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23 The Supreme Court has determined that preemp- tion refers to a legislative act, not a judicial act. It addresses the effect of a legislative decision estab- lishing national law or empowering an administra- tive agency to take certain national action having the force and effect of law. Thus, when courts exam- ine laws for preemption, â[i]mplied preemption anal- ysis does not justify a freewheeling judicial inquiry into whether a state statute is in tension with fed- eral objectives; such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law.â 177 Preemption does not apply to private sector mate- rials because they do not have the force and effect of public law. But those materials might be persuasive concerning a standard of care. For example, under one stateâs laws, a court determined that a plaintiff could not rely on an airlineâs internal procedures manual to provide a standard of care because the airline was not legally bound to follow its internal rules, and those rules might require the airline to do less or more than what was required by law. The court observed that a standard of care had to be determined under a standard fixed by law irrespec- tive of private rules. The plaintiff also was not aware of the airlineâs special rules and could not claim that the airline adopted those rules for her benefit.178 Another court also found that an airlineâs flight operations manual only provided evidence concern- ing the standard of care, while observing that fed- eral law provided enforceable standards.179 Preemption is a critical issue in an aviation acci- dent case. Normally it will not prevent a remedial action to seek damages for injuries sustained in the accident, but it often can impact the standard of care applicable in the case. The courts consider a number of factors to determine the preemptive effect of fed- eral materials in a given setting, but the courts will enforce federal standards and preserve an exclusive federal regulatory power when they are mandated with the force and effect of law. IV. AIRFIELD ACTIONS A variety of circumstances on an airfield might lead to claims that an airport proprietor contributed to the cause of an accident. This section provides examples of common airfield conditions that generated claims and how different courts evaluated those claims. The cases are fact-specific and can be affected by matters of local law and different interpretations among the federal circuit courts. As such, issues can vary. A. Air Traffic Controllers Many cases address claims that air traffic con- trollers made errors and contributed to the cause of an aircraft accident. Often, cases that involve claims against air traffic controllers do not include claims against the airport proprietor. Also, the federal gov- ernment often asserts immunity from these actions, but the courts typically find that air traffic control errors are operational activities of the federal gov- ernment and as such are not immune from suit under exemptions to the Federal Tort Claims Act.180 In general, these cases often consider the federal governmentâs negligence based on whether the con- troller operated in compliance with an air traffic con- trol manual for the airport. The courts normally do not determine that the manual has a preemptive effect, but they routinely consider it to be persuasive evidence of an applicable standard of care. One court noted that a âcontrollerâs legal duties are defined by the Air Traffic Control Manual . . . Although it is not clear whether the ATC Manual has the force and effect of law, the ATC manual at least provides evi- dence of the standard of care for air traffic control- lers.â 181 These cases also might consider whether the controller made âtrivialâ deviations from the manualâs procedures, which might not constitute negligence, or a âsubstantial and unjustifiedâ deviation, which might be persuasive evidence of a lack of care. But normally the courts will not accept a claim that any kind of deviation from the manual constituted negligence.182 180 See Eastern Air Lines, Inc. v. Union Trust Co., 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) (under the facts of this case an air traffic controllerâs actions were operational and subject to suit). 181 Turner v. U.S., 736 F. Supp. 2d 980, 1001 (M.D.N.C. 2010) (considering the pilotâs and the air traffic controllerâs duties of care under Virginia law after an aircraft crashed into a mountain during instrument weather conditions, and determining that under Virginia law the pilotâs error was a superseding and intervening cause of the accident). 182 Roland v. U.S., 463 F. Supp. 852 (S.D. Ind. 1978) (a plane crashed while attempting to land allegedly because of controller negligence, and after the court analyzed the cir- cumstances to determine the significance of a deviation from the manual, the court concluded that the FAA did not breach a duty to provide flight and weather information to the pilot). 177 Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 607 (2011) (noting that when preemption is based on a conflict with the purposes of a federal act, a high threshold must be met). 178 Doe v. Delta Airlines, Inc., 129 F. Supp. 3d 23 (S.D.N.Y. 2015), affâd, 15-3561-CV, 2016 WL 6989793 (2d Cir. Nov. 29, 2016) (determining that a plaintiff could not rely on the airlineâs internal rules to set the standard for its employeeâs conduct after the employee accosted her in an airport terminal). 179 Korean Air Lines Co., LTD. v. McLean, 118 F. Supp. 3d 471 (E.D.N.Y. 2015) (noting that federal law prohibited pilots from operating an aircraft in a careless or reckless manner and required pilots to see and avoid other aircraft when considering responsibility for an aircraft accident on a taxiway, and also considering flight manuals as evidence of the standard of care).
24 B. Airport Certification Manual Airport proprietors may prepare a number of plans or manuals that address conditions in the air- field. An Airport Certification Manual demonstrates the airportâs compliance with federal regulations, such as those affecting airfield improvements like markings, lighting, and signage. One case determined that this manual addressed airport duties that could not be shifted to the FAA. In In re Air Crash at Lexington, Kentucky, August 27, 2006,183 an aircraft crashed after it attempted to take off from the wrong runway. In this proceed- ing of the case, the court considered the airlineâs claims that the FAA had undertaken certain duties to inspect the airfield, issue proper airfield charts, and issue NOTAMs. The court determined that the evidence showed â[t]he responsibility for compli- ance with the FAA regulations governing airports rests with the airportâ through the Airport Certifi- cation Manual.184 The court noted that in connection with the man- ual the FAA âconducts an annual inspection with limited spot-checking, including a determination of whether the airport is conducting its self-inspec- tions.â 185 The FAA also offered advisory services to airports under grant funding programs that commit proprietors to grant assurances. But under the FAAâs compliance program (FAA Order 5100.38), the court noted that âthe FAA will not substitute its judgment for that of the airport owner in matters of adminis- tration and management of airport facilitiesâ and only offers âprudent advice and counsel.â 186 FAA employees are also prohibited from placing âthem- selves in the role of providing resident inspection services or issuing construction directions.187 Concerning NOTAMs, the court determined that under the âNOTAM system, federal regulations place responsibility on the airport for reporting the condition of the airport to airlinesâ and that the FAA did not have those responsibilities.188 Concerning charts, the court noted that a private company pub- lishes them, but witnesses testified that âit is the responsibility of the airport to make sure current and accurate information is used to create the charts.â 189 In this case, the proprietor could not meet publication schedules to publish interim construc- tion information and instead had published a NOTAM. Thus, the court determined that the evi- dence did support Comairâs claim that the FAA itself had a duty in these areas. The court then considered whether the FAA had undertaken obligations as a Good Samaritan, because it certified the airportâs manual. Comair claimed that the FAA had breached a duty to âuse due care in certifying the Airport Certification Man- ualâ (ACM) and to âaccurately communicate infor- mation . . . by NOTAM.â 190 But the court rejected these claims and noted that â[l]itigants have tried with little success to impose a duty on the FAA under the Good Samaritan doctrine.â 191 Under that doctrine, the airline would have to show that the FAA undertook a duty to provide Comair with ser- vices that would create âa relationship . . . that gave rise to a duty,â 192 but the airline had failed to do this. For example, Comair did not show how âthe Govern- mentâs alleged failure to exercise reasonable care in certifying the ACM increase the risk of harm or turned a nonhazardous condition into a hazardous one,â or how âany deficiencies in the ACM were the proximate cause of the harm to Comair.â 193 The court also determined that Comair could not âjustifiably rely on the FAA certification of the ACM to limit its own safety precautionsâ required by federal law.194 Thus, for all of its claims, Comair had âfailed to show that the FAA had any duty to Comair or that Comair justifiably relied on any action of the FAAâ as required under the Good Samaritan doctrine.195 Another case similarly concluded that an âairport operations manualâ did not alter airfield responsi- bilities required by federal law. In Safeco Insurance Company of America v. City of Watertown, South Dakota,196 the plaintiff alleged that an airport pro- prietor had made misstatements in its manual con- cerning the presence of birds. The plaintiff also claimed that the FAA was negligent because, despite the presence of birds, the FAA had approved the manual, issued an airport operating certificate, and conducted annual inspections. The FAA argued that it was immune from suit for taking these actions because they were discretionary activities. The court observed that in this case, the plaintiffs could not establish the negligence element of âduty.â A duty does not arise where a law âdoes not purport to establish a civil liability, but merely makes provi- sion to secure the safety or welfare of the public as 183 CIVA5:06CV316-KSF, 2008 WL 2397708 (E.D. Ky. June 11, 2008). 184 Id. at *3 (original emphasis). 185 Id. 186 Id. 187 Id. 188 Id. at 4. 189 Id. 190 Id. at *5. 191 Id. 192 Id. at *7. 193 Id. at *8 (original emphasis). 194 Id. 195 Id. at *8. 196 529 F. Supp. 1220 (D. S.D. 1981).
25 an entity.â 197 The court also noted that an inspection, or failing to stop activities that do not comply with safety standards, are not acts that impose liability on the government. The court also determined that a âgovernment safety manual or safety program does not impose a special duty on the governmentâ to protect an indi- vidual.198 Without such a duty, these general public obligations do not create a particular responsibility to care for an individual and thus cannot support the âdutyâ element of a negligence action.199 The court noted that not all government acts are âcom- mands which create legal duties or standards, the violation of which involves breaking the law. . . . [some involve] a relationship which includes recip- rocal duties between the government and its staff, but not necessarily a legal duty to the citizenry.â 200 The court determined that if the FAA had assumed special responsibilities toward an individual, then they could create a duty under the Good Samaritan doctrine, but in this case, there was no actionable duty against the FAA under 14 C.F.R. Part 139 for âissuing a certificate or later failure to discover and correct the bird problem.â 201 (As discussed under Birds, supra, the court went on to determine that the airport proprietor had duties concerning the presence of birds.) C. Airport Layout Plan In Whittington v. United States,202 a plane crashed, and the plaintiff alleged that the FAA negligently approved and disseminated an incorrect runway length in an Airport Layout Plan. The court deter- mined that this claim was raised under the Airport and Airway Improvement Act of 1982 (AAIA). That Act âserves the purpose of providing federal funding to airport construction projects and to promote a wide variety of policy goals . . . [it] does not create a cause of action nor does it confer a duty on the FAA to ensure the safety of airports receiving federal funds.â 203 The court thus determined that there was no basis for this action against the FAA. The plaintiff also alleged a Good Samaritan claim, arguing that the FAA undertook to certify the air- craftâs compliance with federal air safety regulations and failed to properly inspect the aircraft. The court rejected this claim on several grounds. It first deter- mined that it had no subject matter jurisdiction concerning these regulatory responsibilities. It observed âwhere a governmental actor merely fails to ensure a private partyâs compliance with federal safety regulations, no comparable state-law liability exists and, therefore, sovereign immunity is not waived under the FTCA [Federal Tort Claims Act].â 204 The court also determined that the plaintiff could not support a Good Samaritan claim under Georgia law, finding that 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 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 205 D. Balloons While cases more typically consider objects on the airfield, at least one case considered objects in the skyâballoons in the vicinity of the airfield during a festival. In Ritchie v. Costello 206 the Arizona Court of Appeals considered a claim that an airport propri- etorâs state law premises liability continued to impose a duty on the proprietor when a paraglider pilot successfully took off during the festival but crashed into a balloon after 30 minutes of flight. The court assumed that the pilot was initially a business invitee, but it determined that the proprietor no lon- ger had a duty to the pilot after he took off safely. The proprietorâs duty under state law was to use reasonable care to provide the invitee with a ârea- sonably safe means of ingress and egress.â The pro- prietor owed âa duty to the public to maintain reasonably safe conditions for aircraft using the air- port, and that duty extends to runways.â 207 The pro- prietorâs duty also included an obligation to warn pilots about structures that might obstruct opera- tions. But â[a] landownerâs obligation to invitees . . . is not limitlessâ and â[o]nce an invitee safely leaves the premises, the landownerâinvitee relationship terminates, as does the landownerâs duty to the invi- tee.â 208 The court thus found that the proprietorâs duty under state premises liability laws did not extend into aircraft flight, which the court noted would also be contrary to public policy since federal law controlled the airspace. The court also found that the proprietor did not have a duty to warn the pilot of an obvious condition (the presence of balloons at a balloon festival). 197 Id. at 1223. 198 Id. 199 See also Section II.D, supra. 200 529 F. Supp. 1224 (D. S.D. 1981). 201 Id. at 1225. 202 99 F. Appâx 56 (6th Cir. 2004) (unpublished). 203 Id. at 59. 204 Id. 205 Id. at *59 (citing Howell v. U.S., 932 F.2d 915, 919 n.6 (11th Cir. 1991)). 206 356 P.3d 337 (Ariz. Ct. App. 2015). 207 Id. at 340 (original emphasis). 208 Id.
26 E. Birds A number of cases have considered liability claims after an aircraft encountered birds near an airport. Typically these cases consider whether any duties are mandated by federal law, but where federal requirements are advisory, the courts decide these cases based on state premises liability requirements. One case specifically considered the airport pro- prietorâs use of a Wildlife Hazard Management Plan. In Hartman v. United States,209 an airport proprietor had retained the U.S. Department of Agriculture to conduct a Wildlife Hazard Assessment in support of its federally required and approved Wildlife Hazard Management Plan. The study area covered a com- mercial airport and a lake near a reliever airport that the proprietor owned. While there was no fed- eral requirement to conduct this study for the reliever airport, the study showed that the region where both airports were located was a migratory bird path and that birds could not be eliminated from the area. The proprietor then issued a NOTAM to warn pilots of wildlife hazards in the area. The court determined that under these facts there was no evidence showing that the proprietor caused the crash. It found that the aircraft could have encountered a bird âregardless of [the propri- etorâs] attempts to assess and/or mitigate haz- ards.â 210 The particular birds that collided with the aircraft did not have a history of flying in that loca- tion, and in general, no evidence showed that an âassessment or mitigation technique could have pre- vented birds from flying at that specific latitude, lon- gitude and altitude . . . at the specific time of the bird strike.â 211 After reaching these conclusions, the court did not believe any further review was necessary and dismissed the claim. The court also noted that in this case, certain parties had assumed duties by contract to conduct the study. But the court observed that while parties can contractually assume manda- tory obligations that might create duties relevant to a tort case, in this case none of the contractual obli- gations imposed such a duty. Cases involving bird strikes commonly allege that the airport proprietor had a duty to warn of the presence of birds, and courts have found that a fail- ure to warn is negligent at airports where birds had a history of being present. For example, in Insurance Company of North America v. City of New Haven,212 an aircraft crashed after it encountered gulls on a foggy, pre-dawn runway. The court determined that in general, airport proprietors could use various methods to address birds, such as by removing food sources, scaring them, and issuing NOTAMs to warn pilots about them. The court determined that the airport proprietor had a duty to use reasonable care to protect invitees against this known condition at the airport, or at least warn of the condition, and in this case the proprietor had removed food sources and scared birds. But the proprietor did not issue a NOTAM warning of birds. The court found that fail- ing to issue a NOTAM was negligent where airport employees had observed gulls on or near the run- ways more than 75% of the time. In this case, how- ever, the court determined that the proprietorâs failure to warn about birds was not the proximate cause of the accident. The pilots testified that even if they had received a NOTAM, they would not have done anything differently on the morning of the crash. As such, the court believed that the propri- etorâs failure to issue a NOTAM could not have been a proximate cause of this particular crash. In Safeco Insurance Company of America v. City of Watertown, South Dakota,213 a court determined that the airport proprietor had a âduty independent of federal statutes and regulations to the pilots using the airport to use reasonable care to keep the airport free from hazards, or at least use reasonable care to warn of hazards not known to the pilots,â and that âbirds are one of the hazards that must be con- trolled at an airport.â 214 Among the evidence that birds were present, the court focused on the fact that in the past, the airport proprietor had only occasion- ally published a NOTAM for the presence of birds, while surrounding airports had done so perma- nently. The court determined that the proprietorâs failure to warn was negligent. The plaintiff also claimed that the FAA had a duty to provide a warn- ing about birds, but the court found that the FAA lacked such a duty. The court noted that the pilots also had a regulatory duty to observe for hazards, but in this case, the court did not find a violation of that duty. Plaintiffs in bird strike cases sometimes attempt to base their claims on a federal law or pursue the federal government rather than pursing the propri- etor under premises liability principles. For exam- ple, in Sellfors v. United States,215 a pilot crashed after encountering a flock of birds after take-off from a runway that was constructed using federal funds. The plaintiff claimed that the airport proprietorâs grant agreements with the federal government required the proprietor to correct hazards to air nav- igation and that the federal government had a duty 209 923 F. Supp. 2d 1287 (W.D. Okla. 2013). 210 Id. at 1297. 211 Id. at 1297â98. 212 574 F. SUPP. 373 (D. CONN. 1983). 213 529 F. Supp. 1220 (D. S. Dakota 1981). 214 Id. at 1226. 215 697 F.2d 1362 (11th Cir. 1983).
27 under the Airport and Airway Development Act to enforce the proprietorâs compliance with the assur- ances. The federal government argued that even if it had such a duty, it was immune under the FTCAâs discretionary function exception. All parties were aware that there was a history of birds in the area, allegedly because of a county landfill that was adja- cent to the runway. The court determined that under the Airport and Airway Development Act (including its legislative his- tory) the federal government did not have a duty to ensure the safety of facilities built with federal funds for the benefit of particular individuals using the air- port. The Actâs purpose was to provide transportation funding, and it was ânot intended to regulate the oper- ation of the airport.â 216 The Act also did not require the FAA to force the airport proprietor to remove the landfill. The plaintiff thus did not have a cause of action under the Act because âthe ADAA does not give rise to a statutory duty on the part of the United States owed to private persons using federally funded airports.â 217 Similarly, the plaintiff could not pursue an action based on the airport proprietorâs grant assurance agreements, because under applicable law, âprivate users of the airport were not âthird party ben- eficiariesâ of an agreement between the county and the Federal Aviation Administration.â 218 An earlier series of cases at this airport estab- lished that state law determines whether a plaintiff is a third-party beneficiary to the airportâs grant agreements. In Miree v. DeKalb County, Georgia,219 an aircraft crashed after its engines ingested birds that allegedly were swarming near the airport because of the adjacent landfill owned by the propri- etor county. The plaintiffs argued that the airport proprietor breached its grant assurance agreements by maintaining the landfill, and that the plaintiffs were third-party beneficiaries of those agreements. The Supreme Court had to decide whether federal law or state law controlled this question, and it determined that the question was governed by state law, not the federal common law.220 Subsequently, the courts in the Miree case addressed liability claims against the airport propri- etor and the airport director. The Georgia Supreme Court determined that the county proprietor was immune from suit under Georgia law, and it also determined that the plaintiffs could not maintain an action against the proprietor as third-party benefi- ciaries to the proprietorâs grant agreement with the FAA. The Fifth Circuit then adopted those conclu- sions of the Georgia Supreme Court, dismissing those claims.221 Then a federal district court determined that under Georgia law, it could not dismiss an action against the airport director at the summary judg- ment stage. Georgia law did not automatically extend immunity to individual officials. An officialâs immunity depended on âa rather finespun distinc- tion between discretionary and ministerial acts.â 222 âA public official is protected from liability in the performance of his discretionary duties, whereas ministerial acts are committed at the officialâs own risk.â 223 The director argued that his job description showed that he had broad authority to make discre- tionary decisions, but the court determined that under Georgia law, âthe scope of the immunity granted a public official in any given situation, turns upon the specific character of the complained-of act, not the more general nature of the job.â 224 In this case, the court considered a list of specific actions that the director took to combat birds, but the court believed âthere is nothing in this list of official actions to suggest that as a matter of law . . . [the directorâs] acts were discretionary.â 225 The court believed the fact that the director âcould choose his means [to address the birds] does not transform a specific duty to eliminate an acknowledged hazard into a discretionary act.â 226 The case did not gener- ate subsequent reported opinions. One case involving birds asked the court to apply admiralty jurisdiction to the claim. Admiralty juris- diction provides a uniform body of law over claims where an accident has enough connection to mari- time activity. In Executive Jet Aviation, Inc. v. City of Cleveland, Ohio,227 a plane encountered birds at takeoff, lost power, struck the airportâs perimeter fence, hit a pickup truck, and came to rest in Lake Erie. The plaintiff sued the airport proprietor, the 216 Id. at 1366. 217 Id. at 1367. 218 Id. 219 433 U.S. 25 (1977). 220 See also Miree v. U.S., 526 F.2d 679 (5th Cir. 1976) (J. Dyer, dissenting) (explaining why FAA agreements do not permit actions by third-party beneficiaries); Miree v. U.S., 538 F.2d 643 (5th Cir. 1996) (adopting en banc Judge Dyerâs dissent to rule against third-party beneficiary actions under FAA agreements). Courts have normally determined that FAA grant agreements do not provide standing for a third party to enforce the grant agreement. See Bell v. City of Cleveland, 1:07 CV 1476, 2007 WL 2459906 (N.D. Ohio Aug. 24, 2007) (discussing this issue in various jurisdictions). 221 See Miree v. United States, 249 S.E.2d 573 (Geo. 1978); Miree v. U.S., 588 F.2d 453 (5th Cir. 1979). 222 Miree v. U.S., 490 F. Supp. 768, 772 (N.D. Ga. 1980). 223 Id. 224 Id. at 773. 225 Id. at 774. 226 Id. at 775. 227 409 U.S. 249 (1972).
28 airport manager, and the air traffic controller on duty and alleged that the suit was subject to admi- ralty jurisdiction. The Supreme Court determined that admiralty jurisdiction requires a significant relationship between an accident and traditional maritime activity involving navigation and com- merce on navigable waters. It held that there was no such relationship here, where the plane crashed after encountering seagulls on the runway and was a âland-based plane flying from one point in the con- tinental United States to another.â 228 F. Boarding Typically, if accidents happen while passengers are boarding an aircraft, plaintiffs pursue the air- line and not the airport proprietor. Those cases often involve preemption questions about whether the airline is subject to suit under the ADA or the Air Carrier Access Act (ACAA). For example, Gill v. JetBlue Airways Corp.229 determined that federal law (the ADA and ACAA) did not establish specific procedures to board disabled passengers and thus did not preempt damages claims in that context. But the court found that the FAAct would preempt a claim that airline personnel were negligently trained, because federal training regulations described those requirements in sufficient detail to displace common law negligence standards. When federal laws do not govern a boarding activ- ity, the courts may find that the airline retains its traditional duty as a common carrier to exercise a high degree of care for passengers. In Rogers v. West- ern Airline,230 a passenger fell on an icy ramp. The airline argued that the airport proprietor had con- tractually committed to properly operate and main- tain the airport and that this impliedly shifted to the airport proprietor the airlineâs burden to exer- cise a high degree of care for the airlineâs boarding passenger. The court rejected that argument, noting that while both the airline and the proprietor were defendants in this case, the airline could not shift its traditional duty. In one unusual case, a court determined that an airline and an airport proprietor might both have duties to adequately warn of a risk on a jet bridge for which the manufacturer had already provided a warning. In Farace v. American Airlines Inc.,231 a woman fell in a âgutterâ area of a jet bridge that the manufacturer had marked with warning stripes. The court first determined that under Nevada law, the airline owed a duty to use the utmost care and diligence in transporting passengers safely and that this duty did not change because the airline leased the jet bridge (the proprietor owned the bridge). The court would not agree that by leasing facilities, rather than by owning them, the airline could alter its negligence obligations. Then in a second proceeding,232 the court consid- ered premises liability principles under which a landowner may be liable for placing potentially dan- gerous conditions on its property. The court noted that under Nevada law, there is no duty to warn a passenger of a condition that was open and obvious, but the court believed that the threat posed by the gutter area of the jet bridge was not open and obvi- ous because the area had been striped to warn of the danger. The court determined that a party that warns others of a danger has a duty to make that warning adequate, and even if a danger is obvious, a landowner can be negligent for exposing others to it. The court would not dismiss the claims based on the fact that the manufacturer had placed a warning (striping) on the gutter. It believed that a product that came with a warning label could not be consid- ered âinherently unhazardousâ and that a jury needed to determine whether the warning was inad- equate as to the proprietor and the airline. The court also believed that both the proprietor, as the land- owner, and the airline owed the passenger a height- ened duty of care. The court did not consider the effect of federal law or preemption in these cases. G. Criminal Acts As discussed in Section II, supra, normally courts find that an airport proprietor does not have a duty to foresee criminal acts unless there has been a spe- cific history of past criminal activity on the prem- ises. But criminal acts can occur in a number of different ways at an airport and raise different issues. The following sections summarize some of the cases in this area. Intentional Torts In general, the courts have not found that inten- tional tort claims are preempted by federal aviation laws. For example, in Parver v. Jet Blue Airlines Corp.,233 police officers removed a passenger from an aircraft based on an airlineâs claims that the passen- ger was interfering with flight safety and was possi- bly intoxicated. The parties disputed whether the officers placed the passenger under arrest, but the court found that the FAAct did not preempt claims of 228 Id. at 272. 229 836 F. Supp. 2d 33 (D. Mass. 2011). 230 602 P.2d 171 (Mont. 1979). 231 2:10-CV-00724, 2012 WL 2367572 (D. Nev. June 21, 2012). 232 Farace v. Am Airlines Inc., 2:10-CV-00724-MMD, 2013 WL 149619 (D. Nev. Jan. 14, 2013). 233 649 F. Appâx 539 (9th Cir. 2016) (unpublished).
29 false arrest, false imprisonment, or negligence. The court observed that under the FAAct, the âessential field preemption inquiry is whether the density and detail of federal regulation merits the inference that any state regulation within the same field will neces- sarily interfere with the federal regulatory scheme.â 234 In this case, federal regulations made it illegal to interfere with a flight crew and gave the pilot discretion to address emergencies, but the court determined that those regulations vest the âflight crew with authority to fly a plane however they deem necessary to promote safetyâ and did ânot amount to âpervasiveâ regulations of passenger management with respect to Parverâs claimed intentional torts alleging injury from the misuse of authority.â 235 The court thus determined that claims of false arrest and false imprisonment were not field preempted and remanded the case for a trial on the facts. If state regulation directly conflicts with the FAAct, however, the courts find that such state regu- lation is preempted. For example in US Airways, Inc. v. OâDonnell,236 an airline sought an injunction to restrain the state of New Mexico from enforcing its liquor laws against passengers consuming liquor on an aircraft. The Tenth Circuit determined that â[b]ased on the FAA[ct]âs purpose to centralize avia- tion safety regulation and the comprehensive regu- latory scheme promulgated pursuant to the FAA[ct], we conclude that federal regulation occupies the field of aviation safety to the exclusion of state regu- lations.â 237 In this case, the FAA had âpromulgated a regulation pursuant to the FAA[ct] specifically addressing airlinesâ alcoholic beverage servicesâ 238 and thus the stateâs âregulation of an airlineâs alco- holic beverage service directly implicates the field of aviation safety regulated by federal law,â making the state law impliedly preempted.239 But in this case, the court remanded because it determined that the case required a balancing between state and fed- eral interests under the U.S. Constitutionâs Twenty- First Amendment (which prohibits transporting liquor into a state in violation of state laws) and the Commerce Clause (which permits Congress to regu- late liquor in interstate commerce). In some contexts involving criminal acts, FAAct preemption concerns will not apply. For example, in Doe v. Delta Airlines, Inc.,240 the court considered whether an employer was liable when an airline employee accosted a passenger in the terminal. The case thus did not have a connection to air safety issues under the FAAct. The plaintiff attempted to sue the employer airline for the act of its employee, arguing that the airlineâs internal procedures estab- lished a standard for the employeeâs conduct. But the court determined that under Virginia law, the plaintiff could not rely on those procedures to set the standard of care since the airline was not legally bound to comply with its internal rules, and private employee rules might require the employee to do less or more than what is required by law. Under Virginia law, a standard of care must be determined under a standard fixed by law irrespective of private rules. Also, the plaintiff was not aware of those special rules and as such, could not claim that they constituted a standard for her benefit. Intoxicated Pilots A pilot who flies intoxicated violates federal and state statutes with criminal penalties. Some cases have considered whether an airport proprietor has a duty to essentially supervise pilots using the airfield to prevent accidents caused by intoxicated pilots. For example, in Webb v. Desert Bermuda Development Company,241 the plaintiff argued that an airport pro- prietor should not have allowed airport access to a pilot who allegedly was known to have flown intoxi- cated in the past. The court found âno appropriate basis to extend the common law proprietary duties of those who operate and control airport premises for the safety of patrons on the grounds of the airport to duties to monitor and at least indirectly control pilotsâ safe operation of airplanes in flight, particu- larly in light of the complete federal preemption of the field of aviation safety.â 242 The court also deter- mined that proprietorsâ rights to control their facili- ties have âlittle if anything to do with the present case.â 243 The court found that this pilot had caused injury in reckless violation of the federal aviation regulations and that the proprietor had no responsi- bility for the pilotâs actions, âeither under federal aviation safety regulations, which impose no such responsibility, or state tort law standards, which are preempted from the field of aviation safety.â 244 In another case, Heirs and Wrongful Death Benefi- ciaries of Branning ex rel. Tucker v. Hinds Commu- nity College District,245 a college hired a fixed base 234 Id. at 543. 235 Id. 236 627 F.3d 1318 (10th Cir. 2010). 237 Id. at 1326. 238 Id. at 1327. 239 Id. 240 129 F. Supp. 3d 23 (S.D.N.Y. 2015), affâd, 15-3561-CV, 2016 WL 6989793 (2d Cir. Nov. 29, 2016). 241 E061826, 2015 WL 8772872 (Cal. App. 4th Dist. Dec. 14, 2015) (unpublished/noncitable). 242 Id. at *3. 243 Id. 244 Id. 245 743 So. 2d 311 (Miss. 1999).
30 Unqualified Pilots In Hendren v. Ken-Mar Airpark, Inc.,249 an inexpe- rienced student pilot took off at night from a foggy uncontrolled airport with a passenger, and the pilot did not have the qualifications for instrument flight (the pilot and passenger also were known to have been drinking). The plaintiff argued that the airport proprietor had a duty to check a pilotâs qualifications because of the pilotâs status as an invitee on the premises and the pilotâs hangar lease, and also because under state licensing laws, the proprietor could demand to see the pilotâs certificate at any time. State law also made it a crime to fly without a proper license. The court found that while the stat- ute gave the proprietor authority to check the pilotâs qualifications, it did not require the proprietor to check them. Thus, inferring such a duty from the statute would read terms into the statute that did not exist. The proprietor also did not have a duty to anticipate a criminal act by the pilot, and failing to do so was not negligent. H. Major Accident Concerns Airfield accident cases after a major aircraft acci- dent might involve multiple defendants as well as their insurance companies and many complex issues. These cases can create substantial concerns for airport proprietors. Proprietors may face years of proceedings that require the proprietorâs involve- ment, even when the proprietor might have an immunity defense. For example, in one series of cases, a commuter airline jet crashed at Lexington, Kentucky, after attempting to take off on the wrong runway. The case alleged that airfield construction blocked the aircraftâs normal taxiing route for an early morning flight, and the plane made a wrong turn and took off from a secondary runway that was not long enough to permit the aircraft to gain sufficient altitude. The plaintiffs included the families of the passengers and the airline crew. The defendants and cross- claimants included the airport proprietor (including an airport corporation, airport board, and airport board members), the FAA, the commuter airline, the parent airline, and the pilots. Reported cases operator (FBO) to operate an airport, and an intoxi- cated employee of the FBO crashed a plane after taking fellow bar patrons on a night flight. The plaintiffs attempted to argue that the college had a nondelegable duty to warn the aircraft passengers of the hazards of intoxicated flying and to supervise the FBOâs compliance with safety rules. The court believed that under Mississippi law, it could not determine whether the college owed a duty of care until first establishing the nature of the relationship between the college and the FBO employee. It deter- mined that relationship was one of independent con- tractor, and that the âgeneral rule is that the employer of an independent contractor has no vicar- ious liability for the torts of the independent con- tractor or . . . [its] employees in the performance of the contract.â 246 The court did not consider other issues, but the case noted that intoxicated flight vio- lated federal law. One court determined that the FAAct and its regulations do not preempt a state statute from imposing criminal penalties on intoxicated pilots. In Hughes v. Attorney General of Florida,247 two air- line pilots were charged with flying intoxicated and challenged whether the state could impose crimi- nal penalties on them. The court noted that the FAAct preempts the entire field of aviation safety but maintains state damages remedies, and the court also observed that specific provisions in FAA regulations contemplate state criminal enforce- ment actions. It concluded that âthe FAA has appar- ently left room for state supplementation in the realm of alcohol use and misuseâ concerning crimi- nal penalties and thus this area was not subject to field preemption.248 Terrorism The digest discusses terrorism cases when describing how courts address criminal acts under premises liability. That discussion is contained in Section II, supra, and it includes the following cases concerning terrorism: Moncur v. City of Los Angeles, 137 Cal. Rptr. 239 (Cal. Ct. App. 1977) and cases con- cerning the terrorist attacks on September 11, 2001. 246 Id. at 318. 247 377 F.3d 1258 (11th Cir. 2004). 248 Id. at 1268. 249 382 P.2d 288 (Kan. 1963).
31 crew, and the FAA. The case spanned at least 20 reported decisions under the name of In re Air Crash at Detroit Metropolitan Airport, Detroit, Michigan, on August 16, 1987, and proceedings continued through at least 1997. The issues in these cases included complex claims concerning choice of law, collateral estoppel (issue preclusion), res judicata (claim preclusion), the law of the case doctrine, con- tribution, indemnity, and equitable subrogation. Among the issues in the Detroit cases, the court determined that a pilot whose representative did not participate in earlier proceedings was collater- ally estopped by the decisions in those proceedings and was thus bound by a finding made in his absence that the flight crew engaged in willful and wanton misconduct. Under Michigan negligence law, that finding left the pilot unable to mitigate damages based on comparative negligence, and thus that par- tyâs absence from earlier proceedings had severe consequences as other defendants were able to obtain a dismissal from the litigation or obtain other favorable rulings. The airport proprietor was deter- mined to have immunity in a case decided in 1997, ten years after the crash.251 Perhaps the most complex series of cases arose from the terrorist attacks of September 11, 2001. Those cases and issues exceed the scope of this digest, but some of the issues involved are discussed at Section II, supra. At the outset, Congress created an alternate process for recovery to address these losses. It passed special legislation that created a recovery fund for vic- tims due to the massive and complex nature of the damage and the diverse nature of the plaintiffs and defendants.252 Victims could choose to resolve their claims through the fund, or they could proceed with litigation in a New York Federal District Court, but to obtain recovery through the fund, claimants had to waive the right to be a party in any civil action.253 Many claimants opted to use the fund, but some concerning this crash include at least 57 reported decisions issued by the Federal District Court for the Eastern District of Kentucky and the Kentucky Supreme Court, most of them under the case name of In re Air Crash at Lexington, Kentucky, August 27, 2006.250 Some actions were also commenced in state court before removal to federal court (after the FAA was named as a defendant), and these cases also generated orders by the Sixth Circuit Court of Appeals. These cases involve a wide range of issues, such as questions about immunity, vicarious liabil- ity, punitive damages, preemption, the application of state negligence laws to multiple parties (including questions about allocation, contribution, and indem- nity), removal to federal court, and other complex issues. The decisions were issued between 2007 and 2011, and in 2009 the courts determined that the airport proprietor was immune from suit. Another series of cases after a major accident addressed an aircraft that crashed on takeoff after striking a light pole on a car rentalâs leased property at the Detroit Metropolitan Airport, killing more than 150 people. These actions were consolidated in the Federal District Court for the Eastern District of Michigan. The defendants and cross-claimants included the airline, the proprietor, the aircraft manufacturer, the car rental company, the manufac- turer of an aircraft circuit breaker alleged to be involved in the crash, the manufacturer of a flight simulator on which the pilots trained, the flight 250 This case involved numerous decisions and not all are cited here. See, e.g., Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91 (Ky. 2009) (affirming on appeal that the airport proprietor was immune (the air- port corporation, its board, and board members) after an initial district court decision on immunity in 2007); In re Air Crash at Lexington, Ky., August 27, 2006, CIVA 506-CV- 316-KSF, 2009 WL 1505575 (E.D. Ky. May 28, 2009), on reconsideration, 5:06-CV-316 - KSF, 2011 WL 350469 (E.D. Ky. Feb. 2, 2011) (determining that the FAAct did not pre- empt a punitive damages remedy); In re Air Crash at Lex- ington, Ky., August 27, 2006, CIV.A.5:06CV00292KSF, 2008 WL 2945944 (E.D. Ky. July 8, 2008) (determining that Delta Air Lines, Inc., the parent company to Comair, Inc., did not have liability or vicarious responsibility for the crash); In re Air Crash at Lexington, Kentucky, August 27, 2006, 5:06-CV- 315-KSF, 2008 W.L. 2897072 (E.D. Ky. July 17, 2008) (deter- mining that evidence of the airport proprietorâs negligence was admissible to provide context for the pilotsâ actions, but no negligence could be apportioned to the airport proprietor under state law); In re Air Crash at Lexington, Ky., August 27, 2006, CIVA5:06CV316-KSF, 2008 WL 2397708 (E.D. Ky. June 11, 2008) (dismissing various claims that the FAA had undertaken duties toward the flight that crashed but not- ing that the FAAâs scheduling for air traffic controllers might require further review; the airport was responsible for airfield responsibilities, charts, and NOTAMS (matters discussed in its Airport Certification Manual) and the FAAâs role in connection with those actions was advisory and lim- ited to determining airport compliance). 251 This case involved numerous decisions and not all are cited here, and this digest contains an additional discussion of this case in Section IV.M, Runway and Taxiway Design. See, e.g., In re Air Crash at Detroit Metro. Airport, Detroit, Mich., on August 16, 1987, 976 F. Supp. 1076 (E.D. Mich. 1997) (determining that a pilotâs representative was bound by a determination that the flight crew engaged in willful and wanton misconduct and determining that the airport proprietor had immunity under state law); In re Air Crash at Detroit Metro. Airport, Detroit, Mich. on Aug. 16, 1987, 791 F. Supp. 1204 (E.D. Mich. 1992), affâd sub nom. In re Air Crash Disaster, 86 F.3d 498 (6th Cir. 1996) (refusing to dismiss the car rental company; the company complied with standards at the design stage for constructing its facilities but the stan- dards were outdated by the time of construction). 252 ATSSSA, Pub. L. No. 107-42, 115 Stat 230, Title IV. 253 ATSSSA, Pub. L. No. 107-42, 115 Stat 230, Sec. 405(c) (3)(B)(i) (September 22, 2001).
32 I. Multiple Party Issues Aircraft accident cases often involve a variety of plaintiffs and defendants. This section summarizes some of the issues that courts have addressed con- cerning multiple parties. International Passenger Plaintiffs Passengers that purchase an international ticket from an airline are normally subject to a different legal framework to recover damages for personal injury and property damage. The United States has entered treaties with other countries governing these issues, the Warsaw Convention (as modified by the Montreal Agreement entered with airlines to supplement that treaty) or the Montreal Convention, a newer treaty that replaces the Warsaw Convention with signatory countries. For example, in Hunter v. Deutsche Lufthansa AG,259 the court explained a four-part test for determining whether a passenger comes within the scope of the Montreal Convention and thus must pursue damage claims against an airline under the treatyâs terms. Insurance Companies Insurance companies can create a variety of issues. Some cases have considered whether a pilotâs actions invalidated a policyâs coverage. For example, Security Insurance Company of Hartford v. Andersen 260 consid- ered whether the pilotâs insurer could decline cover- age after a crash because the pilot did not have a valid certificateâa medical certificate in this case. The Arizona Court of Appeals reviewed extensive precedent from other jurisdictions and decided that the insurer could only deny coverage if the breach of a policy condition (proper certification) was causally related to the accident, but the Arizona Supreme Court reversed that outcome.261 In OâConnor v. Proprietors Insurance Company,262 a court considered a crash with an unknown cause. While the cause was unknown, the aircraft had not received a required annual inspection, and the insurer denied coverage for the crash under a policy clause that excluded coverage for a violation of FAA regulations. The court rejected a lower courtâs rea- soning that this clause always applied even if there was no causal relationship between the violation and the accident. The court believed that such a strict application might violate public policy, since it would be nearly impossible to crash an aircraft without vio- lating one of the FAAâs numerous and technical pursued individual litigation. The fund relied on exhausting other resources, such as insurance policies, and it proceeded with mixed reviews. Extensive litiga- tion has addressed these attacks, and litigation contin- ues through the time of publication of this digest. At the time of publication for this digest, cases are considering a crash that occurred when a Boeing 777 struck a seawall while attempting to land at the San Francisco International Airport in 2013. Parties allege that the aircraft was approaching low and slow and that the pilotsâ attempted recovery proce- dures were ineffective at that speed and altitude. Reported decisions to date have largely concerned questions about removal to the federal courts. The manufacturer argued that it was âacting underâ FAA authority as a federal officer when participating in the issuance of type, production, and airworthiness certi- fications for the aircraft and was entitled to removal on that basis (essentially arguing that it acted as the governmentâs agent). In Lu Junhong v. Boeing Co.,254 the Seventh Circuit rejected these arguments, deter- mining that authority delegated by the FAA to make these certifications did not constitute acting under a federal officer.255 A court reached a similar conclusion concerning removal for claims against companies that designed, manufactured, supplied, or certified the air- craft engines or their components.256 Proceedings have also alleged that the case is subject to admiralty jurisdiction, claiming that the crash had sufficient connection to a maritime activ- ity to invoke that jurisdiction, because matters relating to the crash occurred over navigable waters. A court noted that to establish this argument, a âDefendant must show that, at some point while the airplane was over water, the passengers faced cer- tain injuryâ but determined that the evidence did ânot compel a factual finding that either the crash or any resulting injuries were inevitable before the crash itself.â 257 The Seventh Circuit reversed that decision, finding that under the allegations it was possible for the manufacturer to show that âthis accident was caused by, or became inevitable because of, events that occurred over navigable water.â 258 254 792 F.3d 805 (7th Cir. 2015). This case involves numerous decisions and not all are cited here. 255 Id. at 808. 256 Barber v. Avco Corp., CV 15-03146, 2015 WL 7180507, at *1 (E.D. Pa. Nov. 16, 2015). 257 Junhong Lu v. Boeing Co., 13 C 7418, 2014 WL 1409441, at *2 (N.D. Ill. Apr. 11, 2014), revâd sub nom. Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015). 258 Lu Junhong v. Boeing Co., 792 F.3d 805, 815, 816 (7th Cir. 2015) (determined that an âaccident caused by problems in airplanes above water should be treated, for the purpose of . . .[admiralty jurisdiction], the same as an accident caused on the waterâ (as occurring in trans-ocean commerce), and citing Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986)). 259 863 F. Supp. 2d 190, 205â06 (E.D.N.Y. 2012). 260 763 P.2d 251 (Ariz. Ct. App. 1986), vacated in part, 763 P.2d 246 (Ariz. 1988). 261 See also Security Ins. Co. of Hartford v. Anderson, 763 P.2d 246 (Ariz. 1988). 262 696 P.2d 282 (Colo. 1985).
33 airport to purchase insurance. The court determined that in general, contracts must be consistent with existing laws, including the proprietorâs ordinances, and thus the pilot was required to purchase the insur- ance that was required by the ordinance. But in this case, at the time of the crash, the proprietorâs ordi- nance did not require pilots who rented hangars at the airport to include coverage for passengers. In Northwest Airlines, Inc. v. Professional Aircraft Line Service,266 the court considered a Minnesota law âcompulsory insurance doctrine.â In that case, a service provider allegedly did not secure a parked aircraft and it rolled away, damaging the plane. The service providerâs insurer argued that the service provider never gave it notice of this claim and the insurer denied coverage on that basis. The court determined that Minnesota would apply the âcom- pulsory insurance doctrineâ to this situation.267 That doctrine provides that if a liability policy is issued to comply with a requirement imposed by law, the insurer cannot deny coverage based on a breach of the policyâs conditions after an accident (even though the insurer could assert those defenses against the insured).268 The court determined that statutes that require insurance are for the benefit of members of the public, and the âbeneficial purpose of compulsory insurance would be thwarted in the event the insurer be permitted technical defenses under the policy relating to conditions the performance of which the injured person is wholly unable to con- trol.â 269 As such, under this doctrine the coverage applied for a member of the public who was part of the class for whose benefit the legislature required the coverage. The court then determined that the airport ordinance requiring the coverage was intended at least in part to benefit injured airlines as parties whose property was in the care, custody or control of the airport operator. Thus the airline could recover policy proceeds. Multiple Indemnitors In Duty Free Shoppers Group Limited v. State,270 a concessionaireâs employee was injured while sit- ting on a defective chair in a terminal area leased by an airline. While this personal injury accident occurred inside the terminal, it illustrates a possible effect from multiple leases containing indemnity clauses. The airport proprietor was named in the suit and successfully argued that its lease with this concessionaire required the concessionaire to indem- nify for losses that related to the concessionaireâs regulations. The court believed that realistically, that approach might allow an insurer to accept premiums without incurring any risk of liability. But the court also determined that such a clause does not violate public policy on its face; it only might violate public policy as applied in a given case. And while public policy does not favor forfeiting insurance coverage for technical violations of a policy, the courts apply that doctrine sparingly to avoid disrupting agree- ments. Under the facts of this case, the court believed that the exclusion clause meant to protect against liability for unsafe aircraft operations, and if the required inspection had occurred, it might have uncovered a safety issue. The court thus determined that applying the clause in this case to eliminate cov- erage furthered the purpose of the insurance policy and did not violate public policy. Some cases have considered the scope of coverage under an insurance policy. For example, in State v. Oriental Fire & Marine Insurance Company, LTD.,263 a court determined that an airport proprietorâs lease with an airline expressly limited the coverage of the airlineâs insurance policy to the terms of the lease agreement, but the lease agreement did not apply to the airfield. As such, the court determined that the insurer did not waive its subrogation rights to pursue the airport proprietor after a crash alleging negligent design because the policy was determined not to apply to the airfield. In Home Insurance Company of Manchester, New Hampshire v. Phillips,264 an aircraft crashed after takeoff onto property adjoining the airport, and the court considered whether the airport proprietorâs insurance policy covered this off-property crash. The policy covered matters arising out of the âownership, maintenance, or useâ of the insured premises, and the court noted that some courts had held that this language covered off-property crashes while others had not. In this case, the court believed that the pol- icy did not cover this crash because applying cover- age to an off-property crash would convert the proprietorâs premises liability policy into a general liability policy. The court also observed that the immediate cause of the crash did not relate to actions that had occurred on the proprietorâs premises. Some cases have also considered the effect of an airport proprietorâs ordinances on a pilotâs insurance policy. For example, in McPherson v. Estate of Single- ton,265 a plaintiff argued that a pilotâs insurance policy should have covered a passenger who died in a crash because the airport proprietor required pilots at the 263 776 P.2d 776 (Alaska 1989). 264 815 F. Supp. 1471 (S.D. Fla. 1993), affâd sub nom. Home Ins. Co. v. Phillips, 26 F.3d 1121 (11th Cir. 1994). 265 H021540, 2001 WL 1422346 (Cal. App. Depât Super. Ct. 2001) (unpublished/noncitable). 266 776 F.3d 575 (8th Cir. 2015). 267 Id. at 582. 268 Id. at 579. 269 Id. 270 777 P.2d 649 (Alaska 1989).
34 mandatory procedures as provided in the airport proprietorâs manual approved by the FAA. The FAA also had authority to decommission the facility. The court determined that generally, âthe frequency and standard of inspections called for by the FAA, were matters decided at the planning stage and involve the discretionary initiation of programs and activi- ties by the FAA.â 273 But immunity under the discre- tionary function exception depended on whether the FAA had a mandatory duty to act. â[T]he discretion- ary function exception does not immunize liability based on an omission to inspect, where there exists a duty to inspect, or negligence in the actual perfor- mance of an inspection, regardless of whether the inspection is required.â 274 Similarly, it âdoes not shield the government from liability based on its negligence in licensing, certifying, or commissioning; nor negligence premised on the failure to revoke a license, to decertify or to decommission, where a duty exists to do the same.â 275 In this case, the court found that the âdiscretion- ary function exception to the FTCA is not a jurisdic- tional bar to Rulliâs claim that the FAA negligently omittedâor negligently performedâinspections of the navigational aids.â 276 The FAAâs internal orders required yearly inspections, and while these inspec- tions required an exercise of judgment, that âevalu- ative judgment had no policy-weighing components. . . . [it] involved professional or scientific, rather than policy-oriented judgment.â 277 Thus ânoninspection through oversight or an inspectorâs conscious deci- sion not to inspect, is reviewable under the FTCA.â 278 Noncompliance and a failure to decommission in accordance with the dictates of federal regulations involved action at the operational level. Lights Early cases sometimes addressed responsibilities to physically operate lights as aircraft arrived at an airport. For example, in Sullivan v. United States,279 a pilot reached the airport and circled in an effort to attract the attention of an FAA employee who could turn on the airportâs lights. The court found that, where the FAA undertook to operate a lighting sys- tem, it assumed a duty to the pilot and breached that duty by failing to illuminate the lights as the aircraft arrived. Even later cases have alleged claims that a proprietor failed to properly turn on employees. The court rejected the concessionaireâs defense that the proprietor could have also pursued the airline for indemnification, because in this case, the proprietor had two rights of indemnification, and the court believed that the proprietor could choose which to pursue. Third-Party Developers Third-party developers can create additional issues when an accident case involves both the developer and an airline tenant. For example, in United Airlines, Inc. v. State Farm Fire & Casualty Company,271 a motorcycle crashed into an airline tug using a road near the airlineâs hangar. The airline subleased the hangar from a third-party developer, which leased the site from the airport proprietor. This case spanned ten years and involved a variety of issues. The developerâs insurer fought a tender of defense from the proprietor, then defended under a reservation of rights, and contested a variety of issues involving the proprietor and the airline. Then the proprietor and the airline settled with the motor- cyclist and the developerâs insurer paid a portion of the proprietorâs settlement. The insurer then substi- tuted for the developer and sought indemnification against the airline for what it paid when the propri- etor settled, and the court ultimately required the airline to reimburse the insurer, rejecting the air- lineâs arguments that this required the airline to essentially be the insurer. J. Navigational Aids The FAA is responsible for decisions concerning navigational aids at airports. The courts generally do not hold the FAA liable for policy-level decisions concerning whether to provide, inspect, or maintain adequate navigational aids, but where the FAA fails to perform required operations for those aids, the FAA is not immune from suit. For example, in Rulli v. United States,272 the plaintiff alleged that naviga- tional aids were defective and that the FAA had neg- ligently inspected and maintained them contrary to a duty to regulate the equipment in a manner to fos- ter safe instrument flying conditions. The court determined that these claims fell within the FTCAâs discretionary function exception and thus the FAA was immune from suit. But some of the navigational equipment in this case was owned, operated, and maintained by the airport proprietor. For that equip- ment, the court found that other responsibilities applied to the FAA under federal regulations and FAA orders. The FAA had to license these facilities, and once commissioned, the FAA had to conduct 271 51 P.3d 928 (Alaska 2002). 272 581 F. Supp. 1502 (W.D. Pa. 1984). 273 Id. 274 Id. at 1509â10. 275 Id. at 1510. 276 Id. at 1511. 277 Id. 278 Id. 279 299 F. Supp. 621 (N.D. Ala. 1968), aff âd, 411 F.2d 794 (5th Cir. 1969).
35 constructed a tower, it had no duty to go beyond the regulatory requirements. âLiability does not arise simply because a local safety regulation or require- ment could have been more stringent than FAA requirements.â 285 The court also determined that the âairport had no duty to erect a traffic control towerâ and that this was ânot the legal cause of the injury.â 286 In State, Department of Transportation and Public Facilities v. Miller,287 the airport proprietor had issued a NOTAM advising that one windsock was malfunctioning at an airport, but a second windsock was also faulty, and a pilot alleged that this condition caused a crash. The court determined that while the proprietor in this case did not have a state or federal duty to install windsocks, by installing them the pro- prietor induced pilots to rely on them and undertook a duty to properly maintain them or warn of mal- functions. The court determined that a jury had properly considered whether the proprietor was neg- ligent in the operation of the airport as a whole by breaching its duty concerning one of the windsocks. K. Ramp Issues A variety of activities and parties are present on an airport ramp. One case, Afoa v. Port of Seattle,288 considered whether the airport proprietor was liable for an injury to a ground handling companyâs tug operator on the airportâs ramp. The court considered liability under three claims: premises liability duties owed to a business invitee, a breach of safety regula- tions under the Washington Industrial Safety and Health Act of 1973, and the duty of parties like general contractors, when they are in control of a common work area, to provide adequate safety pre- cautions. The court determined that the proprietor potentially owed a duty to the injured tug operator under all of these claims and remanded, and a jury subsequently rendered a costly judgment against the airport proprietor. In this decision, the court determined that the tug operator was a business invitee as a matter of law, but it did not focus on that issue. Instead it deter- mined that the airportâs ramp might be a worksite over which the proprietor retained control that would trigger state safety obligations under a Washington statute for common work areas. The court believed that the airport proprietor was analogous to a gen- eral contractor by operating the airport facility. Simi- larly, the court believed that there was a common law duty rooted in the law of master and servant that required maintaining a reasonably safe workplace. approach and runway lights, such as in Bank One Trust Company, N.A. v. Iosco County,280 which was decided on immunity grounds. In a case involving an airport proprietor, Obens- hain v. Halliday,281 a pilot crashed when he allegedly became disoriented because runway lights were out of order. The court determined that the FAAct did not provide an express or implied cause of action against the proprietor for the airportâs federal obligations con- cerning the lights, and it also found that the plaintiff was not a third-party beneficiary of the proprietorâs FAA grant assurance contracts addressing airfield responsibilities. âWhile plaintiff is incidentally bene- fitted by the contract, there is no language which shows clear and definite intent to benefit her in a manner which would grant her standing to sue.â 282 The court then determined that under Virginia law, the plaintiff could maintain a breach of warranty action based on an alleged warranty of a safe airport. The case did not consider preemption issues concern- ing the proprietorâs federal obligations. Uncontrolled Airports A number of cases have argued that an airport proprietor should have constructed a control tower, or that the navigational aids at an uncontrolled airport were inadequate, and that these conditions allegedly led to a crash. In a case involving an airport proprietor, Bethman v. City of Ukiah,283 the airportâs instrument landing system relied on equip- ment located on a mountain four miles from the air- port, and it required approaching pilots to switch to a different radio frequency. After a crash, the plain- tiff claimed that under California law, the proprietor had a duty to determine whether existing naviga- tional aids or the lack of a tower created a danger- ous condition on the property and a duty to remedy any such condition. But the court held that such a duty would be inconsistent with the federal govern- mentâs exclusive authority to determine naviga- tional aids. The court rejected the plaintiff âs argument and determined that federal law pre- empted state decisions for these navigational aids. Permitting a tort action on that basis would frus- trate the objective of the federal law. In another case, Boca Aviation, Inc. v. Famiglietti,284 a pilot decided to land at an uncontrolled airport, took evasive actions upon seeing another aircraft, and crashed. The court noted that FAA regulations did not require the airport to have a control tower, and that while the airport proprietor could have 280 597 F. Supp. 586 (E.D. Mich. 1984). 281 504 F. Supp. 946 (E.D. Va. 1980). 282 Id. at 956. 283 265 Cal. Rptr. 539 (Cal. Ct. App. 1989). 284 502 So. 2d 1287 (Fla. Dist. Ct. App. 1987). 285 Id. at 1288. 286 Id. 287 145 P.3d 521 (Alaska 2006). 288 296 P.3d 800 (Wash. 2013).
36 when an airport proprietor provides tie-down ser- vices to small aircraft. In Hill Air of Gadsden, Inc. v. Marshall,293 a typical kind of case in this area, a jury determined that a fixed base operator, who offered these services, could have reasonably foreseen that a cable would snap during a windstorm. As such, it had breached a duty to the aircraft owner by failing to provide adequate tie-down facilities. The court would not excuse the incident as an act of nature. In Indamer Corp. v. Crandon,294 a fire burned an aircraft in a hangar, and the plaintiff argued that the airport proprietor had a non-delegable duty to operate the airport and keep premises safe for their intended purposes. The plaintiff also sued other par- ties that allegedly contributed to the spread of the fire. The court observed that âpublic airdrome pro- prietors are obligated to see that the airport is safe for aircraft, or at least to use care to see that it is.â 295 But in this case, the court did not find evidence suf- ficient to support an action against the proprietor. Plancich v. State 296 considered a seaplane port rather than a ramp when determining a proprietorâs responsibility to provide a service. In this case, fish- ing vessels blocked access to the seaplane port, so a pilot went to another dock, where his aircraft was damaged by a storm. The court determined that state statutes required the proprietor to make dock- ing space available to seaplanes, which created a duty under Alaska law to make space available. The court found that the proprietor was not immune from a suit alleging that it failed to provide access. L. Runway and Taxiway Construction A number of cases have considered accidents on the airfield that were alleged to occur at least in part due to construction activities. Some cases arising out of construction issues have led to extensive liti- gation involving multiple parties and diverse issues. In one series of cases, a commuter airline jet crashed at Lexington, Kentucky, after attempting to take off on the wrong runway. The case alleged that airfield construction blocked the aircraftâs normal taxiing route for an early morning flight and that the plane made a wrong turn and took off from a second- ary runway that was not long enough to permit the aircraft to gain sufficient altitude. Despite diverse issues in this case, the fact inquiry focused on actions that might have notified the pilots that they had The court determined that under Washington law, where a licensor had control over and was in the best position to control worker safety, it had a duty to maintain safe common work areas that were in the scope of that retained control. The court did not con- sider the proprietorâs status as a government entity regulating the facility (such as by imposing ramp speed limits) when reaching these conclusions. The dissent pointed out numerous problems with the majority opinion, including concerns for the degree of the proprietorâs control, the fact that the proprietor did not have control over this companyâs operations but only over its facilities, the nature of the contractual arrangement (the contractor was not performing work for the proprietor), the expan- sive effect of the majorityâs decision, and the poten- tially preemptive effect of federal aviation law. Other cases have not taken the approach of Afoa. For example, in Mulloy v. American Eagle Airlines, Inc.,289 an American Airlines (AA) employee stopped to talk with a coworker who was driving a baggage cart on an airport roadway. While standing by the cart, the AA employee was struck by a baggage cart coming from a another direction operated by an American Eagle Airlines employee. In this case, the court noted testimony that âstandard rules of the road were considered to be in effect on the depressed roadwayâ where the accident occurred and that the injured AA employee was âsure that a speed limit applied to the area.â 290 The parties asked the court to consider whether to allow expert testimony concern- ing whether the American Eagle driver, Dawkins, was driving in an unsafe manner before the accident. But instead the Court determined that the plaintiff âwas required to present evidence which demon- strated not merely that Dawkins failed to avoid strik- ing him, but also that the failure was unreasonable under the circumstances.â 291 Without that evidence, the court believed a judgment for the AA employee would have been âinconsistent with the applicable standard of ordinary careâ and would have the effect of imposing strict liability.292 Thus, the issues in the case focused on actions and duties of care by the par- ties involved in the accident, who were located in the regulated setting of an airport ramp where diverse workers were operating within speed limits and other government ârules of the road.â If an airport proprietor has a duty to provide a ser- vice on an airport ramp, cases have determined that a breach of that duty might result in liability. For example, a number of cases have considered liability 289 832 N.E.2d 205 (Ill. App. 1st Dist. 2005). 290 Id. at 208. 291 Id. at 213. 292 Id. 293 526 So. 2d 15 (Ala. 1988). 294 196 F.2d 5 (5th Cir. 1952). 295 Id. at *7. 296 693 P.2d 855 (Alaska 1985).
37 supervision, and the conducting of inspections and testing needed for project control,â and the FAA does not place its personnel âin the role of providing resident inspection services or issuing construction directions to the sponsorâs contractors.â 302 After reviewing these FAA materials and the FAAâs alleged actions, the court went on to conclude that this state Good Samaritan claim failed because the FAAâs actions had not increased a risk to the airline. But the court believed that the FAAâs scheduling for air traffic controllers on duty that day required fur- ther review. In a later year, the courts determined that the airport proprietor had immunity under state law for the claims asserted against it.303 In another case, a court considered a failure to close a taxiway for construction activity. In Korean Air Lines Company, LTD. v. McLean,304 an aircraft used a taxiway at night after a contractor requested a closure, the airport proprietor did not notify the tower of the request, and the contractor did not ver- ify that the taxiway was closed. The aircraftâs wing struck and overturned a construction truck parked near the taxiway, injuring the driver. The court con- sidered evidence of the standards of care applicable to the proprietor, the FAA, the airline, the pilots, the contractor and a security firm. That review consid- ered a variety of legal obligations imposed on these parties under general federal regulations, FAA Advisory Circulars, contracts among the parties, and testimony concerning the events. The court then concluded that four of these defendants contributed to the cause of the accident and had a share of liabil- ity under the stateâs negligence laws, and it gave the largest shares of liability to the airport proprietor and the contractor. Concerning the airport proprietor, the court noted that under FAA Advisory Circular 1500/5370-2E, Operational Safety on Airports During Construc- tion, the proprietor had a âduty to keep live taxiways free from obstructions that might impede the safe passage of aircraft on the taxiway.â 305 The court also determined that the proprietorâs contract with the contractor mandated certain safety practices, and that under the contract the proprietor had authority to suspend the contractorâs operations to accommo- date safety concerns. The court also believed that the proprietor breached a âduty to oversee construc- tion at the Project with ordinary care and skillâ by failing to inform the contractor that it had rejected a request to close the taxiway and by failing to set any turned onto the wrong runway. The court initially determined that â[t]he responsibility for compliance with the FAA regulations governing airports rests with the airport,â and the proprietor had to submit âan Airport Certification Manual, which must detail the manner of compliance with the regulations.â 297 In this case, the âJeppesenâ chart published for the airportâs airfield and allegedly used by the flight crew was inaccurate. A private company publishes those charts, and the court noted testimony that it was the airport proprietorâs responsibility to âmake sure current and accurate information is used to create the charts.â 298 The proprietor in this case con- sidered issuing an interim chart showing the con- struction activities on the airfield, but such a chart âwould not have met the publication schedule for Government charts,â and the FAA ârecommended that only a final, post-construction chart be used. While the airport could have published the interim chart anyway, it decided to publish only a diagram of the concluded project and issue a NOTAM explain- ing taxiway changes during the remaining construc- tion period.â 299 Under 14 C.F.R. Â§ 139.339 and grant assurance obligations, the airport proprietor had a duty to issue a NOTAM for â[c]onstruction or maintenance activity on movement areas, safety areas, or loading ramps, and parking areas,â for the â[m]alfunction of any lighting system,â for any other safety conditions, and if âany part of the airport is closed or hazardous to use.â 300 The Airport Certification Manual identi- fied the employees who were responsible to take that action, and the proprietor took that action. The plaintiffs argued that the FAA assumed some of the airportâs responsibilities to supervise the con- struction as a Good Samaritan, but the court rejected that argument. It relied on FAA materials to deter- mine that FAA inspections for airfield construction projects are essentially advisory and the responsi- bility for these activities remains with the airport. FAA orders provide that the FAA promotes compli- ance with federal regulations and grant assurance requirements âthrough education, training and counseling,â and that the FAA âwill not substitute its judgment for that of the airport owner in matters of administration and management of airport facili- ties.â 301 The airport proprietor âis responsible for providing all project engineering including the preparation of plans and specifications, construction 297 In re Air Crash at Lexington, Ky., August 27, 2006, CIVA5:06CV316-KSF, 2008 WL 2397708, *3 (E.D. Ky. June 11, 2008). 298 Id. at *4. 299 Id. 300 Id. 301 Id. at *3. 302 Id. 303 See Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91 (Ky. 2009) (determining immunity). 304 118 F. Supp. 3d 471 (E.D.N.Y. 2015). 305 Id. at 492.
38 M. Runway and Taxiway Design Some cases allege negligence in designing a run- way or other aspects of the airfield that affect flight. These cases also often involve defenses such as the public duty doctrine or immunity concerning design decisions. For example, in Japan Air Lines Company, Ltd. v. State,312 an airline alleged that the proprietorâs taxiway was not built to current FAA standards or International Civil Aviation Organiza- tion (ICAO) standards and was subject to hazardous icing. The airline claimed that these conditions caused an aircraft to slide off the taxiway. The pro- prietor argued that under Alaska law, it was immune from this design claim under a discretionary func- tion exception. The court noted that the discretion- ary function exceptionâs purpose was to preserve the separation of powers requirements inherent in our form of government by preventing individuals from challenging government policy decisions through individual tort claims. But the court also observed that the execution or implementation of a govern- ment policy decision is not immune. The court deter- mined that normally negligent design claims concern implementing a policy decision to build a type of facility, in this case, a taxiway. In this case, the court found that âdesign decisions made in the taxiway plans by the stateâs engineers were opera- tional decisions that merely implemented the basic policy formulation decision to build a taxiway suit- able for use by wide-body jets such as the Boeing 747.â 313 Once a decision to build was made, âthe state was obligated to use due care to make certain that the taxiway met the standard of reasonable safety for its users.â314 The court thus determined that the proprietor was not immune from this claim. In In re Air Crash at Detroit Metropolitan Airport, Detroit, Michigan on August 16, 1987,315 a large air- craft crashed when it did not gain sufficient altitude on takeoff, then struck a light pole located on a park- ing lot leased by a car rental company (National Car Rental; NCR), and struck a highway overpass. The evidence indicated that the flight crew had not prop- erly set the planeâs wing flaps and slats, which impaired the planeâs lift and left it low to the ground, and that an internal warning system failed. But the airline alleged that the accident would not have occurred if NCR had complied with FAA regulations when placing this light pole, which was under the flight path. physical markers indicating the perimeter of the worksite.306 When considering the contractor, the court determined that the contractor also had obli- gations for safety under the construction contract and that the contractorâs breach was one of the causes of the accident. Plaintiffs have asserted other types of claims as well when pursing defendants for an accident in the airfield based on construction activity. For example, in Compagnie Nationale Air France v. Port of New York Authority,307 an aircraft taxiing through an area under construction ended up traveling through a construction barricade marked by flags and lights and into a ditch. Among other claims, the airline sued the proprietor for breach of contract on the the- ory that the airline was a third-party beneficiary of the construction contract between the proprietor and the contractor. The court rejected this claim because under New York law, the parties to the con- tract must intend to confer a third-party benefit, and a plaintiff âmay not sue on the contract when the benefit is purely incidental to the performance of the contract.â 308 In this case, the airline did not show that âany of the parties intended safety features in the contractâ were for its benefit.309 In Brooks v. United States,310 a pilot argued that the FAA was responsible to supervise airport con- struction under federal funding laws. The pilot crashed after landing on a runway that was under construction, and the pilot landed without obtaining information from the FAA or construction notices in a NOTAM and on the UNICOM (Universal Commu- nications) radio frequency. He then argued that under federal funding laws the FAA was responsible for an airport contractorâs failure to mark the run- way closure in accordance with FAA recommenda- tions, and he also alleged that the FAA had negligently entrusted the airport proprietor with federal funds for construction purposes. The court found no basis for these claims. It found that an FAA Advisory Circular discussing proper markings for closed runways did not impose a duty on the FAA to take that action. It also determined that the negli- gent entrustment claim could not be supported. No evidence demonstrated âthat there was anything defective about the funds advances (if such a thing can be imagined) or that the Calhoun County authorities were in any degree reckless or incompe- tent, prone to hire contractors who mark closed run- ways improperly.â 311 306 Id. at 492â93. 307 427 F.2d 951 (2d Cir. 1970). 308 Id. at 954. 309 Id. 310 695 F.2d 984 (5th Cir. 1983). 311 Id. at 989. 312 628 P.2d 934 (Alaska 1981). 313 Id. at 938. 314 Id. 315 791 F. Supp. 1204 (E.D. Mich. 1992), affâd sub nom. In re Air Crash Disaster, 86 F.3d 498 (6th Cir. 1996).
39 should be progressive, not static, and not the subject of what would amount to a grandfather clause for rental car facilities.â 322 It found that this conclusion was also consistent with NCRâs lease obligation to âcomply with all federal and state laws and regula- tions,â including those concerning airport hazards.323 The court thus denied NCRâs motion for summary judgment, but it also would not grant the airlineâs motion. While the court determined that the revised standard applied, â[u]nder Michigan law, the viola- tion of a federal regulation constitutes mere evi- dence of negligenceâ and âissues of material fact still exist as to whether the placement of the light pole constituted an act of negligence on the part of NCRâ and whether it was a cause of the accident.324 This accident involved complex issues concerning all par- ties and numerous proceedings, but ultimately the airline was found responsible for the accident (the flight crew was found to have acted in a willful and wanton manner), and the airport proprietor was found to be immune from suit ten years after the crash occurred and after extensive litigation.325 Negligent design claims can raise complex finan- cial concerns due to the gravity of such accidents. In State v. Korean Air Lines Company, LTD.,326 two jets collided when one tried to take off on the wrong run- way, and an airline alleged negligent design and maintenance of the runways, taxiways, signing, and lighting. In response, the proprietor asserted that under its terminal lease agreement with the airline, the airline was obligated to indemnify the proprietor for all claims arising from the accident, including the proprietorâs own negligence. The court deter- mined that under Alaska law, an indemnity clause can indemnify a party against its own negligence without violating public policy. But under a âpublic duty exception,â the courts do not permit such indemnification where it would tend to promote the breach of a duty owed to the public (which would eliminate incentives to protect the public), or where public service entities try to impose this This case raised questions concerning the proper design standard governing the height of the light pole when it was constructed. The car rental facility was constructed as part of a plan for a larger project at the airport, and that plan included federal fund- ing for airport roadways but not to construct the car rental facilities.316 The car rental location was sim- ply indicated on plans submitted for the federal funding and on the proprietorâs Airport Layout Plan. The height of the light pole met an original FAA standard that was in effect at the time when the FAA allocated funds for the larger construction proj- ect, but the FAA subsequently issued a revised stan- dard, and the court had to determine the effect of that revised standard. At the time when it went into effect, the airport proprietor and NCR had no fixed plans for the car rental facility, and two months later, NCR submitted an FAA Form 7460-1 to obtain FAA clearance for the placement and height of the light pole. About a year later, the proprietor and NCR then entered a ground lease that was subject to federal requirements, and shortly afterward, the FAA issued a âNo Objectionâ response to NCRâs Form 7460-1 request (evidence implied that the FAAâs conclusion about the height of the light pole may have erred when issuing this response). The crash occurred a year later, and the light pole did not meet the revised standard. The court determined that it could not âhold, as a matter of law, that the [original standard]â¦applied to the construction of the NCR facility and its light pole.â 317 It rejected an argument that once the FAA allocates funds, it âlocks inâ all construction stan- dards and instead found that the revised standard applied.318 The car rental development was a sepa- rate project from the Air Improvement Program- funded development, and it did not receive federal funding, so it could not have been subject to stan- dards applicable on the funding date.319 The court also noted that when the FAA approved the Airport Layout Plan, it stated that facility development would be subject to the standards applicable at the time of construction. Thus âthe standards in effect on the date of the FAA review and approval of the spe- cific project will govern the facility development.â 320 The court also determined â[e]vidence that the FAA approved of the NCR facility and its placement of the light pole is not binding upon Northwest or this court.â 321 The court reasoned â[c]oncerns about safety 316 Id. at 1220. 317 Id. at 1223. 318 Id. 319 Id. at 1223â24. 320 Id. at 1224. 321 Id. 322 Id. at 1223. 323 Id. 324 Id. 325 See In re Air Crash at Detroit Metro. Airport, Detroit, Mich., on August 16, 1987, 976 F. Supp. 1076 (E.D. Mich. 1997) (determining that a pilotâs representative was bound by a determination that the flight crew engaged in willful and wanton misconduct, and determining that the airport proprietor had immunity under state law); In re Air Crash at Detroit Metro. Airport, Detroit, Mich. on Aug. 16, 1987, 791 F. Supp. 1204 (E.D. Mich. 1992), affâd sub nom. In re Air Crash Disaster, 86 F.3d 498 (6th Cir. 1996) (refusing to dismiss the car rental company based on its compliance with standards at the design stage when stan- dards were outdated by the time of construction). 326 776 P.2d 315 (Alaska 1989).
40 court upheld the issuance of an injunction based on arguments that a dangerous incident was substan- tially likely to occur. N. Runway Incursions and Operations Some cases have addressed a proprietorâs liability when an aircraft collides with objects on the runway, and these cases may reflect concerns for what the pilot should have been able to see. For example, in Federal Express Corporation v. State of Rhode Island, Department of Transportation, Airports Division,331 an aircraft crashed after trying to take off on an inac- tive runway where cargo planes were parked. The plaintiff alleged that the airport proprietor should have barricaded the runway or marked it as closed, extinguished runway lights, issued NOTAMs, and repaired a guidance sign on the airfield that was not operating, but the court did not find evidence that any of these issues were a cause contributing directly to the accident. The court noted that Rhode Island law required the plaintiff to show that the injury would not have occurred âbut forâ the negligent act and that it was not a âremoteâ cause of the injury, but the evidence did not support those conclusions.332 In Cleveland By and Through Cleveland v. Piper Aircraft Corp.,333 an airport proprietor closed an air- port to prevent a pilot from taking off due to concerns about the pilotâs aircraft; the proprietor also parked a van on the runway to preclude its use. The pilot attempted to take off nonetheless and struck the van. The court determined that the pilotâs negligence action against the proprietor was not preempted. The FAActâs saving clause â[b]y its very wordsâ¦ leave in place remedies then existing at common law or by statute.â 334 Among factors supporting this con- clusion, the court also pointed to the FAActâs legisla- tive history and Supreme Court precedent. In Carrio v. Denson,335 the court determined that a pilot could not use the doctrine of res ipsa loquitur to establish that a contractor caused scaffolding to move onto a taxiway. The scaffolding had been next to an FBO building the night before, but it ended up on a taxiway the next morning through unknown means. Res ipsa loquitur permits showing causation based on circumstantial evidence where a party had control of the instrument that caused the harm requirement on those they are supposed to serve (which courts had determined would be unfair). Because the proprietorâs argument violated these two principles, the court determined that the propri- etorâs interpretation of the lease clause exceeded the statutory scope of the proprietorâs authority, and the proprietor could not recover for its own negligence. The airline also argued that this clause only covered the leased terminal area and not the airfield, but the court did not decide this question. Then in State v. Oriental Fire & Marine Insur- ance Company, LTD.,327 the court determined that the proprietorâs terminal lease with the airline was limited to the terminal area under the language of the lease. The insurance policy required by the lease expressly limited coverage to the terms of the lease agreement, and as such, the court believed that the policy did not apply to the airfield. The court thus determined that the insurerâs waiver of subrogation rights against the airport proprietor did not apply and it could pursue subrogation against the propri- etor for claims paid concerning the crash of two air- craft on the runway. In another case, Carter v. City of Cheyenne,328 the court considered an effort to essentially shift respon- sibility for a design claim to the federal government. A military service member flying with a Thunder- bird demonstration was killed at a municipal airport while attempting to land. The service memberâs wife alleged a claim for negligent design, construction, maintenance, control, and supervision of the airfield and runway, and the airport proprietor attempted to implead the federal government in order to obtain indemnification if the airport proprietor was found liable for any damages. The court determined that in a third-party action for indemnity, the United States had the same defenses available under the Federal Tort Claims Act that it otherwise had for a direct claim. In this case, the Veterans Benefit Act was the plaintiff âs sole remedy against the United States, and as such, âthere cannot be a recovery of indemnity for payments [by the proprietor] to the serviceman who suffered the injury . . . To allow the indemnity action while disallowing a direct action would be grossly inconsistent.â 329 The risk of an aircraft accident might also be argued as a factor in deciding where to locate an air- port. For example, in Emerald Development Com- pany v. McNeill,330 the court considered claims for an injunction after a developer proposed to build a new airport within a mile of an original airport. The 327 776 P.2d 776 (Alaska 1989). 328 649 F.2d 827 (10th Cir. 1981). 329 Id. at 830. 330 120 S.W.3d 605 (Ark. Ct. App. 2003). 331 664 F.2d 830 (1st Cir. 1981). 332 Id. at 838. 333 985 F.2d 1438 (10th Cir. 1993). Some of the reasoning (but not the result) in this case was later called into ques- tion. See US Airways, Inc. v. OâDonnell, 627 F.3d 1318, 1326 (10th Cir. 2010) (noting a Supreme Court case determining that an express preemption clause does not preclude implied preemption). 334 Id. at 1442. 335 689 So. 2d 121 (Ala. Civ. App. 1996).
41 recommendations to the owner and the FAA as they studied the runway, but at the time of the second crash, the short runway remained closed. The court determined that the ownerâs decision to close the runway was reasonable and that it had immunity for that decision as a discretionary act under the stateâs immunity laws. The private operator could not obtain immunity, but the court determined that its actions in reliance on the government decision to close the runway were not negligent. O. Runway Protection Zones and Other Adjacent Areas Courts have considered standards of care for the surface conditions surrounding a runway. One court believed that federal regulations preempt a standard of care for the Runway Protection Zone (RPZ) to the extent the regulations are mandatory; otherwise they provide evidence of the standard of care. In Sierra Pacific Holdings, Inc. v. County of Ventura,342 an aircraft made an emergency landing, entered the RPZ, and crashed while trying to clear a barrier that the proprietor had constructed across the zone to protect against runway incursions. The court determined that the RPZ regulations were contained in an FAA Advisory Circular and were not mandatory except when projects were funded with federal grant monies through the Airport Improvement Program or charges from the Passen- ger Facility Charge program. No evidence showed that this RPZ was constructed using those monies, but the court determined that it could use the regu- lations as evidence of industry practices bearing on an appropriate standard. The court considered a Runway Safety Area (RSA) in Anderson v. Alberto-Culver USA, Inc.343 In that case, an aircraft veered off a runway and crashed allegedly in part due to a drainage ditch located in the RSA. The ditch was present when the proprietor bought the airport, and the FAA did not require any modifications of the ditch to meet FAA standards. Later, the proprietor accepted federal funds to make certain improvements under its Airport Layout Plan, and the proprietor asked for and obtained FAA waiv- ers for some aspects of the RSA. But the waivers did not address surface areas, and an FAA Advisory Cir- cular stated that an RSA could not contain âsurface variations.â The FAA also did not require the propri- etor to take any action in the RSA. When this crash occurred, the proprietor argued that it was immune from suit because its decision to not allocate funds or make RSA improvements was a discretionary act protected by state immunity laws. under circumstances where negligent conduct can be inferred. In this case, the court determined that the contractor did not have such control, and that the scaffolding might have been moved by a number of means before the pilot struck it. Other cases have addressed concerns that a party acted with misconduct. For example, in McLemore v. Harris,336 the court determined that the owner of a truck had made a willful and wanton decision to park on an airstrip; an aircraft then hit the truck while landing. The court found that the truck owner could not assert a counterclaim against the pilot, alleging only ordinary contributory negligence. Under Alaska law, only similar conduct could sup- port a defense to a willful and wanton claim. In McElduff v. McCord,337 a plane struck a slab of con- crete in grass adjoining a taxiway when the pilot saw that a car was parked on the taxiway and decided to go around it by entering the grassy area. The court determined that the pilot had chosen to leave the taxiway, the area subject to an airport pro- prietorâs duty to maintain reasonably safe premises. As such, the pilot was not entitled to the duty of care owed on the taxiway and the airport proprietor was not negligent. Pavement surfaces have also been alleged to cause an accident. For example, in Tatem v. United States,338 a helicopter crashed when its rear skid struck an asphalt lip, and the court determined that the pilot was already aware of the asphaltâs condi- tion. The proprietor thus was not negligent. Another case, Bouck v. Skaneateles Aerodrome, LLC,339 deter- mined that a pilot assumed the risk of taking off from a grass runway that was wet after he inspected the condition of the runway and elected to attempt take off. In a Mississippi case, Spencer v. Green- wood/Leflore Airport Authority,340 the court consid- ered a crash after a planeâs wheel allegedly lodged in a crack in the runway (the case was decided on immunity grounds). Operational decisions can also be alleged as caus- ing an accident on airfield pavements. For example, in Berends v. City of Atlantic City,341 an airportâs owner and the FAA determined to close a short run- way to evaluate its safety after a crash. A plane then crashed attempting to land on the airportâs other runway, which allegedly was subject to strong cross- winds. In this case, a private company leased the airport from the municipal owner and made certain 336 374 P.2d 410 (Alaska 1962). 337 178 S.E.2d 15 (N.C. App. 1970). 338 499 F. Supp. 1105 (M.D. Ala. 1980). 339 10 N.Y.S.3d 783 (N.Y. App. Div. 2015). 340 834 So.2d 707 (Miss. 2003). 341 621 A.2d 972 (N.J. Ct. App. 1993). 342 138 Cal. Rptr. 3d 865 (Cal. Ct. App. 2012). 343 740 N.E.2d 819 (Ill. Ct. App. 2001).
42 already legally required to perform snow and ice control activities under federal aviation regulations. There can be no such contract, or consideration for a contract, because the legal duty to perform these obligations runs to the public and is a public right. The court thus dismissed these claims.347 Other cases consider negligence actions when an accident involves snow and ice. For example, in Japan Airlines Company, Ltd. v. Port Authority of New York and New Jersey,348 a large aircraftâs engine ingested ice and snow from areas beyond the edge lights of the runway as it taxied. The court deter- mined that the airport proprietor was not immune from suit and had a duty to clear snow in these areas based on the proprietorâs snow and ice plan (adopted pursuant to an advisory circular). The proprietor also had responsibilities as a landowner to provide safe conditions and warn of conditions that would affect flight. The court noted that under New York negligence law, the proprietor had a general duty to operate safely, and the proprietor knew that its run- ways were narrow. Under those circumstances, the court believed that the proprietor assumed some responsibility to clear areas beyond the edge lights and had breached that duty. The court further deter- mined that the proprietorâs logs noted the conditions in question before the accident occurred. Snow and ice cases might consider a variety of other issues as well. For example, in one case, Pan American World Airways, Inc. v. Port Authority of New York and New Jersey,349 a taxiing aircraft was forced to reverse thrust abruptly to avoid hitting a sanding truck, and its engines were damaged by snow. The court determined that when conditions on the taxiways were dangerous, the airport proprietor had more than a duty to warn of the conditions. If conditions were sufficiently dangerous, the propri- etor was obligated to close a taxiway, and the court believed that the proprietor should have closed the taxiway in this case. In Reliant Airlines, Inc. v. Broome County,350 an air- port employee decided not to test the friction on a run- way surface because air traffic controllers did not want The court determined that when the FAAâs waiver for the RSA failed to mention surface standards, the FAA had mandated compliance with those surface standards. The court also believed that the propri- etor could not maintain airfield areas in an unsafe condition just because unsafe conditions existed at the time of purchase. The court did not agree that the proprietorâs decisions were immune as discre- tionary decisions about improvements. It believed this argument would allow government entities to claim that every failure to maintain an area was immune as a discretionary decision about making improvements and that this was not the legisla- tureâs intended result. A jury subsequently heard the case based on these decisions of law and deter- mined that the proprietor was 90% responsible for the accident.344 In Miller v. Contra Costa County,345 a pilot attempted to abort a landing and lost control, enter- ing the graded area at the side of the runway. A court determined that an airport proprietor knew about uneven grading at the side of a runway before the crash occurred. The court determined that the airport proprietor had notice of a dangerous condi- tion on its property, and it determined under prem- ises liability principles that the proprietor was negligent for failing to warn a pilot about the pres- ence of a dirt mound. P. Snow and Ice Many cases have considered airfield accidents that occurred during snow and ice conditions. Some cases attempt to argue that these responsibilities are contractual under breach of contract claims, but the courts normally reject that claim. For example, in Lufthansa Cargo A.G v. County of Wayne, Michigan,346 the court considered claims for breaches of contract and warranty obligations under an air- lineâs Landing Right Agreement after an aircraftâs engines ingested snow. The airline claimed that the agreement warranted airfield surfaces, snow- clearing procedures, and surface treatment materi- als would be of merchantable quality and clean and fit for the purposes and uses intended and that the surfaces were in a defective or unsafe condition at the time of the accident. The court determined that even if the airline had a signed agreement purport- ing to require these actions, there could not be an agreement for them because the proprietor was 344 See Alwin v. Village of Wheeling, 864 N.E.2d 897 (Ill. App. Ct. 2007). 345 235 P.2d 76 (Cal. Ct. App. 1951). 346 01-CV-74579-DT, 2002 WL 31008373 (E.D. Mich. Aug. 16, 2002), affâd sub nom. Lufthansa Cargo A.G. v. County of Wayne, Mich., 142 F. Appâx 265 (6th Cir. 2005) (unpublished). 347 One unusual case found that a proprietor had con- tractually agreed to keep runways free from obstructions such as ice and assumed that the proprietor assumed the risk of this loss and offset that risk through airline charges and insurance. But the dissent observed that this forced the airport proprietor to become the airlineâs no-fault insurer and that the majorityâs interpretation was not consistent with the contractâs terms. The decision also did not consider the effect of FAA requirements concerning snow and ice. See Great American Airways, Inc. v. Airport Authority of Washoe County, 743 P.2d 628 (Nev. 1987). 348 178 F.3d 103 (2d Cir. 1999). 349 995 F.2d 5 (2d Cir. 1993). 350 122 F.3d 1057 (2d Cir. 1997) (unpublished decision).
43 airport. The case ultimately determined that the construction standard for the light pole that was in effect at the time of its construction provided a stan- dard for its height, but the court also noted that safety concerns are not static. This case also involved an overpass, and the case is more fully discussed in Section IV.M, Runway and Taxiway Design, supra. Overpasses In Indiana State Highway Commission v. Rickert,355 a private airport proprietor had previously sued for inverse condemnation after a highway commission constructed an overpass that took part of the air- portâs airspace needed for landing. The proprietor won, and the commission compensated the propri- etor for the taking, but the proprietor did not then displace the runwayâs threshold to accommodate the taken airspace. Later, a pilot on approach collided with a truck on the overpass. The court determined that the commission was not in violation of the Indi- ana High Structures Act because the proprietor no longer had a right to use the airspace, and the trial court should have admitted that fact. In this case, the proprietor was operating in violation of the air- space constraint created by the overpass. In Catchings v. City of Glendale,356 an aircraft touched down at a runwayâs midpoint and attempted to take off again but instead crashed, allegedly because a highway and tree were obstructions that penetrated 14 C.F.R. Part 77âs imaginary surfaces for the runway. The court determined that Part 77 only establishes standards for identifying obstruc- tions and does not prohibit any conduct, and thus under this regulation, the presence of the highway and tree were not negligent per se. The court also determined that under Arizona law, the airport pro- prietor had a duty to maintain reasonably safe con- ditions for aircraft, not a duty to provide a safe airport. The court would not admit evidence that after the crash, the proprietor displaced the run- wayâs threshold pursuant to an FAA letter concern- ing Part 77, since the letter was after the fact, and Part 77 was not a mandatory regulation. The court thus affirmed a judgment in the proprietorâs favor. Power Lines When power lines are not located near an airport, a court might find that the power company did not have a duty to mark the lines. For example, in Davis v. Cessna Aircraft Corp.,357 a pilot made an emergency landing on a roadway at a distance from the airport, and the court found no such duty. Similarly, in to close the runway for the test. A landing aircraft later rolled off the runway. The court found in favor of the airline, determining that the airport employee was inexperienced and inadequately supervised. It also determined that FAA Advisory Circulars concerning snow operations were properly admitted into evidence to help the jury formulate the standard of care. In Jorgensen v. Massachusetts Port Authority,351 a pilotâs aircraft skidded off an icy runway and the pilot alleged that the proprietorâs negligence resulted in damage to his reputation. The court determined that a reputational injury was not a foreseeable consequence of failing to adequately clear the runway and dis- missed for insufficient evidence of causation. In Hance v. Karlis,352 a pilot whose plane crashed alleged that the FBO that operated the airport failed to disclose icy runway conditions. In this case, the court determined that a statute of limitations should have been tolled and that the plaintiffâs action could proceed. The plain- tiff did not discover until later evidence that the FBO misrepresented runway conditions and provided pilots with incomplete information in an effort to increase the airportâs use and profits and meet the quotas nec- essary to apply for federal airport funds. Q. Strict Liability One court considered whether a state statute in a Uniform State Law for Aeronautics made an air- craft owner strictly liable for ground damage. In Rodgers v. Erickson Air-Crane Company, L.L.C.,353 a helicopter crashed on private land. A state statute from the uniform law made an aircraft owner abso- lutely liable for ground damage that occurred with- out the contributory negligence of the injured party. The court determined that while this statute had been on the books for 76 years, the court could not ignore it, and that imposing it was consistent with the premise of strict liability to shift the risk of loss to those better able to bear that risk. R. Tall Obstructions Cases concerning obstructions can address a number of tall objects but often focus on power lines. A number of issues are noted below. Light Poles In In re Air Crash at Detroit Metropolitan Airport, Detroit, Michigan on August 16, 1987,354 an aircraft crashed while taking off after striking a light pole on premises leased by a car rental agency at the 351 905 F.2d 515 (1st Cir. 1990). 352 94 F.3d 655 (10th Cir. 1996). 353 740 A.2d 508 (Del. Super. Ct. 1999). 354 791 F. Supp. 1204 (E.D. Mich. 1992), affâd sub nom. In re Air Crash Disaster, 86 F.3d 498 (6th Cir. 1996). 355 425 N.E.2d 620 (Ind. 1981). 356 743 P.2d 400 (Ariz. Ct. App. 1987). 357 893 P.2d 26 (Ariz. Ct. App. 1994).
44 determined that the FAA did not breach a duty under the FAA Airport Safety Data Program or an airport design circular because the program only required inspections and gave the inspector discre- tion concerning what to report or classify as a poten- tial hazard. The circular also only described FAA design requirements and did not require the FAA to perform them. The FAA was thus also immune from suit for its discretionary decisions and did not have an obligation under the standards in the circular. Trees While many plane crashes have involved trees, most planes hit trees during another incident. For example, in Maxwell v. Fink,364 a pilot operated the aircraftâs flaps in a manner that did not permit the aircraft to gain sufficient altitude to clear trees growing under the flight path. The court found that the pilot failed to exercise ordinary care by failing to properly operate the flaps. In Doyen v. Cessna Air- craft Company,365 a plain simply hit a tree during a crash for an unknown reason. In Arceneaux v. Daggett,366 a plane landed at an airstrip on a farm and then could not clear trees while attempting take off. These cases are typical of aircraft accident cases that involve trees. Trees in close proximity to a runway, however, might present a hazard for an aircraft experiencing problems, and thus airport proprietors work to miti- gate these potential hazards. In one case, Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Commission,367 a court considered whether trees that might interfere with the surfaces stated in 14 C.F.R. Part 77 preempted state permit requirements to cut trees on the airport proprietorâs own property. The court found that the stateâs licens- ing requirements did not sufficiently interfere with the federal regulations so as to deem them pre- empted. The court also noted that this was a small airport and that the FAA had only limited direct oversight for it. One case, Walsh v. Avalon Aviation, Inc.,368 deter- mined that a private airport proprietor was not lia- ble for a pilotâs collision with a tree beyond the airport boundary while attempting to takeoff. The court also found that the proprietor had no duty to warn a passenger of a tree hazard, that a failure to provide such a warning could not have been a cause of the accident, and that the proprietor did not have a duty to obtain an easement over the property Florida Power and Light Company v. Lively,358 a plane crashed after hitting power lines under emer- gency conditions eight miles from the airport. The court found no duty to mark the lines where they complied with local zoning ordinances and FAA regu- lations (there was no past history of accidents in that location). Similarly, in Hahn v. United States,359 a court determined that a federal agency was not negli- gent for failing to show power lines on an aeronauti- cal chart where the lines were well below the level to constitute obstructions under FAA standards. Some cases also might consider the knowledge of the pilot when determining responsibilities for a crash into powerlines near the airport. In one case, Fuelberth v. Splittgerber,360 the court determined that an FBO (which leased the airport and was the airport operator) could recover when a pilot that leased a plane from the FBO crashed after flying into power lines near the airport. The court noted that the pilot was familiar with the airport and was flying too low. In another case, Harris v. United States,361 a court determined that a pilot could not be responsible for failing to operate an aircraft safely when he did not know that power lines were pres- ent. The court determined that an air traffic control- ler should have warned the pilot of a known obstruction where the controller knew that the pilot was not familiar with the area and was flying at a low altitude. One case, Mills v. Orcas Power & Light Com- pany,362 determined that an airport proprietor had a primary and nondelegable duty to warn of any obstructions to landing, which included warning a pilot about power lines near the airport even though in this case, the power lines predated the airport. But the court also determined that the power com- pany had a secondary duty to mark the lines if the proprietor did not. One case considered responsibilities for power lines located on the airport. In AIG Aviation Insur- ance Services, Inc. v. United States,363 a helicopter crashed after hitting a power line strung 30 feet over a taxiway area. The proprietor alleged that the FAA had required installing the line, and neither the proprietor nor the FAA had prioritized funding to move the line. Under these circumstances, the court determined that the proprietorâs decision not to move the line was immune as a discretionary decision not to improve the area. The court also 358 465 So.2d 1270 (Fla. Dist. Ct. App. 1985). 359 535 F. Supp. 132 (D. S. Dakota 1982). 360 34 N.W.2d 380 (Neb. 1948). 361 333 F. Supp. 870 (N.D. Tex. 1971). 362 355 P.2d 781 (Wash. 1960). 363 885 F. Supp. 1496 (D. Utah 1995). 364 58 N.W. 2d 415 (Wis. 1953). 365 416 So. 2d 1337 (La. App. 3 Cir. 1982). 366 594 So. 2d 1001 (La. App. 3 Cir. 1992), writ denied, 597 So. 2d 1029 (La. 1992). 367 634 F.3d 206 (2d Cir. 2011). 368 125 F. Supp. 2d 726 (D. Md. 2001).