Opinion
No. CV 07-5011701S
December 27, 2007
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS #103 AND #105
FACTS
The plaintiff, Scott Diana, alleges the following facts in his amended complaint. On or about May 13, 2005, Diana was at Hartford Brainard Airport in Hartford, Connecticut, for a flight lesson when he was struck and injured by the wing of an aircraft while walking with his flight instructor. The aircraft was operated by two airmen employed by defendant NetJets Services, Inc., and or defendant NetJets Aviation, Inc., (collectively, NetJets). Subsequently, Diana's instructor filed an incident report, which included the tail number of the aircraft which struck Diana, and delivered it by hand to defendant Atlantic Aviation Flight Services, Inc., and/or defendant Brainard Airport Services, Inc.
The amended complaint refers to the two airmen as John Doe 1 and John Doe 2 defendants. However, they are neither listed as defendants on the summons nor does the complaint contain any separate count of negligence against them.
NetJets Services, Inc., and NetJets Aviation, Inc., are named as separate defendants in Diana's complaint. Both NetJets Services and NetJets Aviation are based at the same address in Farmington, CT, and both are represented by the same counsel.
The third count of the amended complaint claims intentional spoliation of evidence against Atlantic Aviation Flight Services, Inc., aka Brainard Airport Services, Inc. The fourth count of the amended complaint claims intentional spoliation of evidence against Brainard Airport Services, Inc., dba Atlantic Aviation. They will be referred to collectively as "Atlantic" or "Atlantic" defendants.
On May 22, 2007, Diana commenced the present action against NetJets, Atlantic, and Midwest Air Traffic Control Services, Inc. (Midwest).
Diana's four-count amended complaint includes claims of negligence against NetJets and Midwest. Midwest filed a motion on July 18 to dismiss the second count of the complaint alleging negligence as to Midwest, on the ground that federal law preempts the claim. On August 10, NetJets filed a motion to dismiss the first count of the complaint claiming negligence as to NetJets, on the same ground. Diana filed an objection on September 27. This matter was heard at short calendar on October 1.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citation omitted; internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004).
Federal preemption implicates the court's subject matter jurisdiction. Lawton v. Weiner, 91 Conn.App. 698, 714, 882 A.2d 151 (2005); Cox Cable Advisory Council v. Dept. of Public Utility Control, 259 Conn. 56, 62, 788 A.2d 29, cert. denied, 537 U.S. 819, 123 S.Ct. 95, 154 L.Ed.2d 25 (2002). "The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution . . . Determining whether Congress has exercised its power to preempt state law is a question of legislative intent . . . [A]bsent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law . . . or where the state law at issue conflicts with federal law, either because it is impossible to comply with both . . . or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives." (Internal quotation marks omitted.) Barbieri v. United Technologies Corp., 255 Conn. 708, 717, 771 A.2d 915 (2001).
The defendants move to dismiss the negligence claims on the ground that this court does not possess subject matter jurisdiction because the claims are preempted by the Federal Aviation Act and the Airline Deregulation Act. Specifically, they argue that the doctrine of implied field preemption applies by virtue of the fact that Congress found the creation of a single, uniform system of regulation vital to increasing air safety. In response, Diana argues that his negligence claims are not preempted because there is no express preemption of negligence claims.
Federal aviation law preemption of common law claims
"The Federal Aviation Act (FAA) was passed in 1958 for the purpose of centralizing in a single authority — indeed, in one administrator — the power to frame rules for the safe and efficient use of the nation's airspace." (Internal quotation marks omitted.) Aldana v. Air East Airways, Inc., 477 F.Sup.2d 489, 490 (D.Conn. 2007). "To that end, the FAA empowered the Federal Aviation Agency to issue rules and regulations promoting safety in civil air commerce." Id. The FAA includes a "saving clause" (Savings Clause), that preserves common law and statutory remedies. Id.
The savings Clause, 49 U.S.C. App. § 1506 (1994), provides in relevant part: "Nothing . . . in this chapter shall in any way abridge or alter the remedies now existing at common laws or by statute, but the provisions of this chapter are in addition to such remedies." See also 49 U.S.C. § 40120 (2005), which provides in relevant part: "(c) Additional Remedies. — A remedy under this part is in addition to any other remedies provided by law."
The FAA has been amended by other legislation, including the 1978 Airline Deregulation Act (ADA), 49 U.S.C. § 41713. Congress enacted the ADA to dismantle pervasive federal economic regulation of the interstate airline industry and included an express preemption clause (Preemption Clause) to "prevent the states from frustrating the goals of federal deregulation by establishing or maintaining economic regulation of their own." (Internal quotation marks omitted.) Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir. 1995). The Preemption Clause prohibits states from "enact[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." The ADA does not alter or repeal the FAA's Saving Clause. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 379, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).
49 U.S.C. § 41713 (2005), provides in relevant part: "(b) Preemption — (1) Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart." An earlier version, 49 U. S.C. App. § 1305(a)(1) (1994), used the plural — "rates, routes, or services."
Since the ADA' s enactment, the courts have been divided over the interrelationship between the ADA's Preemption Clause and Congress' retention of the Savings Clause with respect to state claims. Somes v. United Airlines, Inc., 33 F.Sup.2d 78, 81 (D.Mass. 1999). The United States Supreme Court has addressed the interplay between the Savings Clause and preemption twice since passage of the ADA. In Morales v. Trans World Airlines, Inc., supra, 504 U.S. 374, the Court addressed the question of what falls within the ambit of the Preemption Clause. "[T]he key phrase, obviously, is `relating to.' The ordinary meaning of these words is a broad one — `to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with,' Black's Law Dictionary 1158 (5th ed. 1979) — and the words thus express a broad preemptive purpose." Morales v. Trans World Airlines, Inc., supra, 504 U.S. 383. Nevertheless, "some state actions may affect airline fares in too tenuous, remote, or peripheral a manner to have preemptive effect." (Internal quotation marks omitted.) Id., 390.
The Supreme Court did contemplate the FAA's preemptive effect prior to passage of the ADA in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), in which it held that the FAA and the Noise Control Act preempted a city ordinance forbidding take-offs and landings during certain hours because "fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of FAA in controlling air traffic flow." Id., 639. "It is the pervasive nature of the scheme of federal regulation of aircraft noise that leads us to conclude that there is pre-emption . . . Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls." (Citation omitted; internal quotation mark omitted.) Id., 633 — 34. When looking to this case for precedent, however, one should note that it was decided prior to the ADA's passage and involved the FAA working in conjunction with the Environmental Protection Agency to establish noise control standards for airports, and keep in mind the Court's own admonishment: "Our prior cases on pre-emption are not precise guidelines in the present controversy, for each case turns on the peculiarities and special features of the federal regulatory scheme in question." Id., 638.
Three years later, in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), the Court held that state court remedies for breach of contract remained available, despite preemption of state law, when the parties had agreed to the contract terms. In a footnote, it observed that "49 U.S.C. App. § 1371(q)(1) requires an air carrier to have insurance, in an amount prescribed by the [Department of Transportation], to cover claims for personal injuries and property losses `resulting from the operation or maintenance of aircraft'" and that appellant American Airlines acknowledged that "`safety claims,' for example, a negligence claim arising out of a plane crash, `would generally not be preempted.'" Id., 231 n. 7.
Since Wolens, the Supreme Court has neither ruled on the FAA and preemption of common law claims, nor specifically addressed whether common law negligence claims survive preemption. The circuits are split on the latter. See Aldana v. Air East Airways, Inc., supra, 477 F.Sup.2d 491. Generally, courts have taken one of two approaches. Some examine whether the tortious behavior at issue relates to "rates, routes, and services" and thus should be preempted under the express preemption clause. Others maintain that common law negligence claims are preempted to some degree according to the doctrine of implied field preemption.
The Fifth Circuit, for instance, has relied on express preemption by the Preemption Clause. Consequently, it has held that the ADA does not preempt state tort actions resulting from the operation of an aircraft. See Hodges v. Delta Airlines, Inc., supra, 44 F.3d 340. To reach this conclusion, the Fifth Circuit had to define what exactly falls under the rubric of "service." "Services," it concluded, "generally represent a bargained-for or anticipated provision of labor from one party to another. If the element of bargain or agreement is incorporated in our understanding of services, it leads to a concern with the contractual arrangement between the airline and the user of the service. Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself . . . It is these [contractual] features of air transportation that we believe Congress intended to de-regulate as `services' and broadly to protect from state regulation." (Citation omitted; internal quotation marks omitted.) Furthermore, "[a] facile analogy to Morales . . . could suggest that `services' includes all aspects of the air carrier's `utility' to its customers, hence, any state tort claim may `relate to' services as a result of its indirect regulatory impact on the airline's practices. Taken to its logical extreme, this argument would suggest that a lawsuit following a fatal airplane crash could relate to `services.'" Id., 337. As evidence that it was not the intent of Congress to preempt all state claims for personal injury, the court highlighted 49 U.S.C. App. § 1371(q) (1994), which requires air carriers to be insured. Id., 338. "The importance of § 1371(q) cannot be understated, for it can only be understood to qualify the scope of `services' removed from state regulation . . . The `services' that the state may not regulate . . . are distinct from the `operation and maintenance of aircraft.'" Id., 338-39. "Thus, federal preemption of state laws, even certain common law actions `related to services' of an air carrier, does not displace state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft." Id., 336. The Tenth and Eleventh Circuits have adopted similar approaches.
This insurance clause, 49 U.S.C. App. § 1371(q) (1994) provides in relevant part: "Air carriers are required to maintain insurance or self-insurance . . . that covers `amounts for which . . . air carriers may become liable for bodily injuries to or the death of any person, or for loss of or damage to property of others, resulting from the operation or maintenance of aircraft . . ."
See also Lyn-lea Travel Corp. v. A.M. Airlines, Inc., 283 F.3d 282 (5th Cir. 2002); Smith v. America West Airlines, Inc., 44 F.3d 344, 347 (5th Cir. 1995) (plaintiff's claim that safety of their flight was jeopardized by the defendant airline permitting a visibly deranged man to board, could, if successful, affect the airline's ticket selling, training or security practices, but would not regulate the economic or contractual aspects of boarding, and thus would be "too tenuous, remote or peripheral" to be preempted). But see Witty v. Delta AirLines, Inc., 366 F.3d 380 (5th Cir. 2004) (state claim for failure to warn about dangers of deep vein thrombosis preempted because federal law exclusively provides the safety warnings airlines must give passengers; leg room claim preempted because leg room relates to the number of seats, which in turn relates to fares).
In Cleveland v. Piper Aircraft Corp., 985 F.2d 1438 (10th Cir. 1993), the Tenth Circuit decided that an injured pilot's negligent design lawsuit against an airplane manufacturer was not preempted by the FAA, relying on the FAA's "savings clause" as an indication that Congress intended to leave in place remedies then existing at common law or by statute, including tort liability for design defects, id., 1443-44, and that passage of the ADA preempting state regulation of air rates and routes suggests that it intended the FAA not to preempt common law claims." Id., 1447. In Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003), the Eleventh Circuit held that it does not serve the purposes of the ADA to preempt state law employment claims related to safety. "Safe operations . . . are a necessity for all airlines. Whether or not to conform to safety standards is not an option for airlines in choosing a mode of competition. For this reason, safety of an airline's operations would not appear to fall within the ambit of the ADA and its procompetition pre-emption clause . . . Although some safety-related claims may be tied to air carrier services, the very fact that they concern safety, standing alone, is insufficient to demonstrate this nexus." Id., 1260.
In contrast, the Third Circuit has looked to the doctrine of implied field preemption to address the question of whether state law tort claims are preempted by the FAA. In Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d. Cir. 1999), the Third Circuit concluded that while the FAA preempts air safety standards, it did not foreclose the state tort remedies available to in-flight passengers injured during severe turbulence. In reaching their decision, the Third Circuit looked to legislative intent.
The FAA was enacted in response to a series of fatal air crashes between civil and military aircraft operating under separate flight rules. Congress's purpose in enacting the FAA was to promote safety in aviation and thereby protect the lives of persons who travel by air, and the creation of a single, uniform system of regulation was vital to this end. Id., 368. "By enacting the FAA, Congress intended to rest sole responsibility for supervising the aviation industry with the federal government: `[A]viation is unique among transportation industries in its relation to the federal government — it is the only one whose operations are conducted almost wholly within federal jurisdiction, and are subject to little or no regulation by States or local authorities. Thus, the federal government bears virtually complete responsibility for the promotion and supervision of this industry in the public interest.' S.Rep. No. 1811, 85th Cong., 2d Sess. 5 (1958)." (Citations omitted; internal quotation marks omitted.) Id., 368.
"It follows from the evident intent of Congress that there be federal supervision of air safety and from the decisions in which courts have found federal preemption of discrete, safety-related matters, that federal law preempts the general field of aviation safety. Indeed, it would be illogical to conclude that, while federal law preempts state and territorial regulation of matters such as pilot licensing, it does not preempt regulations relating to the exercise of the specific skill for which licensing is necessary — pilots' operation of aircraft." Id., 371.
The Third Circuit emphasized that the FAA provides not only a host of specific regulations but a comprehensive standard of care to be exercised by pilots and flight crews, namely that "[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." 14 C.F.R. § 91.13(a). Id., 371.
14 C.F.R. § 91.13 provides: "Careless or reckless operation. (a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. (b) Aircraft operations other than for the purpose of air navigation. No person may operate an aircraft, other than for the purpose of air navigation, on any part of the surface of an airport used by aircraft for air commerce (including areas used by those aircraft for receiving or discharging persons or cargo), in a careless or reckless manner so as to endanger the life or property of another."
The Third Circuit concluded that because of the need for one, consistent means of regulating aviation safety, the standard applied in determining if there has been careless or reckless operation of an aircraft should be federal, and not state or territorial. Id., 371. Plaintiffs may, nevertheless, recover damages using state and territorial remedies. Id., 376. Numerous other courts have adopted the reasoning of Abdullah.
The sixth Circuit follows Abdullah's approach. See Greene v. B.F. Goodrich Avionics Systems, Inc., 409 F.3d 784, 795 (6th Cir. 2005). The Seventh Circuit, prior to Abdullah, adopted an approach similar to that the Third Circuit would take. In Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir. 1988), it held that the FAA does not expressly exempt state damages remedies, but federal law exclusively determines substantive rules. See also Montalvo v. Spirit Airlines, U.S. Circuit Court of Appeals, Docket No. 05 15640 (9th Cir. October 4, 2007); Aldana v. Air East Airways, Inc., supra, 477 F.Sup.2d 489; In re Air Crash at Lexington, Kentucky, 486 F.Sup.2d 640 (E.D.Ky. 2007); Curtin v. Port Authority of N.Y and N.J., 183 F.Sup.2d 664 (S.D.N.Y. 2002); Shay v. Flight C Helicopter Services, 822 A.2d 1 (Pa. 2003).
Other circuits have not taken a clear cut position. The Ninth Circuit originally followed a Hodges-like approach. Then, in Charas v. Trans World Airlines, 160 F.3d 1259 (9th Cir. 1999), it determined that Hodges' distinction between services and operations and maintenance was unworkable and held that tort claims were outside of preemption — the intent of Congress in passing the ADA being to avoid interference with economic deregulation. In a very recent case, however, the Ninth Circuit chose to follow Abdullah in a deep vein thrombosis class action and found that a failure-to-warn claim was preempted by pervasive federal air safety regulations. An accompanying leg room claim was remanded to determine whether it was expressly preempted as related to fares, routes, and services. Montalvo v. Spirit Airlines, U.S. Circuit Court of Appeals, supra.
See Gee v. Southwest Airlines, 110 F.3d 1400 (9th Cir. 1997).
See also Duncan v. Northwest, 208 F.3d 1112 (9th Cir. 2000), in which the Ninth Circuit reiterated its position. "In [ Charas], we provided a definitive interpretation of the term service: we concluded that Congress used the word service in the phrase rates, routes, or service in the ADA's preemption clause to refer to the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail . . . Accordingly, we interpreted the term service narrowly in order to prevent the preemption of virtually everything an airline does." (Citations omitted; internal quotation marks omitted.) Id., 1114.
The First Circuit has found that federal law preempts discrete aspects of air safety. See French v. Pan Am Express, 869 F.2d 1 (1st Cir. 1989) in which it found a state statute regulating employee drug-testing as applied to pilots to be preempted by the FAA because local restrictions on pilot qualification would render impossible the centralized control and uniformity of design desired by Congress. District courts within the First Circuit have also read the preemption clause, like the Ninth Circuit did in Charas, to be narrowly confined to economic regulation. See Alshrafi v. American Airlines, Inc., 321 F.Sup.2d 150 (D.Mass. 2004) (state claims for discrimination and intentional infliction of emotional distress are partially, not completely, preempted by the ADA); Somes v. United Airlines, Inc., 33 F.Sup.2d 78, 81 (D.Mass. 1999) (providing defibrillator was not a "service," as "service" refers to "such things as the frequency and scheduling of transportation, and to the selection of markets to or from which transportation is provided").
A federal district court sitting in Connecticut, faced with the question of federal preemption of state tort claims, found the issue unsettled in the Second Circuit. Aldana v. Air East Airways, Inc., supra, 477 F.Sup.2d 492-93. See, e.g., Shupert v. Continental Airlines, Inc., U.S. District Court, Docket No. 00 Civ. 2743 (S.D.N.Y. April 12, 2004) (followed Abdullah); Curtin v. Port Authority of N.Y and N.J., 183 F.Sup.2d 664, 671 (S.D.N.Y. 2002) (court applied a federal standard of care; found an injured passenger's negligence action arising from injuries sustained during an emergency evacuation to be preempted, and agreed "with the preemption analyses of the First and Third Circuits . . . that limiting the FAA preemption calculus to the ADA unduly circumscribes the examination"); Sakellaridis v. Polar Air Cargo, Inc., 104 F.Sup.2d 160 (E.D.N.Y. 2000) (held common law claims not preempted). After considering the disparate approaches to the preemption question, the court decided to focus upon the touchstone of Congressional intent. "After such consideration," the court found "the Abdullah approach persuasive and agrees that the FAA and its corresponding regulations, in prescribing a standard of care of the safety of airline travel, has created an `overarching general standard of care,' . . . but the plaintiffs may still seek state remedies for their injuries." (Internal quotation marks omitted.) Aldana v. Air East Airways, Inc., supra, 477 F.Sup.2d 492-93. This solution, the court asserted, was consistent with the Supreme Court's decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), which afforded state tort remedies to a plaintiff injured at a nuclear power plant despite the preemptive force of the Atomic Energy Act because Congress had failed to provide a federal remedy for a violation of federal regulations. Aldana v. Air East Airways, Inc., supra, 477 F.Sup.2d 493.
The sole Connecticut decision dealing with this question is a superior court decision. The plaintiff had alleged that the defendant had committed assault and battery after a flight attendant violently shoved the plaintiff into her seat during a flight. The court, considering whether the tort claim was preempted, followed the Hodges approach. "The claim before this court sounds in tort and asserts a harm for which remedies are provided by common law and statute. Neither the claim nor the available remedies relate to rates or to routes as defined by federal law. Nor is there an impact upon the `services' provided by the carrier other than, arguably, in some manner that is in fact `too tenuous, remote, or peripheral' to have preemptive effect." Sardinas v. American Airlines, Inc., Superior Court, judicial district of New Haven, Docket No. CV 93 0347267 (September 14, 1994, Gray, J.). (Holding that the case was not preempted by the ADA, denying the defendant's Motion for Summary Judgment.)
This court is persuaded by the reasoning and preemption analysis of Aldana and Abdullah. Taking this approach, as the defendants urge this court to do, recognizes the breadth of federal aviation regulations and the Congressional intent from which they came. It also spares this court the task of rationalizing whether or not taxiing on a runway is a "service" within the meaning of the Preemption Clause. In sum, the court finds that while the standard of care is preempted, the state remedy of a negligence claim is not.
"In the context of air crash litigation, some state courts have held that landing is an essential service, thus prohibiting courts from applying state law to claims arising from accidents that occurred during landing. E.g. Lesser v. Mark Travel Corp., 23 Av. Cas. P18, 419 (CCH) (S.D. Tex. 1992). Other courts have held that landing is not a `service' within the meaning of the ADA, allowing state law to govern the claim. E.g. Burke v. Northwest Airlines, Inc., 819 F.Sup. 1352 (E.D.Mich. 1993); see also Harrell v. Champlain Enter., Inc., 613 N.Y.S.2d 1002 (N.Y.App.Div. 1994)." S. Kelly, Comment, "Federalism in Flight: Preemption Doctrine and Air Crash Litigation," 28 Transp. L. J. 107, 110 n. 32 (2000). See also Hodges v. Delta Airlines, Inc., supra, 44 F.3d 338 (distinguishing services from operation and maintenance of an aircraft).
Diana's negligence claims
In the present case, Diana alleges that when he was on a grassy median, he was struck and injured by the wing of an aircraft which was taxiing. In his complaint, he characterizes the conduct of the airman operating the aircraft as negligent, careless and not reasonable. Specifically, he alleges that he was injured due to the "negligence and carelessness of the airmen," (Amended Complaint, Count 1, ¶ 9.); that the aircraft was neither in "reasonable control" ( id., ¶ 9 (c)), nor being operated at a "reasonable and prudent rate of speed" ( id., ¶ 9 (e)), and that the airmen "failed to operate the aircraft in a safe and reasonable fashion" ( id., ¶ 9 (j)). The negligence counts make no reference to any federal standard of care or regulation.
Diana also uses "negligence and carelessness" in Count 1, ¶¶ 10-13, and alleges "negligence and carelessness" on the part of Midwest in Count 2, ¶¶ 8-9.
In Aldana, the plaintiff alleged both common law negligence claims and negligence claims using a federal standard of care. The court dismissed those that did not reference the federal regulations. "As defendants note, plaintiffs' common law negligence claims basically track those articulated under FAA regulations. Thus, while the Court holds that common law negligence standards are preempted by the FAA, under the Act's `savings clause,' the plaintiffs' right to pursue their negligence claims (applying FAA standards) against defendants is not. Thus, if plaintiffs prove that defendants' negligent acts and omissions measured by FAA standards caused their injuries, then they will be entitled to pursue the breadth of common law remedies available under Connecticut law." Aldana v. Air East Airways, Inc., supra, 477 F.Sup.2d 493.
"In each of the 12 counts of `Negligence and Carelessness' the first half of the subparagraphs claim negligent conduct followed by reference to CFR Title 14 FAA regulation; many of the same subparagraphs are then repeated without citation, implying reliance on state common law." Aldana v. Air East Airways, Inc., supra, 477 F.Sup.2d 491. For example, "[a]llowed said airplane to be carelessly operated so as to endanger the life of the plaintiffs in violation of 14 CFR 39.7, 14 CFR 91.13(a) and 14 CFR 91.7(a)" versus "[a]llowed said airplane to be carelessly operated so as to endanger the life of the plaintiffs." Id., 491 n. 2.
Defendants would have this court dismiss as preempted Diana's negligence claims because Diana's complaint does not refer to a federal standard of care. This court, though, need not address whether Diana must explicitly plead a federal standard. The preemption of he standard of care does not remove this case from state jurisdiction. Rather, it compels the plaintiff to use the federal standard of care in his pleadings. Whether the plaintiff has used the right standard of care is outside the purview of a motion to dismiss. "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
But see Shay v. Flight C Helicopter Services, 822 A.2d 1(Pa. 2003), in which a Pennsylvania appellate court refused to give relief to defendants who argued that a trial court had erred by permitting a jury to determine the defendants' liability by applying a standard of care based on "industry custom," rather than the standard of care provided by federal regulations. "In addition to failing to set forth what the standard of care would be pursuant to [federal regulations], Defendants . . . fail to describe whether the standard of care applied in the instant case, based on industry custom, comports with the standard provided by the [federal regulations]. It is quite possible that the standards are not in conflict and application of the industry custom standard did not frustrate the objectives of the federal law. If this is the case, the court did not err by instructing the jury on the industry custom standard," Id. 16. See also Craig v. Driscoll, 262 Conn. 312, 341, 813 A.2d 1003 (2003). "Essentially, [defendants] contend that, because the plaintiffs use the same language to allege negligent and reckless conduct, the allegations are insufficient. We disagree. Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted . . . As set forth previously, the plaintiffs' complaint alleges conduct that constitutes an extreme departure from ordinary care in a situation that involves a high degree of danger." (Citation omitted.) Id., 343.
See, e.g., Bennett v. Southwest Airlines Co., 484 F.3d 907, 912 (7th Cir. 2007) ("[t]hat some standards of care used in tort litigation come from federal law does not make the tort claim one `arising under' federal law . . . No court of appeals has held . . . that the national regulation of many aspects of air travel means that a tort claim in the wake of a crash `arises under' federal law"); Bieneman v. City of Chicago, 864 F.2d 463, 471 (7th Cir. 1988) ("[s]tate courts award damages every day in air crash cases, notwithstanding that federal law preempts the regulation of safety in air travel"); In re Air Crash at Lexington, Kentucky, 486 F.Sup.2d 640 (E.D. Ky. 2007) ( Abdullah holds that state law remedies or causes of action remain available, despite ordinary preemption of the standard of care, and this holding precludes complete preemption in which both the standard of care and the state cause of action would be superceded); Smith v. Corum, U.S. District Court, Docket No. 6:06-133-DCR (E.D.Ky. June 2, 2006) ("[f]ederal courts have a general respect for a state court's ability to decide federal issues"); McCarty v. Precision Airmotive Corp., U.S. District Court, Docket No. 8:06-cv-1391-T-26TBM (M.D.Fla. September 14, 2006) ("[t]he fact that FAA rules and regulations may be relevant to defining the duty of care in a negligence case or the standard in a products liability case, however, does not elevate atypical state-law tort claim to one requiring resolution in a federal forum").
CONCLUSION
For the foregoing reason, the defendants' motions to dismiss are denied.
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