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

2 4993 No. 93-17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

PIPER AIRCRAFT CORPORATION,

7 Petitioner,

EDWARD CHARLES CLEVELAND,

by and through the Conservator of his

Estate, Kathleen Cleveland,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF OF THE AIRCRAFT OWNERS

AND PILOTS ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

JOHN S. YODICE

Counsel of Record

RICHARD K. KETLER

YODICE ASSOCIATES

500 E Street, S.W., Suite 930

Washington, D.C. 20024

(202) 863-1000

Counsel for Aircraft Owners

and Pilots Association

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-17

PIPER AIRCRAFT CORPORATION,

. Petitioner,

EDWARD CHARLES CLEVELAND,

by and through the Conservator of his

Estate, Kathleen Cleveland,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

Pursuant to Rule 37.2 of the Rules of the Supreme

Court of the United States, the Aircraft Owners and

Pilots Association (““AOPA”) applies for leave to file a

brief as amicus curiae in support of the petition for writ

of certiorari of Piper Aircraft Corporation (“Piper”).

The brief is attached. Petitioner Piper consents to the

filing of this amicus brief; Respondent Edward Charles

Cleveland (“Cleveland”) objects.

The Court is requested to entertain a federal question

of national significance that is of utmost importance to

owners and pilots of general aviation aircraft. The issue

is whether the Federal Aviation Act of 1958 and imple-

menting Federal Aviation Administration (“FAA”) Reg-

ulations, 14 C.F.R. §§ 23.1-23.1589 (1993), preempt

state common law tort claims seeking to impose liability

on an aircraft manufacturer for alleged defects in air-

craft design that fully satisfy FAA safety standards. The

U.S. Court of Appeals for the Tenth Circuit affirmed a

ruling of the U.S. District Court for the District of New

Mexico that federal preemption does not exist. The Cir-

cuit Court’s decision effectively permits a jury to change

or supplement federal aircraft design and safety standards

with different local requirements. AOPA respectfully sub-

mits that the ruling below reflects an erroneous interpreta-

tion of congressional intent underlying the Federal Avia-

tion Act and a misapplication of the relevant decisions of

the United States Supreme Court.

If allowed to stand, this ruling could have a most dele-

terious impact on the general aviation industry of this

country, which already has been devastated in recent years

by mounting costs of product liability litigation and

awards. At stake is the very viability of the general avia-

tion industry of the United States and the continuing

availability of general aviation aircraft, parts, and prod-

ucts at reasonable cost to civil pilots and aircraft owners.

In view of such compelling national interests, Petitioner

Piper submits an important question of federal law that

clearly should be resolved by this Court. The views of

AOPA, the largest organization of general aviation con-

sumers in the world, are particularly relevant and should

assist the Court in assessing the significance of the issues

presented.

AOPA is a nationwide, non-profit membership associ-

ation comprised of over 310,000 individual aircraft owners

and pilots engaged in the non-carrier segment of aviation

known as “general aviation.” AOPA’s members own

approximately 60% of all active general aviation aircraft

registered in the United States, and they account for

more than two-thirds of the hours flown in the nation’s

airspace system.

AOPA has consistently espoused the position that if

AOPA members are injured as a result of defective avia-

tion products, they are entitled to just compensation and

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a fair and efficient system of adjudication. In recent

years, however, AOPA members have seen the avail-

ability of new general aviation aircraft drastically reduced

and prices greatly increased as a result of the explosion

in aircraft manufacturer product liability costs resulting

from an increasingly unpredictable and inefficient system.

The present case highlights that trend.

The Piper Cub is one of general aviation’s most ven-

erable aircraft. Its design has been certified and approved

by the FAA, and its safety established through a 50-year

history of safe flying by AOPA members and others. The

Court should grant the petition for certiorari to resolve

finally this issue of paramount importance to the entire

aviation community—consumers, manufacturers, and the

FAA—whether federal regulation in the field of aircraft

design and safety preempis state action to impose differ-

ent standards. A finding of federal preemption would

not affect the availability of common law remedies in

many types of aircraft product liability cases, including

those involving defects or deficiencies in the manufactur-

ing process, failure to warn consumers of subsequently

discovered potentially hazardous conditions, or failure to

conform to federal standards.

For the foregoing reasons, AOPA moves for leave

to file the attached brief urging that the Court grant

certiorari.

Respectfully submitted,

JOHN S. YODICE

Counsel of Record

RICHARD K. KETLER

YODICE ASSOCIATES

500 E Street, S.W., Suite 930

Washington, D.C. 20024

(202) 863-1000

Counsel for Aircraft Owners

Dated: July 28, 1993 and Pilots Association

QUESTION PRESENTED

Whether the Federal Aviation Act of 1958 and Fed-

eral Aviation Administration (“FAA”) Regulations there-

under, which prescribe safety standards for aircraft de-

sign, preempt state common-law tort claims that seek to

impose liability on aircraft manufacturers for utilizing

aircraft designs determined by the FAA to be safe and

in full compliance with all applicable federal aircraft

standards.

(i)

TABLE OF CONTENTS

Page

TABiss OF AUTHORITIC. .—....................... iii

STATEMENT OF INTEREST AND SUMMARY OF

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TABLE OF AUTHORITIES

STATUTES AND REGULATIONS:

49 U.S.C. App. §§ 1801-1557 (1988 & 1991 Supp.).. 2

14 C.F .R. pts. 21 & 28 (1998) .0.......ccccccccoceossee.--........ 2

14 C.F.R. §§ 23.49(a), (b) (1) (2) (1998)... 8

14 C.F.R. § 23.887 (a) (1) (1998) .......0.........-......- 8

LEGISLATIVE MATERIALS:

Hearings on S. 640, General Aviation Accident

Liability Standards Act, Before the Senate

Comm. on the Judiciary, 101st Cong., 2nd Sess.

bE RR ev nee RE ee 6

(iii)

In THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-17

PIPER AIRCRAFT CORPORATION,

Petitioner,

v.

EDWARD CHARLES CLEVELAND,

by and through the Conservator of his

Estate, Kathleen Cleveland,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE AIRCRAFT OWNERS

AND PILOTS ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

The Aircraft Owners and Pilots Association (“AOPA”)

respectfully submits this brief as amicus curiae in support

of the petition for certiorari filed by Piper Aircraft Cor-

poration (“Piper”). AOPA urges the Court to review the

decision below in order to determine that the product

liability claims of Respondent Edward Charles Cleveland

(“Cleveland”), based on alleged failure of the manu-

facturer to exceed federal design and safety requirements,

are preempted by paramount federal law and regulations

establishing aircraft design and safety standards.

2

STATEMENT OF INTEREST

AND SUMMARY OF POSITION

Pursuant to comprehensive and detailed regulations, 14

C.F.R. pts. 21 & 23 (1993), the FAA approved and cer-

tified as safe the tailwheel, tandem-seat design of the 1970

single-engine Piper Super Cub aircraft involved in this

case. Respondent Cleveland, while piloting the airplane

during acceleration for takeoff, collided with a van de-

liberately parked on the runway by a third party. The

rear seat of Cleveland’s airplane, from which seat it was

being piloted, was equipped with a lap belt as specified by

federal regulations. A shoulder harness for the rear seat,

however, was not required. The decision to install a rear

shoulder harness was a matter of owner discretion. Re-

spondent received extensive head injuries in the collision.

Notwithstanding FAA approval of the design and crash-

worthiness of Cleveland’s Super Cub, a jury found that

Petitioner Piper was negligent under New Mexico com-

mon law for utilizing the tailwheel, tandem-seat design

and for not installing a rear seat shoulder harness. The

Court of Appeals for the Tenth Circuit reversed and or-

dered a new trial for reasons not material to the instant

petition. On remand, the U.S. District Court for the Dis-

trict of New Mexico denied Piper’s motion for summary

judgment on grounds that the Federal Aviation Act of

1958, 49 U.S.C. App. §§ 1301-1557 (1988 & 1991

Supp.), and implementing FAA regulations preempt the

field of aircraft design and safety standards. The Court

of Appeals affirmed.

Petitioner Piper asserts that Cleveland’s common law

claims, which essentially invite a lay jury to supplement

the airplane’s design requirements, are preempted by fed-

eral regulation and certification of aircraft design and

safety. AOPA fully supports Piper’s position. AOPA also —

urges the Court to invite the submission of briefs from the

General Aviation Manufacturers Association and the

FAA, both of which filed amicus briefs below, so that

the Court may have before it the views of all parties en-

3

gaged in this country in the manufacture, regulation, and

operation of general aviation airplanes of the type in-

volved in the present case (i.e., small single or multi-

engine aircraft not used in scheduled airline or military

operations). AOPA desires the Court to consider the

\ views of the broad spectrum of general aviation consum-

ers who, while not affected by the immediate pecuniary

outcome of the present case, are vitally concerned with

aviation safety, the continued availability of reasonably-

priced general aviation aircraft and products, and the

roles of federal and state governments with regard to air-

craft design and certification.

AOPA is the largest organization of general aviation

consumers in the world. It is a nationwide, non-profit

membership association of over 310,000 individual air-

craft owners and pilots. AOPA’s members own approxi-

mately 60% of the active general aviation aircraft in the

United States and account for about 70% of the hours

flown in the nation’s airspace. Thousands of AOPA’s

members own or fly Piper Cubs and similar tailwheel

aircraft.

A consumers’ organization like AOPA ordinarily might

be expected to favor expansive product liability protection

and thus oppose federal preemption of common law tort

claims. AOPA maintains that if its members are injured

by defective aviation products, they are entitled to just

compensation. In recent years, however, the availability

of new general aviation aircraft has been reduced severely

as a result of the explosion in aircraft manufacturer prod-

uct liability costs resulting from an increasingly unpre-

dictable and inefficient system of adjudication. Similarly,

I the costs of aircraft repair parts and products have dras-

tically increased. In order to continue flying, AOPA

[ members must have access not only to safe, but reason-

ably priced, aviation products.

The basic design of the Piper Cub is not new. The gen-

eral safety and airworthiness of the airplane has been

7

established, by thousands of AOPA members and others,

over a period of some 50 years. In the circumstances of

this case, we urge the Court to rule that a state common

law product liability claim, based on the alleged failure

of a manufacturer to exceed federal requirements, is pre-

empted by federal law in the field of aircraft design and

Safety.

ARGUMENT

This brief is not intended to restate Petitioner’s

thorough analysis (with which AOPA is in accord) of the

decision of the Court of Appeals below. Rather, AOPA

wishes to emphasize the concerns of general aviation own-

ers and pilots implicated by the outcome of this case and

constituting the special and important reasons of national

importance that warrant a granting of certiorari by this

Court.

Expansive and indiscriminate application of product

liability law threatens to destroy the general aviation in-

dustry and deprive AOPA members of competitive prod-

uct sources. Without question, aviation consumers are

entitled to reasonable compensation for losses resulting

from defective or negligently manufactured products.

And, a finding of federal preemption in this case would

not deprive them of a common law tort remedy in many

types of aircraft product liability cases, such as involving

defects or deficiencies in the manufacturing process, fail-

ure to warn consumers of subsequently discovered po-

tentially hazardous conditions, or failure to conform to

federal standards.

The instant case, however, involves no claim that Re-

spondent Cleveland’s Super Cub was defective or neg-

ligently constructed. Cleveland alleges rather that the

manufacturer was negligent for failing to foresee a design

requirement exceeding federal standards that potentially

could have made the aircraft safer to operate under the

circumstances resulting in this particular accident. AOPA

5

is concerned that should the lower courts’ decisions be

allowed to stand, juries throughout the nation will, in

effect, undertake the ad hoc redesign of aircraft, previ-

ously certified by the federal expert agency, to meet what-

ever supplemental standards might be suggested in hind-

sight based on the peculiar facts of a given accident.

Aircraft design involves a complex interrelation of

aerodynamic considerations of strength, weight, shape,

maneuverability, and other factors. One aspect of air-

craft design cannot be altered without compensatory

changes to other design characteristics. Any aircraft can

conceivably be made “safer” through alterations, for ex-

ample, in size, shape, structural configuration, or material

composition. Any such changes must be offset, however,

by modifications in engine size, weight, cargo capacity,

and fuel consumption. Permitting juries to engage in air-

craft redesign thus destroys the intended utility of a given

airplane and negates the purpose for which it was manu-

factured and purchased. Moreover, a change to any one

aspect of an airplane’s design necessitates a complete re-

assessment and recertification by the FAA of the aircraft

as a whole.

For these reasons, the Federal Government, as ac-

knowledged by the state legislatures, has occupied the

field. See Petition for Certiorari at 5, n.4. Supplemental

jury-imposed design and safety standards pose great po-

tential for conflict with the comprehensive federal air-

craft certification system.

The absence of a definitive pronouncement by this

Court on the federal preemption question presented in

the instant petition has impacted most adversely on the

availability in this country of reasonably-priced general

aviation airplanes and aircraft products. Statistics cur-

rently available reflect a 90% decline in production of

new general aviation aircraft during the 1980s, with only

1,535 airplanes manufactured in 1989 as compared to

17,000 in 1979. During the same period, which also

6

witnessed a steadily improving aircraft safety record,

U.S. aircraft manufacturer expenses for product liability

judgments, settlements, and defense soared from $24 mil-

lion to $210 million annually. In substantial part due

to this liability crisis, for instance, Cessna Aircraft Cor-

poration, the second largest aircraft manufacturer in the

United States and previously the world’s leading supplier

of piston-powered general aviation aircraft, ceased pro-

duction of piston-powered airplanes in 1986. Hearings

on §. 640, General Aviation Accident Liability Standards

Act, Before the Senate Comm. on the Judiciary, 10\1st

Cong., 2nd Sess., at 3 & 46 (Mar. 9, 1990) (statements

of Sen. Kassebaum and Robert Martin).

AOPA believes this severe decline in general aviation

aircraft production and the drastic increase in cost of

airplanes and aircraft products has been caused in large

measure by the huge expense of litigating product lia-

bility claims, along with the unpredictability and incon-

sistency of common law judgments from state to state,

arising from the lack of a definitive ruling on the issue

of federal preemption in the field of aircraft design and

safety standards. Despite the best efforts of airplane

designers, manufacturers, mechanics and pilots, the in-

herent dangers associated with aviation can never be

eliminated entirely. It is difficult to envision how any

general aircraft manufacturer could long remain in busi-

ness if required to anticipate jury design requirements,

possibly conflicting from state to state, different from

federal certification standards.

The courts below ruled that federal regulation does

not preempt state action in the field if the state require-

ments merely supplement federal criteria by imposing

Stricter standards. The lower courts believed that local

supplementation would not conflict with federal regula-

tion since a manufacturer arguably could comply both

with state common law standards and federal regulations

by following the more stringent of the two. Resolution of

”

the issue of federal preemption, particularly when it in-

volves matters of such vital national concern as aviation

safety and the continued existence of the U.S. general

aviation industry, should not rest on such speculation.

Manufacturers cannot reasonably predict what supple-

mental jury standards might conceivably be applied from

time to time on an ad hoc basis. An intolerable burden

is imposed on manufacturers to require that they specu-

late, on pain of substantial litigation costs and multi-

million dollar judgments, as to the supplemental stand-

ards a jury may devise in light of the unique circum-

stances of a specific accident. Additionally, as Petitioner

persuasively explains, an aircraft manufacturer is pro-

hibited by federal regulation from modifying the design

or safety features of its existing aircraft without FAA

approval and owner compliance. Petition for Certiorari

at 23. State common law design and safety requirements

thus come into actual conflict with the FAA aircraft

certification process. If allowed to stand, the ruling below

will unfairly subject manufacturers to enormous liability

for constantly evolving safety deficiencies, as perceived by

juries, which manufacturers are severely constrained to

correct.

Congressional intent to occupy the field clearly is im-

plied from the essential requirement for national uniform-

ity in aircraft design and safety standards. The patch-

work of state jury awards facilitated by the ruling below

will greatly burden, if not end, interstate commerce in

the manufacture and sale of general aviation aircraft.

The Federal Aviation Regualtions abound with design

and safety standards developed over many years that

could, in effect, be invalidated under the supplementation

rationale of the courts below. The airworthiness of entire

makes of aircraft could thus be called into question.

An aircraft in flight, for example, is subject to severe.

structural stress resulting from abrupt maneuvering or tur-

bulence. Unless properly “stressed,” an airplane’s wings

literally may be pulled off in a sharp climb. To protect

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against structural failure, federal regulations provide that

an airplane in the “normal” category, such as Respond-

ent’s Super Cub, will not be certified unless it is demon-

strated to be capable of withstanding centrifugal forces

of up to 3.8 times the aircraft’s loaded weight (expressed

as gravity or “g” forces). 14 C.F.R. § 23.337(a) (1)

(1993). Also, the speed at which an aircraft “stalls,”

or literally stops flying (as a result, generally speaking,

of too little air flowing over the wing to provide “lift’’),

specified by the FAA as a condition of certification of a

single-engine airplane in the landing configuration is not

more than 61 knots per hour. 14 C.F.R. § 23.49(a),

(b)(1)(2) (1993). Should a jury be permitted to de-

cree that an aircraft manufacturer could have exceeded

these standards by designing a “safer” airplane capable

of withstanding, for instance, 5 “g’s’ or having a stall

speed of 50 knots, chaos would exist in the aviation

industry and among the owners of general aviation air-

craft.

8

The narrow federal preemption ruling sought in the

present case would not implicate many types of common

law product liability claims involving aircraft certified by

the FAA as safe and crashworthy. The only issue here

is disposition of a claim based on an alleged failure to

supplement or exceed federal design requirements. Com-

mon law claims would proceed in cases involving, among

others, alleged failure of a manufacturer to comply with

federal safety requirements, defects or deficiencies in the

manufacturing process, or failure to warn consumers of

known or subsequently discovered defects. Where, how-

ever, a manufacturer has met and fully complied with

federal requirements, the manufacturer should not be

compelled to anticipate the design and safety standards

a jury in one or more of the 50 states may decide to

require in the aftermath of a given accident. Otherwise,

the nation will witness the continuing decline in avail-

ability of reasonably affordable general aviation products

and aircraft. Hundreds of thousands of general aviation

9

pilots and enthusiasts may be forced to limit or curtail

the pursuit of their avocation. Moreover, financial rip-

ples will be felt throughout the industry—impacting most

adversely on suppliers of general aviation products, fuel,

and services; aircraft mechanics; charter pilots; emer-

gency services providers; flight instructors; and untold

others whose livelihoods depend on a robust general avia-

tion industry in this country.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

JOHN S. YODICE

Counsel of Record

RICHARD K. KETLER

YODICE ASSOCIATES

500 E Street, S.W., Suite 930

Washington, D.C. 20024

(202) 863-1000

Counsel for Aircraft Owners

Dated: July 28, 1993 and Pilots Association