Cleveland By and Through Cleveland v. Piper Aircraft Corp.

• Decision Date: 16 February 1993
• Docket Number: No. 91-2065,91-2065
• Citation: 985 F.2d 1438
• Parties: , Prod.Liab.Rep. (CCH) P 13,466 Edward Charles CLEVELAND, By and Through the Conservator of his Estate Kathleen CLEVELAND, Plaintiff-Appellee, v. PIPER AIRCRAFT CORPORATION, a corporation, Defendant-Appellant. Association of Trial Lawyers of America, and General Aviation Manufacturers Association, Aircraft Owners and Pilots Association (AOPA), United States of America. Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1438

985 F.2d 1438

61 USLW 2526, Prod.Liab.Rep. (CCH) P 13,466

Edward Charles CLEVELAND, By and Through the Conservator of his Estate Kathleen CLEVELAND, Plaintiff-Appellee, v. PIPER AIRCRAFT CORPORATION, a corporation, Defendant-Appellant Association of Trial Lawyers of America, and General Aviation Manufacturers Association, Aircraft Owners and Pilots Association (AOPA) United States of America. Amici Curiae.

No. 91-2065.

United States Court of Appeals, Tenth Circuit.

Feb. 16, 1993.

Daniel C. Cathcart of Magana, Cathcart, McCarthy & Pierry, Los Angeles, CA (William G. Gilstrap, of William G. Gilstrap, P.C., Albuquerque, NM, with him on the brief), for plaintiff-appellee.

David K. Watkiss of Watkiss & Saperstien, Salt Lake City, UT (H. Dickson Burton of Watkiss & Saperstien, Salt Lake City, UT, W.R. Logan of Civerlolo, Hansen & Wolf, P.A., Albuquerque, NM, with him on the brief), for defendant-appellant.

Michael C. Maher, President, Jeffrey Robert White, for Ass'n of Trial Lawyers of America, Washington, DC, amicus curiae.

Stuart M. Gerson, Asst. Atty. Gen., Robert V. Zener, Appellate Litigation Counsel, Jeffrey Clair, Atty. Dept. of Justice, Washington, DC, Don V. Svet, U.S. Atty., Albuquerque, NM, Walter B. McCormick, Jr., Gen. Counsel, Paul M. Geier, Asst. Gen. Counsel for Litigation, Dale C. Andrews, Deputy Asst. Gen. Counsel for Litigation, U.S. Dept. of Transp., Kenneth P. Quinn, Chief Counsel, James S. Dillman, Asst. Chief Counsel for Litigation, Melanie R. Miller, Atty., Federal Aviation Admin. for the U.S., amicus curiae.

Stanley J. Green of Dunaway & Cross, Washington, DC (Gary E. Cross, and Matthew F. Hall, with him on the brief), for General Aviation Mfrs. Ass'n, amicus curiae.

John S. Yodice, of Yodice Associates, Washington, DC (Donald L. Hardison, with him on the brief), and L. Richard Musat, of Treece, Alfrey & Musat, P.C., Denver, CO, for Aircraft Owners and Pilots Ass'n, amicus curiae.

Before LOGAN, Circuit Judge, LAY, Senior Circuit Judge, ¹ and BARRETT, Senior Circuit Judge.

LAY, Senior Circuit Judge.

Piper Aircraft Corporation brings this interlocutory appeal under 28 U.S.C. § 1292(b), challenging pre-trial rulings by the district court. Edward Cleveland brought suit against Piper for injuries he received in 1983 while piloting a Super Cub airplane, which crashed during takeoff. He alleged he suffered severe injuries due to the negligent design of the plane. In May 1986, a jury returned a $2.5 million verdict in favor of Cleveland. ² On appeal this court determined the special verdict form improperly restricted jurors from allocating fault to all potentially responsible parties. See Cleveland v. Piper Aircraft Corp., 890 F.2d 1540, 1546-51 (10th Cir.1989), reh'g denied, 898 F.2d 778 (10th Cir.1990). A new trial was awarded Piper. On remand, the district court permitted Piper to amend its answer and assert a defense that state common law was preempted by the Federal Aviation Act of 1958 and its corresponding regulations. ³ The district court, among other rulings, denied Piper's motion for summary judgment on this defense. Additionally, the trial court granted plaintiff's motion to limit the second trial to the issue of liability and ruled that only the witnesses and exhibits presented in the first trial could be introduced in the second trial. Piper sought permission to appeal these rulings under 28 U.S.C. § 1292(b); the trial court certified the appeal and this court granted permission.

I. FACTS

Cleveland was injured July 8, 1983 while attempting to take off from the Mid-Valley Airport in Los Lunas, New Mexico, in a Piper Super Cub Model PA-18-150. The plane was towing a glider that was attached by rope to the aircraft's tail. Cleveland and a cinematographer were planning to film the glider's flight for a television commercial. With assistance from a Federal Aviation Administration (FAA) certified mechanic, Cleveland had removed the front pilot's seat from the plane and installed a camera. At the time of the accident, Cleveland was piloting the plane from the rear pilot seat. ⁴

A few days before Cleveland planned to shoot the commercial, the owner of the Mid-Valley airport became concerned about the safety of the operation and about compliance with FAA regulations. The owner closed the airport to prevent Cleveland from taking off. On the morning of the accident, the owner noticed activity at the airport and parked his van in the runway to prevent takeoffs and landings. Shortly thereafter, Cleveland attempted to fly the reconfigured Piper airplane. During takeoff, the aircraft struck the owner's parked van. Cleveland's head struck the camera, resulting in serious head and brain injuries.

Cleveland's wife, the conservator of his estate, brought this diversity action against Piper, which manufactured and sold the Super Cub in 1970. At the conclusion of the trial, a jury determined that Piper negligently designed the aircraft without adequate forward vision from the rear seat and negligently failed to provide a rear shoulder harness. However, the jury was not asked to compare the negligence of the parties responsible for the initial collision--the plane striking the van--with the negligence of those responsible for the second injury--Cleveland's head striking the camera. On this basis, we reversed and ordered a new trial. Id. at 1546.

II. FEDERAL PREEMPTION

Piper claims that the district court erred in denying its motion for summary judgment on preemption grounds. The basic principles of law in this area are well settled. Piper argues that the Federal Aviation Act of 1958, 49 U.S.C.App. §§ 1301 et seq., and the regulations it has spawned impliedly preempt state tort actions by occupying the field of airplane safety. It asserts that the web of federal laws and regulations govern the field in a comprehensive manner, leaving no room for state regulation. Preemption questions turn on congressional intent. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988). The mere fact that Congress has enacted detailed legislation addressing a matter of dominant federal interest does not indicate an intent to displace state law entirely. English v. General Elec. Co., 496 U.S. 72, 87, 110 S.Ct. 2270, 2279, 110 L.Ed.2d 65 (1990); Hillsborough County v. Automated Medical Lab., Inc., 471 U.S. 707, 716-20, 105 S.Ct. 2371, 2376-79, 85 L.Ed.2d 714 (1985). Congress may reserve for the federal government the exclusive right to regulate safety in a given field, yet permit the states to maintain tort remedies covering much the same territory. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 253, 104 S.Ct. 615, 624, 78 L.Ed.2d 443 (1984). This is so even though an award of damages may have the same effect as direct state regulation. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959). The Supreme Court has recently emphasized:

Consideration of issues arising under the Supremacy Clause "start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress."

Cipollone v. Liggett Group, Inc., --- U.S. ----, ----, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)).

The district court determined the plain language of the Federal Aviation Act suggests that Congress intended that the Act have no general preemptive effect. We agree.

Congress enacted the Federal Aviation Act of 1958, Pub.L. No. 85-726, 72 Stat. 731, "to establish a new Federal agency with powers adequate to enable it to provide for the safe and efficient use of the navigable airspace by both civil and military operations." H.R.Rep. No. 2360, 85th Cong., 2d Sess. 1, reprinted in 1958 U.S.C.C.A.N. 3741, 3741. The Act directed the Federal Aviation Agency to regulate "air commerce in such manner as to best promote its development and safety and fulfill the requirements of national defense." Pub.L. No. 85-726, § 103, 72 Stat. 740 (1958) (codified at 49 U.S.C.App. § 1303 (1988)). Although the legislative history states the Act provides the Federal Aviation Agency with "full responsibility and authority" over safety, H.R.Rep. No. 2360, reprinted in 1958 U.S.C.C.A.N. at 3741, the Act also assigned the Civil Aeronautics Board responsibility for safety, ⁵ "emphasized ... that air carriers themselves retained certain responsibilities," ⁶ and did not address what, if any, responsibility remained for the states.

The Act contains a savings clause that states:

Nothing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies.

49 U.S.C.App. § 1506. As other courts have held, this section shows that Congress did not intend to occupy the field of airplane safety to the exclusion of the state common law. ⁷ See In re Air Crash Disaster, 635 F.2d 67, 74-75 (2d Cir.1980); In re Mexico City Aircrash, 708 F.2d 400, 407 (9th Cir.1983) (dictum); Sunbird Air Servs., Inc. v. Beech Aircraft Corp., 789 F.Supp. 360, 362 (D.Kan.1992); Holliday v. Bell Helicopters Textron, Inc., 747 F.Supp. 1396, 1398-99 (D.Haw.1990); In re Air Crash Disaster, 721 F.Supp. 1185, 1187 (D.Colo.1988); Brunwasser v. Trans World Airlines, Inc., 541 F.Supp. 1338, 1345-46 (W.D.Pa.1982); Alaska Airlines, Inc. v. Sweat, 568 P.2d 916, 927 (Ala.1977); Elsworth v. Beech Aircraft Corp., 37 Cal.3d 540, 208 Cal.Rptr. 874, 691 P.2d 630, 635 (1984), cert. denied, 471 U.S. 1110, 105 S.Ct. 2345, 85 L.Ed.2d 861 (1985); see also Perry v. Mercedes Benz of N. Am., Inc., 957 F.2d 1257, 1264 (5th Cir.1992) (the National Traffic and Motor Vehicle Safety Act of 1966's savings clause shows Congress's intent not to occupy the field). We arrived at the same conclusion in dicta in McCord v. Dixie...