Taking Flight or Landing: Implied Field Preemption Under the Federal Aviation Act of 1958 and Wyeth v. Levine
By Edward Boula
Under the traditional theory of negligence, a plaintiff must demonstrate that there was: (1) a duty owed to him or her; (2) defendant breached that duty; (3) the breach actually and proximately caused the injuries; and (4) damages. However, through the doctrine of implied field preemption, if an individual is injured while on or in the vicinity of an airplane, state law standards of care (the duty element) may actually be supplanted by a nearly insurmountable federal standard under the Federal Aviation Act. Claims alleging product liability or negligent design may also be preempted. Implied preemption is judicially created. Therefore, it is not surprising that preemption has split the federal circuit courts, with each circuit in agreement that the entire field of “air safety” is preempted, but disagreeing as to the scope. According to the Third Circuit, even when a claim brought by a passenger pursuant to state law contains no specific regulation, if the facts indicate that the plane was “operat[ing] for the purposes of air navigation[,]” it is preempted, and the plaintiff must plead that the airline was “careless or reckless.” Meanwhile, other circuits find that preemption occurs only when there are specific or pervasive regulations directly relating to a particular claim. This starkly different view of the preemptive effect of the Aviation Act is further complicated by the recent Supreme Court decision relating to implied preemption in Wyeth v. Levine.
Federal Aviation Act of 1958 and Amendments. Congress enacted the Federal Aviation Act of 1958 (FAA), to create a system of unified rules to promote safety and efficiency in the field of aviation. In the FAA, Congress included a sovereignty clause which states, “The United States Government has exclusive sovereignty of airspace of the United States.” Also pursuant to the FAA, the Federal Aviation Administration (Administration)—organized within the Department of Transportation—continually publishes comprehensive regulations dealing with all aspects of aviation. It is the pervasiveness of these regulations that has led some courts, such as the Third Circuit, to conclude that a significant portion of aviation law is impliedly preempted. Indeed, these regulations are so pervasive that the time a pilot must wait after consuming alcohol before acting as pilot-in-command to the recommended ground loading on ski-equipped bushplanes is codified in the Code of Federal Regulations. It also promulgates the standard for operating an aircraft, providing that, “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another,” which is the lynchpin for a finding of preemption. Some circuits also find that the required “aircraft worthiness and type certificates” preempt product liability and negligent design claims.
Despite the pervasive regulations and sovereignty clause, Congress also included a savings clause within the Federal Aviation Act stating: “Nothing . . . in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” Courts that find a lack of preemptive effect believe the savings clause was intended to allow states to pass standards in addition to federal standards. That argument gained greater credence with the passage of the Airline Deregulation Act of 1978 (ADA), which was an amendment to the FAA. The ADA provides an express preemption clause that prohibits states from enforcing any law “relating to rates, routes, or services” of any air carrier, but maintains the original savings clause of the FAA.  Congress again amended the FAA with the passage of the General Aviation Revitalization Act (GARA). GARA provides an eighteen year statute of repose for general aviation aircraft (aircraft with maximum passenger loads of less than twenty passengers) and aircraft components, which preempts suits dealing with defects in design and manufacturing after eighteen years of an aircrafts delivery from the manufacturer. GARA’s preemption provision states that: “[federal law] supersedes any State law to the extent that such law permits a civil action described in the [statute of repose] section.” In theory, a statute of repose would not be necessary if those claims were already preempted. However, both the ADA and GARA preempt very narrow areas of law, leaving the courts to discern whether the FAA has general preemptive effect outside of those areas.
What is preemption? Pursuant to the Supremacy Clause of Article VI of the United States Constitution, there are two ways Congress may indicate pre-emptive intent: “through a statute’s express language or through its structure and purpose.” State laws are invalid under express or implied preemption. Express preemption occurs when Congress expressly prohibits enforcement of any state law within the scope of the express preemption provision. Preemption can also be implied through either conflict or field preemption. Conflict preemption occurs when it is physically impossible to comply with both federal law and state law or where state law is as an obstacle to the desired results of Congress. Field preemption arises when Congress occupies an entire field of a substantive area of law, which precludes any type of state interference within that field.
Because the Supreme Court has never addressed negligence or product liability in the context of aviation law, the Court offers minimal guidance to lower courts in analyzing congressional intent under those claims. However, the Supreme Court did suggest a limited framework. In City of Burbank v. Lockheed Air Terminal, the Court laid the foundation for preemption analysis in aviation law, albeit before the addition of the ADA and GARA. In City of Burbank, a city ordinance barred flights between the hours of 11 p.m. and 7 a.m. due to noise levels. Regulating the time that flights could depart and arrive due to noise conflicted with a combined departmental role (the Environmental Protection Agency and Federal Aviation Administration) under the Federal Aviation Act. The Court cited the Noise Control Act of 1972, which amended the Federal Aviation Act for the sole purpose of proposing regulations to provide control over airplane noise. The legislative history indicated that Congress intended to preempt state law. In reaching its decision that states were preempted from regulating flight times due to noise, the Supreme Court discussed the pervasiveness of the Code of Federal Regulations dealing with noise control. As the Third Circuit and Ninth Circuit specifically relied on the “judicial interpretation” of the FAA in City of Burbank, the extended position of the Third Circuit or the less expansive position of the Ninth Circuit is not indefensible.
Dueling Perspectives of the Federal Aviation Act. In Abdullah v. American Airlines, the Third Circuit was the first to construe that the FAA preempted the entire field of air safety. Most of the circuits have followed suit but have not agreed with the broad scope attributed to the decision. Recognizing this, its later decision of Elassad v. Independence Air, Inc clarified exactly what it meant by “air safety.” Plaintiff claimed that defendants were negligent in operating an aircraft made defective by design features of the aircraft steps, failing to inspect and maintain the steps, and failing to offer and render assistance to him as he disembarked. Likely sensing that precedent was not favorable, plaintiff voluntarily dismissed the first and second claim. The trial court concluded that, based on Abdullah, federal law dictated the standard of care for the negligence suit. Both parties relegated the majority of their argument to the Third Circuit on whether the general standard of care set forth in Code of Federal Regulation section 91.13(a)—“No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another”—applied when there was no specific federal regulation on point. The court clarified their previous holding in Abdullah, stating that state standards of care are preempted only when the plane is “operat[ed] for the purposes of air navigation.”
The Third Circuit reasoned that, because regulations adopted pursuant to the FAA are predominantly associated with flight, when a plane is not “in flight” or does not have to do with flight, there is no catch-all federal standard. Because the flight crew and pilot were not engaged in any act that “imparted physical movement” under section 91.13(a) or “manipulated the controls of the aircraft” under section 91.13(b), and no regulation governed the flight crews behavior, state standards of care applied.
The Third Circuit ultimately concluded that it was, in the very least, overbroad in their holding of Abdullah. Though the Third Circuit was clear in reconciling Ellassaad with Abdullah, there remains doubt about the fullest extent of the Third Circuit’s language, “operat[ed] for the purpose of air navigation.” It should be noted that a key aspect of Abdullah was left in place: if a particular regulation did regulate the flight crew overseeing the disembarking of disabled passengers, the court would likely have found preemption and required the plaintiff to plead that the airline was reckless or careless.
The Ninth Circuit took a different approach to preemption in Martin v. Midwest Express Holdings Inc. In Martin, a pregnant woman slipped and fell down the stairs while exiting an airplane, causing injury to her and the fetus. In deciding that the FAA did not preempt all claims relating to air safety, it held that only when an agency issues “pervasive regulations” in a particular area of flight safety, such as passenger warnings, state standards are preempted. It appears that the Ninth Circuit agrees with Third Circuit that, when there are pervasive or precise regulations, there is preemption, but does not agree with how broadly to define the scope of pervasive regulations. While the Third Circuit would classify most claims as preempted because a majority of time for passengers is spent while the plane is navigating, the Ninth Circuit’s analysis does not depend on the current state of the aircraft, but the pervasiveness and preciseness of the regulations.
Wyeth v. Levine. Recently, however, the Supreme Court made arguably its most significant ruling in the area of implied preemption. Wyeth v. Levine involved a claim brought by a musician who developed gangrene and subsequently lost her arm. Relying on common law negligence and strict-liability theories, plaintiff’s state claim alleged that Wyeth had failed to instruct/warn of the danger of intravenously administering nausea medication, Phenergan, with an IV-push. However, Phenergan’s labeling was approved by the Food and Drug Administration (FDA) and contained a warning of the danger of gangrene and amputation. Wyeth argued that any state standard of care impliedly conflicted with the federal statutory scheme because changing the label would inevitably lead to violating federal law. Arguing that state law conflicted with the federal scheme, Wyeth gave the broader argument that a state-law duty to provide stronger warnings “would obstruct the purposes and objectives of federal drug labeling regulation.” In rejecting both arguments, the Court reasoned that the federal labeling standards, arguably very similar in formulation to the Administrations certificates, were a “floor upon which States could build.”
Ultimately, the court found two major reasons that illustrated a lack of preemptive intent by Congress; first, the existence of an express preemption clause dealing related to drug regulation in the context of medical devices illustrated that Congress did not wish to preempt drug labeling. Second, that Congress failed to add an express preemption clause despite awareness of heavy state tort litigation. The court noted that even though congressional intent indicated that labels were both a floor and ceiling, Congress never thought that state tort claims frustrated the purpose of the statute.
Arguably, the Food, Drug, and Cosmetic Act (FDCA) is very similar to the Federal Aviation Act in its structure and scheme. Both involve a large statutory scheme that prescribes a significant role to large agencies within the federal government that continue to assert an extensive role in their respective spheres. The FDA’s regulation of warning labels is analogous to the Administrations regulation of specific aircraft components and general regulations. Further, both statutory schemes contain an express preemption clause dealing with a specific component within the larger governing statute, as well as, many opportunities for Congress to add an express preemption clause. Indeed, when Congress amended the FAA, they “turned down a proposal that would have expressly removed aircraft design from state authority.” Instead Congress only removed discrete aspects of the aviation industry from state control. Since Congress considered an expansive preemptive reach, but decided against it, may illustrate that the field of aviation safety is not already preempted. Indeed, Wyeth v. Levine may have a profound effect on the state of preemption in aviation law.
Other Contexts. Countervailing that argument is the Supreme Court’s rulings in the context of statutes governing maritime law, which are thought to be “strikingly similar” to the Federal Aviation Act. The Supreme Court first addressed preemption in maritime law in Ray v. Atlantic Richfield Co. The court addressed whether the PWSA preempted attempts by states to require additional safety equipment. The PWSA contained two pertinent provisions; Title I focused on traffic control at local ports, whereas Title II focused on design and construction of oil tankers. Using implied field preemption, the Court held that Title II had a preemptive effect because “Title II leaves no room for the States to impose different or stricter design requirements than those which Congress has enacted with the hope of having them internationally adopted or has accepted as the result of international accord.”
The Court further explained that under Title II, the Department of Transportation (DOT) had to determine the seaworthiness of all oil tankers by certifying their compliance with federal law. Moreover, the PWSA implicated international interests and comity because the DOT had to accept valid certificates issued by sister sovereigns under various treaties.
It appears that the Third Circuit’s decision in Elassaad is consistent with the Supreme Court’s line of cases in the context of the PWSA. This conclusion makes sense, as both Acts designate federal regulation as minimum standards and create a comprehensive scheme. Some commentators have argued that if the Supreme Court ever decided an aviation safety case, it would find that the PWSA and FAA “[h]ave essentially identical enabling statutes affirmatively requiring that a designated federal agency establish all necessary standards to ensure the sea or airworthiness of approved vessels or aircraft.” Further, that the PWSA’s seaworthiness certification provisions and the FAA’s airworthiness or type certification provisions are similar because both are “mandatory . . . comprehensive . . . and designed to ensure safety.” Finally, like tankers under the PWSA, the FAA is “generally required” to recognize airworthiness certificates issued by other countries.
Conclusion. Courts continue to struggle with the precise contours of implied preemption in the aviation context. Unless the Supreme Court hears a case on the matter, the issue will continue to split the circuits and, thus, benefit plaintiffs or defendants depending on jurisdiction. Wyeth seems to indicate that the scope of preemption is limited, while Ray appears to agree with the Third Circuit that air safety is an extremely broad net. Either way, a practitioner should be aware of the potential implications of implied preemption in the aviation context, even more so in the Seventh Circuit, which has not yet made a decision on the matter.
 49 U.S.C. § 40101 et seq.
Compare Elassaad v. Independence Air, Inc., 613 F.3d 119, 126-27 (3d Cir. 2010), and US Airways, Inc. v. O’Donnell 627 F.3d 1318, 1326-27 (10th Cir. 2010), with Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 810 (9th Cir. 2009); Greene v. B.F. Goodrich Avionics Sys. Inc., 409 F.3d 784, 794-95 (6th Cir. 2005) (agreeing with the central holding of Abdullah in finding that the entire field of aviation safety was preempted, but did not conclude that Abdullah was applicable in its discussion about product liability); Witty v. Delta Airlines, Inc., 366 F.3d 380, 385 (5th Cir. 2004) (finding Federal Regulations preempted failure to warn claims).
Elassaad, 613 F.3d at 126-27.
Martin, 555 F.3d at 810.
See Wyeth v. Levine, 129 S.Ct. 1187, 1195 (2009).
Federal Aviation Act of 1958, Pub. L. No. 85-276, 72 Stat. 731 (1958).
City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973) (noting that “a uniform and exclusive system of federal regulation [is required] if the congressional objectives underlying the [FAA] are to be fulfilled.”); see H.R.Rep. No. 2360, reprinted in 1958 U.S.C.C.A.N. 3741, 3741 (stating that the purpose of the act was to give full authority and responsibility of the advancement and promulgation of civil aeronautics, including the rule making and enforcement of safety regulations).
49 U.S.C. 40103(a)(1) (2006).
See, e.g., 14 C.F.R. § 91 (2010).
 See, e.g., Elassaad v. Independence Air, Inc., 613 F.3d 119, 126-27 (3d Cir. 2010).
 Sean S. Kelly, Federalism in Flight: Preemption Doctrine and Air Crash Litigation, 28 Transp. L.J. 107, 115 (2000).
14 C.F.R. § 91.13. See, e.g., Montalvo v. Spirit Airlines, 508 F.3d 464, 472 (9th Cir. 2007).
See Elassaad, 613 F.3d at 128 (stating air worthiness and other certificates are integral to “air safety”).
Federal Aviation Act of 1958, Pub. L. No. 85-276, 72 Stat. 731 (1958).
Am. Airlines v. Wolens, 513 U.S. 219, 222 (1995) (citing Federal Aviation Act, at § 1106).
See John D. McClune, There is No Complete, Implied, or Field Preemption of State Law Personal Injury/Wrongful Death Negligence or Product Liability Claims in General Aviation Cases, 71 J. Air L. & Com. 717, 719 (2006).
49 U.S.C. 1305 (1978).
Id. at § 1305; Morales v. Trans World Airlines Inc., 504 U.S. 374, 378-79 (1992).
General Aviation Revitalization Act of 1994, Pub. L. No. 103-298, 108 Stat. 1552. For a general discussion of the General Aviation Revitalization Act and GARA’s preemption clause, see Scott David Smith, The General Aviation Revitalization Act of 1994: The Initial Necessity for, Out-Right Success of, and Continued Need for the Act to Maintain American General Aviation Predominance Throughout the World, 34 Okla. City U. L. Rev. 75 (2009).
General Aviation Revitalization Act, Pub L. No. 103-298, § 3; 108 Stat. 1552, 1553.
Kelly, supra note 13, at 115.
U.S. Const. art. VI, cl. 2.
Altria Group v. Good, 129 S. Ct. 538, 540 (2008).
Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1993).
English v. General Elec. Co., 496 U.S. 72, 78-79 (1990). See Abdullah v. Am. Airlines Inc., 181 F.3d 363, 367 (3d Cir. 1999).
Mass. Ass'n of HMOs v. Ruthardt, 194 F.3d 176, 179 (1st Cir. 1999).
James A. Gallagher & Michael J. Crowley, How Far Will it Fly? Federal Preemption in Aviation Litigation, 46 For the Def 31 (2004).
Abdullah, 181 F.3d at 367. However, despite the title, field preemption can be very narrow. Id.
See generally City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 624 (1973); Morales v. Trans World Airlines, 504 U.S. 374, 374 (1992); Am. Airlines v. Wolens, 513 U.S. 219 (1995).
City Of Burbank, 411 U.S. at 628.
Federal Aviation Act of 1958, 40 U.S.C. § 611 as amended by the Noise Control Act of 1972, Pub. L. 92-574, 86 Stat. 1234.
City of Burbank, 411 U.S. at 628-29.
S. Rep. No. 92-842, at 10 (1972). Congress stated: “States and local governments are preempted from establishing or enforcing noise emissions standards for aircraft unless such standards are identical to standards prescribed by this bill.” Id.
Elassaad v. Independence Air, Inc., 613 F.3d 119, 125 (3d Cir. 2010).
 181 F.3d 363 (3rd.Cir. 1999).
See, e.g., Greene v. B.F. Goodrich Avionics Sys. Inc., 409 F.3d 784, 791 (6th Cir. 2005) (agreeing with the central holding of Abdullah in finding that the entire field of aviation safety was preempted, but did not conclude that Abdullah was applicable in its discussion about product liability).
613 F.3d 119 (3d Cir. 2010).
Abdullah v. Am. Airlines Inc., 181 F.3d 363, 365 (3d Cir. 1999).
Elassaad, 613 F.3d at 128.
Id. at 123. (quoting 14 C.F.R. § 91.13 2010).
Abdullah, 181 F.3d at 365.
Elassaad, 613 F.3d at 130.
Id. at 130. The court also held that the Air Carrier Access Act did not relate to safety, and thus did not set the standard of care. Id.
See Abdullah v. American Airlines Inc., 181 F.3d 363, 365 (3d Cir. 1999).
 Elassaad, 613 F.3d at 130. For a thorough explanation of the potential problems with the decision, see generally Edward J. Boula, Grounding the Preemptive Effect of the Federal Aviation Act: A Look at the Third Circuit’s Recently Modified Field Preemption Ruling in Elassaad v. Independence Air, Inc. and the Effect of Wyeth v. Levine, 3 N. Ill. U. L. R. 1 (Online Journal 2012) (on file with author).
Martin v. Midwest Express Holdings, Inc., 555 F.3d 806, 806 (9th Cir. 2009).
See Elassaad, 613 F.3d at 130.
Martin, 555 F.3d at 810.
Wyeth v. Levine, 129 S. Ct. 1187, 1187 (2009).
Wyeth, 129 S. Ct. at 1196. It should be noted that Wyeth unsuccessfully argued in front of the lower courts that the entire field of Drug labeling was impliedly preempt. Id. at 1192.
Wyeth, 129 S. Ct. at 1200.
 21 U.S.C. § 301 et seq.
See Federal Food, Drug, and Cosmetic Act (FDCA), ch. 675, 52 Stat. 1040, as amended, 21 U.S.C. § 301; Federal Aviation Act of 1958, Pub. L. No. 85-276, 72 Stat. 731 (1958).
See 21 U.S.C. § 355; 21 CFR § 314.105 (2010); 14 C.F.R. § 91.7 (2010); 14 C.F.R. § 43.3 (2010); but see 14 C.F.R. § 21.113 (2010), and 14 C.F.R. § 43.3 (2010).
See Food Drug & Cosmetic Act § 521, 90 Stat. 574 (codified at 21 U.S.C. § 360); General Aviation Revitalization Act of 1994, Pub. L. No. 103-298, 108 Stat. 1552.
Kelly, supra note 13, at 129-30.
See Escola v. Coca-Cola Bottling Co. of Fresno, 150 P.2d 436, 440-41 (1944).
Kelly, supra note 13, at 129-30.
For a general discussion of the arguments that Wyeth may or may not apply, see generally Boula, supra note 57.
Thomas J. McLaughlin, Mary P. Gaston, Jared D. Hager, Navigating the Nations Waterways and Airways: Maritime Lessons for Federal Preemption of Airworthiness Standards, 23 No. 2 The Air & Space Lawyer 5, 9 (2010).
Ray v. Atl. Richfield Co., 435 U.S. 151, 151 (1978).
Ray, 435 U.S. at 155.
See 33 U.S.C. §§ 1221-1227 (1970).
McLaughlin, supra note 81, at 8.
Ray, 435 U.S. at 168.
See Elassaad v. Independence Air, Inc., 613 F.3d 119, 130 (3d Cir. 2010).
McLaughlin, supra note 81, at 5.
Id. at 9. The first federal act regulating aviation, the Air Commerce Act of 1926, was derived directly from the statutory framework governing marine vessels. Id.
Id. “Both are mandatory and comprehensive. Both laws also have certification processes that flow from pervasive regulation and are designed to ensure that oil tankers and aircraft can safely navigate the nation's waterways and airways, respectively.” Id.
Id. at 10; For a general discussion of other contexts which may shed light on the preemptive effect of the FAA, see generally Boula, supra note 57.
Edward Boula is a third year law student at Northern Illinois University College of Law where he is the Lead Articles Editor of Northern Illinois Law Review. He also earned his undergraduate degree at Northern Illinois University.