United States: FAA Weighs In On Preemption In Product Liability

Courts across the county have long struggled with the scope of federal preemption in aviation safety and with how an aircraft type certificate issued by the Federal Aviation Administration (FAA) affects aircraft product liability litigation. The FAA recently weighed in with its views on these issues in a Letter Brief submitted to the Third Circuit in Sikkelee v. Precision Airmotive Corp., a case involving a fatal, single-engine plane crash, which is on appeal from the Middle District of Pennsylvania.1 This alert summarizes the FAA Letter Brief submitted on appeal, which takes a broad approach to preemption, and then addresses its implications. However, before we begin, some context is necessary.

Sixteen years ago, the Third Circuit issued its landmark ruling on federal preemption in Abdullah v. American Airlines.2 There, the Third Circuit held that the Federal Aviation Act of 1958 impliedly preempts state (and territorial) air safety standards while preserving state and territorial damages remedies. The oft-quoted holding of Abdullah broadly states: "we hold that federal law establishes the applicable standards of care in the field of air safety, generally, thus preempting the entire field from state and territorial regulation."3 Although Abdullah holds that the "entire field" of aviation safety is preempted, that case was decided in the context of the operation of an aircraft, with the "careless and reckless" standard of 14 C.F.R. § 91.13(a) available as a catch-all when no directly applicable standard applied.

In the context of aircraft product liability claims, however, courts have struggled consistently to apply the holding in Abdullah, noting that some aspects of aircraft design and certification are subject to pervasive regulations by the FAA while other aspects have little or no regulation. Courts also have struggled with whether a type certificate issued by the FAA for an aircraft design bars suits against manufacturers for design defect claims. Again, Abdullah did not confront that scenario.

Sikkelee is expected to add clarity to these issues. In that pending case, the Third Circuit is again faced with the question of the scope of federal preemption, but this time in the context of the design and certification of an aircraft. Showcasing its deliberative approach to the dispute, the Third Circuit ordered the FAA to weigh-in by answering three questions:

  1. Does the scope of field preemption under the Federal Aviation Administration Act of 1958 include tort claims based on alleged defective design and manufacturing? If such claims fall within the preempted field, may they proceed using a federal standard of care and where is the federal standard found?
  2. What weight should be accorded to the issuance of a type certificate in determining whether the relevant standard of care has been met?4
  3. In response to the first question, the FAA argues that, consistent with its position articulated in Cleveland v. Piper Aircraft Corp.,5 the Federal Aviation Act of 1958 impliedly preempts the field of aviation safety with respect to substantive standards of safety. The field preempted by the Act extends broadly to all aspects of aviation safety, the FAA continues, and includes product liability claims based on allegedly defective aircraft and aircraft parts.

In response to the second question, the FAA takes the position that while the Act—by virtue of the clause saving common-law remedies—does not preempt state tort suits, it is the federal standards found in the statute and implementing regulations that govern suits based on design defects in aviation manufacturing. "[T]o the extent that a plaintiff challenges an aspect of an aircraft's design that was expressly approved by the FAA as shown on the type certificate, accompanying operating limitations, underlying type certificate data sheet, or other form of FAA approval[,]" the FAA argues, "a plaintiff's state tort suit arguing for an alternative design would be preempted under conflict preemption principles."6

In response to the third and final question, the FAA explains that because an aircraft type certificate embodies the FAA's determination that an aircraft, engine, or propeller design complies with federal standards, it can play an important role in determining whether a manufacturer breached a duty owed to the plaintiff. The type certificate does not create a per se bar to suit, but ordinary conflict preemption principles apply to the particular design-defect claim. According to the FAA, the type certificate will preempt a state tort suit only where compliance with both the certificate and the claims made in the tort suit "is a physical impossibility" or where the claims "stand as an obstacle to the accomplishment of the full purposes and objectives of Congress."7

Where the FAA has expressly approved the specific design aspect that a plaintiff challenges, that claim would be preempted. On the other hand, where the FAA has left a particular design choice to a manufacturer's discretion, and no other conflict exists, the type certificate does not preempt a design-defect claim. In other words, where the FAA has not made an affirmative determination with respect to the challenged design, and has left that design aspect to the manufacturer's discretion, the claim would proceed by reference to the federal standards of care found in the Act and its implementing regulations.

Next, the FAA argues that its views regarding preemption are entitled to "significant weight." After all, it is the agency with specialized expertise in the regulation of aircraft safety, making it qualified to assess the impact of state tort suits on aircraft manufacturers and the efficacy of federal regulations. However, that position is subject to some debate. In Geier, a case involving the preemptive effect of standards promulgated by the Department of Transportation (DOT) under the National Motor Vehicle Safety Act of 1966, the Supreme Court placed only "some weight"—not significant weight—on the views expressed by the DOT in a government amicus curiae brief.8 Whatever quantum of weight applies to the FAA's views expressed in its Letter Brief, the views themselves may be difficult to apply.

The difficulty in applying the FAA's views on preemption to product claims lies in the fact that aircraft design specifications rarely require a specific design, but are instead couched in terms of performance or safety outcomes. For example, the certification standards for a stall warning system in a Part 23 aircraft requires "a clear and distinctive stall warning, with the flaps and landing gear in any normal position, in straight and turning flight" by a system "that will give clearly distinguishable indications under expected conditions of flight."9 A type certificate issued for a Part 23 aircraft would presumptively mean the FAA determined that the aircraft complied with these standards at the time the design was certified. However, would the type certificate preclude all product liability claims based on a defective stall warning system? What if the certification was actually wrong and the system did not comply with the standard when the FAA already said that it did? Can this type of claim actually be litigated or is it preempted?

Additionally, what if the claimed defect was that the stall warning system did not provide a warning when operated outside certification limits such as weight, speed, or center of gravity? Are these conditions outside the "expected conditions of flight" and therefore no federal standard exists? The FAA's Letter Brief to the Third Circuit in Sikkelee does not provide clear answers in the context of product liability litigation. Courts will continue to struggle with deciding these difficult issues in the future.

In sum, the FAA's Letter Brief takes a broad approach to preemption under the Federal Aviation Act of 1958, extending Abdullah from operation to design and certification. In the near term, expect the parties to respond to the FAA's Letter Brief by early October. Although it's possible that the Third Circuit may issue its opinion by the end of the year, in a complex case like this one, it would not be unusual to have to wait until 2016.


1 Sikkelee v. Precision Airmotive Corp., No. 14-4193, (3d Cir.)

2 Abdullah v. American Airlines, 181 F.3d 363 (3d Cir. 1999).

3 Id. at 367.

4 These particular questions are paraphrased summations of the questions posed by the court.

5 Cleveland v. Piper Aircraft Corp., 985 F.2d 1483 (10th Cir. 1993).

6 FAA Letter Br. at 10.

7 Id. (citing Florida Lime & Avocado Growers, Inc. v. Paul, 37 U.S. 132, 142–43 (1963); Geier

v. American Honda Motor Co., Inc., 529 U.S. 861, 883 (2000)).

8 Geier, 529 U.S. at 883.

9 14 C.F.R. § 23.207 (a), (b).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions