The U.S. District Court for the Western District of New York and the Supreme Court of the State of New York, Erie County, have previously held that the Federal Aviation Act of 1958 (the “Act”) and its regulations preempt state law standards of care in the context of litigation arising out of the Continental Connection Flight 3407 (operated by Colgan Air) accident on February 12, 2009 near Clarence Center, New York. See In Re Air Crash Near Clarence Center, New York, On Feb. 12, 2009, 798 F. Supp. 2d 481 (W.D.N.Y. 2011); In re Air Crash Near Clarence Ctr., New York On Feb. 12, 2009, 38 Misc. 3d 308, 951 N.Y.S.2d 841 (Sup. Ct.2012).1 However, the precise nature of the federal standard of care derived from the Act and its corresponding regulations remained in dispute.
In the federal litigation, U.S. District Judge Skretny subsequently issued a decision defining the federal standard of care and holding that no general standard of care outside of the specific Federal Aviation Regulations applies to plaintiffs’ negligent hiring, training, selection and supervision claims.2 In other words, plaintiffs must establish a violation of a specific Federal Aviation Regulation to prevail on their negligence claims against an air carrier.
Justice Frederick J. Marshall of the Supreme Court of the State of New York (Erie County) has now addressed this issue and reached the same conclusion as Judge Skretny by Memorandum Decision dated July 10, 2014.
Plaintiffs in the New York State litigation had moved for the application of a federal general standard of care to their negligent hiring, training, selection and supervision claims based upon one of the following: (1) § 91.13 of the Federal Aviation Regulations, providing that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another”; (2) the language of Federal Aviation Act of 1958, recognizing the “duty of an air carrier to provide service with the highest possible degree of safety in the public interest”; or (3) federal common law.
Justice Marshall rejected all three of plaintiffs’ arguments. First, Justice Marshall held that § 91.13 unequivocally relates to the “operation of aircraft,” and not plaintiffs’ claims relating to hiring, training and supervision. Justice Marshall based this conclusion in large part on FAA administrative decisions (cited by plaintiffs) finding that air carriers had violated § 91.13 when their crew acted carelessly or recklessly in operating aircraft. Adopting defendants’ argument, the Court held that those decisions demonstrate that carriers may be liable under § 91.13 vicariously for the careless or reckless actions of a pilot because the carriers authorized use of the aircraft, but that § 91.13 nonetheless relates only to the operation of aircraft. Accordingly, § 91.13 does not provide the standard of care for plaintiffs’ negligent hiring, training, selection and supervision claims as those claims do not relate to the operation of aircraft.
Second, Justice Marshall held that no overarching general federal standard of care – apart from § 91.13, which applies only to the operation of aircraft – governs hiring, training and supervision of pilots. As support, the Court posited:
If, as plaintiffs contend, a general federal standard of care should be based on ‘the highest possible degree of safety,’ would such a standard exceed even the careless or reckless standard found in § 91.13(a)? (Emphasis added). Could not the words “highest possible degree of safety” lead a jury to conclude that air carriers must act with near perfection when exercising their judgment in making decisions to hire or retain a pilot? Under the plaintiffs’ proposed standard, no amount of training or re-training would be sufficient to avoid direct carrier liability in the event of an accident. Nothing in the [Act] suggests this result.
Finally, Justice Marshall concluded that the federal courts have rejected adoption of a federal common law to fill any alleged gaps in the Federal Aviation Regulations.
Ultimately, the court was unpersuaded by plaintiffs’ attempt to hold air carriers to a higher standard of care beyond the “breadth and scope of the regulatory scheme controlling the hiring and training of pilots” and instead held that “the proper standard of care must spring from the numerosity and specificity” of the Federal Aviation Regulations.
1 See “New York State Court Holds State Law Standards Preempted by Federal Action Act of 1958,” Condon & Forsyth LLP Client Bulletin (October 2012).
2 See “U.S. District Court Defines the Federal Standard of Care Under the Federal Aviation Act of 1958,” Condon & Forsyth LLP Client Bulletin (November 2013).