Braun

We consider whether, and to what extent, the Federal Aviation Act, 49 U.S.C. §§ 40101 et seq., preempts an airline passenger’s personal injury claims.

Facts

A pregnant woman fell from an airplane’s stairs, injuring herself and her fetus. She sued the airline, Midwest Express, and the airplane’s manufacturer, Fairchild Dornier and related companies, alleging that the stairs were defectively designed because they had only one handrail. Midwest Express settled the claim for $8 million, and now seeks indemnity from the manufacturer. Relying on Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir.2007), the manufacturer argues that the Federal Aviation Act preempts the passenger’s personal injury claims and, consequently, Midwest Express’ indemnity claim.

Analysis

The Federal Aviation Act has no express preemption clause. The personal injury claim here conflicts with no provision of the act or regulation promulgated under it. The manufacturer’s argument thus rests on implied field preemption.

The touchstone of preemption is congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 , 112 S.Ct. 2608 , 120 L.Ed.2d 407 (1992). To find field preemption here, we must infer…

concurring:

I agree the district court’s order dismissing the complaint should be reversed, but to another result. This is because I read Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir.2007), quite differently than does the majority. In Montalvo there were two claims on appeal: (1) a claim the airline negligently failed to warn passengers — including the plaintiffs — of the risk of deep vein thrombosis, caused by prolonged sitting during flight, and (2) a claim the airline negligently configured placement of the airplane seating so to cramp passenger movements and lead to the onset of deep vein thrombosis. The Montal-vo court affirmed the district court’s order dismissing the plaintiffs’ failure to warn claim on the ground such claims are preempted by the Federal Aviation Act (“FAA”) due to pervasive federal regulations governing airplane warnings. The court reversed the district court’s order dismissing the plaintiffs’ negligent seating configuration claim and remanded that claim to the district court so it could analyze whether seating configuration affects ticket prices, which would in turn render the claim preempted under the Airline Deregulation Act.

The majority…

Facts

A pregnant woman fell from an airplane’s stairs, injuring herself and her fetus. She sued the airline, Midwest Express, and the airplane’s manufacturer, Fairchild Dornier and related companies, alleging that the stairs were defectively designed because they had only one handrail. Midwest Express settled the claim for $8 million, and now seeks indemnity from the manufacturer. Relying on Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), the manufacturer argues that the Federal Aviation Act preempts the passenger’s personal injury claims and, consequently, Midwest Express’ indemnity claim.

Analysis

[1] The Federal Aviation Act has no express preemption clause. The personal injury claim here conflicts with no provi- sion of the act or regulation promulgated under it. The manu- facturer’s argument thus rests on implied field preemption.

[2] The touchstone of preemption is congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). To find field preemption here, we must infer that Congress intended to exclude all state law personal injury suits from the area of air travel, even though it didn’t say so. The FAA betrays no such intention. It…