United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 13, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-30654
MILTON B. WITTY, III,
Plaintiff-Appellee,
versus
DELTA AIR LINES, INC.,
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 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
2
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
1
The language of this provision was changed when it was recodified, and it
previously referred to “rates” rather than “a price.” These changes however are not
substantive and do not affect our analysis. See Hodges, 44 F.3d at 340 n.1 (Jolly, J.,
concurring) (noting that recodification of Title 49 was without substantive change).
2
Again, the language of this provision was altered when it was recodified, but we
do not consider the changes substantive.
3
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 (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
4
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. Greir v. Am. Honda Motor Co., 529
U.S. 861, 869 (2000).4 Moreover, Hodges expressly did not reach the issue of “the
3
The complaint, by alleging that Delta was negligent in “failing to allow
[passengers] to exercise their legs,” might be construed as asserting a separate “failure to
instruct” claim that passengers were not advised to move about the cabin or were
instructed verbally or by the seat belt sign to remain in their seats. We conclude however
that the preemption analysis of such a claim is essentially identical to the analysis of a
failure to warn claim, and our discussion of the latter is intended to cover both claims.
4
Significantly, Greir also held that a statutory saving clause, preserving common
law remedies, “does not bar the ordinary working of conflict pre-emption principles.” Id.
(emphasis in original). Hence, a similar saving clause in the FAA, 49 U.S.C. § 40120(c),
providing that “[a] remedy under this part is in addition to any other remedies provided
by law,” does not foreclose us from concluding that state claims are preempted under
5
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 (1992). Preemption may be express or implied. Morales, 504
U.S. at 383. 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
recognized implied preemption principles.
5
Smith, likewise, did not reach this issue. Smith, 44 F.3d at 347 n.2.
6
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
7
circular6 setting out in detail the oral briefings, familiar to all domestic air travelers,
which flight attendants or other flight personnel must give passengers, as well the
information that must be included in passenger safety briefing cards.
We hold that federal regulatory requirements for passenger safety warnings and
instructions are exclusive and preempt all state standards and requirements. Congress
enacted a pervasive regulatory scheme covering air safety concerns that includes
regulation of the warnings and instructions that must be given airline passengers. The
Supreme Court has observed that the FAA “requires a delicate balance between safety
and efficiency, and the protection of persons on the ground. . . . The interdependence of
these factors requires a uniform and exclusive system of federal regulation if the
congressional objectives underlying the Federal Aviation Act are to be fulfilled.” City of
Burbank v. Lockheed Air Teminal Inc., 411 U.S. 624, 638-39 (1973) (citations omitted).
Allowing courts and juries to decide under state law that warnings should be given
in addition to those required by the Federal Aviation Administration would necessarily
conflict with the federal regulations. In this case, the conflict is more than theoretical,
since Witty claims that a DVT warning should have been given, while federal regulations
do not require such a warning. And any warning that passengers should not stay in their
seats, but should instead move about to prevent DVT, would necessarily conflict with any
federal determination that, all things considered, passengers are safer in their seats. We
6
Federal Aviation Administration Advisory Circular 121-24B – Passenger Safety
Information Briefing and Briefing Cards (Feb. 1, 1999).
8
note that, due to turbulence concerns, the Federal Aviation Administration recommends
on its Internet site7 that passengers wear their seat belts at all times. The site states that
from 1981 through 1997 there were 342 reports of turbulence affecting major air carriers,
resulting in three deaths, 80 serious injuries, and 769 minor injuries, and that “turbulence
is not always predictable.”
Moreover, warnings by their nature conflict, in the sense that the import of one
warning is diluted by additional warnings that might be imposed under state law. Cf.
Morales, 504 U.S. at 390 (“As the FTC observed, ‘[r]equiring too much information in
advertisements can have the paradoxical effect of stifling the information that consumers
receive.’”) (citation omitted). The advisory circular described above warns that
“[p]assenger safety briefing cards should contain only information that is essential for
safety.”
Ultimately, we need not decide whether a state claim for failure to warn
passengers of air travel risks is entirely preempted, or, as another circuit has held, is
preempted to the extent that a federal standard must be used but that state remedies are
available.8 We hold that, at a minimum, any such claim must be based on a violation of
federally mandated warnings. In this case, federal regulations do not require warnings to
7
http://www.faa.gov/Passengers/turbulence/cfm.
8
See Abdullah v. American Airlines, Inc., 181 F.3d 363, 376 (3d Cir. 1999)
(holding that state aviation safety standards are preempted but that state remedies are
available for injuries resulting from violations of federal standards). The plaintiff’s
claims in Abdullah included a failure to warn claim. Id. at 365.
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passengers about the risks of DVT or methods for preventing this condition. Delta
therefore cannot be held liable for failing to provide warnings or instructions to Witty.
Finally, we note our intent to decide this case narrowly by addressing the precise
issues before us. See City of Burbank, 411 U.S. at 638 (“Our prior cases on pre-emption
are not precise guidelines in the present controversy, for each case turns on the
peculiarities and special features of the federal regulatory scheme in question.”). We do
not, for example, express an opinion as to whether emergency or unplanned situations on
flights can form the basis of a state failure to warn claim that is not preempted.
CONCLUSION
We hold that the leg room claim is preempted by the ADA. We further hold that
federal law exclusively provides the safety warnings that airlines must give passengers,
and that state law regarding air safety warnings is preempted. Since there is no federal
requirement that airlines give DVT warnings, Witty’s state claim for failure to warn fails.
Accordingly, the order denying the motion to dismiss is reversed, and we render
judgment in favor of Delta.
REVERSED and RENDERED.
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