Mexico City Aircrash of October 31, 1979, In re

Decision Date31 October 1979
Citation708 F.2d 400
PartiesIn re MEXICO CITY AIRCRASH OF
CourtU.S. Court of Appeals — Ninth Circuit

Appeal from the United States District Court for the Central District of California.

Before FLETCHER, PREGERSON and REINHARDT, Circuit Judges.

FLETCHER, Circuit Judge:

This is an appeal by the personal representatives of three employees of Western Airlines who were killed in the crash of a Western jetliner on October 31, 1979. The actions brought by the plaintiffs against Western Airlines and other defendants were dismissed by the district court on the ground that as the representatives of airline employees, the plaintiffs were limited to the exclusive remedies provided by the California worker's compensation statutes, Cal.Labor Code Secs. 3201-3213. The plaintiffs appeal from the district court's ruling, contending that causes of action outside the worker's compensation statutes are provided by (1) the Federal Aviation Act, (2) the Warsaw Convention, and (3) the "dual capacity" doctrine of California law. The appellants further argue that genuine issues of material fact are presented with respect to all or some of these causes of action, and that dismissal of their claims was erroneous.

We affirm the judgment of dismissal as to the claims asserted by the representatives of two of the decedents, Haley and Tovar, who were flight attendants on duty aboard the plane that crashed. We reverse the dismissal of the claims asserted by representatives of the third decedent, Dzida, who was allegedly aboard the plane in a "deadheading" capacity while en route to a duty assignment on a flight originating in Mexico City, because there are genuine issues

of material fact concerning the cause of action that appellant Dzida has asserted under the Warsaw Convention.

BACKGROUND

On October 31, 1979, Western Airlines Flight 2605 from Los Angeles crashed as it attempted to land at Mexico City Airport near Mexico City. Seventy-four persons aboard were killed. Among the victims were Theresa Haley, Regina Tovar, and Vikki Dzida.

On October 31, 1980, complaints were filed in the United States District Court for the Central District of California by three plaintiffs, one representing each of the decedents listed above. Each claimed damages for death and loss of property, both as heir and as personal representative. 1 The amended complaints of Haley and Tovar alleged that Theresa Haley and Regina Tovar had been "employees" aboard Flight 2605; Dzida's complaint alleged that Vikki Dzida was a "passenger" aboard the flight.

In each of the three suits, Western responded with a pleading entitled "Motion to Dismiss for Failure of the Complaint to State a Claim Upon Which Relief Can Be Granted; or, in the Alternative, for Summary Judgment." The theory of these motions was that the decedents had been Western employees and that the California worker's compensation statute, Cal.Labor Code Secs. 3201-3213, provided the exclusive worker's compensation remedy that the decedents' estates might be entitled to collect. Accompanying each motion was an affidavit by Darlene Harris, Western's Manager of In-Flight Services, who served as the work coordinator for the decedents at the time of the accident. Harris's affidavits in the Haley and Tovar cases stated that both Theresa Haley 2 and Regina Tovar were on duty as flight attendants on Flight 2605, receiving full pay and full flight time credit. In the Dzida case, Harris stated that Vikki Dzida

was an employee of Western Airlines, Inc., on October 31, 1979. She was a Los Angeles based Flight Attendant and, as such, was aboard Flight 2605. She was deadheading to Mexico City to work as a Flight Attendant aboard Western Flight 604, departing Mexico City at 8:55 a.m. on October 31, 1979.

The deceased received 100% of normal flight duty pay; plus 50% credit against her normal 80-hour per month duty assignment for her time aboard Flight 2605.

In response to Western's motions, the plaintiffs each asserted three sources of a right to recover damages despite the status of the decedents as Western employees. Under the "dual capacity" doctrine of California law, the plaintiffs claimed, an action could be maintained against Western on a products liability theory if Western contributed to the design or manufacture of the plane that crashed, even though an action could not be maintained based on Western's status as an employer. The other two theories of recovery were based on rights derived from federal law that the plaintiffs claimed preempted the exclusivity of the state worker's compensation remedy. The sources of federal law relied upon by the plaintiffs were the Federal Aviation Act, 49 U.S.C. Secs. 1301-1542, and the Warsaw Convention, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11.

Plaintiff Anthony Dzida opposed the motion to dismiss on the additional basis that his decedent, Vikki Dzida, was not aboard Flight 2605 in her capacity as a Western "employee," and that he was not, therefore, limited to a worker's compensation remedy. Dzida also requested the district court to grant him time to conduct discovery in order to investigate the circumstances of Vikki Dzida's presence on the flight.

The district court granted Western's motion to dismiss, 3 ruling that all three decedents were acting in the course and scope of their employment at the time of the crash, and that the plaintiffs, as their representatives, are limited to the exclusive remedies of the California Labor Code. From this ruling, all three plaintiffs now appeal.

DISCUSSION

The issues that we must determine are not simply whether some cause of action was available to the plaintiffs that would allow them to circumvent the limitation on remedies imposed by sections 3600 and 3601 of the California Labor Code, but also whether there existed any such cause of action over which the district court could properly exercise subject matter jurisdiction. The plaintiffs did not sufficiently allege diversity. 4 The district court had jurisdiction to entertain the action only if the plaintiffs' causes of action depended upon federal law. See 28 U.S.C. Sec. 1331 (Supp. IV 1980); Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 663, 81 S.Ct. 1303, 1307, 6 L.Ed.2d 584 (1961); Gully v. First National Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936). Only if such a federal question was raised by the complaint could the district court in each case consider whether to exercise pendent jurisdiction over state law claims. If the dismissal of the plaintiffs' federal claims was proper, then dismissal of the state claims was within the court's discretion. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Hodge v. Mountain States Telephone and Telegraph Co., 555 F.2d 254, 261 (9th Cir.1977). The critical issue at this stage is whether the district court improperly dismissed any valid federal cause of action as to which there existed a genuine issue of material fact. See Fed.R.Civ.P. 56(c). We now consider that question.

1. Federal Aviation Act.

The Federal Aviation Act ("the Act"), 49 U.S.C. Secs. 1301-1542 (1976 & Supp. IV 1980), is a detailed statute that governs civil aviation within the jurisdiction of the United States. Subchapter VI of the Act, 49 U.S.C. Secs. 1421-1432 (1976 & Supp. IV 1980), entitled "Safety Regulation of Civil Aeronautics," confers extensive powers upon the Secretary of Transportation to prescribe standards and regulations concerning numerous aspects of civil aviation for the purpose of promoting safety. 5 Pursuant Subchapter IX of the Act provides for penalties to be imposed upon violators of the Act and its regulations. Section 1471 allows civil penalties generally for violations of the Act, 6 while section 1472 discusses specific violations that give rise to criminal sanctions. However, the Act does not expressly create a private right of action in favor of persons injured as a result of Federal Aviation Act violations. The appellants urge that such a right of action should be implied from the safety-oriented provisions of the Act, its accompanying regulations, and the general intent of the Act to promote the safety of air travelers.

to this subchapter, the secretary has promulgated comprehensive rules and guidelines, published in volume 14 of the Code of Federal Regulations.

This court has not addressed the question whether a private remedy is available under the Federal Aviation Act for the representatives of persons killed in a commercial aviation accident. 7 Appellants rely on two district court decisions, Gabel v. Hughes Air Corp., 350 F.Supp. 612 (C.D.Cal.1972), and In re Paris Air Crash, 399 F.Supp. 732 (C.D.C...

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