Dudley v. Business Express, Inc.

• Decision Date: 11 October 1994
• Docket Number: Civ. No. 93-581-SD.
• Parties: Terri DUDLEY; Roger Dudley v. BUSINESS EXPRESS, INC.; Concord Commercial Corporation; Marketing Corporation of America; Beech Aircraft Corp.
• Court: U.S. District Court — District of New Hampshire

882 F. Supp. 199

Terri DUDLEY; Roger Dudley v. BUSINESS EXPRESS, INC.; Concord Commercial Corporation; Marketing Corporation of America; Beech Aircraft Corp.

Civ. No. 93-581-SD.

United States District Court, D. New Hampshire.

October 11, 1994.

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David S. Osman, Nighswander, Martin & Mitchell, P.A., Laconia, NH, for Terri Dudley, Roger Dudley.

Garry R. Lane, Ransmeier & Spellman, Concord, NH, for Business Express, Inc., Concord Commercial Corp., Marketing Corp. of America.

Ronald L. Snow, Orr & Reno, PA, Concord, NH, for Beech Aircraft Corp.

ORDER

DEVINE, Senior District Judge.

In this diversity action, plaintiffs Terri and Roger Dudley allege claims of negligence, strict liability, breach of warranty, and loss of consortium against defendants Business Express, Inc., Concord Commercial Corporation (CCC), Marketing Corporation of America (MCA), and Beech Aircraft Corporation (Beech) based on injuries Terri Dudley allegedly sustained when she struck her head while boarding an aircraft manufactured by Beech and operated by Business Express.

Presently before the court are defendants' motions to dismiss plaintiffs' claims for negligence and strict liability on the ground that said claims are expressly preempted by section 1305 of the Airline Deregulation Act of 1978 (ADA), Pub.L. No. 95-504, 92 Stat. 1705, 1708 (codified at 49 U.S.C. App. § 1305(a) (Supp.1994)).¹ Plaintiffs object.

Background

On September 21, 1991, Terri and Roger Dudley were validly ticketed passengers on Business Express flight # 4526 from Logan Airport in Boston, Massachusetts, to Lebanon Municipal Airport in West Lebanon, New Hampshire. Plaintiffs allege that while embarking upon the Beech Model 1900 aircraft used for said flight, Terri Dudley struck her head on either the top of the door frame or the fuselage and suffered injury as a result. Amended Complaint ¶ 10. In the roughly two years that have elapsed between the injury and the commencement of this action, plaintiffs allege that Terri Dudley has suffered both memory and cognitive problems and has incurred substantial medical and hospitalization bills. Plaintiffs further allege that these injuries result directly from defendant Business Express's (1) negligence in maintaining the aircraft in an unsafe condition, (2) negligence in training and hiring its employees, and (3) failure to adequately warn her about the unsafe condition of the aircraft entrance. Roger Dudley, Terri's husband, asserts a claim for loss of consortium.²

Discussion

1. Motion to Dismiss Standard

When ruling on a motion to dismiss, it is well established that the factual averments contained in the complaint are to be taken as true, and the court should "indulge every reasonable inference helpful to the plaintiff's cause." Garita Hotel Ltd. Partnership v. Ponce Fed. Bank F.S.B., 958 F.2d 15, 17 (1st Cir.1992); see also Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). Whether a motion to dismiss will be successful is not dependent upon the likelihood of success on the merits, but rather upon whether the plaintiff is entitled to offer evidence to support his claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Thus, a dismissal for failure to state a claim should be granted "only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Garita, supra, 958 F.2d at 17 (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990)).

2. Federal Preemption Generally

Due to the command of the Supremacy Clause that federal law "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, "state laws that conflict with federal laws and regulations ... are preempted." King v. Collagen Corp., 983 F.2d 1130, 1133 (1st Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993) (citing, e.g., Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978)). Courts must look to congressional intent in order to determine what kinds of state laws are within the preemptive sweep of federal law. Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 823 (1st Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993). As such, "consideration of issues arising under the Supremacy Clause `start with the assumption that the historic police powers of the States are not to be superseded by a Federal Act unless that was 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 court thus interprets section 105(a)(1) of the ADA mindful of this "presumption against preemption." Id., ___ U.S. at ___, 112 S.Ct. at 2618.

3. Preemption and the ADA

Although the origin and purpose of the ADA have been diligently set forth many times before,³ this court has chosen to revisit familiar terrain in light of the absence of any guidance on the instant issue from the First Circuit.⁴

In 1938 Congress, facing a nascent airline industry, passed legislation which created the Civil Aeronautics Board (CAB).⁵ The CAB was authorized to "regulate entry into the interstate airline industry, the routes that airlines could fly, and the fares that they could charge consumers." Morales, supra note 5, at 421, 112 S.Ct. at 2056 (Stevens, J., dissenting). This 1938 Act also included a "savings clause," which read, "Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." 49 U.S.C. App. § 1506 (1976).

Although the 1938 Act was replaced by a similar regulatory scheme in 1958,⁶ the principal provisions of the statute remained in effect until 1978. In that year, Congress decided to withdraw economic regulation of interstate airline rates, routes, and services, and therefore enacted the Airline Deregulation Act of 1978 "to encourage, develop, and attain an air transportation system which relies on competitive market forces to determine the quality, variety and price of air services." H.R.Conf.Rep. No. 95-1779, 95th Cong., 2d Sess. 53 (1978), reprinted in 1978 U.S.C.C.A.N. 3737, 3773. In order to avoid the frustration of that goal by the substitution of state regulations for the recently removed federal regulations, Congress enacted section 105(a) of the ADA. 49 U.S.C. App. § 1305(a). While so doing, Congress also retained the savings clause that preserved common law and statutory remedies. 49 U.S.C. App. § 1506 (1976).

Section 105(a)(1) of the ADA provides:

no State or political subdivision thereof and no interstate agency or other political agency of two or more States 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....

49 U.S.C. App. § 1305(a)(1) (Supp.1994). In pursuing its mandate, the CAB interpreted section 105 in light of its two underlying policies — to prevent state economic regulation from frustrating the benefits of federal deregulation, and to clarify the confusion under the prior law which permitted some dual state and federal regulation of the rates and routes of the same carrier. 44 Fed.Reg. 9948-49 (1979).

Since "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer," the CAB's regulations interpreting section 105(a) "are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). According to the CAB,

Section 105 forbids state regulation of a federally authorized carrier's routes, rates, or services. Clearly, states may not interfere with a federal carrier's decision on how much to charge or which markets to serve.... Similarly, a state may not interfere with the services that carriers offer in exchange for their rates and fares. For example, liquidated damages for bumping (denial of boarding),⁷ segregation of smoking passengers, minimum liability for loss, damages, and delayed baggage, and ancillary charges for headsets, alcoholic beverages, entertainment, and excess baggage would clearly be "service" regulation within the meaning of section 105.

44 Fed.Reg. at 9950-51. Thus, the CAB's own statements in implementing the ADA strongly indicate that the ADA was concerned solely with deregulating economic, not safety, issues.

Defendants argue that plaintiffs' state law claims are expressly preempted by section 105(a)(1) of the ADA. Whenever Congress includes an express preemption clause in a statute, reviewing courts are to focus upon the preemptive reach of such provision. See Morales, supra, 504 U.S. at 384, 112 S.Ct. at 2037; Cipollone, supra, ___ U.S. at ___, 112 S.Ct. at 2617 (plurality opinion); id. at ___, 112 S.Ct. at 2625 (Blackmun, J., concurring in part and dissenting in part).

In Morales v. Trans World Airlines, supra, the Supreme Court considered the preemptive scope of 49 U.S.C. App. § 1305(a). At issue in Morales was whether the attorneys general of several states could use state consumer protection statutes to regulate airline fare advertisements or whether such activity was barred by section 1305(a)(1). The Court held that the plain meaning of the term "relating to" in section 1305 evinced a congressional intent to make the scope of preemption broad. Morales, supra, 504 U.S. at 384, 112 S.Ct. at 2037. Congress, according to the Court, had determined that "`maximum reliance on...