With the future of her lawsuit against Southwest Airlines up in the air, a Pennsylvania Superior Court has ruled that a passenger’s claims are back on solid ground.
In an opinion issued last Thursday, the Court held that a plaintiff’s negligence claims against the Dallas-based Airline were not preempted by the Federal Aviation Act. Turning largely on an analysis of what actually constitutes “operation” of an aircraft, the Court stated that there was “no basis for concluding that the incident occurred in the course of the operation of the aircraft so as to come under the FAA’s preemption umbrella.”
The case stems from injuries Plaintiff Okeke-Henry sustained when another passenger’s suitcase struck her in the head during the boarding of a Southwest Flight at Denver International Airport. Okeke-Henry alleged Southwest failed to properly monitor the boarding process, train its employees and provide for the safety of its passengers. In response, Southwest filed a motion for judgment on the pleadings arguing, among other things, that the plaintiff’s state law negligence claims were preempted by the standards delineated in the FAA. In April 2016, a Philadelphia trial court judge agreed with Southwest and dismissed Okeke-Henry’s claims for failure to allege a violation of the standard of care under the FAA.
Writing for the three-person panel, Superior Court Judge Victor P. Stabile found that the trial court erred in determining that the Appellant’s claims were federally preempted.
Answering the question of whether the FAA preempts claims of negligence relating to boarding an aircraft was not an easy task. As the Court noted, a review of case law “revealed no case in either this Court or the Pennsylvania Supreme Court addressing FAA preemption of state negligence claims under circumstances even remotely similar to the case before us.” Recognizing it was dealing with a case of first impression, the Court turned to the Third Circuit’s holdings in two airline preemption cases: Abdullah v. American Airlines, Inc. and Elassaad v. Independence Air, Inc.
On one hand, the court had Abudullah, where the Third Circuit held that FAA’s standards of care preempted the negligence claims of passengers injured due to in-flight turbulence. On the other, the court had Elassaad, where the Third Circuit found that standard of care provided by the FAA did not apply when a disabled passenger was injured disembarking a plane.
Where the trial court relied on Abdullah, Stabile emphasized that Okeke-Henrys claims were “more akin to that in Elassaad.” Stabile’s decision here seems to be largely attributed to the Elassaad Court’s analysis of what constitutes “operations for the purpose of air navigation.” The standard of care set forth in § 91.13 of the Aviation Act states that:
(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. 14 C.F.R. § 91.13
In addressing the question of what constituted “operations for the purpose of air navigation,” the Elassaad Court emphasized the fact that the aircraft had “landed, taxied to the gate, and come to a complete stop.” These factors all contributed to its finding that the aircraft was not in “operations for the purpose of air navigation” at the time of the alleged injury. In ruling, the Elassaad Court found that “there was no indication that either Congress or the FAA intended that federal law would impose a legal duty in an area that is neither specifically regulated by federal law nor clearly governed by a general federal standard of care.”
Like the plane in Elassaad which had finished taxiing to the gate, the Southwest plane at issue was on was stopped for boarding and thus, not in “operations for the purpose of air navigation”. Because the plane was not in “operation” at the time of the incident, Judge Stabile and the rest of the Court held that the standard of care outlined in the Aviation Act was inapplicable.
Though her claims have been revived, Okeke-Henry still faces an uphill battle of proving up suit against Southwest. Nonetheless, the Court’s holding makes it clear that plaintiffs sustaining pre-take off injuries will be permitted to proceed under state negligence claims.
Attorney Timothy Tomasik, of Tomasik Kotin Kasserman, was a Member of the American Bar Association Task Force on Preemption and a Chair of the ABA Aviation Law Subcommittee. For more information about aviation law claims, contact our Chicago injury lawyers at 312-605-8800.