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
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.
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,
¶ 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,
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 433before 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,
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
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