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concluding that state rather than federal standard of care should be applied in a personal injury negligence claim brought by passenger injured by trash collection cart
Summary of this case from Gonzales v. Ever-Ready Oil, Inc.Opinion
Civil Action No. 3:99-CV-2958-G.
December 15, 2000.
MEMORANDUM ORDER
Before the court is the motion of the defendant, Delta Air Lines, Inc. ("Delta" or the "defendant"), for summary judgment on the claim brought by the plaintiff, Jerry Skidmore ("Skidmore"). For the reasons discussed below, the motion is granted in part and denied in part.
I. BACKGROUND
This action arises out of a bodily injury accident which occurred on or about April 29, 1998 while Skidmore was traveling as a passenger and customer of Delta. See Defendant Delta Air Lines, Inc.'s Memorandum of Law in Support of Motion for Summary Judgment ("Defendant's Summary Judgment Brief") at 1; Complaint ¶ 6. Skidmore alleges that Delta caused an in-flight trash collection cart to strike his left knee with such force as to proximately cause him to suffer and sustain a severe knee injury; pain and suffering and mental anguish, past and future; lost earnings; damage to his earning capacity; physical impairment; and past and future medical expenses. See Plaintiff's Brief and Rule 56.4 Statement in Response to Defendant's Motion for Summary Judgment ("Plaintiff's Brief") at 1; Complaint ¶¶ 7, 23.
On December 30, 1999, Skidmore filed this suit alleging causes of action for: (1) state common law negligence, under both the state and federal standards of care; (2) negligence per se, for violation of a federal air safety regulation; and (3) federal common law negligence. See Complaint ¶¶ 8-16, 20-22. The complaint also alleges an implied federal negligence cause of action for violation of 49 U.S.C. § 41702, a federal air safety statute. See id. ¶¶ 17-19.
Delta now brings this summary judgment motion, contending that federal law preempts Skidmore's claims altogether. See Defendant's Summary Judgment Brief at 9-14; Defendant Delta Air Lines, Inc.'s Reply and Memorandum of Law in Support of Motion for Summary Judgment ("Reply Brief") at 2. Alternatively, Delta argues that Skidmore is not entitled to submit his state common law negligence cause of action to the court under both the state and federal standards of care. See Reply Brief at 2. Delta urges that the federal, not the state, standard of care should be applied to Skidmore's claims. See id.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. F.R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A movant for summary judgment makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material facts exists. F.R. CIV. P. 56(c).
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. See Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. See Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to Skidmore as the motion's opponent, see Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy Skidmore's summary judgment burden. See Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of Delta is proper if, after adequate time for discovery, Skidmore fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. See Celotex, 477 U.S. at 322-23.
B. Federal Preemption of the Common Law Negligence Cause of Action
Relying on the Third Circuit's decision in Abdullah v. American Airlines, Inc., 181 F.3d 363 (3rd Cir. 1999), Delta contends that Skidmore's state common law negligence claim is federally preempted. Defendant's Summary Judgment Brief at 11; Reply Brief at 2. In Abdullah, the Third Circuit held that the 1958 Federal Aviation Act ("FAA"), 49 U.S.C. § 40101-49105, and the federal regulations promulgated thereunder, supersede state law with respect to the standard of care to be applied in state law personal injury claims such as the one at bar. See Reply Brief at 2. This conclusion rested on the Third Circuit's additional, much broader, holding that " any state . . . standards of care relating to aviation safety are federally preempted [by the FAA]." Abdullah, 181 F.3d at 371 (emphasis added). The Abdullah court concluded that, although federal law preempts standards of aviation safety, "traditional state law remedies continue to exist for violation of those standards. Federal preemption of the standards of care can coexist with state and territorial tort remedies." Id. at 375.
In Hodges v. Delta Airlines, Inc., the Fifth Circuit Court of Appeals undertook an en banc review of prior precedent and held, contrary to Abdullah, that the FAA — as amended by the Airline Deregulation Act ("ADA"), 49 U.S.C. App. §§ 1301 et seq., — preempts state regulation of aircraft "services" but not aircraft "operation." 44 F.3d 334, 340 (5th Cir. 1993) ( en banc). In Hodges, a passenger on a Delta Air Lines flight was injured when a case of rum fell from an overhead compartment. See id. at 335. The plaintiff claimed that Delta was negligent in allowing the rum to be stored in the overhead compartment. See id. at 340. Explaining its holding that the plaintiff's claim was not preempted, the Hodges court observed that "[o]ne uses the overhead luggage racks or the food and beverages provided in aircraft operation just as one uses the cigarette lighter or built-in cooler compartment in an automobile, and all these devices are available to support the general purpose of navigation." Id. at 338. (emphasis added).
This holding turned substantially on the court's interpretation of a provision in the ADA requiring air carriers to maintain insurance or self-insurance as prescribed by the Federal Aviation Administration. See Hodges v. Delta Air Lines, Inc., 44 F.3d 334, 338 (5th Cir. 1995) ( en banc). The ADA mandates that air carriers' insurance policies cover "amounts for which . . . [they] may become liable for bodily injuries to or the death of any person, or for loss of or damage to property of others, resulting from the operation or maintenance of aircraft. . . ." 49 U.S.C. § 1371(q) (emphasis added); see also 14 C.F.R. § 205.5 (insurance regulations). The Fifth Circuit opined that "[t]he importance of § 1371(q) cannot be understated, for it can only be understood to qualify the scope of `services' removed from state regulation by § 1305(a)(1). A complete preemption of state law in this area would have rendered any requirement of insurance coverage nugatory." Hodges, 44 F.3d at 338.
This language from Hodges makes plain that the claims in the present case arise from the "operation" of the aircraft, and thus are not preempted. The trash collection cart that allegedly hit and injured Skidmore is analogous to the built-in cooler and the cigarette lighter discussed in Hodges: like the cooler and the lighter, the collection cart is a "device . . . available to support the general purpose of navigation." Id. Accordingly, the facts of this case fall squarely within the aircraft "operation" exception to federal preemption which was announced in Hodges. As an initial matter, therefore, this court concludes that federal law does not preempt Skidmore's common law negligence cause of action.
C. Standard of Care
Relying further on Abdullah, Delta contends that, even if — as this court has concluded — Skidmore's common law negligence action is not federally preempted, the federal, rather than the state, standard of care should be applied to Skidmore's claim. See Reply Brief at 2. In Abdullah, the Third Circuit explicitly acknowledged its disagreement with the Hodges decision on the basic question of whether federal law preempts the entire field of aviation safety from state regulation. See Abdullah 181 F.3d at 372 (also noting disagreement with Margolis v. United Airlines, Inc., 811 F. Supp. 318, 321-22 (E.D. Mich. 1993)). In particular, the Abdullah court noted the Fifth Circuit's conclusion in Hodges — contrary to that reached by the Third Circuit —that federal law does not preempt state tort law claims for personal injuries connected to airline operation. See id. The Third Circuit sought to minimize this difference, however, speculating that the Fifth Circuit's result in Hodges "may not . . . be inconsistent with our determination that even with federal preemption of standards of care, state tort law remedies are preserved." Id. (emphasis added).
As Delta notes, the federal standard of care applicable to common carriers is considerably less stringent than the comparable standard under Texas law. See Reply Brief at 3. Whereas the applicable federal regulation requires only that an aircraft not be operated "in a careless or reckless manner so as to endanger the life or property of another," 14 C.F.R. § 91.13(a), Texas law imposes on common carriers "a duty to exercise such a high degree of foresight as to possible dangers and such a high degree of prudence in guarding against them, as would be used by a very cautious, prudent and competent man under the same or similar circumstances." City of Dallas v. Jackson, 450 S.W.2d 62, 63 (Tex. 1970).
The court did note, however, that "[a] number of courts have . . . continued to use the state law standard of care, along with state remedies. [These courts] have concluded that the standards of care related to aviation safety by implication must not be preempted because expressio unius est exclusio alterius." Abdullah, 181 F.3d at 372 (citing Public Health Trust v. Lake Aircraft, Inc., 992 F.2d 291, 294-95 (11th Cir. 1993), and Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1443-44 (10th Cir. 1993)).
Whatever the merits of the Third Circuit Court's novel suggestion that the federal standard of care should be applied in state personal injury actions brought by airline passengers, the defendant in the present case has not cited — nor has the court independently discovered — any cases from Texas or the Fifth Circuit in which courts have so held. Indeed, in Continental Airlines, Inc. v. Kiefer, the Texas Supreme Court appears to have rejected that notion. 920 S.W.2d 274, 283 (Tex. 1996). In Kiefer, the court held that the ADA did not preempt Texas common law personal injury negligence claims against air carriers, except, perhaps, as to the limited issue of damages. See id. at 283-84.
The defendant's reliance upon Pennington v. Vistron Corp., 876 F.2d 414 (5th Cir. 1989), is misplaced. See Defendant's Brief at 10-11. In Pennington — a tobacco products liability case — the Fifth Circuit concluded that state common law should not be used to assess liability in an area governed by federal regulation when such application of common law "would clearly upset this carefully balanced federal scheme." Id. at 421. The Fifth Circuit has never held that applying state common law in assessing liability against an air carrier in a personal injury negligence action such as this would disrupt any federal regulatory scheme.
This court concludes that the state, rather than the federal, standard of care should be applied in state personal injury negligence claims against air carriers. Under the particular facts of the instant case, this conclusion is bolstered by the settled principle that in a diversity case such as this, this court is required to apply Texas substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938). Accordingly, Delta's motion for summary judgment as to Skidmore's cause of action for negligence under the state standard of care is denied. For the same reason, the summary judgment motion is granted as to Skidmore's causes of action for negligence under the federal standard.
C. Implied Cause of Action for Violation of a Federal Aviation Regulation
Skidmore contends that, if this court finds his state law negligence cause of action to be preempted, he is still entitled to a full and complete trial on the merits in federal court because a cause of action is implied under the doctrine of Cort v. Ash, 422 U.S. 66 (1970). See Complaint ¶¶ 17-19; Plaintiff's Brief at 17. Because the court has concluded that federal law does not preempt the plaintiff's state law action, the court finds that no federal common law negligence cause of action is implied under the Cort v. Ash doctrine. Thus, Delta is entitled to summary judgment on Skidmore's implied cause of action for federal common law negligence.
In Cort v. Ash, the U.S. Supreme Court set forth the following four factors which it deemed relevant to the determination of whether a private cause of action is implied under a federal statute:
1. Is the person one of a class for whose especial benefit the statute was enacted; that is, does the statute create a federal right in favor of the plaintiff?
2. Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?
3. Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?
4. Is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?Cort v. Ash, 422 U.S. 66, 78 (1975).
D. Federal Common Law Negligence
Skidmore further alleges that, if this court determines that he has no state law remedy and no implied remedy under the Federal Aviation Act, the court should fashion a common law remedy to redress the injuries suffered by airline passengers who are the victims of wrongful airline conduct. See Complaint ¶ 20 (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970)); Plaintiff's Brief at 21-24. Because, as noted before, Skidmore's state law claim is not federally preempted, the court declines to consider fashioning a federal common law remedy. Summary judgment is therefore granted to Delta on Skidmore's common law negligence cause of action.
E. Negligence Per Se
Finally, Skidmore contends that Delta violated § 91.13, of the Federal Aviation Regulations, 14 C.F.R. § 91.13, and was therefore negligent per se. See Complaint ¶¶ 11-13; Plaintiff's Brief at 14-15. § 91.13 provides that "no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." Id. The negligence per se tort concept allows a civil court to adopt a legislatively imposed standard of conduct as the standard of a reasonably prudent person. See Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979). "The threshold questions in a negligence per se case are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff's injury is of a type that the statute was designed to prevent." Osti v. Saylors, 991 S.W.2d 322, 327 (Tex.App.-Houston [1st Dist.] 1999, petn. denied) (citations omitted). In the instant case, Skidmore — an airline passenger — was likely within the class of persons whom § 91.13 was meant to protect; at least arguably, he also suffered a kind of injury that this regulation was intended to prevent. However, the court concludes that § 91.13 does not establish a standard of civil liability because it does not clearly define the required conduct.
In Perry v. S.N., the Texas Supreme Court recently outlined several factors to be considered in determining whether it is appropriate to impose tort liability for violations of a particular statute. 973 S.W.2d 301, 308 (Tex. 1998). Among these factors was whether the statute or provision in question puts the public on notice by clearly defining the required conduct. See id. The regulation at issue here — which prohibits individuals from operating aircraft in "a careless or reckless manner," 14 C.F.R. § 91.13 — "is clearly aimed at safety but it does not require specific conduct and is far too broad to establish a standard of care," King v. Avtech Aviation, Inc., 655 F.2d 77, 79 (5th Cir. 1981) (rejecting plaintiff's negligence per se claim where the claim was brought pursuant to a federal aviation regulation stating that "[t]he owner or operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy condition, including compliance with Part 39 of this chapter."); see also Ordonez v. M.W. McCurdy Co., Inc., 984 S.W.2d 264, 271 (Tex.App.-Houston [1st Dist.] 1998, no writ) (statute requiring motorist to act "safely" was not proper basis for negligence per se action). Because it would be inappropriate to impose tort liability for a violation of § 91.13, summary judgment for Delta is granted on Skidmore's negligence per se cause of action.
III. CONCLUSION
For the reasons stated above, Delta's motion for summary judgment on Skidmore's common law negligence cause of action under the Texas state standard of care is DENIED.
Delta's motion for summary judgment on the remainder of Skidmore's claims is GRANTED.