Martin v. Midwest Express Holdings, Inc.
Filed February 9, 2009
Ninth Circuit
Cite as 0755063

Tort Claims by Injured Pregnant Woman Affirmed

Lola F. Martin injured herself and her fetus when she fell from an airplane’s stairs. She sued the airlines, Midwest Expresss, and its manufacturer, Fairchild Dornier, and other related companies, alleging that the stairs were “defectively designed because they only had one handrail”.

Midwest settled the claim for $ 8 million and sought indemnity from the manufacturer.

The manufacturer argued that the Federal Aviation Act preempts the passenger’s personal injury claims and, consequently, Midwest Express’ indemnity claim, relying on Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007).

However, according to FAA, 49 U.S.C. sections 40101 et seq., contains “limited preemption provisions not applicable here”. ( Air Transport Ass'n of Amer. v. Cuomo, 520 F.3d 218 (2nd Cir. 2008) (concerning preemption of regulation of rates and services; summary).

On the other hand, the appellate court noted “the circuits have generally analyzed FAA preemption by looking to the pervasiveness of federal regulations in the specific area covered by the tort claim or state law at issue. Claims regarding airspace management, pilot qualifications and failure to warn have been declared preempted…[while] several defective product claims…have not.”

The Ninth Circuit court of appeals argued that based on Abdullah and Montalvo, the FAA preempted all state-law standards of care for all aviation-related injury claims. Under the appellate court’s approach, state law could define causation, affirmative defenses, and available remedies, but federal law would define the standard of care.

Further, according to the court, when there is no federal regulation to supply that standard, the courts must develop (and plaintiffs must plead) federal common law standards, based on expert testimony concerning common industry practices. The court said this approach has no basis in the FAA, and is explicitly based on policy arguments.

It also held that the Federal Aviation Act (FAA) does not implicitly preempt aviation-related personal injury claims except in areas covered by “pervasive” federal regulations.

The Ninth Circuit court of appeals therefore permitted an injured woman to sue on the ground that an airplane’s stairs should have had two handrails, saying federal regulations did not speak to such claims. A concurrence argued that the FAA imposes a federal common law standard of care in all aviation-related injury cases.

Finally, the Ninth Circuit therefore held that Federal Aviation Act did not preempt personal injury claims by pregnant woman who contended that her fall from airplane stairs was caused by defect in stairs, because act has not comprehensively regulated airplane stairs.