United States: California Court Of Appeals Finds Advisory Circulars Fail To Create Supremacy Clause Preemption

Last Updated: March 27 2012
Article by Don G. Rushing, Jessica R. Moore and Alan Owens

On March 20, 2012, the California Court of Appeal Second District held that nonmandatory safety standards issued by the FAA in Advisory Circulars do not preempt state tort law on the standard of care. Sierra Pacific Holdings, Inc. v. County of Ventura, 2d Civil No. B232307 (slip op.) (Cal. App. 2 Dist. Mar. 20, 2012). The court found that FAA Advisory Circulars are just that—advisory—and such nonmandatory federal standards are not federal "law" creating Supremacy Clause preemption.

The case arises from a suit by an aircraft owner against an airport for negligently creating a dangerous condition at the airport that resulted in damage to its aircraft. The district court found that the standard of care was governed by Advisory Circulars issued by the FAA. Because the allegedly dangerous condition created by a runway safe zone was in accordance with FAA-issued Advisory Circulars, the aircraft owner's negligence claim failed as a matter of law.

The California Court of Appeals reversed, analyzing the reasoning of the Second, Third, Sixth, and Tenth Circuits of the federal courts of appeal that state tort law on the standard of care is impliedly preempted by FAA standards because Congress intended to occupy the entire field of aviation safety through the Federal Aviation Act of 1958. See Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses Com'n, 634 F.3d 206 (2nd Cir. 2011); US Airways, Inc. v. O'Donnell, 627 F.3d 1318 (10th Cir. 2010); Green v. B.F. Goodrich Avionics Systems, Inc., 409 F.3d 784 (6th Cir. 2005); Abdullah v. American Airlines, Inc., 181 F.3d 363 (3rd Cir. 1999). The court admitted that because the Advisory Circular at issue implicates the field of aviation safety, it arguably would be preempted under the reasoning of these federal circuits.

Turning to the Ninth Circuit approach to implied preemption, the court analyzed whether there was "pervasive regulation" in the specific area covered by the tort claim. See Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806 (9th Cir. 2009). Under the Midwest approach, if the Advisory Circular's standards were incorporated into a mandatory FAA regulation with the force and effect of law, pervasive regulation would be shown and the standards arguably would preempt state tort law on the standard of care. However, Advisory Circulars are by definition not mandatory—by their very terms they are advisory. Because Advisory Circulars are guidelines, not rules, the court found that they cannot constitute paramount federal "law" subject to Supremacy Clause preemption.

The court was careful to note that such nonmandatory guidelines could still be informative of the standard of care, such as industry customs and practices. Compliance or noncompliance with such custom, though not conclusive on the issue of negligence, may assist the trier of fact to determine if the standard of care was met.

The Sierra Pacific Holdings opinion does not stray far from English common law roots. Under the English Law of negligence, the appropriate standard of care is determined by considering industry practice and regulatory standards. Neither is prescriptive, however, nor do they preempt the standard to be applied. And it is well established that conformity with common practice is prima facie evidence that the proper standard of care has been taken. Although not conclusive, generally speaking defendants will not be found negligent if they can show that they have acted in accordance with general and approved practice. While compliance with certification requirements also is not a complete answer to a claim in negligence, such requirements are properly taken into account in an overall evaluation of what is reasonably required. The more heavily regulated the activity, the more persuasive that evidence might be. The flying of aircraft, particularly those carrying fare-paying passengers, inevitably rates as one of the more heavily regulated activities. The nature of the regulatory requirements therefore carries considerable, but not decisive, weight in the evaluation of what is reasonably required of those engaged in the industry. See Lambson Aviation v. Embraer Empresa Brasiliera de Aeronautica SA & B.F. Goodrich Avionics Systems, [2001] All ER (D) 152 (Oct).

To view the Court's decision, click here.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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