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7 For example, if the lawsuit determines that an acci- dent was caused by the negligence of more than one defendant, then the court must decide under state law how to apportion liability between the parties that contributed to the accident. Normally that issue is submitted to a jury to decide a percentage of lia- bility that each such defendant must bear. Once liability has been apportioned, other con- cerns might arise. In a given case, state negligence laws might give some liable parties a right to seek contribution or indemnity from other parties, and thus redistribute their obligation to make payment. Contracts also might shift payment responsibilities. A proprietorâs contracts with its tenants normally contain indemnity clauses and insurance clauses that might have that effect, and each liable party also normally has a contract with its own insurance company that creates rights and obligations that can shift obligations to make payment, such as rights to subrogation. Thus, the plaintiff âs negligence action might be accompanied by litigation on these addi- tional issues as parties sort out other applicable rights. These issues can lead to complex litigation, even after the plaintiff âs issues have been resolved. II. COMMON LAW DUTIES AND STANDARDS OF CARE Most aircraft accident cases require considering the role of federal obligations. But before discussing the effect of those materials, this section summa- rizes how the common law addresses a proprietorâs duty and standard of care in their absence. Plaintiffs often allege these common law obligations irrespec- tive of federal materials, and local law governs a negligence case if there is no controlling federal law that preempts local law. A. Basic Duties Under state common law (which states have typi- cally codified at least in part), courts normally deter- mine that everyone has a duty to use reasonable or ordinary care to protect others who might foresee- ably be harmed by his or her actions against unrea- sonable risks of harm. Negligence law thus creates a general duty to protect against careless action and provides a remedy to those injured by it. The courts have considered these duties and standards of care in different contexts. State common law imposes a duty on a landowner to take certain safety precautions for people who are present on the property. Courts refer to this as âpremises liability.â Under the traditional approach to premises liability (which is still followed in many states), the landownerâs duty depends on the âstatusâ of the person present on the property. That duty is greatest when a person is present for business rea- sons but requires less for guests or trespassers. Thus under the traditional approach, a plaintiff might have the status of an âinviteeâ on the prem- ises. Courts have generally found that a plaintiff is a âbusiness inviteeâ if the plaintiff is on the premises for a reason relating to the landownerâs business. They might find that a plaintiff is a âpublic inviteeâ if the plaintiff is present for a public purpose relat- ing to the land. Typically, cases that apply this approach to airport proprietors find that passengers and their companions at airports are âbusiness invi- tees.â 16 Courts generally determine that a land- owner owes an invitee a duty to âexercise reasonable care with respect to conditions on the premises which pose an unreasonable risk of harm.â 17 Traditionally, a plaintiff also might be classified as a âlicensee.â A licensee is a person who is only present on the property with the landownerâs consent, such as a social guest. The law traditionally views licensees as being similar to the landowner, and courts might determine that the landowner only owes a licensee a duty to refrain from wanton or willful misconduct that would injure the licensee (although required stan- dards of care can vary from state to state).18 Finally, a plaintiff under the traditional approach also might be a âtrespasserâ on property, meaning someone who has no privilege to be present.19 Traditionally, the courts might find that the landowner does not have a duty to exercise care for the benefit of a trespasser, although again, in different states and different circumstances, the legally required standard of care can vary. 20 16 Ritchie v. Costello, 356 P.3d 337, 340 (Ariz. Ct. App. 2015) (assuming that a paraglider pilot was a business invitee under state premises liability laws). 17 Fuentes v. Port of Seattle, 82 P.3d 1175, 1177â78 (Wash. Ct. App. 2003) (citation omitted) (determining that a woman picking up a passenger was an invitee). 18 Washburn v. Lawrence County Bd. of Commissioners, 1:10-CV-464, 2012 WL 12887672 (S.D. Ohio July 24, 2012), affâd sub nom. Washburn v. Lawrence County Bd. of Comârs, 720 F.3d 347 (6th Cir. 2013) (determining that a social guest at an airport hangar was a licensee and under Ohio law was not owed a duty of ordinary care); Walsh v. Potomac Airfield Airport, 31 F. Appâx 818, 822 (4th Cir. 2002) (unpublished) (discussing a duty toward licensees); Wolfley v. Solectron USA, Inc., 541 F.3d 819, 824 (8th Cir. 2008) (noting that under North Carolina law, landowners owe a duty of reason- able care to all persons on the property except trespassers). 19 Afoa v. Port of Seattle, 296 P.3d 800, 805 (Wash. 2013) (discussing the Restatement (Second) of Torts Â§ 332 and Washington case law concerning the status of persons on property); Fuentes, 82 P.3d at 1177â78 (discussing the sta- tus of persons on property). 20 Wolfley, 541 F.3d at 824 (North Carolina law does not recognize a duty toward trespassers); Florida Power and Light Co. v. Lively, 465 So. 2d 1270, 1279 (Fla. 3d Dist. App. 1985) (noting that Florida has placed a duty on power com- panies toward those who may come in contact with power lines, even for trespassers).
8 Some states no longer strictly adhere to this âsta- tusâ approach when considering premises liability. Instead, they typically find that landowners have a common duty to act reasonably or with ordinary care and skill under the circumstances to avoid the risk of injuring others who might foreseeably be harmed. In these states, a property owner might have a general duty to âact as a reasonable person in maintaining his property in a reasonably safe condi- tion in view of all the circumstances,â but irrespec- tive of the plaintiff âs âstatus.â 21 Courts can use different analytical approaches when considering premises liability. But whether or not a court considers the âstatusâ of the plaintiff, courts typically consider the same kinds of issues when evaluating whether the landowner owed a duty to someone present on the premises. The common law also normally recognizes that a duty arises if one person undertakes a responsibility toward another. For example, in one case, the Supreme Court determined that the Coast Guard had no obligation to undertake operating a light- house, but having undertaken that task, it then âwas obligated to use due care to make certain that the light was kept in good working order, and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning.â 22 Courts might discuss such a duty under âGood Samaritanâ laws. For example, one court considered whether the FAA undertook Good Samaritan obligations for the benefit of an airline when the FAA certified an air- port proprietorâs Airport Certification Manual. The Good Samaritan doctrine required the plaintiff to show that by providing the certification the FAA undertook to provide services to the airline which created a relationship that gave rise to a duty, such as by increasing the risk of harm. But in this case, the court found no evidence to support the claims.23 B. Basic Standards of Care If a landowner has a duty to act with reasonable care, then a court must determine what that standard requires in a given circumstance. Courts typically take a number of factors into account if federal law does not control this issue, and the determination is specific to the facts and issues in a given case. For example, at a basic level, a court considers evidence of what a ârea- sonable personâ would have done under the circum- stances of the case.24 The court also might consider evidence of the standards that people normally con- form to in a given industry. Evidence of those standards might come from expert testimony concerning common practices or manuals, plans, handbooks, or guidance materials. A court might also consider the extent to which contract obligations establish standards between the parties or for the benefit of third parties. Aircraft accident cases normally always involve federal materials of some kind. When those federal requirements are mandatory, the courts will deter- mine whether they have a preemptive effect, and questions can arise concerning the effect of certain materials in a given case. Preemption involves some nuanced issues and is further discussed in Section III, infra. But an airport proprietorâs responsibilities as a landowner remain an important factor in aviation cases since many FAA materials create, but do not mandate, standards for airport operations. The follow- ing case examples illustrate some of the common law issues involved in determining an airport proprietorâs duty and standard of care under state law. C. Examples Cases have noted that an airport proprietor has the common law duty of a landowner for conditions on the premises, including conditions on the airfield. While federal responsibilities might shape the stan- dard of care that applies in a given setting, the courts typically have not found that federal respon- sibilities preempt a proprietorâs duty to act with some degree of care. For example, in Insurance Com- pany of North America v. City of New Haven,25 an aircraft crashed after encountering gulls on a foggy, pre-dawn runway. The court determined that under Connecticut law, a public airport proprietor has âthe duty of exercising reasonable care and control to protect its invitees from dangers which might rea- sonably be anticipated to arise from the conditions of the premises or the activities taking place there.â 26 21 Hurn v. Greenway, 293 P.3d 480, 483 (Alaska 2013) (observing that Alaska no longer follows the common law distinctions between invitees, licensees, and trespassers). 22 Indian Towing Co., Inc. v. U.S., 350 U.S. 61, 69 (1955) (considering liability when a lighthouse light was inoperative). 23 In re Air Crash at Lexington, Ky., August 27, 2006, CIVA5:06CV316-KSF, 2008 WL 2397708 (E.D. Ky. June 11, 2008) (considering a variety of claims after a com- muter jet crashed taking off from the wrong runway). 24 One court noted that â[t]he primary factors to be taken into account in assessing the reasonableness of a defendantâs conduct are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden that would be borne by the actor and others if the actor takes precautions that eliminate or reduce the possibility of harm.â Korean Air Lines Co., LTD. v. McLean, 118 F. Supp. 3d 471, 486 (E.D.N.Y. 2015) (considering an accident on a taxiway). 25 574 F. Supp. 373 (D. Conn. 1983). 26 Id. at 337. A number of cases discussed in Section IV, infra, also note this duty.
9 Common law cases often discuss whether a land- owner has a âduty to warnâ of conditions on the prop- erty that might create a risk. The court considered such a duty in the New Haven case. It found that the proprietor had âa duty to pilots using its airport to exercise reasonable care to remedy the existing bird hazard, or at least to warn unsuspecting pilots of the peril.â 27 In this case, the court noted that the propri- etor had taken several actions to scare off birds con- sistent with measures that were acceptable under federal programs, and the court believed that the use of these measures constituted reasonable care and that the proprietor did not need to exceed them. But the court also noted that the proprietor could have issued a Notice to Airmen (NOTAM) regarding the probable presence of birds and failed to do so. The court believed that omission was negligent but decided the case on other grounds (the pilots testified that they would not have done anything differently even if they had received a NOTAM concerning the birds, and thus the court determined that the propri- etorâs failure to issue the NOTAM could not have been a probable cause of the accident). Under the common law, a landowner generally does not have a duty to warn of potential hazards if the plaintiff is already aware of them. For example, in Tatem v. United States,28 a helicopter crashed when its rear skid struck an asphalt lip near the helicopter field (the federal government owned the field). The court determined that under Alabama law, the premises owner owed a duty to the pilot as an invitee, and thus the proprietor had a duty to maintain the premises in a reasonably safe condi- tion. The court then found that the proprietor did not breach that duty in how it maintained the air- field and that a premises owner does not have a duty to warn of hazards that the plaintiff already knew about. In this case, the pilot knew there was a lip in the asphalt, and the court determined that fact would bar recovery against the proprietor. (The court also found that the pilot was contributorily negligent, relieving the proprietor of liability under applicable law.) Typically, a landowner does not need to warn of a condition that is open and obvious, but if a landowner provides a warning about a potential risk, the com- mon law requires that warning to be adequate. For example, in an unusual case concerning a jet bridge, Farace v. American Airlines, Inc.,29 a woman fell in the âgutterâ area of the bridge. The manufacturer had painted that area with stripes, and the proprietor argued that the gutter area was open and obvious. But the court determined that âby arguing that the jet bridge gutter was an open and obvious danger, Defendants impliedly recognize that the gutter was, in fact, dangerous.â 30 The court remanded the case for the jury to âdecide whether or not a defendantâs warn- ing regarding a dangerous condition was so inade- quate as to breach the duty of care owed to the plaintiff.â 31 The court imposed this duty on the air- port proprietor and the airline even though the man- ufacturer had placed the striping on the bridge. Some cases address where on the premises a landowner owes duties to those present. For exam- ple, in McElduff v. McCord,32 the court found that an airport proprietor had a duty to âkeep premises in a reasonably safe condition so that a person landing his aircraft there will not be unreasonably exposed to any danger.â 33 This included a duty âto give warn- ing of hidden dangers or unsafe conditions of which he has knowledge, express or implied.â 34 In this case, a pilot saw a parked car on a taxiway and attempted to go around the car by entering a grassy area adja- cent to the taxiway. The aircraft collided with a con- crete slab in the grass, and the pilot argued that the proprietor had failed to warn of the danger. The court determined that the proprietorâs duty to an invitee applied âonly when the injury results from the use and occupation of that part of the premises which has been designated, adapted, and prepared for the accommodation of such persons.â 35 There was no evidence that the proprietor was aware of the car on the taxiway, and the court believed that the pilotâs decision to enter the grassy area was not a âslight departureâ from areas used by invitees.36 The court determined that the proprietor did not owe the same duty to the pilot in the grassy area as while on the taxiway, and under those circumstances the propri- etor was not negligent. Cases addressing premises liability also have determined that a landowner only owes a duty while persons are on the landownerâs premises, and they do not have a duty for incidents that occur off of the premises. For example, in Ritchie v. Costello,37 a para- glider successfully took off from an airport during a balloon festival with the proprietorâs assistance. Then after 30 minutes of flight, the pilot collided with a hot air balloon. The pilot claimed that the airport 30 Id. 31 Id. 32 178 S.E.2d 15 (N.C. App. 1970). 33 Id. at 82. 34 Id. 35 Id. 36 Id. at 83. 37 356 P.3d 337 (Ariz. Ct. App. 2015). 27 Id. 28 499 F. Supp. 1105 (M.D. Ala. 1980). 29 2:10-CV-00724-MMD, 2013 WL 149619 (D. Nev. Jan. 14, 2013) (unreported).
10 proprietor had breached a duty of care that the pro- prietor owed because the pilot had been a business invitee on the premises. But the court determined that, even assuming the pilot was initially a business invitee, the proprietorâs duty as a landowner ended when the pilot successfully left the property. The court in Ritchie found that the proprietor had a duty to use reasonable care to provide ârea- sonably safe means of ingress and egressâ and owed âa duty to the public to maintain reasonably safe conditions for aircraft using the airport, and that duty extends to runways.â 38 But the court deter- mined that â[a] landownerâs obligation to invitees . . . is not limitless,â and â[o]nce an invitee safely leaves the premises, the landownerâinvitee rela- tionship terminates, as does the landownerâs duty to the invitee.â 39 The pilot argued that the propri- etor âhad a duty to warn him of dangerous condi- tionsâ because of the âinvitee relationship,â but the court found that the proprietor âdid not have a duty to warn him of the obviousâ (the presence of bal- loons at a festival).40 The court also noted that extending an airport proprietorâs duties to flight activity would conflict with federal law since fed- eral regulations controlled the airspace. Cases have also considered whether a landowner retains a duty as the premises owner after leasing part of the premises to another. The common law typically imposes premises liability duties on the possessor of property, and thus a leaseholder is responsible for those duties, but it also recognizes that a lessor might have some responsibilities, such as for conditions present at the outset of the lease or conditions over which the lessor retains control. Typically these issues do not arise in an aircraft accident case on the airfield, but in other contexts, courts have noted that an airport proprietor does not have a duty to maintain or care for the property of a tenant.41 Courts have also considered the scope of a land- ownerâs duty, in other words, when it would not be reasonable to impose a duty to take precautions because the risk of a type of harm is not sufficiently foreseeable. These issues often arise when someone on the premises is injured by a criminal act. The courts normally find that absent special conditions, a landowner does not have a duty to foresee and pre- vent a criminal act and is not liable for that act. For example, in Moncur v. City of Los Angeles, Department of Airports,42 someone placed a bomb in an airport locker, and victims of the blast alleged that the airport proprietor was liable under prem- ises liability principles because the proprietor did not restrict access to the lockers. The court deter- mined that under California law, a property owner is only liable for a condition on the premises that is itself dangerous. The court noted that while a âcom- bination of defect of property and acts of third par- tiesâ can create an unreasonable risk of harm, the courts do not consider a third partyâs harmful acts to be a dangerous condition on property âin the absence of some concurrent contributing defect in the prop- erty itself.â 43 In this case, the âairport building was not itself a dangerous or defective piece of public property. The danger was created by the act of plac- ing the bomb on the property.â 44 Since the âbomb was unrelated to the physical condition of the termi- nal,â it âcould not in any sense constitute a defect in something of which it was not a constituent part.â 45 The court also believed that the âlikelihood of aber- rant behavior,â such as in this case, was not foresee- able because âthe precise means which a deranged person or a fanatic will employ is based upon too many variables for accurate prediction.â 46 If there has been a history of certain crminal acts on the premises, courts sometimes determine that a landowner might have a duty to take precautions, but typically such a duty only arises to take precau- tions concerning the specific criminal acts commit- ted. For example, in Fuentes v. Port of Seattle,47 police officers were patrolling an airport parking garage looking for car prowlers. They saw a suspect and gave chase, but the suspect jumped into the traffic lanes in front of the garage, forced his way into a driverâs vehicle, drove off with the driver, and then threw the driver out of the car. The court noted that under Washington state law, a landowner has a duty of reasonable care for ârea- sonably foreseeable criminal conduct by third per- sons [but] . . . No duty arises unless the harm to the invitee is foreseeable.â 48 While the proprietor was aware of car prowling activity in the parking garage, there was no evidence of past car jackings in the air- port pick-up lanes. The court found that even if past 38 Id. at 340 (original emphasis). 39 Id. 40 Id. at 340, 341. 41 See Washburn v. Lawrence County Bd. of Commis- sioners, 1:10-CV-464, 2012 WL 12887672, at *5 (S.D. Ohio July 24, 2012), affâd sub nom. Washburn v. Lawrence County Bd. of Comârs, 720 F.3d 347 (6th Cir. 2013) (deter- mining the proprietor had no duty to repair a T-hangar door that fell and injured the plaintiff). 42 137 Cal. Rptr. 239 (Cal. Ct. App. 1977). 43 Id. at 242. 44 Id. 45 Id. 46 Id. at 243. 47 82 P.3d 1175 (Wash. Ct. App. 2003). 48 Id. at 1178.
11 incidents in the garage âhad established a pattern of violent crimes in the airport garage, that would not be dispositive of a pattern of crime at the airport pick-up drive.â 49 It observed that â[t]he kind of knowledge required before a duty to protect arises is knowledge from past experience that there is a like- lihood of conduct which poses a danger to the safety of patrons.â 50 The court determined that â[c]ar prowlers working the unoccupied cars parked in the airport garage does not create foreseeability of kid- napping or car jackings of occupied cars at the pick- up drive.â 51 Cases about criminal acts point out a basic com- mon law concern for what a landowner is able to foresee and the reasonable limits of financial respon- sibility. Cases after the terrorist attacks of September 11, 2001, considered this issue at length as the court tried to determine to what extent the defendants should be responsible for extensive harm occurring both on the aircraft and on the ground. In general, the court noted that under the common law â[t]he risk reasonably to be perceived defines the duty to be obeyedâ and âno liability will result when the occur- rence is not one that is normally associated with such hazards.â 52 But the court examined the policy under- lying the basic common law requirements that risks must be reasonably foreseeable before a landowner has a duty to take precautions against them. For example, in one case, the court noted that courts traditionally âfix the duty point by balancing factors, including the reasonable expectations of par- ties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.â 53 The court then consid- ered these factors. It noted that â[a]irplane crashes in residential areas are not unknown,â citing various examples, and that â[a]irlines typically recognize responsibility to victims on the ground.â 54 Under the âsocietal expectationsâ factor, the court held that âplaintiffs and society generally, could reasonably have expected that the screening methods at . . . airports were for the protection of people on the ground as well as for those on board the airplanes that the terrorists hijackedâ 55 because we rely on a variety of people to help protect society, whether pub- lic servants or private companies. The court next considered the potential for a âpro- liferation of claimsâ and âinsurer-like liability.â The court noted that this factor addresses not the num- ber of claimants, but whether âthe claimants are known and circumscribed by those who have, as a result of these events, suffered personal injury or property damage.â 56 In this case, the court deter- mined that the claims were so circumscribed, that there was no impermissible proliferation of claims, and that âthe likelihood of unlimited or insurer-like liability . . . does not weigh heavily against a finding of duty.â 57 When considering a âdisproportionate risk and reparation allocation,â the court considered âwho was best able to protect against the risks at issue[;]â this factor âweighs the costs and efficacy of imposing such a duty.â 58 In this case, the court deter- mined that the âairlines, and the airport security companies, could best screen those boarding, and bringing objects onto, airplanesâ and these activities âwould protect the public as well.â 59 Finally, the court determined that recognizing such a duty for the airlines and security companies âwould not sub- stantially expand or create new channels of liabil- ityâ because New York courts had previously found that âaircraft owners and operators owe a duty to those on the ground who may be harmed or sustain property damage resulting from improper or negli- gent operation of an aircraft.â 60 Thus, the policy fac- tors weighed in favor of imposing a duty. The court then considered whether the harmful event was reasonably foreseeable. âThe scope of duty to a particular class of plaintiffs depends on the rela- tionship to such plaintiffs, whether plaintiffs were within a zone of foreseeable harm, and whether the harm was within the class of reasonably foreseeable hazards that the duty exists to prevent.â 61 The court found that in this case, the hazard was foreseeable. It determined that if the harm was within the âclass of foreseeable hazards that the duty exists to pre- vent, the individual may be held liable, even though the harm may have been brought about in an unex- pected way.â 62 In this case, the court concluded âthat 49 Id. 50 Id. 51 Id. 52 In re September 11 Litig., 594 F. Supp. 2d 374, 381 (S.D.N.Y. 2009) (citing Palsgraf v. Long Is. RR Co., 162 N.E. 99, 100 (1928)) (considering tower tenant claims against American Airlines). 53 In re September 11 Litig., 280 F. Supp. 2d 279 (S.D.N.Y. 2003) (considering whether the airline and security com- pany defendants were subject to a duty of care toward passengers and those injured on the ground). 54 Id. at 291. 55 Id. at 293. 56 Id. 57 Id. 58 Id. 59 Id. 60 Id. at 294. 61 Id. at 295. 62 Id.
12 the crash of the airplanes was within the class of foreseeable hazards resulting from negligently per- formed security screening. While it may be true that terrorists had not before deliberately flown air- planes into buildings, the airlines reasonably could foresee that crashes causing death and destruction on the ground was a hazard that would arise should hijackers take control of a plane.â 63 Next the court considered whether any federal laws preempted a common law duty for the airlines or security companies. It observed that: Preemption is generally found, not in connection with the existence and scope of duty, but in connection with the stan- dards governing the conduct and procedures relating to aviationâthe standard of care, that is, by which an air car- rier must carry out its activities. Defendants have not shown any inconsistency between the law of duty provided by New York law and federal statutes or regulations.64 Then the court considered landowner duties for the Port Authority of New York and New Jersey and a private company lessee. The landowners argued that the plaintiffs had alleged a duty to anticipate unprecedented terrorist acts, while the plaintiffs argued that the landowners had a duty to construct the buildings to withstand the effects of a fire, avoid a collapse caused by fire, and provide for fire safety and evacuation procedures. The court observed that under New York law, â[a] landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition . . . including the duty to adopt reasonable fire-safety precautions . . . regardless of the origin of the fire.â 65 But â[w]hat constitutes reasonable fire prevention is dictated by the actual property,â and the owner must consider â[s]pecific fire hazards caused by the actual buildingâs design or by the materials used . . . in a timely fashion, even when the owner has fully com- plied with all applicable fire and building codes.â 66 The court also determined that the âduty of land- owners and lessors to adopt fire-safety precautions applies to fires caused by criminals.â 67 The court then analyzed the landownersâ alleged duties by weighing policy factors. It believed that under those factors, society would reasonably expect the landowners to design, construct, repair, and maintain these buildings in conformance with build- ing and safety codes and to provide evacuation routes. As with the airline claims, the court also found that there was no danger that claims would âproliferate beyond those who died in the collapse of the structures or were injured while trying to escapeâ and the landowner defendants were ânot subject to unlimited or insurer-like liability, for they can be held liable only after a showing of fault and only to those who suffered death, personal injury, or property damage resulting from their alleged negli- gence.â 68 The court noted that a federal law passed after the tragedy also limited the landownersâ liabil- ity to the extent of their insurance coverage. The court also determined that the landowner defen- dantsâ relationship with the harmed plaintiffs placed them in âthe best position to protect against the risk of harm.â 69 And finally, as with the airline claims, imposing liability on the landowner defendants would ânot create new channels of liability, for the New York courts have held traditionally that land- lords owe duties of safety and care to the occupants of leased premises and their invitees.â 70 The court then considered the nature of the risk. âDefining the nature and scope of the duty and to whom the duty is owed requires consideration of the likelihood of injury to another from a dangerous con- dition or instrumentality on the property, the severity of potential injuries, the burden on the landowner to avoid the risk, and the foreseeability of a potential plaintiffâs presence on the property.â 71 The court believed that in this case, the âcriteria are clearly sat- isfied, for the severity and likelihood of potential inju- ries of people unable to escape from a heavily occupied building before fires envelope evacuation routes is high.â 72 The court also considered whether the inju- ries âarose from a reasonably foreseeable risk.â 73 The plaintiffs pointed to specific past instances involving fires, attacks on the buildings, and the potential for aircraft crashes, but the court found â[i]t is enough to have foreseen the risk of serious fires within the buildings and the goal of terrorists to attack the buildings.â 74 It thus concluded that the landowner defendants âowed a duty to the plaintiffsâ and allowed the plaintiffs to proceed with their case.75 The court noted that under New York law, gener- ally âan intervening intentional or criminal act sev- ers the liability of the original tort-feasorâ for purposes of proving both a duty and causation.76 But when considering the element of causation, the court found that this âdoctrine has no application 63 Id. at 296. 64 Id. at 298. 65 Id. at 299. 66 Id. 67 Id. 68 Id. at 300. 69 Id. 70 Id. 71 Id. 72 Id. 73 Id. 74 Id. 75 Id. 76 Id. at 302.
13 when the intentional or criminal intervention of a third party or parties is reasonably foreseeable.â 77 The court discussed other aspects of duty as well in other proceedings. For example, it determined that American Airlines did not undertake any duties toward the passengers on a United Airlines flight because âAmerican could not reasonably have fore- seen that any breach it may have committed that led to the crash of an American Airlines airplane would have also led to injures from a crash of a United Airlines airplane.â 78 The court also noted that âa generalized duty of all airlines and all avia- tion personnel to report aviation threats to federal authorities does not establish under these circum- stances a duty of one airline to those injured by another airlineâs crash.â 79 In another proceeding, the court determined that United Airlines did not have a duty of care toward the owner of a building that fell after it was hit by debris from the American Airlines crash.80 The court deter- mined that it âwas not within Unitedâs range of appre- hension that terrorists would slip through the PWM [Portland, Maine] security screening checkpoint, fly to Logan, proceed through another air carrierâs secu- rity screening and board that air carrierâs flight, hijack the flight and crash it into 1 World Trade Cen- ter, let alone that 1 World Trade Center would there- fore collapse and cause Tower 7 to collapse.â 81 These cases have considered other issues as well. One determined that decisions concerning firefight- ing were not the cause of a small building collapse; rather, firefighters were forced to made decisions about which buildings to save, and their decisions in the series of events were essentially too remote from the harm that occurred.82 Another series of cases is still active in the courts at the time of publication of this digest and is considering the value of the lease- hold interest lost in the World Trade Towers.83 The cases stemming from the terrorist attacks of September 11, 2001, involve complex issues and the most extreme circumstances, but they illustrate some of the basic common law concerns affecting duties and standards of care in a negligence action. The court was forced to carefully consider policy fac- tors weighing for or against the existence of a com- mon law legal duty to take precautions against the damage that occurred in each case. It then had to determine whether the crashes or other actions were within the scope of the foreseeable risks associ- ated with such a duty. The court noted that the stan- dards of care required by these duties might be influenced by federal obligations, and that these complex cases also raised other elements involved in a negligence action, particularly concerns for causa- tion. The court found in some instances that policy considerations did not support imposing a duty to act in accordance with a standard of care. D. Lack of a Duty Courts generally recognize that in some instances, government action fulfills a duty owed to care for the public as a whole and not to care for a particular individual. When the government has an obligation to take action for everyone, normally no duty arises to take precautions to protect a given individual from a risk. Courts may discuss this issue in a gen- eral way or in a given state, they might refer to it as the common law âpublic duty doctrine.â This doc- trine negates the existence of a duty in a tort action. Some states also might codify this concept as part of their statutory immunity laws concerning discre- tionary functions (although immunities typically apply once a duty exists).84 Some courts have also noted that a public duty defense can bar a lawsuit, 84 See, e.g., Cope v. Utah Valley State College, 342 P.3d 243, 249 (Utah 2014) (discussing recognition of the public duty doctrine in most jurisdictions and observing that twelve state supreme courts have rejected or abandoned the public duty doctrine by viewing it as a form of govern- mental immunity); Gregg v. City of Kansas City, 272 S.W.3d 353, 362 (Mo. App. W. Dist. 2008) (discussing the public duty doctrine as providing that a âpublic employee is not liable to an individual for injuries resulting from a breach of duty the employee owes only to the general pub- licâ); Perez v. Govt. of the Virgin Islands, 847 F.2d 104 (3d Cir. 1988) (citing the Restatement (Second) of Torts, Â§ 288 while discussing the public duty doctrine and immunity law under Virgin Island law); Tri-State Mint, Inc. v. Riedel Envtl. Services, Inc., 29 F.3d 424, 426 (8th Cir. 1994) (deter- mining that it is âa basic principle of tort law that public duties created by statute cannot be the basis for a negli- gence actionâ in a case considering South Dakota law); Saunders v. U.S., 99 F. Appâx 814, 816 (9th Cir. 2004) (unpublished) (under Washington law the duty breached must be âowed to the injured person as an individualâ and ânot merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one)â). 77 Id. 78 In re September 11 Litig., 594 F. Supp. 2d 374, 382 (S.D.N.Y. 2009) (American Airlines was alleged to have delayed in reporting the hijacking.). 79 Id. 80 In re September 11 Litig., 905 F. Supp. 2d 547 (S.D.N.Y. 2012) (considering balancing factors to determine the existence of a duty and noting concern for the unfairness of imposing liability on one party for the acts of another and the resulting potential for limitless liability). 81 Id. at 554. 82 Aegis Ins. Services, Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 177â78 (2d Cir. 2013) (the building was hit by debris, the cityâs water systems were damaged, firefighters were overwhelmed and forced to abandon the building, and it even- tually collapsed onto a power substation in the basement). 83 See In re September 11 Litig., 08 CIV. 3719 (AKH), 2017 WL 1287141 (S.D.N.Y. Apr. 6, 2017) (considering ongoing issues concerning leasehold claims).
14 even when an immunity statute does not.85 Through these doctrines the courts address obligations that run to the public rather than to an individual, and a negligence action cannot be based on a public duty.86 Courts have identified a number of circumstances where a government action fulfills an obligation to the public and thus cannot support a negligence action. For example, when the government adopts a program, such as establishing a police force, it nor- mally is taking an action for the general public wel- fare and not to protect particular persons.87 Courts also might find that government inspec- tions are conducted to fulfill a legal obligation to the public as a whole. For example, an Eighth Circuit case determined that duties to inspect for suspected environmental hazards were âgeneral duties owed to the public as a whole, not to any particular class of individuals.â 88 In this case, the government had hired a private firm to conduct environmental inspections, and the court found that the firm acted as the stateâs agent in performing this public duty. As such, the firm could not be sued for negligent testing by the company that was cited for environ- mental violations. The courts also might find that the issuance of a license or certification fulfills an obligation to protect the public generally by verify- ing conditions required to obtain the license or certi- fication, or by making enforcement decisions within a lawful range of discretion. Courts can also apply a public duty analysis to the actions of emergency responders. For example, in one case a helicopter crashed into the water, and first responders did not have diving equipment on board. They sent officers to obtain the equipment, and in the meantime ordered civilian divers to stay out of the water. The court observed that under Dis- trict of Columbia law, there is no duty to provide public services to any particular person without a special relationship to create such a duty. In this case, the court determined that no such relationship existed, and a negligence lawsuit could not be based on the respondersâ public responsibilities, such as the timing and adequacy of their response or their on-scene management responsibilities. The court noted that if the responders had allowed civilian divers to participate in the rescue, the helicop- ter passengers might have been saved or the civilian divers might have been injured, but the public duty doctrine was meant to preclude such second guessing of those officials who had authority to respond. The responders were âcharged with the responsibility of conducing rescue operations in emergencies such as the one present here. Carrying out that responsibility necessarily required the exercise of discretion, on the part of the rescuers, concerning how they should pro- ceed, which included making the judgment that only professional rescuers should take part.â 89 The court noted that where the government has been found to have liability, âan additional element has been injected above the existing general public duty,â such as justifi- able reliance or placing someone in harmâs way. 90 In perhaps a related concept, typically the courts have not found that the Federal Aviation Act of 1958 (FAAct) creates a private cause of action. Similarly, courts have found that federal grant agreements between the FAA and an airport proprietor benefit the public generally but normally do not provide a cause of action to a plaintiff as a third-party benefi- ciary (although the courts resolve that issue under state law to determine whether a given obligation was intended to benefit particular individuals).91 As 85 See, e.g., Matthews v. Pickett County, 182 F.3d 917 (6th Cir. 1999) (noting under Tennessee law that even if the stateâs immunity statutes permit a tort lawsuit, the public duty doctrine might still bar the suit because no duty exists); Lewis v. City of St. Petersburg, 260 F.3d 1260 (11th Cir. 2001) (determining that Florida had abolished the public duty doctrine by essentially incorporating it into immunity laws based on discretionary acts, but the Florida courts continue to determine whether the govern- ment owed a duty to a particular individual). 86 When this defense is available against a negligence lawsuit is also available to the federal government under the Federal Tort Claims Act, which permits claims to the âsame extent as a private individual. . .in like circum- stances.â Stratmeyer v. U.S., 67 F.3d 1340, 1343 (7th Cir. 1995) (noting the scope of the doctrine). 87 See id. at 1344 (affirming a lower court decision deter- mining that under Indiana law, the public duty doctrine precluded any duty to a later purchaser to quarantine cattle during a general inspection; the Indiana statutes for eradicating brucellosis were enacted to protect public health, âthe USDA and the state were cooperating in the brucellosis eradication program,â and the purchaser could not demonstrate any relationship with the veterinarian). 88 Tri-State Mint, Inc. v. Riedel Envtl. Services, Inc., 29 F.3d 424, 427 (8th Cir. 1994) (determining that the public duty doctrine protected an environmental inspection firm from a suit by a party cited for violations, and also noting that inspection duties imposed under building codes are duties owed to the public). 89 Allison Gas Turbine Div. of Gen. Motors Corp. v. D.C., 642 A.2d 841, 845 (D.C. 1994) (explaining various aspects of the public duty doctrine in the District of Columbia). 90 Id. 91 See Obenshain v. Halliday, 504 F. Supp. 946 (E.D. Vir. 1980) (determining that the FAAct does not provide an express or implied private cause of action and that the injured plaintiff was not a third-party beneficiary of the airport proprietorâs FAA grant assurance contracts); Miree v. DeKalb County, Ga., 433 U.S. 25 (1977) (determining that state law, not federal law, controlled the question of whether the plaintiffs were third-party beneficiaries of the airport proprietorâs grant assurances); Anderson v. USAir, Inc., 818 F.2d 49 (D.C. Cir. 1987) (determining that the FAAct does not grant a private right of action to remedy perceived air carrier violations).
15 such, the public duties imposed by federal aviation law inure to the benefit of the public, and the courts do not construe them as providing a private right of action to a particular individual. Court discussions concerning public duties can vary from state to state, but public duty concepts might provide an airport proprietor with an impor- tant defense in an aircraft accident case. If the pro- prietor is fulfilling a legal duty to care for the general public as a whole, the proprietor might be able to argue that no duty required it to take precautions for the protection of a particular individual, negat- ing the first element of a negligence lawsuit. E. Nondelegable Duties Courts have determined that in some instances, a partyâs duties in a negligence action are not delega- ble to another party. Sometimes they have reached that conclusion under the common law concerning a landownerâs responsibilities, and sometimes they have determined that federal law does not allow cer- tain duties to be shifted to others. For example, in one case a court determined that under Puerto Rican law, an airport proprietor could not delegate its duty to maintain safe escalators in the terminals after an injury occurred. The propri- etor had contracted with a company to service the escalator, but the court determined that the propri- etor âeffectively had exclusive control over the esca- lator because the authority in control of a public area has a nondelegable duty to maintain its facili- ties in a safe condition.â 92 The court noted that under the common law, â[t]here are no set criteria for deter- mining whether a duty is nondelegable,â but âthe critical question is whether the responsibility is so important to the community that it should not be transferred to another.â 93 When weighing factors, the court noted that the airport proprietor was âcreated for a public purpose, which included the operation and management of the airportâ and that â[a] concomitant of this authority is the duty to keep the facilities it operates in a reason- ably safe condition. The public is entitled to rely on the Ports Authorityânot its agents or contractorsâ to see that this is done.â 94 The court also noted analo- gous situations where public owners and business owners have nondelegable duties to keep their prem- ises safe for invitees, and it noted a âgeneral tort law policy not to allow an entity to shift by contract its responsibility for keeping an area used by the public in safe condition.â 95 Otherwise âthe owner and opera- tor of an airport terminalâ could âdelegate its duty to keep its facility safe.â 96 On that basis, the court believed that a jury should have been allowed to con- sider claims against the airport proprietor. In other instances, the courts have determined that federal law imposes a duty on a party that the courts cannot alter. For example, in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),97 the Supreme Court considered cases where aircraft had caught fire during flight and crashed. The plaintiffs alleged that the FAA was negligent in issuing certificates for the aircraftsâ design and in conducting inspections. The Court rejected these claims, finding that the federal requirements concerning these certificates and inspections were discretionary activities for which the government had immunity. But as part of that analysis the Court observed: Congress emphasized, however, that air carriers themselves retained certain responsibilities to promote the public inter- est in air safety: the duty to perform their services with the highest possible degree of safety . . . the duty to make or cause to be made every inspection required by the Secretary . . . and the duty to observe and comply with all other admin- istrative requirements established by the Secretary.98 The Court would not allow the negligence action in Varig Airlines to effectively relieve an airline of its regulatory responsibilities for safety because Congress had mandated that the airline must act in accordance with certain standards. A statute contin- ues to mandate that when adopting regulations, the FAA must take into account âthe duty of an air car- rier to provide service with the highest possible degree of safety in the public interest.â 99 Other courts have also noted that they must enforce the duties established under the FAAct. For example, in one case, the plaintiffs claimed that the FAA was negligent by failing to take additional steps to ground a plane. An FAA inspector had arrived for a check ride and found that the owner had already marked the plane as grounded due to contaminated fuel. Later, a pilot nonetheless tried to fly the plane and it crashed. The court determined that the FAAâs conduct did not increase the risk of harm in this case and it did not assume a duty to the plaintiffs. But under these circumstances, the court also concluded â[w]hatever the FAA does or does not do, the Federal Aviation Regulations assign the chief responsibility for ensuring the airworthiness of an aircraft and its 95 Id. at 1107. 96 Id. 97 467 U.S. 797 (1984). 98 Id. at 804. 99 49 U.S.C. Â§ 44701(d)(1)(A) (2017). 92 Colmenares Vivas v. Sun All. Ins. Co., 807 F.2d 1102, 1105 (1st Cir. 1986) (considering duties in a negligence case arising inside the terminal). 93 Id. at 1106. 94 Id.
16 crew to the craftâs owner, operator, or pilot. The duties of the FAA supplement rather than supplant the duties of the airlineâduties which the airline could not, and did not, delegate.â 100 Thus, whether under the common law or due to federal mandates, some duties in an aircraft accident case might not be del- egable or attributable to other parties, whether based on conduct or through contracts.101 F. Immunity from Suit Immunity laws might provide a defense in an air- craft accident case. A complete discussion of immunity is beyond the scope of this digest, but federal immu- nity issues frequently arise in aircraft accident cases. This section thus provides a very basic overview of fed- eral immunity issues as they might relate to an air- craft accident case. State immunity laws are diverse and are not discussed in this digest. A separate Airport Cooperative Research Program publication discusses state immunity laws and also contains a table showing citations to the immunity laws in each state.102 The Federal Tort Claims Act (FTCA), adopted in 1946, waived the federal governmentâs sovereign immunity for certain negligence claims, subject to exceptions where immunity has been retained. That Act permits a claim for âinjury or loss of property, or personal injury or deathâ when it is âcaused by the negligent or wrongful act or omission of any employee of the Governmentâ who is âacting within the scope of his office or employment,â and âunder circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.â 103 In aircraft accident cases, the most prominent exception to the FTCA is the âdiscretionary function exception.â Under that exception, the FTCA does not apply to: Any claim based upon an act or omission of an employee of the [federal] Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Gov- ernment, whether or not the discretion involved be abused.104 The Supreme Court first decided a case under the discretionary function exception in Dalehite v. United States.105 The Court explained â[w]here there is room for policy judgment and decision there is dis- cretion,â and in this particular case, it followed that âacts of subordinates in carrying out the operation of government in accordance with official directions cannot be actionable.â 106 In this case, the Court determined that under the exception, the federal government was immune from damages stemming from a decision to export fertilizer to a European recovery program (the ship transporting the fertil- izer exploded, causing extensive damage). The Court believed that if the exception did not apply to the acts of subordinates in these circumstances, then the use of subordinates would undermine the immu- nity intended for a discretionary decision. The courts often note another principle from this case as well, that decisions made at the âplanningâ level of gov- ernment are subject to immunity under the excep- tion, but âoperationalâ decisions are not.107 The Supreme Court then considered an FAA inspection program in Varig Airlines.108 In this case, claims alleged that the FAA had negligently inspected and certified an aircraft that crashed (fed- eral employees had issued a type certificate certify- ing the aircraftâs design after conducting spot inspections). The Court determined that these FAA actions were immune from suit under the discretion- ary function exception. While lower-level employees took the actions in this case, the Court determined âit is the nature of the conduct, rather than the status of the actor, that governs whether the . . . exception applies in a given case,â and the exception âplainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.â 109 In this case, the FAA inspectors were acting in accordance with the FAAâs directives and were âspecifically empow- ered to make policy judgments regarding the degree of confidence that might be placed in a given manu- facturer, the need to maximize compliance with FAA regulations, and the efficient allocation of agency resources.â 110 The Court also determined that the 100 Howell v. U.S., 932 F.2d 915, 919 (11th Cir. 1991) (rejecting claims that the FAAâs actions effectively altered the pilotâs duty under federal law). 101 See also Bethman v. City of Ukiah, 265 Cal. Rptr. 539 (Cal. Ct. App. 1989) (determining that preemption pre- cluded a claim that an airport proprietor had a state law duty to determine navigational aids because such a duty would be inconsistent with the federal governmentâs exclu- sive authority to determine those aids); City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633 (determining that Congress made airspace management an FAA respon- sibility under the FAAct and therefore a local action ban- ning aircraft flight was preempted). 102 See Seay Law International, SOVEREIGN IMMUNITY FOR PUBLIC AIRPORT OPERATORS, Legal Research Digest No. 24, Appendix B, Transportation Research Board of the National Academies of Sciences, Engineering and Medi- cine, Washington, D.C., 2015. 103 28 U.S.C. Â§ 1346(b)(1) (2017). 104 28 U.S.C. Â§ 2680(a) (2017). 105 346 U.S. 15 (1953). 106 Id. at 36. 107 Id. at 42. 108 467 U.S. 797 (1984). 109 Id. at 813â14. 110 Id. at 816.
17 discretionary function exception was intended to âprevent judicial âsecond guessingâ of legislative and administrative decisions grounded in social, eco- nomic, and political policy through the medium of an action in tort.â 111 The courts then established principles concerning the FAAâs air traffic control operations. First, the Supreme Court in Indian Towing Company, Inc. v. United States 112 determined that the federal govern- ment can have liability for the navigational operations that it undertakes. In this case, the Coast Guard did not maintain a lighthouse in working order. The Court rejected an argument that immunity should apply under the FTCA because such an operation was a âuniquely governmental function.â Instead, the Court determined âit is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his âgood Samaritanâ task in a careful manner.â 113 In this case, the Court determined that the Coast Guard did not need to undertake lighthouse services (a discretionary deci- sion), but having done so, it âengendered reliance on the guidance afforded by the lightâ and âwas obligated to use due care to make certain that the light was kept in good working order,â or warn of malfunctions.114 The Court of Appeals for the District of Columbia then applied this principle to air traffic control opera- tions after two planes collided while landing. In Eastern Air Lines, Inc. v. Union Trust Company115 the court also rejected an argument that this activity should be immune because it was a âgovernmentalâ function. It also then denied immunity by determin- ing that tower operations are operational details that fall outside the area of discretionary functions.116 Tower operations are not decisions âmade at the plan- ning levelâ or involving program decisions for âcon- trolling air traffic at public airports.â 117 Instead, the government, having âdecided to operate the tower,â had âno discretion to operate it negligently.â 118 Courts later applied the discretionary function exception to navigational aids at airports. In Rulli v. United States,119 the court determined that FAA decisions concerning the capabilities of a given air- portâs navigational aids, such as radar and radio communications coverage, âare matters which fall squarely within the discretionary function exception to the FTCAâ as âpolicy-ladenâ decisions.120 The courts have noted that the FAA has âexclusive authority to make these determinationsâ concerning navigational aids.121 Thus, it found that the FAAct preempts a lawsuit against an airport proprietor concerning these decisions because such an action would ask the court to âhold that navigation facilities which were adequate under FAA standards were inadequate and to impose upon municipalities the duty to estab- lish additional standards and requirementsâ in con- flict with the FAAâs exclusive authority to decide.122 Subsequently, Supreme Court decisions have fur- ther established tests for determining when the dis- cretionary function exception provides immunity to the federal government. In Berkovitz by Berkovitz v. United States,123 the Supreme Court established a two-part test to determine whether a type of govern- ment decision was subject to the discretionary func- tion exception. First, the Court considers âwhether the action is a matter of choice for the acting employeeâ 124 since the exception might apply to deci- sions of that nature. If so, then the Court considers âwhether that judgment is of the kind that the discre- tionary function was designed to shield. . . . The excep- tion, properly construed . . . protects only governmental actions and decisions based on considerations of public policy.â 125 And in a later case, United States v. Gaubert,126 the Court reaffirmed this test and noted how it might apply in some types of circumstances. Where Congress has conveyed authority to take regu- latory action, the exception protects an agencyâs planning-level decisions and the discretionary actions of employees needed to carry them out. It also protects actions mandated by a regulation because those prescribed actions further the regulatory policy. And where a statute and implementing regulations and guidelines establish an employeeâs lawful range of discretion, the Court presumes that an exercise of that discretion furthers the policy of the law and that the exception protects those decisions. This discussion of federal immunity is intended to illustrate a few key points and it is not compre- hensive. The cases provided in Section IV, infra, include some additional examples of circumstances involving an assertion of immunity. 111 Id. at 814. 112 350 U.S. 61 (1955). 113 Id. at 64â65. 114 Id. at 69. 115 221 F.2d 62 (D.C. Cir. 1955) revâd on other grounds Union Trust Co. v. Eastern Air Lines, Inc., 350 U.S. 907 (1955), modified by Union Trust Co. v. Eastern Air Lines, 350 U.S. 962 (1956). 116 Id. at 75. 117 Id. at 78. 118 Id. at 77. 119 581 F. Supp. 1502 (W.D. Penn. 1984). 120 Id. at 1507, 1508. 121 Bethman v. City of Ukiah, 216 Cal. App. 3d 1395, 1408 (Cal. Ct. App. 1989) (denying a claim that the airport proprietor should have determined navigational aids). 122 Id. at 1408. 123 486 U.S. 531 (1988). 124 Id. at 536. 125 Id. 126 499 U.S. 315 (1991).