FILED

NOT FOR PUBLICATION

JUN 15 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHANIE RACHEL KROPP, an No. 21-55960 Individual, D.C. No. Plaintiff-Appellant, 2:19-cv-08344-GW-JPR

v.

MEMORANDUM*

UNITED AIRLINES, INC., an Illinois corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Submitted June 13, 2022** Pasadena, California

Before: RAWLINSON, CHRISTEN, and KOH, Circuit Judges.

Stephanie Rachel Kropp (Kropp) challenges the district court order granting

summary judgment in favor of United Airlines, Inc. (United) on her negligence and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). state-law common carrier liability claims. Kropp’s claims were based on her

allegation that when she was a passenger on a United flight (Flight UA1294) that

experienced turbulence, United failed to “properly warn of known, expected

dangerous conditions and keep its passengers safe.” She contends that United

owed a duty to provide her with the “highest possible degree of safety,” and that

the district court erred by applying a different standard of care.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review a district

court order granting summary judgment de novo. See L. F. v. Lake Washington

Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020). Because the district court

applied the correct “careless or reckless” standard of care imposed by 14 C.F.R.

§ 91.13(a); correctly concluded that Kropp failed to raise a genuine issue of

material fact regarding the violation of any Federal Aviation Regulation (FAR);

and correctly found that Kropp’s state-law common carrier liability claim was

preempted, we AFFIRM.

1. When reviewing a district court order granting summary judgment, “[w]e

determine, viewing the evidence in the light most favorable to the nonmoving

party, whether there are any genuine issues of material fact and whether the district

court correctly applied the relevant substantive law.” Id. (citation omitted).

2 2. The district court did not err by concluding that 14 C.F.R. § 91.13(a) sets

the relevant standard of care. As we held in Montalvo v. Spirit Airlines, the

Federal Aviation Act (FAA)–and the associated FARs–set the standard of care for

negligence claims against aircraft operators based on an alleged failure to warn

because “a number of specific federal regulations govern the warnings and

instructions which must be given to airline passengers,” and 14 C.F.R. § 91.13(a)

sets the “general federal standard of care for airline operators.” 508 F.3d 464, 472

(9th Cir. 2007), as amended (citations omitted). 14 C.F.R. § 91.13(a) prescribes

that “[n]o person may operate an aircraft in a careless or reckless manner so as to

endanger the life or property of another.” It does not, as Kropp argues, require an

airline “to provide service at the highest possible degree of safety in the public’s

interest.” See 49 U.S.C. § 44701(d)(1)(A) (requiring the Federal Aviation

Administrator to “consider . . . the duty of an air carrier to provide service with the

highest possible degree of safety in the public interest . . . [w]hen prescribing a

regulation or standard,” without imposing this duty of care on an airline).

3. The district court committed no error in granting United’s summary

judgment motion on Kropp’s negligence claim. Kropp failed to establish either a

genuine issue of material fact as to whether a FAR was violated in connection with

Flight UA1294, or as to whether Flight UA1294 was operated in a “careless or

3 reckless manner.” Montalvo, 508 F.3d at 472. Absent violation of a federal

aviation requirement, Kropp’s “negligence claim fails as a matter of law.” Id. at

474.

Rather than contending that United violated a FAR in connection with its

operation of Flight UA1294, Kropp asserted the violation of two Federal Aviation

Administration Advisory Circulars. However, an airline’s duty to warn passengers

of known and expected dangers is regulated by FARs rather than advisory

circulars. See id. at 472–73 (collecting regulations); see also Martin ex rel.

Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806, 811 (9th Cir. 2009)

(rejecting the argument that “the federal standard [of care] should be set by expert

testimony on standard industry practices” because “neither Montalvo . . . nor any

language in the FAA, contemplates such a rule”); Zurich Am. Ins. Co. v. Silver

Sage Aviation, No. 3:15-cv-00548-MMD-WGC, 2018 WL 4469012, at *3 n.7 (D.

Nev. Sept. 18, 2018) (“Because an advisory circular provides only guidance, it

cannot be binding . . .”).

4. Kropp’s response to United’s motion for summary judgment maintains

that United breached its “duty to function at the highest levels of safety and public

interest.” Kropp relied on her expert’s report to support her position, but the report

did not raise a genuine issue of material fact regarding whether Flight UA1294 was

4 carelessly or recklessly operated. When explicitly asked whether the pilot of Flight

UA1294 violated any FARs, Kropp’s expert did not opine that the relevant

standard was violated.

5. Finally, there was no error in the entry of summary judgment in favor of

United on Kropp’s state-law claims for negligence and common carrier liability.

Any claims predicated on state law are preempted by the FAA. See Montalvo, 508

F.3d at 472 (reasoning that the “pervasive” FAA regulations reflect “a preemptive

intent to displace all state law on the subject of air safety”).

AFFIRMED.

5