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On March 20, 2012, the California Court of Appeal Second
District held that nonmandatory safety standards issued by the FAA
in Advisory Circulars do not preempt state tort law on the standard
of care. Sierra Pacific Holdings, Inc. v. County of
Ventura, 2d Civil No. B232307 (slip op.) (Cal. App. 2 Dist.
Mar. 20, 2012). The court found that FAA Advisory Circulars are
just that—advisory—and such nonmandatory
federal standards are not federal "law" creating
Supremacy Clause preemption.
The case arises from a suit by an aircraft owner against an
airport for negligently creating a dangerous condition at the
airport that resulted in damage to its aircraft. The district court
found that the standard of care was governed by Advisory Circulars
issued by the FAA. Because the allegedly dangerous condition
created by a runway safe zone was in accordance with FAA-issued
Advisory Circulars, the aircraft owner's negligence claim
failed as a matter of law.
The California Court of Appeals reversed, analyzing the
reasoning of the Second, Third, Sixth, and Tenth Circuits of the
federal courts of appeal that state tort law on the standard of
care is impliedly preempted by FAA standards because Congress
intended to occupy the entire field of aviation safety through the
Federal Aviation Act of 1958. See Goodspeed Airport LLC v. East
Haddam Inland Wetlands & Watercourses Com'n, 634 F.3d
206 (2nd Cir. 2011); US Airways, Inc. v. O'Donnell,
627 F.3d 1318 (10th Cir. 2010); Green v. B.F. Goodrich Avionics
Systems, Inc., 409 F.3d 784 (6th Cir. 2005); Abdullah v.
American Airlines, Inc., 181 F.3d 363 (3rd Cir. 1999). The
court admitted that because the Advisory Circular at issue
implicates the field of aviation safety, it arguably would be
preempted under the reasoning of these federal circuits.
Turning to the Ninth Circuit approach to implied preemption, the
court analyzed whether there was "pervasive regulation"
in the specific area covered by the tort claim. See Martin ex
rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806 (9th
Cir. 2009). Under the Midwest approach, if the Advisory
Circular's standards were incorporated into a
mandatory FAA regulation with the force and effect of law,
pervasive regulation would be shown and the standards arguably
would preempt state tort law on the standard of care. However,
Advisory Circulars are by definition not mandatory—by
their very terms they are advisory. Because Advisory Circulars are
guidelines, not rules, the court found that they cannot constitute
paramount federal "law" subject to Supremacy Clause
preemption.
The court was careful to note that such nonmandatory guidelines
could still be informative of the standard of care, such as
industry customs and practices. Compliance or noncompliance with
such custom, though not conclusive on the issue of negligence, may
assist the trier of fact to determine if the standard of care was
met.
The Sierra Pacific Holdings opinion does not stray far
from English common law roots. Under the English Law of negligence,
the appropriate standard of care is determined by considering
industry practice and regulatory standards. Neither is
prescriptive, however, nor do they preempt the standard to be
applied. And it is well established that conformity with common
practice is prima facie evidence that the proper standard
of care has been taken. Although not conclusive, generally speaking
defendants will not be found negligent if they can show that they
have acted in accordance with general and approved practice. While
compliance with certification requirements also is not a complete
answer to a claim in negligence, such requirements are properly
taken into account in an overall evaluation of what is reasonably
required. The more heavily regulated the activity, the more
persuasive that evidence might be. The flying of aircraft,
particularly those carrying fare-paying passengers, inevitably
rates as one of the more heavily regulated activities. The nature
of the regulatory requirements therefore carries considerable,
but not decisive, weight in the evaluation of what is
reasonably required of those engaged in the industry. See
Lambson Aviation v. Embraer Empresa Brasiliera de Aeronautica SA
& B.F. Goodrich Avionics Systems, [2001] All ER (D) 152
(Oct).
Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular
situations.
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