Ravreby v. United Airlines, Inc., 63455

• Court: Iowa Supreme Court
• Writing for the Court: UHLENHOPP
• Citation: Ravreby v. United Airlines, Inc., 293 N.W.2d 260 (Iowa 1980)
• Decision Date: 18 June 1980
• Docket Number: No. 63455,63455
• Parties: Mark D. RAVREBY, Appellant, v. UNITED AIRLINES, INC., Appellee.

Page 260

293 N.W.2d 260

Mark D. RAVREBY, Appellant, v. UNITED AIRLINES, INC., Appellee.

No. 63455.

Supreme Court of Iowa.

June 18, 1980.

Paul H. Rosenberg of Rosenberg & Margulies, Des Moines, for appellant.

Brent B. Green of Gamble, Riepe, Burt, Webster & Davis, Des Moines, and Paul M. Tschirhart, Chicago, Ill., for appellee.

Considered by REES, P. J., and UHLENHOPP, McCORMICK, McGIVERIN, and LARSON, JJ.

UHLENHOPP, Justice.

This appeal involves the responsibility of an airline, as a common carrier, to protect its non-smoking passengers from the effects of tobacco smoke from smoking passengers.

In July 1977, plaintiff Mark D. Ravreby, a Des Moines physician and member of the Iowa bar, purchased from defendant United Airlines, Inc., a first-class round trip ticket to Reno, Nevada, for $410. At the time Dr. Ravreby checked in for his flight on July 28, 1977, United personnel asked him whether he preferred a seat in a smoking or no-smoking section. He requested a no-smoking seat. Upon boarding the plane he was seated in the front row of the first-class section. That section had two other rows. Smoking was not allowed in the front row where Dr. Ravreby was seated, but was allowed in the other two first-class rows including the seat directly behind him.

Dr. Ravreby testified that during the flight the first-class cabin "was completely filled with smoke" which caused him "extreme nausea, hoarseness, and irritation to the eyes and throat." His discomfort was exacerbated by hay fever and a heart condition which make him extra sensitive to air pollutants. He expressed his discomfort to the flight stewardess but she told him she could do nothing. Dr. Ravreby also asked the other passengers in the cabin to refrain from smoking, but they declined to comply. Finally, Dr. Ravreby complained at a United "comfort station" during a stopover in Denver, but "was assigned to the same area, and again the same situation occurred." He completed the rest of his round trip flight under the same circumstances.

Upon his return to Des Moines, Dr. Ravreby wrote United asking for a refund of his ticket price. When that attempt proved unsuccessful, he filed an action against United in the Polk District Court Small Claims Division, seeking damages for the discomfort he sustained during his flight. He did not ask damages for any long-term effects that the smoke had on his health.

As a basis for recovery Dr. Ravreby originally alleged nuisance, breach of the common carrier's duty of care, and breach of contract. Later he abandoned the nuisance theory.

The Magistrate awarded Dr. Ravreby the price of his ticket. United appealed to a District Judge, who dismissed the action on three grounds: (1) Iowa courts lack jurisdiction over the controversy due to regulation of this area by the Civil Aeronautics Board (CAB); (2) United fulfilled its contractual duties to Dr. Ravreby and has no duty, "contractual or otherwise, to protect plaintiff from any contact with smoke while he is in defendant's airline"; and (3) Dr. Ravreby "has proven no personal injury." The district judge conducts a de novo review in these cases on the record before the magistrate, although the judge may hear additional evidence if the record is inadequate. § 631.13(4), The Code 1979.

Dr. Ravreby petition for discretionary review under section 631.16 of the Iowa Code, and we granted the petition. In this review Dr. Ravreby challenges each of the three grounds for dismissing the action.

Iowa Rule of Appellate Procedure 203 states, "If an application for discretionary review is granted, further proceedings shall be had pursuant to the Rules of Appellate Procedure to the full extent not inconsistent with statute." The claim was in the nature of an action at law for damages, hence the decision is reviewable by this court on error under Rule of Appellate Procedure 4. See also, Keith v. Community School District of Wilton in the Counties of Cedar and Muscatine, 262 N.W.2d 249, 255 (Iowa 1978). Chapter 631 is consistent with that conclusion. See § 631.16(6) ("The record and case shall be presented to the supreme court as provided by the rules of appellate procedure . . .."). Consequently, the findings of fact in the District Judge's decision have the force of a jury verdict and are binding if supported by substantial evidence. Knauss v. Kemin Industries, Inc., 267 N.W.2d 56, 57 (Iowa 1978). Evidence is substantial when a reasonable mind would accept it as adequate to support a conclusion. State v. Robinson, 288 N.W.2d 337, 338 (Iowa 1980); General Telephone Co. of Midwest v. Iowa State Commerce Commission, 275 N.W.2d 364, 370 (Iowa 1979).

I. Subject-matter jurisdiction. The parties present the jurisdictional issue as two separate questions: first, whether Congress preempted state action in this area by the Federal Aviation Act of 1958, and second, whether CAB's experience in the regulation of smoking on board commercial aircraft gives it primary jurisdiction over a complaint such as the one of Dr. Ravreby. We note initially that even if we were to answer the second question affirmatively, Iowa courts would still have jurisdiction over this case because the doctrine of primary jurisdiction is predicated on judicial restraint rather than on the absence of subject-matter jurisdiction. See Ashland Oil & Refining Co. v. Federal Power Commission, 421 F.2d 17, 20 (6th Cir. 1970); Maryland-National Capital Park and Planning Commission v. Washington National Arena, 282 Md. 588, 601, 386 A.2d 1216, 1226 (1978); Browne v. Milwaukee Board of School Directors, 69 Wis.2d 169, 175, 230 N.W.2d 704, 707 (1975); 3 K. Davis, Administrative Law Treatise § 19.01, at 3 (1958). Since the record is not entirely clear whether the District Judge relied on the doctrine of primary jurisdiction, we will address both questions.

A. Preemption. United bases its preemption claim on the regulatory authority Congress granted CAB. Under the Federal Aviation Act of 1958, federal economic regulatory responsibility for interstate carriers is vested in CAB. 49 U.S.C. § 1324 (1976); Freeman, State Regulation of Airlines and the Airline Deregulation Act of 1978, 44 J. Air L. & Com. 747, 750 (1979). Pursuant to its responsibility to make such rules "as it shall deem necessary to carry out the provisions" of the Federal Aviation Act, 49 U.S.C. § 1324(a), and the provision in the Act requiring every air carrier to provide "adequate service" and enforce "reasonable . . . practices," 49 U.S.C. § 1374(a)(1), CAB adopted regulations on May 7, 1973, requiring certified air carriers to segregate smoking from non-smoking passengers. 14 C.F.R. § 252 (1979). Aside from requiring each carrier to designate a sufficient number of no-smoking seats in each class of service to accommodate persons who wish to be seated in those areas, 14 C.F.R. § 252.2, CAB purposely allowed carriers flexibility in adopting their own schemes for designating smoking and no-smoking seats. See 38 F.Reg. 12210 (1973). On January 11, 1979, CAB amended those rules to require "special segregation" of cigar and pipe smokers, no-smoking sections of at least two rows of seats, and a total ban on smoking when aircraft ventilation systems are not working properly. 14 C.F.R. § 252.1a-.2a.

We do not believe that the Federal Aviation Act of 1958 and the smoking regulations thereunder preempt state courts from deciding claims such as this one. We start with the premise that federal law does not preempt state law without a "clear manifestation" of Congressional intent to do so. See New York State Department of Social Services v. Dublino, 413 U.S. 405, 413, 93 S.Ct. 2507, 2513, 37 L.Ed.2d 688, 695 (1973). See also, In re Marriage of Schissel, 292 N.W.2d 421 (1980). The resolution of any given preemption problem depends on the features of the particular federal regulatory scheme. Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 626, 93 S.Ct. 1854, 1856, 36 L.Ed.2d 547, 550 (1973). The federal statute here contains a provision which clearly answers the preemption question. It provides that "(n)othing 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. § 1506. In view of section 1506, and in the absence of any provision in the Federal Aviation Act indicating a clear Congressional intent to the contrary, we conclude that a state court can hear and decide a claim such as Dr. Ravreby presents. Cf. McKay, Airline Tariff Provisions as a bar to Actions for Personal Injuries, 18 George Wash.L.Rev. 160, 190 (1950) ("(T)here would seem to be no justification for concluding that, by making it the duty of air carriers to establish reasonable practices (under the 1938 Civil Aeronautics Act), and empowering the Board to alter those practices which are unreasonable . . . Congress intended to occupy the field of liability for personal injuries. . . .").

B. Primary jurisdiction. United argues that this court should recognize CAB's primary jurisdiction over this case because of the Board's "years of regulatory experience with the problems presented by smoking on aircraft."

The doctrine of primary jurisdiction " 'is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.' " Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303, 96 S.Ct. 1978, 1987, 48 L.Ed.2d 643, 654 (1976), quoting United States v. Western Pacific R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 165, 1 L.Ed.2d 126, 132 (1956). Under the doctrine, "it may be appropriate (for a court) to refer specific issues to an agency for initial determination where that procedure would secure 'uniformity and consistency in the regulation of business entrusted to a particular agency,' or where 'the limited functions of review by the judiciary (would be) more rationally exercised, by preliminary resort for...