Fifteen years ago, in the case Montalvo v. Spirit Airlines, the Ninth Circuit held that the Federal Aviation Act ("FAA") and related Federal Aviation Regulations ("FARs") provide complete and thorough safety standards governing air travel that preempt state law standards of care in claims relating to aviation safety. In practice, this means that in certain cases, a passenger who claims she suffered an injury on a flight cannot recover on a negligence claim against an airline by alleging that the airline violated some state law standard of care applicable to "normal" negligence claims. Rather, the passenger must establish that the airline violated one or more FARs in order to pursue her negligence claim. The Ninth Circuit continues to apply that rule today.
In Kropp v. United Airlines, Inc., the plaintiff alleged that she suffered an injury when her flight encountered turbulence. Alleging that the airline failed to properly warn of the turbulence and failed to "keep its passengers safe," the plaintiff brought state law claims against the airline for negligence and common carrier liability. The airline moved for summary judgment because the plaintiff came forward with no evidence that the airline violated a FAR, and the trial court granted the motion.
On appeal, the Ninth Circuit first noted that several FARs specify the warnings that an airline must provide its passengers and that another FAR, 14 C.F.R. § 91.13(a), provides that "[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." The Court held that the plaintiff failed to come forward with any evidence that the airline violated the FARs governing warnings or otherwise acted in a "careless or reckless manner." Although the plaintiff engaged an expert, he did not opine that the airline acted in a "careless or reckless manner" or violated any other FAR. The Court also rejected the plaintiff's attempt to rely on the airline's alleged violations of Federal Aviation Administration Advisory Circulars because such circulars offer only guidance and are not binding regulations. Finally, the Court held that, to the extent the plaintiff was relying on state law standards of care to pursue her claims, the FAA preempted the claims. For all of those reasons, the Ninth Circuit affirmed the trial court's entry of summary judgment in favor of the airline.
Kropp teaches that airlines defending against claims alleging injuries sustained during flights should aggressively press plaintiffs to identify any evidence, whether fact or expert, suggesting that the airline violated an FAR. Where, as in Kropp, a plaintiff fails to do so, airlines may have a shot at summary judgment.
Kropp v. United Airlines, Inc., 2022 U.S. App. LEXIS 16583 (9th Cir. June 15, 2022) (certain facts from trial court opinion at 2021 U.S. Dist. LEXIS 162461 (C.D. Cal. Aug. 19, 2021)).
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