Aviation Federal Preemption and Products Liability Standards
January 9, 2024
By: Justin T. Green, Kevin J. Mahoney
The most hotly contested aviation law issue in the United States over the past 25 years has been whether and to what extent federal law preempts state law. The aviation defense bar has had considerable success in convincing courts that Congress impliedly intended to preempt at least some state law liability standards when it passed the Federal Aviation Act in 1958, Pub.L. No. 85-2360, (FAAct).
For example, in the 1999 decision from the U.S. Court of Appeals or the Third Circuit, Abdullah v. American Airlines, 181 F.3d 363 (3d Cir. 1999), a case involving injuries caused by turbulence, the court broadly proclaimed that Congress preempted the “entire field” of air safety. Therefore, the court said, state law could not dictate how an airliner should operate in turbulent conditions. The U.S. Court of Appeals for the Second Circuit similarly used broad “field preemption” language in Goodspeed Airport v. East Haddam Inland Wetlands & Watercourses Commission, 634 F.3d 206 (2d Cir. 2011), an airport maintenance dispute, where it declared that Congress intended “to occupy the entire field of air safety” in passing the FAAct.
The defendants’ success in cases like Abdullah and Goodspeed was surprising, because Congress did not expressly preempt state law when it passed the FAAct, and instead included a savings clause that preserved state law remedies. 49 U.S.C. §40120(c).
Abdullah and Goodspeed dealt with operational aspects of aviation, however. Notably, the defense bar has had far less success in arguing that the FAAct preempts state law products liability standards. In fact, while courts continue to grapple with the scope of FAAct preemption, the developing consensus is that the statute does not preempt state laws concerning aviation products safety.
The reason that courts have found that state law design standards are not within the FAAct’s preempted field is because FAA regulations do not establish a federal standard of care. The FAAct, Pub. L. No. 85-2360, at 16, which authorizes the Federal Aviation Administration (FAA) to promulgate regulations, speaks only in terms of “minimum standards governing the design, materials, workmanship, construction and performance of aircraft, aircraft engines, and propellers as may be required in the interest of safety.”
As the Third Circuit has noted, this provision of the FAAct “was adopted verbatim from the 1938 Civil Aeronautics Act…which clearly did not preempt state law products liability claims….” Sikkelee v. Precision Airmotive, 822 F.3d 680, 693 (3d Cir. 2016). Products liability cases have proceeded under state law before and after Congress passed the FAAct. Indeed, 36 years after passing the FAAct, Congress became so concerned about the impact that products liability lawsuits posed to general aviation manufacturers that in 1994 it passed the General Aviation Revitalization Act (GARA), Pub. L. 105-102 (1997), which expressly preempted state limitation periods and imposed an 18-year statute of repose.
Nonetheless, the scope of preemption in aircraft design cases has not been squarely addressed by the Second Circuit. Notably, the court recently handed down Jones v. Goodrich Pump & Engine Control Systems, 86 F.4 1010 (2d Cir. 2023), in which it found that the preempted field did not extend to military aircraft, even if the FAA had certificated the aircraft. But, although many in the aviation bar were closely monitoring the decision in anticipation of an important ruling, the Jones court never reached the broader question of whether Congress had intended to preempt aviation products liability standards for civil aircraft.
Because the question remains unresolved, the defense bar will continue to interpose the affirmative defense that federal law preempts state products liability standards in aviation products liability cases, despite the Courts of Appeals’ decisions elsewhere that have found products liability to be outside the preempted field. The stakes in the fight over preemption are high because a preemption finding can truly lead to virtual immunity for an aviation manufacturer of a defective product. Given these stakes, we believe that it is appropriate to address the state of play in the Second Circuit given the recent Jones decision.
Background on Aviation Field Preemption
The Third Circuit’s Abdullah decision has had the most influence on the jurisprudence concerning federal preemption in aviation cases. Abdullah arose from a turbulence event on a commercial airliner, which caused injuries to passengers. The passengers sued and won a jury trial, but the court set aside the verdict concluding that it had made an error in instructing the jury on territorial common law (the trial court was in St. Croix, the U.S. Virgin Islands) and that its error required reversal. The plaintiffs appealed and the issue on appeal was: “Does federal law preempt the standards for air safety, but preserve State and Territorial remedies?” Abdullah, 181 F.3d at 364 (emphasis in original).
The Third Circuit broadly found “implied federal preemption of the entire field of aviation safety and remanded the case, ordering the trial court to apply “federal aviation safety standards.”
The Abdullah court’s decision was based on review of the extensive federal regulation of in-flight safety, including 14 C.F.R. §91.13(a), which provides that “[n]o person may operate an aircraft in a careless or reckless manner to as to endanger the life or property of another.” In short, the court found that there was a complete federal standard of care concerning the in-flight operation of airplanes, which preempted the territorial standards presented in the court below.
The court, however, used overly broad language in reaching this decision, stating: “we hold that state and territorial standards of care in aviation safety are federally preempted.” 181 F.3d at 376. The court failed to limit its holding to the facts before it, the in-flight operation of aircraft, and, as a result, Abdullah’s expansive language has been invoked by defendants in aviation products liability case.
The Third Circuit has since clarified its holding in Abdullah in a series of decisions, which have narrowed the scope of the preempted field. In Elassaad v. Independence Air, 613 F.3d 119 (3d Cir. 2010), the court clarified that a flight crew’s oversight of passengers disembarking a flight was not within the preempted field of aviation safety. The court held that the preempted field only involved in-air operations.
Further limiting Abdullah’s reach, the Third Circuit directly addressed the question whether the preempted field included aviation products liability standards in two decisions arising in Sikkelee v. Precision Airmotive. In the first decision, the court found that the preempted field did not include products liability. The court noted that products liability claims are not subject to the overall standard of care (FAR 91.13(a)) that the court had been so heavily relied upon in Abdullah. Sikkelee, 822 F.3d at 689. It reasoned that its “no preemption” decision was consistent with the findings of all other Courts of Appeals who had addressed the issue, all of which reached the same result, even though they may have “taken a variety of different approaches.”
In its second decision, the court reversed the district court, which had found that the plaintiffs’ claims were conflict preempted. The defendants had argued that it was impossible for it to unilaterally implement design changes that Pennsylvania law may require because FAA regulations prohibited making any “major” changes to an aircraft’s design, reviewed by the FAA prior to issuance of an aircraft’s “type certificate,” without FAA preapproval.
The Third Circuit, however, found that there was no evidence in the record showing that the FAA would not have approved the safety improvements urged by the plaintiffs. Importantly, it found that immunizing aviation manufacturers for defective products was inconsistent with the FAAct’s goals of fostering safety and that a “manufacturer would have little incentive to correct problems with its plane or parts if it could rely on a type certificate to avoid liability.” Sikkelee v. Precision Airmotive, 907 F.3d 701, 214-15 (3d Cir. 2018).
The Second Circuit’s Aviation Preemption Decisions
The Second Circuit has followed a remarkably similar path to the Third Circuit in its aviation preemption decisions. Like the Third Circuit in Abdullah, the Second Circuit went out of its way in Goodspeed Airport v. East Haddam Inland Wetlands & Watercourses Commission, to broadly announce that in its view “Congress has established its intent to occupy the entire field of air safety, thereby preempting state regulation of that field.” 634 F.3d. at 208.
Goodspeed arose from a conflict between a small Connecticut airport and the East Haddam Inland Wetlands & Watercourses Commission, a municipal regulatory body overseeing the state’s wetlands and watercourses. The airport wanted to cut down trees obstructing the airport. The commission insisted that the airport must obtain a permit before cutting down the trees. The airport argued that it did not need a permit because federal law preempted the state laws the commission relied on for its permit requirement.
Goodspeed is a noticeably short decision and addresses the question of whether Congress impliedly preempted the field of aviation safety, and the scope of the preempted field, in a conclusory fashion. Moreover, the court decided that the state laws and regulations at issue were not field preempted because the permit requirement’s impact on air carriers, if any, was remote. Accordingly, it is at least arguable that the court’s principal holding that Congress preempted “entire field of aviation safety” was not necessary for the decision and is, therefore, dicta.
To be sure, the Second Circuit noted that “[w]e write to clarify what to date this Court has suggested only in dicta: that Congress has established its intent to occupy the entire field of aviation safety, thereby permitting state regulation of that field.”
But Goodspeed had nothing to do with the design and manufacture of aircraft and aviation components and the application of its broad language to products liability is, therefore, in serious doubt.
In 2019, the Second Circuit revisited aviation federal preemption in Tweed-New Haven Airport Authority v. Tong, 930 F.3d 65 (2d Cir. 2019), which involved a declaratory judgment action against the Connecticut Attorney General. The plaintiff sought a declaration that federal law preempted a special Connecticut statute that prevented the airport from lengthening its runway and the statute was, therefore, unenforceable. The Second Circuit agreed that the statute was preempted by the FAAct, and that the statute fell within the preempted field because limiting the runway length affected the weight load and number of passengers airplanes operating to and from the airport can safely carry.
Like Goodspeed, Tweed had nothing to do with the design and manufacture of aircraft and component parts.
Recently, in Jones v. Goodrich, the Second Circuit seemed finally ready to confront preemption in the context of aircraft design and resolve the question of whether Goodspeed and Tweed’s holdings were truly as broad as the defense bar asserts.
The decision was highly anticipated, particularly considering the Third Circuit’s recent Sikkelee decisions limiting the scope of FAAct preemption and Abdullah’s reach. If the Second Circuit held that product safety was outside the FAAct’s preempted field, the decision would have added to the line of Court of Appeals decisions, like Sikkelee, that had so held. If, on the other hand, the Second Circuit found that products safety was within the preempted field, it would have created a Circuit split, which may have ended up in the Supreme Court. The Jones court managed to disappoint everyone by finding no preemption but restricting its holding to only military aircraft.
Jones arose from the tragic crash of an Army helicopter that resulted in the deaths of the two pilots. On Aug. 8, 2011, they were operating a military helicopter when the helicopter’s Full Authority Digital Electronic Control (FADEC), a system controlling the flow of fuel to the helicopter’s engine, detected an anomaly that caused it to enter “fixed mode,” which stopped the automatic control of the fuel flow and instead kept the fuel flowing at the same rate it had when it left automatic control. The pilots were unable to prevent the engine from losing power and the helicopter crashed.
The families alleged that defects in the FADEC caused the fatal helicopter crash. They claimed that a defective component was a cause of the crash. Just two weeks prior to the crash, the same helicopter had a FADEC issue, but maintenance did not check the defective component because it was not identified as a potential cause in the maintenance manual. For this reason, the families argued that the FAA-approved manual was defective.
The district court, sua sponte, requested briefing on whether the Second Circuit’s decisions on FAAct implied field preemption barred the claims at issue. After the briefing, the court ruled that federal law preempted the plaintiffs’ claims because the Second Circuit had held that Congress intended to occupy the entire filed of aviation safety. The trial court found the defendants had obtained a type certificate from the FAA and the FAA had determined that the engine met the federal certification standards, so applying state law tort standards would interfere with the goals of uniform federal standards relating to aviation safety. The district court rejected the plaintiffs’ argument that the FAAct only governed civil aircraft and would not preempt the claims at issue in the case because they involved a military helicopter. Jones, 86 F4th at 1014-1015.
The Second Circuit reversed, narrowly holding that “Congress’s removal of military aircraft from the FAAct’s reach indicates that it did not wish to include them in the FAA’s preempted field. Rather, Congress intended for the Department of Defense…to have autonomy over their own aircraft.” The fact that the FAA had issued a type certification for the helicopter did not affect the analysis because the requirement for the type certificate was the decision of the Army and that the scope of the field that Congress intended to be preempted could not be extended by the Army’s requirement.
Although briefed extensively by the parties, the Jones court did not address the question of whether the FAAct preempted state products liability standard for civil aircraft and component parts. Reaching that issue was not necessary for the court’s narrow decision. It does not even mention the relevant decisions of other Courts of Appeals on the issue. Consequently, the issue remains unsettled in the Second Circuit.
Congress passed the FAAct to improve aviation safety and the law is certainly not a tort reform measure. The FAA issues type certificates to every airplane and helicopter flying in the United States and the fact that the FAA has certified that an aircraft met certain “minimum standards” does not mean that the aircraft is safe or free from defects.
A recent example is the Boeing MAX airplane models. The FAA had issued a type certificate for the Boeing 737-8 MAX, which had a defective flight control system that caused two crashes and the deaths of 346 people soon after the airplanes started flying. Providing immunity to an aviation manufacturer of a dangerous aircraft would be antithetical to Congress’s goal in passing the FAAct, which was to improve aviation safety.
Neither Congress nor the FAA has established a federal standard of care for the design and manufacturer of aircraft and aviation components. Congress could easily preempt state products liability standards by amending the FAAct but has not done so and instead passed GARA, which expressly preempted only the time limits for filing products liability actions.
Parties have long litigated aviation products liability cases based on state law standards, both before and after Congress passed the FAAct. It is only recently that whether Congress impliedly intended to preempt state products liability laws when it passed the FAAct back in 1958 has been a common legal fight in aviation cases.
Thus far, aviation defendants have had modest success at the trial court level but not in the Courts of Appeals. Given the stakes, however, we anticipate additional decisions in the Second Circuit, the other Courts of Appeals and even by the Supreme Court.
Justin T. GreenJustin Green serves as the Co-Chair of the Plaintiffs’ Executive Committee for the ongoing litigation against Boeing Co. following the 2019 crash of the Boeing 737 Max in Ethiopia. Justin is a prominent Aviation Analyst for CNN and is featured in dozens of on-air TV news segments regarding the Boeing 737 MAX disaster. Having authored many influential articles and CLE courses, Justin is seen as an authority on aviation law and is often invited to speak before legal organizations across the country.
Kevin J. MahoneyKevin Mahoney represents plaintiffs in complex multimillion-dollar wrongful death and personal injury matters in the United States and throughout the world. His experience covers a wide array of transportation litigation involving airliners, military aircraft, general aviation aircraft, air tour operations, maritime vessels and tractor-trailers.