THE CURRENT STATUS OF THE FEDERAL AVIATION ACT S IMMUNITY PROVISION FOUND IN SECTION 44112: A CASE STUDY OF VREELAND V. FERRER

Transcription

1 THE CURRENT STATUS OF THE FEDERAL AVIATION ACT S IMMUNITY PROVISION FOUND IN SECTION 44112: A CASE STUDY OF VREELAND V. FERRER Lea Pilar Valdivia 1 Podhurst & Orseck, P.A. Miami, Florida On July 18, 2011, the Florida Supreme Court issued its opinion in Vreeland v. Ferrer. 2 Before the Vreeland Court was the issue of whether the Federal Aviation Act s immunity provision preempted state law claims of strict vicarious liability asserted under Florida s dangerous instrumentality doctrine. The immunity provision had previously been used to shield airplane owners and lessors from tort liability when they lacked actual possession or control of their aircraft. Florida s Supreme Court, in examining the congressional intent of 49 U.S.C , rejected this position. In so doing, the court rejected the view that preemption in this area should be construed broadly, and instead limited preemption to that contemplated by the statute s plain language: damage done on land or water only. 3 Section of the Federal Aviation Act imparts liability on a lessor, owner, or secured party... for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine or propeller is in the actual possession or control of the lessor, owner, or secured party. 4 Florida s dangerous instrumentality doctrine, however, provides for strict vicarious liability of an aircraft owner specifically when he or she is neither in physical possession nor control of the aircraft and another person negligently operates it. 5 Thus, a dichotomy existed between the federal statute and the state common law doctrine, and the court had the task of deciding which provision controlled and to what extent. In Vreeland, a wrongful death action, the estate of passenger Jose Martinez brought suit following the crash of the private airplane. 6 Personal representative John Vreeland sued, among others, aircraft owner, Aerolease of America, Inc. Vreeland based his claims in part on Florida s dangerous instrumentality doctrine, which makes an owner of an aircraft (a dangerous instrument under Florida law) vicariously liable for a pilot s negligent operation of the aircraft. 7 Aerolease moved for summary judgment on the grounds that section preempted the state-law remedy found under Florida s dangerous instrumentality doctrine. It argued that it was shielded from vicarious liability for the pilot s negligent operation of the aircraft because it was not in control of the accident aircraft. 8 The trial court granted Aerolease s motion for summary judgment on this basis. 9 On appeal to Florida s Second District Court of Appeals, Vreeland argued that the trial court was incorrect in granting Aerolease s Motion for Summary Judgment because the

2 C-2 AVIATION LITIGATION 2012 immunity provision was not enacted to preempt state laws such as Florida s dangerous instrumentality doctrine. 10 Rather, according to Vreeland, the immunity provision made clear that federal law had not created an independent cause of action for vicarious liability. Aerolease argued the statute was enacted to specifically preempt such state law causes of action like that arising under Florida s dangerous instrumentality doctrine. 11 The appellate court found that the few decisions addressing the preemptive effect of section were fractured; it therefore relied heavily on the congressional record to interpret legislative intent. 12 Ultimately, the Second District Court agreed with the trial court s decision. 13 The Supreme Court of Florida accepted jurisdiction to resolve the conflict that the district court had created with its decision in Orefice v. Albert, in which the Florida Supreme Court found the dangerous instrumentality doctrine to apply to aircraft. 14 On appeal to the Florida Supreme Court, Vreeland argued that the appellate court failed to give full effect to the statute s long history and plain language. 15 In his brief, Vreeland first detailed the history of Florida s dangerous instrumentality doctrine which, ultimately, imposes strict liability on the owner of an aircraft for its negligent operation, whether [the owner] is in possession or control of it at the time or not. 16 He proceeded to detail the origin and history of the statute now known as section of the Federal Aviation Act. 17 Vreeland pointed out that section finds its roots in the Civil Aeronautics Act of In the Act s early years, aviation accident victims used it to argue that there was federally created vicarious liability over an aircraft owner for the aircraft s negligent operation. 19 In response, ten years later, Congress added a limitation of liability provision to the Aeronautics Act. 20 This was the birth of liability limitation found in the current section In passing the original provision, Congress articulated that it was doing so for two reasons. 22 First, the statute was to make clear that there was no federally created vicariously liability. 23 Second, the statute aimed to specifically address several states adoption of section 5 of the Uniform Aeronautics Act, which made aircraft owners absolutely liable for damage on the surface of the earth caused by the operation of aircraft within the state. 24 Vreeland directed the Court to the very next provision of the Uniform Aeronautics Act. That provision addressed the liability of an aircraft owner to passengers in the aircraft (as opposed to damage to persons or property on the ground). 25 Because this section was left intact when Congress enacted the limitation on liability provision, Vreeland argued that Congress clearly did not intend to prohibit states from providing financial responsibility remedies against aircraft owners to passenger victims of negligently caused aircraft accidents. 26 ABA-CLE

3 The Current Status of the Federal Aviation Act s Immunity Provision Found In Section C-3 In response, Aerolease argued that the limitation on liability served the exact purpose adopted by the district court: to absolve owners and lessors from vicarious liability under state law whenever the aircraft was not under his or her control. 27 Aerolease argued that the interpretation of the statute promoted by Vreeland called for the absurd result of restricting persons on the ground injured by an aircraft from bringing a claim against a non-controlling owner of an aircraft whereas persons aboard the accident aircraft would still have any state-law tort remedies available to them. 28 The Florida Supreme Court determined that the Federal Aviation Act did in fact preempt state law under the doctrine of implied preemption. 29 The court, however, adopted a narrow interpretation of that preemption. 30 Specifically, Florida s Supreme Court found that the courts which had analyzed the immunity provision and concluded that it preempted all state-law causes of action against aircraft owners did not give full effect to the plain language of the statute. 31 Because the current statute stemmed from the immunity provision found within the Civil Aeronautics Act which was enacted to absolve non-controlling owners from absolute liability for injuries and damage on the surface of the earth (whether on land or water), the Court found that to ignore the words on land or water within was to effectively write them out of the statute s history. 32 Because Martinez, for whose estate Vreeland was acting as personal representative, was not on the ground or the water at the time of the accident, and instead was passenger on the aircraft, the Florida Supreme Court found that section did not immunize Aerolease for liability under Florida s dangerous instrumentality doctrine. 33 In his dissent, Justice Polston agreed with Aerolease and argued that the federal law preempts Florida s dangerous instrumentality doctrine. 34 He further agreed with Aerolease in arguing that the majority s conclusion that the federal statute did not preempt did not apply because Martinez was a passenger on the aircraft as opposed to someone on the ground or water defies reality. 35 While the Vreeland decision serves to clarify the preemptive effect of the Federal Aviation Act s immunity provision on Florida law, it will no doubt serve as a guidepost for other courts to follow. Absent an act of Congress, the statute will likely only provide a liability shield to owners and lessors of aircraft when the impacted party was on the land or water. The implications of this interpretation of the statue to aircraft owners or lessors when considering liability to passengers aboard their aircraft even when it is outside of his or her control is plain. Lea Pilar Valdivia

4 C-4 AVIATION LITIGATION 2012 ENDNOTES 1. Lea P. Valdivia is an associate at the Miami-based law firm of Podhurst Orseck, P.A. She is a summa cum laude graduate from the University of Miami School of Law. Lea s practice includes personal injury, wrongful death, and product liability cases with a focus on aviation litigation. Lea is a member of the Florida bar. 2. Vreeland v. Ferrer, --- So.3d ---, No.SC10-694, 2011 WL (Fla. July 8, 2011); see 49 U.S.C Vreeland, 2011 WL at * U.S.C Florida s dangerous instrumentality doctrine was first articulated almost a century ago in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441 (1920): The principles of common law do not permit the owner of an instrumentality that is not dangerous per se, but is particularly dangerous in its operation, to authorize another, to use such instrumentality... without imposing on such owner liability for negligent use. 6. Vreeland v. Ferrer, 28 So.3d 906 (Fla. 2d DCA 2010); Vreeland, 2011 WL at *1. 7. Vreeland, 28 So.2d at 908; Vreeland, 2011 WL at *1. 8. Before the accident, Aerolease leased the subject aircraft to Mr. Danny Ferrer for one year. On the day of the accident, Donald Palas, who was accompanied by his passenger, Jose Martinez, piloted the aircraft. Both were killed in the crash WL at *1. In petitioning the trial court for reconsideration on its order granting Aerolease s summary judgment, Vreeland argued that Aerolease was in fact in possession and control of the aircraft. This, however, was not subject of his appeal. Id. 9. Vreeland, 28 So.3d at Id. 11. Id. 12. There are only a handful of cases that have squarely addressed the preemptive effect of section and its predecessors. In support of his brief, Vreeland cited to several cases: Storie v. ABA-CLE

5 The Current Status of the Federal Aviation Act s Immunity Provision Found In Section C-5 Southfield Leasing Inc., 90 Mich. App. 612, 282 N.W.2d 417 (1979) (finding that the federal immunity provision did not preempt the Michigan statute providing for liability against an owner where the injury occurred aboard the aircraft rather than on the surface of the Earth); Retzler v. Pratt & Whitney Co., 309 Ill. App.3d 906 (1999) (find that the immunity provision did not preempt a personal injury action brought under Illinois bailment law against the lessor of an aircraft); and, Coleman v. Windham, 2005 WL (finding that the federal statute did not preempt the state law of Rhode Island or Connecticut, both of which impose vicarious liability on aircraft owners for negligent operation by authorized operators). Whereas Aerolease cited to several cases to support its argument: Matei v. Cessna Aircraft Co., 35 F.3d 1142 (7th Cir. 1994) (finding that an aircraft lessor was not liable under either the federal aviation act or under the common law of bailment in Illinois); and, Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d 1389 (5th Cir. 1970)(finding that the limitation on liability provision did not preempt state law and serve to create a federal cause of action where one did not exist under Oklahoma state law). The Florida Supreme Court seemed to easily distinguish the cases cited by Aerolease and found that Storie, cited by Vreeland, was well-reasoned and led to the correct result WL at * Vreeland, 28 So.3d at Vreeland, 2011 WL at * Brief for Petitioner, Vreeland v. Aerolease of America, Inc., 2011 WL (Jul. 8, 2011) (No. SC10-694), 2010 WL at * Id. at * Id. at * Id. at * Id. 20. Id. 21. Id. at 11. Section 504 of the Civil Aeronautics Act is where the limitation on liability provision first appeared in In 1958, it was codified at 49 U.S.C as part of the newly enacted Federal Aviation Act. Congress then recodified the Federal Aviation Act without substantive change and section 1404 became section Lea Pilar Valdivia

6 C-6 AVIATION LITIGATION Pet. Br., 2010 WL at *13 14; see H.R. Rep , 1948 U.S.C.C.A.N. 1836, 1948 WL Pet. Br., 2010 WL at * Id. 25. Id. at * Id. 27. Answer Brief of Respondent, Vreeland v. Aerolease of America, Inc., 2011 WL (Jul. 8, 2011) (No. SC10-694), 2010 WL at * Id. at * Vreeland, 2011 WL at *11 & Id. at *7 31. Id. at * Id. at * Id. at * Id. at * Id. ABA-CLE