The Lawletter Vol 35, No 1, January 3, 2011
Fred Shackelford—Senior Attorney, Aviation Law
Does federal law establish the standard of care for, or preempt common-law tort claims against, airlines for accidents that occur while passengers are exiting a plane? The Third Circuit Court of Appeals recently addressed this issue of first impression in Elassaad v. Indep. Air, Inc., 613 F.3d 119 (3d Cir. filed July 6, 2010).
In this case, a passenger who was using crutches fell as he descended a staircase that was built into the door of a parked airplane. The passenger sued the airline for negligence, claiming that the defendant had failed to assist him in disembarking from the plane, including having failed to make available all appropriate safety measures and devices. Id. at 123. The airline moved for summary judgment, arguing that the federal Air Carrier Access Act ("ACAA") and the regulations thereunder preempted the claim because they require an airline to provide assistance only upon request, which had not occurred in this case, and they do not obligate carriers to inform disabled passengers of assistive measures unless a wheelchair is requested. Id.
The Elassaad court first distinguished an earlier case that had held that federal law preempted "the entire field of aviation safety." Id. at 125. The court determined that the earlier case, Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), was limited to in-air safety and did not apply to accidents occurring after a plane has stopped at the gate and disembarkation has begun. The Elassaad court found that, in such cases involving disembarkation, neither express preemption, conflict preemption, nor field preemption applies. The court examined statutory and regulatory language and concluded that none of these exemptions applies in the absence of "operation" or "navigation" of a plane that does not involve its physical movement. 613 F.3d at 130–31.
The court also explained that the ACAA does not preempt claims that do not allege discrimination. "At most, the ACAA might preempt state nondiscrimination laws as they apply to discrimination by air carriers against disabled passengers." Id. at 132. The court found no express or field preemption, because there was no evidence of a clear congressional intent to supersede any relevant state tort law. Id. The court also found no conflict preemption, stating:
These mandates do not prohibit air carriers from offering unsolicited assistance to disabled passengers when the situation warrants it, and they do not evince a congressional intent that air carriers should withhold assistance from disabled passengers when doing so would be negligent or reckless under state law. In any event, we are not persuaded that compliance with duties imposed by state law would require air carriers to act in a manner that would undermine the dignity of disabled passengers. Thus, there is no basis for us to find either that it would have been "impossible" for Independence to comply with both state law and the ACAA, or that state law would have been an "obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
Id. at 133.
The court remanded the case to the district court, with the instruction that "Elassaad's case is governed by state law negligence principles." Id. at 134.