Earlier this year, the Third Circuit Court of Appeals, in Sikkelee v. Precision Airmotive Corp.,1 held that the Federal Aviation Act of 19582 (the “Act”) does not preempt state tort law standards of care in aviation product liability claims. This ruling came 17 years after the Third Circuit’s finding in Abdullah v. American Airlines that the Act, and the Federal Aviation Regulations (“FARs”) promulgated thereunder, occupied “the entire field of aviation safety.”3 Based on this language, Abdullah seemingly answered the question of whether the Act and the FARs setting forth the design and certification requirements of aircraft products preempted state standards of care in aviation product liability claims. The Abdullah court, however, did not address specifically whether the Act applied to aviation product liability claims, as the decision arose in the context of passengers’ claims against the airline for negligent operation of the aircraft. As such, the question of whether the Act and the FARs preempted state tort law standards governing alleged defects in aircraft products remained unanswered.
In the years following the Abdullah decision, courts relied upon the broadly worded statement that the “entire field of aviation safety” was preempted to find preemption in certain circumstances. The reach of Abdullah was easily applied to cases involving aircraft operations, but its application to aviation product liability cases was not clearly established. Sikkelee presented the Third Circuit with an opportunity to revisit the preemptive reach of the Act and the FARs in the context of an aviation product liability claim. With this opportunity, the Court significantly narrowed its holding in Abdullah, concluding:
[A]lthough we stated in broad terms that the Federal Aviation Act preempted the ‘field of aviation safety,’ . . . the regulations and decisions we discussed in Abdullah all related to in-air operations . . . and the catch-all standard of care that we held a court ‘must refer to’ applied only to operating, not designing or manufacturing an aircraft.4
The question of whether the Act preempts the entire field of aviation safety, including aviation product liability claims, has now been brought to the U.S. Supreme Court. Following the Third Circuit’s ruling, the manufacturer in Sikkelee, AVCO Corp. (“AVCO”), filed a Petition for a Writ of Certiorari seeking a determination by the Supreme Court that the Act preempts all state-law standards of care related to aviation safety claims.5 AVCO argues that the Act preempts state law standards of care because the Act directs the FAA to regulate aviation safety through promulgation of “minimum standards required in the interest of safety . . . for the design, material, construction, quality of work, and performance of aircraft, aircraft engines, and propellers.”6 Because the aviation industry is unique among transportation industries in its relation to the federal government, AVCO posits that federal field preemption of aviation safety is a foregone, necessary conclusion.
The Act creates a comprehensive scheme governing aviation safety, an area dominated by federal interests, and it leaves no room for supplementation by state-law standards of care. As the FAA itself has recognized, permitting States to impose their own standards of care governing aircraft design, as the court of appeals did here, threatens to undermine aviation safety and would give rise to the very disuniformity the Act was intended to prevent.7
AVCO seeks certiorari on the basis that the Third Circuit’s ruling creates a deeper split in the circuit courts, and requests that the Supreme Court resolve the split by overturning the Third Circuit. AVCO also argues that the Third Circuit erroneously applied principles of federal preemption to conclude that the Act and the FARs did not preempt state tort law standards. It disputes the Third Circuit’s marginalization of the Federal Aviation Administration’s opinion that its certification of aircraft products as airworthy under the FARs has a preemptive effect. Because the question whether aviation product liability claims must be controlled by federal standards is one of “exceptional importance,” AVCO concludes, certiorari is warranted.
Whether the Supreme Court grants certiorari remains to be seen. The Supreme Court has recognized federal preemption of state standards of care in non-product liability aviation cases, but has never ruled on an aviation products case. Both federal and state courts have grappled with the extent of the preemptive reach of the Act, with varying results. In considering whether Congress intended to preempt state standards of care for aviation product liability claims, the Sikkelee court compared the manufacturing and certification regulations to those applicable to aircraft operations. The court concluded that the regulatory scheme was not as pervasive and complete as those regulations controlling aircraft operation. Therefore, the Third Circuit found that Congress did not intend to preempt state law standards of care for aviation product liability claims. The appellate court also stated that its holding in Sikkelee was in line with other circuit courts because those courts also looked to “pervasiveness” of the specific area at issue in the case and did not start with the conclusion that the matter involved an aspect of aviation safety.8
While Sikkelee awaits word on whether the U.S. Supreme Court will address the question of preemption, the Washington Supreme Court is set to review the Washington Court of Appeals ruling in favor of preemption in Estate of Becker v. Forward Technologies Industries, which involved the crash of a Cessna 172N aircraft.9 Like Sikkelee, Becker considers whether the Act preempts state tort law standards of care in aviation safety claims, specifically product liability claims. The Becker complaint was originally dismissed following the manufacturer’s motion for application of a federal standard of care. The Washington Court of Appeals affirmed the dismissal. A petition for review was filed before the Sikkelee decision, but the Washington State Supreme Court’s grant of review was issued after the Third Circuit’s decision. Both the Washington state trial court and the midlevel appellate court relied on the Sikkelee lower court opinion. The Washington Supreme Court’s interpretation of this federal issue, therefore, could be superseded if the United States Supreme Court agrees to hear Sikkelee.
1 822 F.3d 680 (3d Cir. 2016). We discussed this ruling in our April 19, 2016 Client Alert “The Third Circuit Court of Appeals Limits Preemption in Sikkelee v. Precision Airmotive Corp.” This article can be accessed at http://www.condonlawcom.wpengine.com/2016/04/andrew-j-nadel-2-2/
2 Pub. L. No. 85-726, recodified at 49 U.S.C. § 40101 et seq. (2006).
3181 F.3d 363, 365 (3d Cir. 1999).
4 822 F.3d at 689.
5 Petition for a Writ of Certiorari, AVCO Corp. v. Sikkelee, No. 14-4193 (2016). AVCO filed the Petition after the Third Circuit denied a rehearing en banc. The plaintiff in the original action, Jill Sikkelee, filed a Brief in Opposition on 24 October 2016. To date, there have been four requests for amicus filings.
6 49 U.S.C. 44701(a).
7 Petition for a Writ of Certiorari at 14-15, AVCO Corp. v. Sikkelee, No. 14-4193 (2016).
8 822 F.3d at 705 (citing Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1006 (9th Cir. 2013), Goodspeed Airport L.L.C. v. E. Haddam Inland Wetlands & Watercourses Comm’n, 634 F.3d 206, 210–11 (2d Cir. 2011), and U.S. Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1329 (10th Cir. 2010)).
9 No. 92972-6, 2016 WL 4127908 (Wash. Aug. 3, 2016).