Gee

In these actions, consolidated for argument, appellants sought damages against various airlines based on in-flight events ranging from loathsome behavior by fellow passengers to objects dropping on them from overhead bins. They appeal summary judgment grants to defendant airlines based on the preemption of the appellants’ state tort claims by § 105 of the Federal Aviation Act (commonly referred to as the Airline Deregulation Act and referred to herein as the “ADA”). 1 In addition, appellant Rowley also appeals the district court’s denial of a motion in limine regarding the availability of punitive damages under the Air Carrier Access Act (the “ACAA”). We affirm the district courts’ preemption decisions as to Gee and Rowley, but we find that Cadbury’s and Cos-ta’s tort claims are not preempted, and we therefore reverse and remand to their respective district courts. We also hold that *1403 even if punitive damages were available under ACAA, Rowley has not alleged the type of wanton or malicious conduct necessary to support a claim for punitive damages, and we therefore affirm the district court’s decision on this issue.

FACTS AND PROCEDURAL HISTORY

A) Gee v. Southwest…

specially concurring:

I concur in the results reached in Part I but write separately to express misgivings about the court’s preemption analysis under the Airline Deregulation Act (“ADA”); I concur in Part II without reservation.

I

The majority concludes that a distinction between “services” and “operations and *1409 maintenance” is mandated by a provision which Congress added to the ADA in 49 U.S.C. § 1371 (q)(l) (recodified as 49 U.S.C. § 41112 (a)). In light of this statutory provision and this court’s decision in Harris v. American Airlines, Inc., 55 F.3d 1472 (9th Cir.1995), the majority constructs a seemingly simple rule: while the regulation of “services” is preempted by the ADA, the regulation of “operations and maintenance” is not. Although this rule is consistent with the result reached by the only federal appellate court to have yet addressed this issue, Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir.1995) (en banc), I regret that the rule’s emphasis on a few words taken out of context needlessly muddles our preemption jurisprudence.

I agree with the majority that the Harris decision is contrary to the weight of authority interpreting ADA preemption;…