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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 908

## Text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1095%3A3. Public record. Not legal advice.