Witty v. Delta Air Lines, Inc.

• Decision Date: 13 April 2004
• Docket Number: No. 03-30654.,03-30654.
• Citation: 366 F.3d 380
• Parties: Milton B. WITTY, III, Plaintiff-Appellee, v. DELTA AIR LINES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

366 F.3d 380

Milton B. WITTY, III, Plaintiff-Appellee, v. DELTA AIR LINES, INC., Defendant-Appellant.

No. 03-30654.

United States Court of Appeals, Fifth Circuit.

April 13, 2004.

Gerald Gregory Green (argued), Law Offices of G. Gregory Green, Monroe, LA, for Plaintiff-Appellee.

Michael David Ferachi, McGlinchey Stafford, Baton Rouge, LA, Jeffrey J. Ellis (argued), Quirk & Bakalor, New York City, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before REAVLEY, DAVIS and DeMOSS, Circuit Judges.

REAVLEY, Circuit Judge:

In this appeal we hold that this passenger's state tort claims against an airline are preempted, and we render judgment for the airline.

BACKGROUND

Milton Witty brought this diversity suit in Louisiana federal district court against Delta Air Lines, Inc. (Delta). He claims that he developed Deep Vein Thrombosis (DVT) while on a Delta flight from Monroe, Louisiana to Hartford, Connecticut.

DVT occurs when a blood clot develops in a deep vein, usually in the leg. It can cause serious complications if the clot breaks off and travels to the lungs or brain. Witty alleged that Delta was negligent in failing to warn passengers about the risks of DVT. He asserts in his appellate brief that "[t]he warning should be that there is a high risk of developing [DVT] in pressurized cabins that exceed a certain length of time." The complaint also alleged that Delta was negligent in failing to provide adequate leg room to prevent DVT and in "failing to allow [passengers] to exercise their legs."

Delta filed a motion to dismiss, arguing that the state law claims were preempted. The district court denied the motion. The court reasoned that under Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir.1995) (en banc), state regulation of airline "services" is preempted but that "state tort actions for personal physical injuries caused by the operation and maintenance of aircraft are not preempted by federal law." Dist. ct. ruling at 3. The court concluded that Witty's claim arose from the operation of Delta's aircraft and therefore was not preempted.

The district court found that the order was appropriate for interlocutory appeal under 28 U.S.C. § 1292(b), and we permitted the appeal.

DISCUSSION

We review de novo the district court's ruling on preemption. Baker v. Farmers Elec. Coop., Inc., 34 F.3d 274, 278 (5th Cir.1994).

Sitting en banc in Hodges, we held that a passenger's personal injury claim under state law was not preempted. The passenger "was injured when a fellow passenger opened an overhead compartment and dislodged a case containing several bottles of rum." 44 F.3d at 335. We analyzed the effect of the preemption provision of Airline Deregulation Act of 1978(ADA), which states that, subject to certain exceptions not relevant here, "a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route or service of any air carrier that may provide air transportation under this subpart." 49 U.S.C. § 41713(b)(1) (previously codified at 49 U.S.C. app. § 1305(a)(1)).¹

In Hodges, we held that the preemptive effect of § 41713(b)(1) is limited by a provision of the Federal Aviation Act of 1958(FAA), 49 U.S.C. § 41112(a) (previously codified at 49 U.S.C. app. § 1371(q)),² which provides that air carriers must maintain insurance or self-insurance that covers liability "for bodily injury to, or death of, an individual ... resulting from the operation or maintenance of the aircraft...." We reasoned that § 41112(a) "can only be understood to qualify the scope of `services' removed from state regulation by [§ 41713(b)(1)]. A complete preemption of state law in this area would have rendered any requirement of insurance coverage nugatory." Hodges, 44 F.3d at 338. "Thus, federal preemption of state laws, even certain common law actions `related to services' of an air carrier, does not displace state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft." Id. at 336.

We recognized in Hodges that there is no "strict dichotomy" between "services" and "operation or maintenance of aircraft," concluding instead that the terms "overlap somewhat conceptually," and thereby suggesting a case by case resolution of preemption questions. See id. at 339. We ultimately concluded that the state personal injury claim was not related to the provision of airline services and did "derive from the operation of the aircraft," and accordingly was not preempted. Id. at 340.

Merely describing our analysis in Hodges demonstrates that preemption questions in this arena do not always submit to a simple analysis. Insofar as plaintiff Witty in the pending case alleges that Delta should have provided more leg room, we hold that such a requirement would inexorably relate to prices charged by airlines, and Witty does not seriously contend otherwise. Since requiring more leg room would necessarily reduce the number of seats on the aircraft, such a requirement would impose a standard "relating to a price" under § 41713(b)(1), and is accordingly preempted by the ADA. Section 41713(b)(1) not only preempts the direct regulation of prices by states, but also preempts indirect regulation "relating to" prices that have "the forbidden significant effect" on such prices. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385, 388, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). While the state regulation of leg room might not relate to prices as obviously as the state regulation of fare advertising at issue in Morales, the economic effect on prices would in our view be significant, perhaps much more so than the advertising rules at issue in Morales. See Hodges, 44 F.3d at 339 ("Morales relied in part on the fact that the state restrictions on airfare advertising had a significant economic effect on fares.").

The failure to warn claim³ presents a closer question, but we conclude under implied preemption doctrines that Congress intended to preempt state standards for the warnings that must be given airline passengers.

At the outset, we note that Hodges described the ADA as "an economic deregulation statute," id. at 335, suggesting that the express preemption provision of that Act is not necessarily the only conceivable basis for finding preemption in a personal injury case based on inadequate safety warnings. There is a separate federal act, the FAA, which addresses air safety. The Supreme Court, after Hodges, has recognized that preemption under ordinary implied preemption principles is not necessarily foreclosed by the existence of an express preemption provision. Geier v. Am. Honda Motor Co., 529 U.S. 861, 869, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000).⁴ Moreover, Hodges expressly did not reach the issue of "the possible preemptive effect of Federal Aviation Administration safety regulations governing aircraft and carriers." Hodges, 44 F.3d at 339 n. 12.⁵ This issue is squarely raised in the pending case.

Preemption ultimately turns on congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Preemption may be express or implied. Morales, 504 U.S. at 383, 112 S.Ct. 2031. Under the implied preemption doctrines of field preemption and conflict preemption, a state claim is preempted where "Congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme" or where "state law conflicts with federal law or interferes with the achievement of federal objectives." Hodges, 44 F.3d at 335 n. 1. In the pending case, field preemption and conflict preemption are both applicable, because there exists a comprehensive scheme of federal regulation, and the imposition of state standards would conflict with federal law and interfere with federal objectives.

The FAA not only authorizes but affirmatively directs the Administrator of the Federal Aviation Administration to promulgate air safety standards and regulations, including standards and regulations relating to aircraft design, aircraft maintenance and inspections, "the maximum hours or periods of service of airmen and other employees of air carriers," and as a catchall provision, "other practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security." 49 U.S.C. § 44701(a). The administrator is generally charged with carrying out the FAA "in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation." Id. § 44701(c).

Pursuant to its congressional charge to regulate air safety, the Federal Aviation Administration has issued a broad array of safety-related regulations codified in Title 14 of the Code of Federal Regulations. These regulations cover airworthiness standards, crew certification and medical standards, and aircraft operating requirements. The regulations include a general federal standard of care for aircraft operators, requiring that "[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." 14 C.F.R. § 91.13(a) (2003).

There are a number of federal regulations governing the warnings and instructions which must be given to airline passengers. These regulations require, for example, that "no smoking" placards be placed in lavatories, id. § 25.791(d) (2004), that "no smoking" signs be illuminated during the entire flight on non-smoking flights, id. § 121.317(c) (2003), and that the "fasten seat belt" sign "shall be turned on during any movement on the surface, for each takeoff, for each landing, and at any other time considered necessary by the pilot in command," id. § 121.317(b). In addition, the Federal Aviation Administration has published regulations, id. §§ 121.571 & 121.585, and an advisory circular⁶ setting out in detail the oral briefings, familiar to all domestic...