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3 OVERVIEW OF AIRPORT DUTIES AND STANDARDS OF CARE IN AIRFIELD ACCIDENT CASES Jodi Howick, Howick Law PLLC INTRODUCTION This digest discusses issues that can affect an air- port proprietorâs duty and standard of care if an air- craft accident in the airfield leads to a lawsuit. Duties and standards of care are elements in a neg- ligence action alleging that an airport proprietor was required to use greater precautions to protect against an accident. Thus, precedent in this area can help an airport proprietor identify risks proactively as well as after an accident occurs. This digest begins by reviewing some very basic elements involved in a negligence action. This section is included for non-lawyers who may not be familiar with negligence litigation issues. It notes typical par- ties to an aircraft accident case, some procedural issues that might arise, the elements of a negligence cause of action, and a few important defense issues that may be available to the airport proprietor. Next the digest provides an overview of an air- port proprietorâs typical duty and standard of care under state common law (judicial law, which most states have codified to some extent). Issues in an air- craft accident case often involve questions of federal law. But in the absence of governing federal stan- dards, states apply their local laws, which normally require the court to determine whether an airport proprietor had a duty to use reasonable care to avoid an unreasonable risk of harm to a person such as the plaintiff. This section explains the basis for com- mon law duties to act with care and how courts might determine the required standard of care to avoid liability. It also provides examples of cases dis- cussing these issues in an aircraft accident setting, including cases alleging harm caused by an illegal act, such as terrorism. This section also considers a few prominent doc- trines that might prevent a court from finding that an airport proprietor had a common law duty to take precautions for others. States typically consider whether government actions involved a duty to an individual or to the public as a whole under doctrines such as the public duty doctrine. Normally, individu- als cannot base a negligence claim on a duty that the proprietor owed to the general public as a whole rather than to a particular individual. Courts also might find that parties cannot shift their legal duties to others, such as efforts to shift an airlineâs duties to the proprietor. Finally, if a proprietor is determined to have a duty toward others, immunity laws might still protect the proprietor against a lawsuit. This digest does not discuss state immunity laws, but it demonstrates immunity principles under federal law and points out a few federal immunity issues that might arise in an aircraft accident case. This digest then discusses preemption. If federal law mandates a particular action that is relevant to an aircraft accident case, a court will consider to what extent that mandate has a preemptive effect on the courtâs ability to determine state duties and standards of care in a negligence case. The digest explains basic concepts concerning preemption and how courts have applied those concepts to determine whether causes of action themselves are preempted. Courts have found that federal law does not pre- empt a remedial action for damages, but the law often can preempt the standard of care applicable in a negligence case. This digest also discusses how courts consider the preemptive effect of various fed- eral materials in an aircraft accident setting. Finally, this digest reviews a variety of cases, mainly against airport proprietors, that considered aircraft accidents in the airfield. This section is orga- nized by the type of airfield condition alleged to have caused the accident, such as bird hazards, design of airfield pavements, runway and taxiway incursions, and snow and ice conditions. This section does not attempt to discuss every possible case, but it includes a representative sample of cases to assist readers preparing to conduct additional research. I. A BASIC NEGLIGENCE CASE After an aircraft accident on the airfield, injured plaintiffs typically file state causes of action alleging negligence. The following section presents a very basic overview of issues that might arise in a negli- gence lawsuit to lay the groundwork for discussing a proprietorâs duty and standard of care in an aircraft accident case. Practitioners who work with negli- gence issues may want to proceed to the next section, since this section contains short, âencyclope- dia-styleâ entries to assist readers who may not be familiar with negligence lawsuits.
4 A. Parties and Actions The plaintiffs who sue an airport proprietor after an aircraft accident might include passengers, air- craft crewmembers, persons and property owners injured on the ground, airlines, or other defendants seeking to place financial responsibility on the pro- prietor. Defendants can include the airline; flight crew; aircraft manufacturers; aircraft suppliers or servicers; individuals, such as the airport director and airport board members; fixed-base operators; the federal government; insurance companies for any of the defendants; and other parties as well. To assert a negligence action, a plaintiff must claim that the proprietor owed a duty to act with some degree or standard of care toward the plaintiff and breached that duty. For example, a plaintiff might allege that the airfield was designed or con- structed negligently, or that the proprietor failed to warn of a hazardous condition, such as snow and ice, objects on the runway, or nearby tall objects. The plaintiffs might assert other causes of action as well, such as defective manufacturing claims involving strict product liability, claims for breach of an express or implied warranty, or claims by interna- tional passengers under an international treaty, such as the Montreal Convention. Thus, these cases can involve complex settings, but typically claims alleged against an airport proprietor are state law negligence claims. B. Jurisdiction Generally At the outset of a case, the court might consider a variety of preliminary issues about the courtâs authority to hear the case. These âjurisdictionâ issues may arise particularly when a case involves plaintiffs who reside in different states or events that are alleged to have occurred in different states. While negligence actions are state law causes of action, the plaintiffs might file those actions in a state or a federal court. If the plaintiffs originally file in state court, parties might seek to âremoveâ the case to a federal court. Federal statutes deter- mine when a federal court has jurisdiction to hear a case, and extensive case law addresses removal and jurisdiction issues.1 Questions about the pre- emptive effect of federal law may be present, but cases have held that claims about preemption do not permit removal to a federal court if the defen- dant raises them.2 C. Jurisdiction and Major Events Occasionally, federal courts might use special procedures to address large-scale accident cases. When an accident includes many victims, the fed- eral court system typically consolidates cases for pretrial proceedings in a single federal district court that is designated pursuant to the Judicial Panel on Multidistrict Litigation.3 After the terrorist attacks of September 11, 2001, Congress took a unique approach. It enacted special legislation known as the Air Transportation Safety and System Stabiliza- tion Act of 2001 (ATSSSA),4 which gave plaintiffs two alternatives: either a claim in a special recovery fund or an exclusive cause of action in the U.S. Dis- trict Court for the Southern District of New York. ATSSSA also established choice of law principles concerning judicial actions.5 1 See 28 U.S.C. Â§Â§ 1331, 1441, 1346(b)(1), 1332, 1331 (2017). See also Sangmi Lee v. AMR Corporation, 2015 WL 3797330 (E.D. Pa. 2015) (removal on the basis of a Mon- treal Convention claim); Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015) (discussing admiralty jurisdiction and noting the Death on the High Seas Act, as well as other bases for federal jurisdiction); In re Aircrash Disaster near Monroe, Michigan on January 9, 1997, 987 F. Supp. 975 (E.D. Mich. 1997) (determining a foreign air carrier could remove an action to federal court under the Foreign Sovereign Immunities Act, which can provide immunity to foreign governments); Bennett v. S.W. Airlines Co., 484 F.3d 907 (7th Cir. 2007) (after a plane crashed through a fence and into a street, determining no court has held that the national regulation of air travel means that aircraft acci- dent tort claims âarise underâ federal law). 2 See Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1252 (6th Cir. 1996) (holding that a preemption defense did not support a motion to remove an action to fed- eral court); In re Air Crash at Lexington, Kentucky, August 27, 2007, 486 F. Supp. 2d 640, 648 (E.D. Ky. 2007) (citing Supreme Court precedent concerning the lack of a basis to remove to federal court on âcomplete preemptionâ grounds). 3 See 28 U.S.C. Â§Â§ 1407, 1369 (2017). 4 Pub. L. No. 107-42, 115 Stat. 230. 5 ATSSSA Â§ 408(b)(1); Â§ 408(b)(2), (3).
5 D. Choice of Law In complex cases, a court sometimes must deter- mine whether a different stateâs laws should govern the case or aspects of the case. For example, these issues might arise when the events relevant to the accident occurred in two states, or when insurance contracts (or other contracts) contain provisions agreeing to apply the laws of a particular state. When a court must decide which laws apply, those issues can be complex and might require consider- ing both substantive laws and laws concerning how to decide choice of law issues.6 E. Elements of a Negligence Action Once a court reaches the plaintiff âs negligence action, it considers whether the plaintiff can prove the elements required to prevail. Normally the plain- tiff must show that the law imposed a legal duty on the airport proprietor to act with reasonable care to protect against a foreseeable and unreasonable risk of harm to people like the plaintiff. If the court deter- mines that the proprietor had such a legal duty, then the court determines the standard of care that the proprietor should have met to protect against that risk. Next, the plaintiff must show that the propri- etor breached that standard of care, and that the breach of that standard was a cause of the harm that the plaintiff suffered. The type of harm suffered also must be recognized as compensable under state law. Courts typically describe the elements of a negligence action as follows: âTo prevail on a negli- gence claim, a plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages.â 7 F. Duty This digest discusses duty at greater length in Sec- tion II, infra, but generally speaking, a duty is an obli- gation recognized by law that requires a party to act in accordance with a particular standard to protect the plaintiff against a foreseeable and unreasonable risk of harm. That legal duty can arise in a number of ways. Statutes or regulations might mandate taking certain kinds of action, and if so, then the court will require the party with that duty to comply. Under the common law, the courts have also found duties to exist under other circumstances. For example, courts typically determine that landowners have some obligation for the safety of people who are present on the premises for business purposes. One party can also assume a duty toward another, such as by undertaking an action that otherwise was not required, or based on the nature of the relationship between the parties. Some- times courts also might determine that a public entity does not have a duty to care for any particular person if officials were performing a public duty or service. In those instances, the entity owes obligations to the pub- lic as a whole and is not taking precautions for any particular person or group. A court also might deter- mine that certain parties cannot avoid their legal duties by attempting to delegate them to others. G. Standard of Care If a proprietor had a legal duty toward a particular plaintiff, then the court must establish what standard of care that duty required. If federal law does not gov- ern this issue, then the courts normally consider what precautions would have been reasonable under the cir- cumstances. For example, they might consider evidence of common standards and practices in the industry. But often aircraft accident cases involve federal stat- utes or regulations or the Federal Aviation Administra- tionâs (FAAâs) exclusive authority to regulate certain matters. In those instances, the court will consider whether a federal mandate preempts the courtâs local ability to determine the standard of care. Federal law can preempt local law in order to prevent conflicts with the national laws governing aviation. Sometimes rele- vant federal materials are nonbinding and would not present a legal conflict. In those cases, the courts will still normally consider the nonbinding materials to be persuasive evidence of the standard of care. H. Breach The next step in a negligence cause of action requires the plaintiff to prove that the proprietor breached its duty to act in a way that was consistent with the applicable standard of care. This is a fac- tual determination based on the evidence presented in the case. The plaintiff will attempt to prove that the proprietorâs conduct did not meet the standard of care, and the proprietor will defend against the plaintiff âs allegations. One court described a breach of a standard of care as âa failure on the defendantâs part to conform to that standard.â 8 6 For example, see In the Matter of Colorado Springs Air Crash, 867 F. Supp. 630 (N.D. Ill. 1994) (discussing complex choice of law issues in a plane crash case); Carr v. Puerto Rico Ports Authority, 806 F. Supp. 2d 494 (D. Puerto Rico 2011) (in an airport case, explaining the basis for using state law rather than a federal âcommon lawâ under the Erie doctrine); Simon v. U.S., 341 F.3d 193 (3d Cir. 2003) (considering complex choice of law issues, including whether different issues could be governed by different laws, after a plane crashed in Kentucky when controllers in Indiana relined on an inaccurate chart published in Washington, D.C.). 7 Farace v. Am. Airlines, Inc., 2:10-CV-00724-MMD, 2013 WL 149619, at *2 (D. Nev. Jan. 14, 2013) (discussing Nevada law). 8 Airplanes of Boca, Inc. v. U.S., 254 F. Supp. 2d 1304, 1315 (S.D. Fla. 2003) (discussing Florida law).
6 I. Causation Under the next element of a negligence action, the plaintiff must show that the proprietorâs breach of a standard of care was the cause of the plaintiff âs harm. The courts commonly consider whether the proprietorâs breach was the âbut forâ cause of the accident, meaning a cause without which the acci- dent would not have occurred.9 Courts might also consider whether the breach was the âlegalâ or âproximateâ cause of the accident. Proximate cause means that the breach set in motion âa natural and continuous sequence, unbroken by an independent cause, [which] produces the event [accident,] and without which the event would not have occurred.â 10 The courts will not find causation if the proprietorâs actions were too remote from the accident to have contributed to the harm or where an intervening and superseding cause broke the chain of events. When considering proximate or legal causation, the courts consider whether âlegal liability should be imposed as a matter of law where cause in fact is established and [causation] depends upon consider- ations of common sense and policy.â 11 In aircraft accident cases, sometimes it is not pos- sible to determine what caused the accident. In those circumstances, a plaintiff might argue to establish the required element of causation under the doctrine of res ipsa loquitur. That doctrine essen- tially allows a party to prove negligence by using circumstantial evidence under certain conditions.12 Typically, plaintiffs assert this doctrine against an airline, not the airport proprietor. J. Damages Under the final element of a negligence action, the plaintiff must demonstrate that he or she suffered legally cognizable damages that were caused by the breach.13 In some cases, the damage that the plaintiff alleges might not be compensable under state law. For example, in one aircraft accident case, pilots alleged that an airport proprietorâs negligence caused damage to their reputations because their aircraft skidded off an icy runway. One pilot based this claim on his per- ception that he was ostracized by coworkers after the accident, which caused him to leave his employment. The court determined that these allegations did not sufficiently support a claim for damages.14 K. Immunity If a public entity has a legal duty to take precau- tions for others, it still might be able to assert an immunity defense against a negligence lawsuit. Typically, the court considers and decides this defense early in the case, because if immunity applies, then the government is not subject to the negligence action. The laws in every state and at the federal level might differ in how they express immu- nity requirements. But typically immunity applies to the âdiscretionaryâ actions of a government entity, or in other words, policy decisions that the govern- ment makes for the benefit of the public as a whole within a range of discretion that is permitted by law. These issues are further outlined in Section II, infra. Immunity laws also might apply to a foreign national or foreign government that is a defendant in an aircraft accident case. For example, these issues might arise if the airline involved is a foreign carrier. In general, the Foreign Sovereign Immuni- ties Act provides that U.S. courts do not have subject matter jurisdiction over foreign nationals, but it includes statutory exceptions that might allow juris- diction in a particular case.15 L. Other State Negligence Law Principles This digest focuses on a proprietorâs duty and standard of care in the context of a negligence action, and Section I summarizes a few basic points about negligence lawsuits by way of introduction, but many other issues will arise in a negligence action. 9 Id. at 1290 (âdefendantâs conduct is a cause of the event if the event would not have occurred but for that conductâ). 10 Hartman v. United States, 923 F. Supp. 2d 1287, 1290 (W.D. Okla. 2013) (when a plane crashed after encounter- ing birds, the court determined that the plaintiffs failed to establish proximate cause in an action against the United States and an airport proprietor). 11 Id. 12 Carrio v. Densen, 689 So.2d 121, 123 (Ala. Ct. App. 1996) (in Alabama this doctrine required showing evi- dence of the instrumentality or act that caused the injury, that the defendant had full control of that instrumental- ity, under common understandings the accident could not have happened without some negligence in that control, and the injury resulted from the accident). 13 See Airplanes of Boca, Inc. v. U.S. ex Rel. F.A.A., 254 F. Supp. 2d 1304, 1315 (S.D. Florida 2003) (observing that under Florida law, the essential elements of a negligence action are â(1) the existence of a duty or obligation, recog- nized by law, requiring the defendant to conform to a cer- tain standard of conduct for the protection of others against foreseeable and unreasonable risks of harm; (2) a failure on the defendantâs part to conform to that stan- dard; (3) the defendantâs breach of duty was both an actual and a proximate cause of the plaintiff âs injury; and (4) the plaintiff suffered legally cognizable damages as a result of the actorâs breach of dutyâ). 14 Jorgensen v. Massachusetts Port Authority, 905 F.2d 515 (5th Cir. 1990) (rejecting pilot claims). 15 28 U.S.C. Â§Â§ 1330, 1602 (2017).