Opposition Brief — Piper Aircraft Corp. v. Cleveland, by and Through the Conservator of His Estate, Cleveland

ee

No. 93-17

In the Supreme Court

OF THE Poi =

United States e

OCTOBER TERM, 1993 | JUL 30 |

OFeiOc

PIPER AIRCRAFT CORPORATION, be----- 7

Petitioner,

, 2

EDWARD CHARLES CLEVELAND,

BY AND THROUGH THE CONSERVATOR

OF HIS ESTATE, KATHLEEN CLEVELAND,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

DANIEL C. CATHCART

Counsel of Record

DEBORAH MITZENMACHER

(310) 553-6630

Co-Counsel

WILLIAM G. GILSTRAP

WILLIAM G. GILSTRAP, P.C.

P.O. Drawer H

Albuquerque, New Mexico 87103

(505) 842-8600

Attorneys for Respondent

July 30, 1993

MAGANA, CATHCART & MCCARTHY

i801 Avenue of the Stars, Suite 810

Los Angeles, California 90067-5899

Bowne of Los Angeles, Inc., Law Pnnters (213) 627-2200

i

QUESTION PRESENTED

Does the Federal Aviation Act of 1958 preempt a federal court

from awarding compensatory damages to a severely injured air-

craft accident victim whose only recognized remedy against the

manufacturer of the small or “general aviation” aircraft which

injured him is an action based on state negligence law where:

a) the sole provision of the Act entitled “federal preemption”

only “relates to” the “rates, routes, or services” of “any air carrier

... provid[ing] air transportation” (defined as a domestic airline

in interstate commerce), facts not in issue, and

b) the Act expressly supplements state “remedies now existing

at common law or by statute” and no evidence exists that

Congress intended to deprive aircraft accident victims of their

only remedy when it amended the Act to deregulate airline

economics?

li

TABLE OF CONTENTS

QUESTION PRESCIN SS os chica svvctnccecsaeseeans

TABLE OF ALSTIROUESERS 6.65 6siscka seen denenenas

SEAL REETE 5505000 snnweesdeeeeesbees gkee eee

The Aircraft Accident On The Uncontrolled Private

ROS nda ne ssueneceeee Ja vee ae

I

MORALES V. TRANS WORLD AIRLINES, INC., THIS

COURT’S MOST RECENT CASE CONCERNING

“THE FEDERAL REGULATORY SCHEME IN

QUESTION,” SUPPORTS THE UNANIMOUS AF-

FERPORT MURAI ok ucs 00 dh ak dee eee b canines

II.

CIPOLLONE V. LIGGETT GROUP, A CASE DEFINING

THE SCOPE OF EXPRESS PREEMPTION OF

STATE TORT ACTIONS IN ANOTHER HIGHLY

REGULATED AREA, ALSO SUPPORTS THE

UNANIMOUS AFFIRMANCE BELOW ...........

III.

NO REVIEWABLE CONFLICT EXISTS; ALL CIR-

CUITS CONSIDERING THE ISSUE AFTER

MORALES ARE AGREED THAT STATE COMPEN-

DSO WARE 66 64 doe egentavnnsesdeeserEn

CPC PGNE + on bc sadvuwdesdve beeen coe neeeee nee

APPENDIX

49 U.S.C. App. § 1305(a)(1) (1984) (“federal preemp-

tion”)

49 U.S.C. App. § 1506 (1958) (“remedies not exclusive’’)

ili

TABLE OF AUTHORITIES

Cases

Page

Alaska Airlines, Inc. v. Sweat, 568 P.2d 916, 927 (Alaska

ET Boao te Or 6

Brunwasser v. Trans World Airlines, Inc., 541 F. Supp.

| 6

Cipollone v. Liggett Group, Inc., 120 L.Ed.2d 407 (1992) 5,6

City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S.

ei et hy hb A GK Ge 4d ba eee 68 oe 4

Kodish v. United Airlines, Inc., 628 F.2d 1301 (10th Cir.

3 eee RES oy eee eee eee 5

Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1306

eee a Geass cu wawseseéecerenes 2

MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E.

IS 6

McCord v. Dixie Aviation Corp., 450 F.2d 1129, 1131

RE ee 5

Morales v. Trans World Airlines, Inc., 119 L.Ed.2d 157

ey ii een an0s v6 00's 00s 4, 5, 6,7

Pinehurst Airlines, Inc. v. Resort Air Services, Inc., 476 F.

Supp. 543, 548-549 (M.D.N.C. 1979) .............. 5

Prasker v. Beech Aircraft Corp., 258 F.2d 602 (3d Cir.),

Gort, Gemtied, 356 U.S. FID (19SE) . 0... cw ccccesscens 7

Public Health Trust v. Lake Aircraft, Inc., 992 F.2d 291,

ee) 7

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) 6

Sebo v. United Air Lines, Inc., 10 F.R.D. 327 (S.D.N.Y.

ek i a 7

Smith v. Piper Aircraft Corp., 4 CCH Avi. 17,771 (1955) 7

Sunbird Air Services, Inc. v. Beech Aircraft Corp., 789 F.

SE | eee 7

United States v. S.A. Empresa de Viaco Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 816-817

TR oe A ey ee 8

iv

TABLE OF AUTHORITIES

CASES

Page

Vrooman v. Beech Aircraft Corp., 183 F.2d 479 (10th Cir.

Ee eee ee Tee ee ee eee ee ree Eee ESS Tey 7

West v. Northwest Airlines, Inc., 1993 U.S. App. LEXIS

Ceeet Coe Ce, FB, Fe os hab nesses sntsessvas 7

Statutes

49 U.S.C. App. § 1301 et seq. (1958, as amended) ..... 4

SP UBM. 6 LSI) BR Ieee eek cv crccccccsscas 4

49 U.S.C. App. § 1305 (1978, as amended) ........... 4,5

0 USL. App. § 1905Te) C1) (IFGR) .. nn cccccccsices 1,4

USC. Ape..S P6GRC) CII ak cic cece ccceecns 5

a UA. P. © IDE CIE 6 bees kekesscekeasseens 1, 6,8

Court Rules

oe ei. | eer rere erty rer enr yer rr ry 3

Regulations

0 Car ie ak OE WO 6 ok once es ences sia esineveas 8

Cae ae Cee CE} errr 2

Other Authorities

A.F. Lowenfeld, Aviation Law (2d ed. 1981) § 1.31 .... 6

Annot., “Liability of Manufacturer or Seller for Injury

Caused by Automobile or Other Vehicle, Aircraft, Boat,

or Their Parts, Supplies or Equipment,” 78 A.L.R. 2d

460-588 (1961) §§ 36 & 37 at pp. 561-566.......... 7

Annot., “Products Liability: Personal Injury or Death Al-

legedly Caused by Defect in Aircraft or Its Parts, Sup-

plies, or Equipment,” 97 A.L.R.3a 627-677 (1980 &

Pr Ae errr ry Prey tare try eee 7

Restatement of Torts §§ 388, 394, 395 & 398 (1934) ... 7

Steven Shavell, Economic Analysis of Accident Law

(Peat. (J. Freee 1907) Gt ZOO dees ov ca cea ncccescss 8

No. 93-17

In the Supreme Court

OF THE

United States

“OCTOBER TERM, 1993

PIPER AIRCRAFT CORPORATION,

Petitioner,

Vv.

EDWARD CHARLES CLEVELAND,

BY AND THROUGH THE CONSERVATOR

OF HIS ESTATE, KATHLEEN CLEVELAND,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals <

for the Tenth Circuit

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

STATUTES

The full text of the key provisions of the Federal Aviation

Administration Act of 1958, 49 U.S.C. App. § 1305(a)(1)

(1984) (“federal preemption”) and 49 U.S.C. App. § 1506

(1958) —— not exclusive’), appear in the Appendix.

2

STATEMENT

The Aircraft Accident On The Uncontrolled Private Ground

Edward Charles Cleveland suffered massive head injuries and

permanent brain damage, on July 7, 1983, when the Piper aircraft

he piloted collided with an unseen van as the aircraft began its

take-off roll at Mid-Valley Airpark, Los Lunas, New Mexico.

Ptn. App. 46a. Thus, Mr. Cleveland’s accident occurred, not in

federal airspace, but rather on the ground, not on federal land or

under federal airtraffic control, but rather at an uncontrolled,

privately-owned airport.

Part of an aircraft is its owner’s handbook. Leachman v. Beech

Aircraft Corp., 694 F.2d 1301, 1306 (D.C. Cir. 1983). Piper’s

Owner’s Handbook touted “solo .. . rear seat operation is entirely

feasible,” gave instructions for removing the front seat, and

promoted use of Piper’s aircraft “/fJor special purpose flights,

such as photography.” Ptn. App. 73a. Instead of specially inviting

solo flight from the rear pilot’s seat, Piper’s Owner’s Handbook

should have warned: “Center of gravity now permits this aircraft

to be flown solo from the front pilot’s seatt DO NOT FLY

SOLO FROM THE REAR SEAT— VISIBILITY IS

INADEQUATE.”

A lap belt restrained Mr. Cleveland during the head-on colli-

sion but, because Piper did not provide a complete rear pilot’s seat

shoulder harness, his head hit the camera mount installed where

the front seat had been. Ptn. App. 5a, 68a, 78a, 48a-50a n.2.

Mr. Mudd (a designated FAA airframe and powerplant inspec-

tor), not Mr. Cleveland, inspected the camera and its mount after

it was installed and Mr. Mudd, not Mr. Cleveland, was legally

responsible for overseeing and approving that substitution of the

camera and its mount for the front seat. Ptn. App. 4a, 46a; 14

C.F.R. §§ 43.3 & 43.5 (1982); contra Ptn. 2, 9 n.7.

Having encouraged both photography and rear seat solo flight,

Piper should have provided the inexpensive strapping required to

complete the rear pilot’s seat shoulder harness. Ptn. App. 48a. On

July 28, 1983, just fourteen days after this accident, Piper unilat-

erally, without any further approval from the FAA, issued a

3

Service Bulletin requiring all of its PA-18-150 aircraft built before

September 30, 1982 (including the accident aircraft) to be

retrofitted with rear pilot’s seat shoulder harnesses! Ptn. 11;

contra Ptn. 23.

Unanimous Affirmance Below

This is not a strict liability case. New Mexico law only permits

crashworthiness claims based on common law negligence. Ptn.

App. 56a n.7. This is not a joint liability case. New Mexico law

only permits imposition of several liability. Ptn. App. 54a.

Undercutting its current claims, Piper did not raise federal

preemption as an affirmative defense until after the first appeal.

Accord, Ptn. 13; Ptn. App. 3a, 31a.

Piper then moved for summary judgment on its federal pre-

emption defense. The district court, without ruling on the admis-

sibility of Piper’s affidavits (Ptn. App. 32a), unequivocally denied

Piper’s motion based on both controlling law and Piper’s failure to

show that no triable issues of material fact remained to be tried.

Ptn. App. 29a-40a. “The issue of whether Piper violated any

federal standard here appears to be an unresolved question of

fact.” Ptn. App. 37a; contra Ptn. 22-25. The Court of Appeals’

panel (including Senior Circuit Judges from both the Tenth and

the Eighth Circuits) unanimously affirmed. Ptn. App. 2a-25a.

When Piper petitioned for rehearing and suggested rehearing in

banc, the Court of Appeals unanimously rejected Piper’s request.

Ptn. App. 28a.

REASONS FOR DENYING THE PETITION

The petition should be denied because it does not present the

“special and important reasons” for review required by S. Ct.

R. 10 (1990). “This case arises from a bizarre set of facts.” Ptn.

App. 46a; Ptn. 2. No conflict exists between the Tenth Circuit

and any other circuit or any state court of last resort or this Court.

The question presented does not otherwise warrant review.

4

I.

MORALES V. TRANS WORLD AIRLINES, INC., THIS

COURT’S MOST RECENT CASE CONCERNING “THE

FEDERAL REGULATORY SCHEME IN QUESTION,”

SUPPORTS THE UNANIMOUS AFFIRMANCE BELOW.

In the area of preemption, “‘each case turns on the peculiarities

and special features of the federal regulatory scheme in question.”

City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624,

638 (1973). The Federal Aviation Act, 49 U.S.C. App. § 1301 et

seq. (1958, as amended), contains only one provision entitled

“federal preemption,” 49 U.S.C. App. §1305 (1978, as

amended). Piper does not claim otherwise. Ptn. 15; Ptn. App.

10a, 31a-32a. |

Last Term, in Morales v. Trans World Airlines, Inc., 119

L.Ed.2d 157, 163 (1992), this Court considered whether the

amendment to the Federal Aviation Act of 1958 which added

49 U.S.C. App. § 1305, the Airline Deregulation Act of 1978,

“pre-empts the States from prohibiting allegedly deceptive airline

fare advertisements through enforcement of their general con-

sumer protection statutes.” This Court held “that the fare adver-

tising provisions of the NAAG guidelines are pre-empted by the

ADA.” Morales, 119 L.Ed.2d 172. In so doing, this Court

considered the plain meaning of 49 U.S.C. App. § 1305 (1978, as

amended) and Congress’ intent in enacting it.

“Section 1305(a)(1) expressly pre-empts the States from ‘en-

act[ing] or enforc[ing] any law, rule, regulation, standard or

other provision having the force and effect of law relating to rates,

routes, or services of any air carrier ... {provid[ing] air trans-

portation}.’”” Morales, 119 L.Ed.2d 167 ({ } added). Piper is

an aircraft manufacturer and Mr. Cleveland is a general aviation

aircraft pilot and accident victim; neither one is an “air carrier...

provid[ing] air transportation” as defined by 49 U.S.C.

§ 1301(3)&(10) (1958). No matter how broad the phrase “relat-

ing to” may be, Mr. Cleveland’s action against Piper seeking

compensatory damages based on products liability negligence

theories under state law is not “relat[ed] to rates, routes, or

services of any air carrier ... provid[ing] air transportation.”

5

Congress enacted 49 U.S.C. § 1305 “[t]o ensure that the

States would not undo federal deregulation with regulation of

their own...” (Morales, 119 L.Ed.2d 164) thereby giving air

carriers the freedom to choose which routes to fly, what fares to

charge, and what services to offer. Permitting Mr. Cleveland’s

action for compensatory damages against Piper to proceed based

on state law negligence theories implicates none of those

concerns.

Moreover, no other conflict exists between this federal statute

and compensatory damages awarded under state law. The Federal

Aviation Act of 1958 contains no provision permitting any federal

agency to compensate aircraft accident victims. Pinehurst Air-

lines, Inc. v. Resort Air Services, Inc., 476 F. Supp. 543, 548-549

(M.D.N.C. 1979); 49 U.S.C. App. § 1482(c) (1980). To date,

the federal courts have repeatedly refused to imply one. Kodish v.

United Airlines, Inc., 628 F.2d 1301 (10th Cir. 1980); McCord v.

Dixie Aviation Corp., 450 F.2d 1129, 1131 (10th Cir. 1971); Ptn.

App. 8a, 35a. Piper is trying to do in this Court what it could not

do in Congress — eliminate all compensation for general aviation

aircraft accident victims.

I.

CIPOLLONE V. LIGGETT GROUP, A CASE DEFINING

THE SCOPE OF EXPRESS PREEMPTION OF STATE

TORT ACTIONS IN ANOTHER HIGHLY REGULATED

AREA, ALSO SUPPORTS THE UNANIMOUS AFFIRM-

ANCE BELOW.

Last Term in Cipollone v. Liggett Group, Inc., 120 L.Ed.2d

407, 423 (1992) this Court stated: “Congress’ enactment of a

provision defining the pre-emptive reach of a statute implies that

matters beyond that reach are not pre-empted.” Accord, Cipol-

lone, 120 L.Ed.2d 433. As this Court stated in Morales, 119

L.Ed.2d 171: “In concluding that the NAAG fare advertising

guidelines are pre-empted, we do not ... set out on a road that

leads to pre-emption of state laws against gambling and prostitu-

tion as applied to airlines.” As this Court further stated after

citing state obscenity laws: “‘ ‘[t]he present litigation plainly does

6

not present a borderline question and we express no views about

where it would be appropriate to draw the line.’”’ Morales, 119

L.Ed.2d 172.

“Consideration of issues arising under the Supremacy Clause

‘start[s] with the assumption that the historic police powers of

the States [are] not to be superseded by... Federal Act unless

that [is] the clear and manifest purpose of Congress.’ Cipol-

lone, 120 L.Ed.2d 422 (1992) quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947). Moreover, the Federal Aviation

Act of 1958 contains a savings clause, 49 U.S.C. App. § 1506

(1958) (“remedies not exclusive”), which this Court described

as “a relic of the...no pre-emption regime.” Morales, 119

L.Ed.2d 168; contra Ptn. 20. Not being superseded by the specific

federal pre-emption provision, its plain meaning is also pertinent.

“While federal regulation of air travel is extensive, it is not

exclusive. Quite the contrary, federal law specifically pre-

serves legal remedies for air travelers beyond those set forth

in the Federal Aviation Act. ... the statutory scheme estab-

lished by the Federal Aviation Act is designed merely to

compliment existing statutory and common law remedies,

not to supplant them.”

Brunwasser v. Trans World Airlines, Inc., 541 F. Supp. 1338,

1345 (W.D. Pa. 1982). Thus, “the doctrine of federal pre-

emption of aviation law does not generally extend to tort liability.”

Alaska Airlines, Inc. v. Sweat, 568 P.2d 916, 927 (Alaska 1977).

State law has always governed aviation accidents.

A.F. Lowenfeld, Aviation Law (2d ed. 1981) § 1.31; contra Ptn.

18, 19, 19 n.19. “None of this was inevitable. Compensation for

aviation accidents, could, for instance, have been governed by

federal law, as are virtually all other aspects of commercial

aviation in the United States.” A.F. Lowenfeld, Aviation Law

(2d ed. 1981) § 1.31 at pp. 6-7. Congress, however, chose to

retain state tort law compensation for aviation accidents. 49

U.S.C. App. § 1506 (1958).

A manufacturer’s common law liability for the design and

manufacture of its product dates back to 1916. MacPherson v.

Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916); contra

ee

5

Ptn. 19 n.19. Federal and state courts have always permitted

plaintiffs to pursue property damage, personal injury, and wrong-

ful death actions based on products liability theories as against

aircraft manufacturers. See, e.g., Restatement of Torts §§ 388,

394, 395 & 398 (1934); Sebo v. United Air Lines, Inc., 10 F.R.D.

327 (S.D.N.Y. 1950); Vrooman v. Beech Aircraft Corp., 183 F.2d

479 (l0th Cir. 1950); Smith v. Piper Aircraft Corp., 4 CCH Avi.

17,771 (1955); Prasker v. Beech Aircraft Corp., 258 F.2d 602 (3d

Cir.), cert. denied, 358 U.S. 910 (1958). See, also, cases cited in

Annot., “Liability of Manufacturer or Seller for Injury Caused by

Automobile or Other Vehicle, Aircraft, Boat, or Their Parts,

Supplies or Equipment,” 78 A.L.R.2d 460-588 (1961) §§ 36 &

37 at pp. 561-566; Annot., “Products Liability: Personal Injury or

Death Allegedly Caused by Defect in Aircraft or Its Parts,

Supplies, or Equipment,” 97 A.L.R.3d 627-677 (1980 & Supp.);

cases cited at Ptn. App. 7a. Thus, Piper’s preemption argument

constitutes radical tort reform abolishing existing state common

law tort compensation for aircraft accident victims, a result

contrary to Congress’ stated intent.

Ii.

NO REVIEWABLE CONFLICT EXISTS; ALL CIRCUITS

CONSIDERING THE ISSUE AFTER MORALES ARE

AGREED THAT STATE COMPENSATION EXISTS.

Since Morales, all federal circuits considering the issue have

uniformly held that aircraft manufacturers may be held liable to

aircraft accident victims for compensatory damages awarded

based on state products liability laws. In addition to the Tenth

Circuit Opinion at issue (Ptn. App. 2a-25a), in Public Health

Trust v. Lake Aircraft, Inc., 992 F.2d 291, 294-295 (11th Cir.

1993) the Eleventh Circuit held that the Federal Aviation Act of

1958 does not pre-empt state common law compensation of

aircraft accident victims. See, also, Sunbird Air Services, Inc. v.

Beech Aircraft Corp., 789 F. Supp. 360 (D. Kan. 1992) (aircraft

owners’ class action against aircraft manufacturer based on defec-

tive design of aircraft component). In West v. Northwest Airlines,

Inc., 1993 U.S. App. LEXIS 12997 (9th Cir. June 3, 1993), on

dissimilar facts, the Ninth Circuit also held that an airline

8

passenger bumped from a scheduled airline flight because the air

carrier overbooked the flight could sue the air carrier for breach-

ing Montana’s covenant of good faith and fair dealing.

Contrary to Piper’s position, minimum federal design safety

standards and state common law victim compensation are not

mutually exclusive. As explained in Steven Shavell, Economic

Analysis of Accident Law (Harv. U. Press 1987) at 285-286

(boldface added):

“Joint use of approaches. ... For example,... ... joint use

of regulation and liability will be advantageous. Specifically,

it will be desirable for parties to satisfy minimal safety

standards and also to face possible liability. Insisting on

minimal safety standards — those that the authority can be

reasonably confident are needed...despite its imperfect

information — will ensure that at least certain precautions

will be taken even by parties who, because their assets are

low, would not be led to meet the standards by the threat of

liability. On the other hand, the threat of liability will induce

parties whose assets are not low to take additional precau-

tions that they, but not the regulator, recognize will reduce

ee

Having permitted federal regulators to repose expertise and en-

forcement in the aircraft manufacturers via the delegation option,

14 C.F.R. 21.231 et seq. (see, United States v. S.A. Empresa de

Viaco Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 816-

817 (1984)), Congress chose to retain state tort liability to

compensate aircraft accident victims. 49 U.S.C. App. § 1506.

9

CONCLUSION

For these reasons, the petition should be denied.

Respectfully submitted,

Daniel C. Cathcart

Counsel of Record

Deborah Mitzenmacher

MAGANA, CATHCART &

McCARTHY

1801 Avenue of the Stars

Suite 810

Los Angeles, California

90067-5899

(310) 553-6630

Co-Counsel

William G, Gilstrap

WILLIAM G. GILSTRAP, P.C.

P.O. Drawer H

Albuquerque, New Mexico 87103

(505) 842-8600

Attorneys for Respondent

July 30, 1993

APPENDIX

SORES EME SE TO eS See Ve eee an ae

APPENDIX

“TITLE 49 APPENDIX — TRANSPORTATION

CHAPTER 20 — FEDERAL AVIATION PROGRAM

SUBCHAPTER I — GENERAL PROVISIONS

§ 1305 Federal preemption

(a) Preemption

(1) Except as provided in paragraph (2) of this subsec-

tion, no State political subdivision thereof and no interstate

agency or other political agency of two or more States shall

enact or enforce any law, rule, regulation, standard, or other

provision having the force and effect of law relating to rates,

routes, or services of any air carrier having authority under

subchapter IV of this chapter to provide air transportation.”

49 U.S.C. App. § 1305(a) (1) (1984).

“TITLE 49 APPENDIX — TRANSPORTATION

CHAPTER 20 — FEDERAL AVIATION PROGRAM

SUBCHAPTER XI — MISCELLANEOUS

§ 1506 Remedies not exclusive

“Nothing contained in this chapter shall in any way abridge

or alter the remedies now existing at common law or by

statute, but the provisions of this chapter are in addition to

such remedies.”

49 U.S.C. App. § 1506 (1958).