Martin ex rel. Heckman v. Midwest Exp. Holdings, 07-55063.

Citation555 F.3d 806
Decision Date09 February 2009
Docket NumberNo. 07-55063.,07-55063.
PartiesLola F. MARTIN, a minor, by and through her guardian ad litem, Carrie HECKMAN, an individual; Malcolm D.S. Martin, a minor, by and through his guardian ad litem, Carrie Heckman, an individual; Wrye Martin; Carrie Heckman, individuals, Plaintiffs, v. MIDWEST EXPRESS HOLDINGS, INC.; Midwest Express Airlines, Inc., a/k/a Midwest Airlines; Skyway Airlines, a/k/a Astral Aviation, Inc., Defendants-third-party-plaintiffs-Appellants, v. Eberhard Braun; Fairchild Dornier Luftfahrt Beteilingungs GMBH; Fairchild Dornier GMBH; Fairchild Dornier Corporation, Third-party-defendant-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Ralph S. LaMontagne, Jr., Shaw Terhar & LaMontagne, Los Angeles, CA, for the defendants-third-party-plaintiffs-appellants.

Arthur I. Willner, Berger Khan, Los Angeles, CA, for the third-party-defendant-appellees.

Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. CV-03-04796-GAF.

Before: ALEX KOZINSKI, Chief Judge, CARLOS T. BEA, Circuit Judge, and MARILYN L. HUFF,* District Judge.

KOZINSKI, Chief Judge.

We consider whether, and to what extent, the Federal Aviation Act, 49 U.S.C. §§ 40101 et seq., preempts an airline passenger's personal injury claims.


A pregnant woman fell from an airplane's stairs, injuring herself and her fetus. She sued the airline, Midwest Express, and the airplane's manufacturer, Fairchild Dornier and related companies, alleging that the stairs were defectively designed because they had only one handrail. Midwest Express settled the claim for $8 million, and now seeks indemnity from the manufacturer. Relying on Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir.2007), the manufacturer argues that the Federal Aviation Act preempts the passenger's personal injury claims and, consequently, Midwest Express' indemnity claim.


The Federal Aviation Act has no express preemption clause. The personal injury claim here conflicts with no provision of the act or regulation promulgated under it. The manufacturer's argument thus rests on implied field preemption.

The touchstone of preemption is congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). To find field preemption here, we must infer that Congress intended to exclude all state law personal injury suits from the area of air travel, even though it didn't say so. The FAA betrays no such intention. It expressly preserves state remedies, declaring "[a] remedy under this part is in addition to any other remedies provided by law." 49 U.S.C. § 40120(c). Moreover, it requires airlines to maintain liability insurance "sufficient to pay ... for bodily injury to, or death of, an individual or for loss of, or damage to, property of others, resulting from the operation or maintenance of the aircraft." 49 U.S.C. § 41112. As the FAA doesn't create a federal cause of action for personal injury suits, see Bennett v. Southwest Airlines Co., 484 F.3d 907 (7th Cir.2007), this clause can only contemplate tort suits brought under state law.

Two amendments to the FAA added limited preemption provisions, neither of which applies here. The Airline Deregulation Act preempts laws and regulations "related to a price, route, or service" of airlines. 49 U.S.C. § 41713. The General Aviation Revitalization Act provides an eighteen-year statute of repose for product liability claims against airplane manufacturers. 49 U.S.C. § 40101. As we explained in Charas v. Trans World Airlines, Inc., the airline regulatory acts "evidence[ ] congressional intent to prohibit states from regulating the airlines while preserving state tort remedies that already existed at common law." 160 F.3d 1259, 1265 (9th Cir.1998); see American Airlines, Inc. v. Wolens, 513 U.S. 219, 234 & n. 9, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) (suggesting that the airline regulatory statutes "leave[ ] room for personal injury claims").

While the FAA did not displace all state tort law touching air travel, neither did it leave states free to impose tort liability on all aspects of airplane operations. Citing "the pervasive nature of the scheme of federal regulation of aircraft noise," City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 633, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), held that the FAA and the Noise Control Act preempted a noise ordinance prohibiting planes from taking off between 11 p.m. and 7 a.m. Aircraft noise, the Court reasoned, is inextricably linked to the movement of aircraft, which is under exclusive federal control. As Justice Jackson had earlier remarked, "[p]lanes do not wander about in the sky like vagrant clouds. They move only by federal permission ... under an intricate system of federal commands." Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283 (1944) (Jackson, J., concurring).

Following Burbank, the circuits have generally analyzed FAA preemption by looking to the pervasiveness of federal regulations in the specific area covered by the tort claim or state law at issue. Claims regarding airspace management, pilot qualifications and failure to warn have been declared preempted. French v. Pan Am. Express, Inc., 869 F.2d 1 (1st Cir. 1989); Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir.1974); Witty v. Delta Air Lines, Inc., 366 F.3d 380 (5th Cir. 2004). But several defective product claims, such as the claim here, have not. Cleveland v. Piper Aircraft Corp., 985 F.2d 1438 (10th Cir.1993); Public Health Trust of Dade County, Fl. v. Lake Aircraft, Inc., 992 F.2d 291 (11th Cir.1993). See also Air Transp. Ass'n of Am. v. Cuomo, 520 F.3d 218 (2d Cir.2008) ("we have acknowledged that the FAA does not preempt all state law tort actions").

The Third Circuit, considering a failure to warn claim, took a different approach. Rather than limiting its analysis to regulations on warnings, the court decided that "federal law establishes the applicable standards of care in the field of air safety, generally, thus preempting the entire field from state and territorial regulation." Abdullah v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir.1999). The savings and insurance clauses, the court reasoned, only preserve state remedies, while excluding all state standards of care. Id. at 367-68. In Montalvo v. Spirit Airlines, citing Abdullah, we stated that the FAA "demonstrate[s] an intent to occupy exclusively the entire field of aviation safety and ... preempt all state law in this field." 508 F.3d 464, 471 (9th Cir.2007).

Considered as a whole, however, Montalvo cuts against the manufacturer's argument for broad FAA preemption. Montalvo dealt with three state tort claims against an airline, all based on passengers getting dangerous blood clots from long flights in cramped seating. 508 F.3d at 469. First, passengers claimed that the airline was negligent because the crew didn't warn them about blood clots, or tell them how to lessen their risk. Id. The FAA, we held, preempts this claim, and "all state law on the subject of air safety." Id. at 472.

Our analysis rested heavily on the Federal Aviation Administration's "pervasive regulations" of warnings to passengers. Id. The familiar litany of warnings — seatbelts should be worn low and tight around the hips; the seat cushion can be used as a flotation device — is federally required. Id. at 473; 14 C.F.R. § 121.571. The agency intended its list of warnings to be comprehensive. 508 F.3d at 473. If every state could supplement this list through tort law or legislation, there would be so many warnings that the ones the agency prescribed would be drowned out by the others. As the Fifth Circuit explained in Witty, "warnings by their nature conflict, in the sense that the import of one warning is diluted by additional warnings that might be imposed under state law." 366 F.3d at 385. Therefore, the FAA preempts any state tort claim based on a theory that the warnings required by the agency are insufficient.

Relying on this section of Montalvo, the manufacturer argues that the FAA preempts all personal injury claims by airline passengers, except claims based on violations of specific federal regulations. However, this argument conflicts with the second part of Montalvo, which considered a claim that the seating configuration was too cramped, putting passengers at risk of blood clots. Id. at 474. The passengers didn't allege that the seating violated a federal regulation, id.; see 14 C.F.R. § 23.785, and yet we didn't hold that the FAA preempted the claim, which would follow from a broad reading of the first section. Indeed, we didn't consider FAA preemption at all. Instead, we reversed the district court's holding that the Airline Deregulation Act preempted the claim and remanded for consideration whether providing roomier seating would significantly affect ticket prices or competition between airlines — a required element for ADA preemption. 508 F.3d at 475.

In a third claim, the Montalvo plaintiffs alleged that the airplane seats were defectively designed. The district court held that the FAA impliedly preempted the claim because seat designs were pervasively regulated, noting that "the FAA Administrator has enacted a wealth of federal regulations governing the design, maintenance, structure and position of aircraft seats." In re Deep Vein Thrombosis Litig., 2005 WL 591241 at *14 (N.D.Cal. 2005). The plaintiffs did not appeal that holding. Our analysis of Montalvo does not depend, as the concurrence argues, on any analogy between the seating design and configuration claims. Concurrence at 813. Rather, it springs from Montalvo's different treatment of the seating configuration and failure to...

To continue reading

Request your trial
120 cases
  • GEO Grp., Inc. v. Newsom
    • United States
    • U.S. District Court — Southern District of California
    • October 8, 2020
    ...Knox , 907 F.3d at 1173–74 ); U.S. Opp'n at 18 n.9 (citing Nat'l Fed'n , 813 F.3d at 734, 737 ; Martin ex rel. Heckman v. Midw. Express Holdings, Inc. , 555 F.3d 806, 812 (9th Cir. 2009) ; Novoa v. GEO Grp., Inc. , No. EDCV 17-2514 JGB (SHKx), 2018 WL 3343494, at *4 (C.D. Cal. June 21, 2018......
  • Williams v. Garland
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 16, 2022
  • Williams v. Garland
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 16, 2022
    ... ... Bank Nat'l ... Ass'n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at ... ...
  • Spinrad v. Comair, Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • November 23, 2011
    ...§ 40120(c) (“A remedy under this part is in addition to any other remedies provided by law.”); Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806, 809 (9th Cir.2009) (citing Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 234 & n. 9, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), an......
  • Request a trial to view additional results
4 firm's commentaries
4 books & journal articles
  • State Drone Laws: a Legitimate Answer to State Concerns or a Violation of Federal Sovereignty
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 31-2, December 2014
    • Invalid date
    ...of a heliport was not subject to an express preemption by the federal statute). 82. Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009) ("The Federal Aviation Act has no express preemption clause."); Holland, supra note 37, at *13 (noting that the Act di......
  • Products liability and commercial sales
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...did not preempt state claim for negligent design of airplane stair hand-rails. Martin v. Midwest Express Holdings, Inc. (9th Cir., 2009) 555 F.3d 806. • Claims against drug manufacturers for anti-psychotic drug risperidone. Risperdal & Invega Cases (2020) 49 Cal. App. 5th 942. • A state cla......
  • Chapter § 2.05 PHYSICAL INJURIES
    • United States
    • Full Court Press Travel Law
    • Invalid date present a jury question regarding punitive damages"). Ninth Circuit: Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806 (9th Cir. 2009) (FAA does not preempt pregnant passenger's state law claims for personal injuries); Montalvo v. Spirit Airlines, 508 F.3d 464 (9th C......
  • Federalism in the twenty-first century: preemption in the field of air.
    • United States
    • Defense Counsel Journal Vol. 78 No. 1, January 2011
    • January 1, 2011
    ...(Del. Sup. 2009) (applying state standards of care outside those imposed by the FAA). (89) Roberts, 2009 WL 6667966, at *7. (90) Id. (91) 555 F.3d 806 (9th Cir. (92) 555 F.3d at 810. (93) Martin, 555 F.3d at 811. (94) Martin, 555 F.3d at 812. (95) Er v. Boeing Co., Case No. 2009 L. 013971 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT