The Court of Appeal of California, Second District decided on Tuesday, March 20, 2012, that state tort law is not pre-empted by non-mandatory federal standards. In deciding the case of Sierra Pacific Holdings, Inc. v. The County of Ventura, No.B232307 (Cal.App.2d March 20, 2012) the Court found that because the Federal Aviation Administration’s (FAA) advisory circular 150/5300-13 on airport design was not a “mandatory regulation,” it did not pre-empt the state law regarding standard of care in tort actions.
In Sierra Pacific Holdings, the Plaintiff, an owner of an aircraft that made an emergency landing at Camarillo Airport, which is owned and operated by Ventura County, alleged that the County was negligent in erecting a barrier in the Runway Protection Zone in violation of the airport design standards published in the Advisory Circular. The trial court granted the County’s motion in limine to preclude Sierra Pacific from “introducing evidence of safety standards relating to airport design and construction, other than that the standards established by the federal government.” Those standards “established by the federal government are found in the Advisory Circular. Since Sierra Pacific conceded that the County had complied with all FAA regulations, including the Advisory Circular, the parties stipulated to an entry of judgment in the County’s favor so that Sierra Pacific could immediately take its appeal on the issue on the applicability of the Advisory Circular.
The Court correctly noted, contrary to the position of other commentators on this case, that implied pre-emption is applicable here instead of express pre-emption. “Express pre-emption” requires that the federal statute in question explicitly state that it is pre-empting state laws. While several courts have noted that the Federal Aviation Act provides “field” or “conflict” pre-emption with state or local ordinances, it does not provide “express pre-emption” such that the Court would not have to review the state or local ordinance to assess whether it conflicts with federal law. See e.g. Skysign International v. City and County of Honolulu, 276 F.3d 1109, 1116 (9th Cir. 2002). As the Court in Sierra Pacific, points out the Airline Deregulation Act of 1978 offers an example of what express pre-emption looks like by specifically pre-empting state and local laws with respect to airline pricing, routes and service. 49 U.S.C. 41713(b)(1).
The Court may have erred, however, in its decision. The Court acknowledges that the Second, Third, Sixth and Tenth Circuits have all held that the Federal Aviation Act present “field pre-emption” for aviation safety, concluding “since state tort law on the standard of care pertaining to the barrier implicates the field of aviation safety, it would arguably be preempted pursuant to the reasoning of the Second, Third, Sixth, and Tenth Circuits that Congress intended to occupy the entire field of aviation safety.” However, instead of following those circuits, the Court decided to follow the Ninth Circuit’s reasoning in Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc. 555 F.3d 806, 809 (9th Cir. 2009), which held that the court should analyze “FAA preemption by looking to the pervasiveness of federal regulations in the specific area covered by the tort claim or state law at issue.”
Applying this standard, the Court in Sierra Pacific, found that “if the Advisory Circular’s standards for the RPZ were incorporated in a mandatory FAA regulation, the standards arguably would preempt state tort law on the standard of care.” However, because “[i]n general, use of this AC is not mandatory” and is only “mandatory for all projects funded with federal grant monies through the Airport Improvement Program (AIP and with revenue from the Passenger Facility Charges (PFC) Program,” the Court found that the Advisory Circular did not pre-empt the state tort law in this instance. Thus, because “the federal cases on preemption involve mandatory FAA regulations,” and this case, according to the Court, does not involve mandatory FAA regulations, the Advisory Circular is not pre-empted and the state standard is applicable.
However, the Court made one critical assumption which, in the end, undermines its entire analysis. The Court states that “the record is devoid of any evidence that a project in the RPZ at Camarillo Airport was federally funded.” On that basis, the Court concluded that the Advisory Circular’s standards as to the RPZ are not mandatory. While it may be possible that the County did not include any evidence suggesting that the Airport received federal funding, information that is readily available to the public through the FAA indicates that Camarillo Airport has, in fact, received federal funds and therefore the Advisory Circular was mandatory for Camarillo Airport.
Thus, because the record does not state that Camarillo Airport is federally funded such that the erection of the barrier would be required to meet the standards of the Advisory Circular; the Court directed the trial court to vacate its order granting the motion in limine and enter a new order denying the motion.
APRIL 13, 2012 UPDATE: The U.S. District Court for the Northern District of New York in Moffitt v. JetBlue Airways Corp. that the Federal Aviation Act as amended by Airline Deregulation Act pre-empted the plaintiffs’ state tort claims for being stranded on an airplane for 6 hours, citing 49 U.S.C. 41713(b)(1). The court found “Plaintiffs’ tort claims all relate to prices, routes, or services inasmuch as the claims are all premised upon complaints of Plaintiffs’ treatment while they were detained on the tarmac . . .” The U.S. District nodded to the California case in finding that “[w]hile personal injury or wrongful death claims arising from matters unrelated to airlines’ prices, routes, and services fall outside the scope of ADA preemption (and within the FAA’s savings clause) thereby creating a need for insurance protection for passengers, the same is not true for the tort claims asserted here. To allow the claims to proceed on this reasoning would allow the insurance requirement to swallow the rule of preemption. That is clearly not what Congress intended.”