Twenty-two years ago the Third Circuit held in Abdullah v. American Airlines that, in negligence actions relating to aviation safety, federal law preempts state law and provides the governing standard of care. This means that, in aviation accident cases in the Third Circuit, plaintiffs must plead and prove that the defendant violated at least one federal aviation regulation ("FAR") in order to pursue and prevail on a state law negligence claim. Although the Third Circuit in the Sikkelee cases has since held that the Abdullah rule does not apply to product liability and design defect claims against aircraft manufacturers, as illustrated by a recent opinion, trial courts in the Third Circuit continue to apply the Abdullah rule to negligence claims against operators.
In Rivlin v. Biomet, a flight encountered severe turbulence. The seatbelt sign was off at the time and the plaintiff was not wearing his seatbelt. The turbulence threw the plaintiff into the ceiling of the aircraft, where he struck his head and shoulder. The plaintiff brought a negligence claim against the company that operated the flight to recover for injuries he sustained during the encounter.
The defendant moved for summary judgment, arguing that the plaintiff had failed to adequately plead that the defendant violated any applicable FAR and, in any event, that plaintiff had failed to come forward with evidence that the defendant breached any such standard of care. Applying the Abdullah rule, the Court held that the plaintiff had to identify an FAR and then produce evidence that the defendant violated that regulation. Finding that the plaintiff had satisfied both requirements, the Court denied the defendant's motion for summary judgment.
First, the Court held that the plaintiff had identified three regulations that the defendants allegedly violated: 14 C.F.R. § 91.103, which requires pilots to familiarize themselves with all available information about a flight, including weather reports and forecasts (the "Weather FAR"); 14 C.F.R. § 91.519(a)(2), which requires pilots to brief passengers about the conditions under which they must fasten their seatbelts (the "Seatbelt FAR"); and 91.13(a), which prohibits anyone from operating an aircraft "in a areless or reckless manner so as to endanger the life or property of another" (the "Catch-All FAR").
Next, the Court held that the plaintiff had come forward with sufficient evidence to suggest that the defendant had violated each regulation. The plaintiff's expert opined that the pilot breached the Weather FAR by failing to review upper air wind charts. The plaintiff's expert also opined that the pilot, who had a weather report indicating moderate turbulence along the flight path, violated the Seatbelt FAR by failing to instruct passengers to keep their seatbelts fastened whenever possible. Finally, the undisputed fact that the pilot failed to warn passengers about possible turbulence and turned off the seatbelt sign even though he had weather information warning of possible turbulence suggested that the pilot operated the flight in a careless manner, thereby violating the Catch-All FAR.
Rivlin teaches that the Abdullah rule remains alive and well in the Third Circuit. Although plaintiffs may ultimately be able to get their claims to trial, operators should not shy away from insisting that plaintiffs plead and prove violations of specific FARs in aviation accident cases. Rivlin v. Biomet, 2021 U.S. Dist. LEXIS 154413 (E.D. Pa. Aug. 17, 2021).
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