Before Wedemeyer, P.J., Fine and Kessler, JJ.

284 Wis.2d 430

¶ 1. KESSLER, J

At issue in this case is whether a plaintiff can pursue a state common-law negligence claim alleging that an airline negligently failed to warn passengers about the dangers of deep vein thrombosis ("DVT"), or whether such claims are preempted by federal law. Jerome J. Miezin and Patricia Miezin (collectively, "Miezin") appeal from a judgment dismissing their state common-law negligence and loss of consortium claims, respectively, against Midwest Express Airlines,

284 Wis.2d 431

Inc., ("Midwest"). Miezin argues the trial court erroneously granted summary judgment in Midwest's favor after concluding that Miezin's state common-law negligence claim is preempted by federal law and, in the alternative, that Midwest had no duty under Wisconsin common law to warn airline passengers about the dangers of DVT

¶ 2. We affirm the judgment because we conclude that Miezin's claim, based solely on a state common-law negligence theory,² is impliedly preempted by the Federal Aviation Act of 1958, 49 U.S.C. § 40101, et seq. (previously codified at 49 U.S.C. App. § 1301, et seq.) ("Federal Aviation Act"). Because we affirm on that ground, we do not consider whether Miezin's claim is also expressly preempted by the preemption provision of the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1) (previously codified at 49 U.S.C. App. § 1305(a)(1)),³ or whether, in the absence of preemption,

284 Wis.2d 432

Wisconsin common law would impose on airlines a duty to warn their passengers about the dangers of DVT. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground"). Finally, because Miezin does not argue there is any independent basis upon which Patricia's claim for loss of consortium would survive once the state common-law negligence claim is dismissed, we affirm, without discussion, the dismissal of Patricia's claim

BACKGROUND

¶ 3. The background facts that formed the basis of Miezin's personal injury claim are largely undisputed. Jerome Miezin traveled on a Midwest flight from Milwaukee to Boston on October 15, 1999, and returned on October 23. Both flights were less than three hours long.

¶ 4. After his return to Milwaukee, Miezin experienced pain in his leg. On October 27, Miezin was diagnosed with DVT, a clotting condition that develops in the deep veins of the lower extremities. Doctors also determined that Miezin has a "Factor V Leiden" genetic condition which predisposes him to blood clots.⁴ It is undisputed that Miezin did not know he had this genetic condition until he was diagnosed with DVT, which occurred after he completed the flights.

¶ 5. Miezin filed this action, alleging that he has suffered permanent disability and disfigurement as a result of DVT, which he claimed he developed because Midwest negligently failed to advise Miezin that:

284 Wis.2d 433

before and during the flights from Milwaukee to Boston and Boston to Milwaukee he should get up out of his seat and move around the cabin of the aircraft and exercise his toes and feet and lower legs and upper legs to promote circulation in those body parts and in failing to advise him to drink liquids and wear loose clothing and avoid stockings or socks with tight elastic below the knees and in failing to advise him to get up and walk about at least once an hour and failing to advise him to massage his toes, feet, ankles, lower legs and knees and exercise his calf muscles to stimulate blood circulation and in failing to advise him to exercise during his flights to promote circulation and ... was otherwise negligent in failing to provide proper conditions and atmosphere for [Miezen].

In other words, as Miezen explains in his brief, he alleged that Midwest failed to inform passengers about the dangers of DVT arising from airline travel.

¶ 6. Midwest moved for summary judgment. The trial court granted the motion, concluding that Miezin's state common-law negligence claim is preempted by the Federal Aviation Act and, in the alternative, that Midwest had no duty under Wisconsin common law to warn airline passengers about the dangers of DVT. This appeal followed.

STANDARD OF REVIEW

¶ 7. We review summary judgment de novo, applying the same method as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis. 2d 293,

284 Wis.2d 434

296, 349 N.W.2d 733 (Ct. App. 1984). Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

DISCUSSION

¶ 8. Miezin argues that his state common-law negligence claim is not preempted by federal law and that under Wisconsin's common law, Midwest had a duty to warn its passengers about the dangers of DVT.⁵ We conclude that Miezin's claim is impliedly preempted by the Federal Aviation Act and, therefore, affirm the judgment.

¶ 9. "A fundamental principle of the Constitution is that Congress has the power to preempt state law." Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000) (citation omitted). However, analysis of preemption claims begins with the presumption that "Congress does not intend to supplant state law." New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995).

¶ 10. The United States Supreme Court has recognized three methods by which Congress can exercise its preemptive power: express preemption, implied field preemption, and implied conflict preemption. Express

284 Wis.2d 435

preemption occurs when Congress enacts an express provision for preemption in any congressional act. See Crosby, 530 U.S. at 372. Under implied field preemption, Congress can impliedly preempt state law if "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (internal quotation marks and citations omitted). Finally, implied conflict preemption will be found "where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (internal quotation marks and citations...