United States: Sikkelee Round Two: Federal Aviation Law Vs. State Tort Law Rematch

In Short

The Situation: The Third Circuit decided Sikkelee II, a closely watched case involving preemption in the aviation context.

The Outcome: A divided Third Circuit held, 2–1, that federal aviation law did not "conflict preempt" state tort claims asserting aircraft design defects. To the majority, the facts suggested the manufacturer was aware of the purported issue and discussed it with the Federal Aviation Administration ("FAA") but did not seek FAA approval to address it. The dissent reasoned (correctly in our view) that since manufacturers cannot alter engine designs without FAA approval, impossibility preemption rightly applied.

Looking Ahead: Despite Sikkelee II, aircraft manufacturers should still assert conflict-preemption defenses in future litigation because: (i) Sikkelee II is narrow and fact-based and does not create a categorical rule; (ii) other circuits have not definitively addressed conflict preemption in aviation cases; and (iii) the decision did not address "obstacle" conflict preemption.

In April 2016, the Third Circuit  shifted the landscape of aviation law by holding, in Sikkelee v. Precision Airmotive Corp., 14-4193 (Sikkelee I), that federal aviation law does not occupy the field of aircraft design, leaving room for state tort liability. Sikkelee I, however, left important questions unanswered: What happens when state tort law conflicts with federal aviation law, thereby creating a "conflict preemption" situation? Must conflicting state law yield to federal law under conflict-preemption principles?

On October 25, 2018, the Third Circuit addressed these questions in the highly anticipated Sikkelee II, 17-3006. In a split 2–1 decision, the court held that federal aviation law, under unique facts presented on summary judgment, did not conflict preempt state tort claims alleging aircraft design defects. While not the result for which manufacturers advocated, Sikkelee II is a narrow, fact-based decision leaving ample room for future preemption defenses.


David Sikkelee perished in 2005 when his Cessna 172N airplane crashed. His spouse sued numerous defendants, bringing Pennsylvania tort claims alleging design defects in the Cessna's carburetor. While defendants initially obtained summary judgment on their field-preemption defense, Sikkelee I reversed, allowing the plaintiff's claims to proceed using state standards of care, subject to traditional principles of conflict preemption.

The defendants took this cue on remand, moving for summary judgment on "impossibility" conflict-preemption grounds. They argued that since they needed FAA approval to alter the engine's type certificate and design, compliance with both federal and state law was impossible. They won summary judgment again, and the plaintiff appealed.

The Decision

The Third Circuit reversed in Sikkelee II, ruling 2–1 that defendants were not entitled to summary judgment on impossibility-preemption grounds. Significantly, the majority acknowledged the manufacturer could not alter the engine's type certificate and carburetor design without FAA approval. The majority, however, then concluded the manufacturer was "not stuck with the design initially adopted and approved" by the FAA. Maj. Op. 23.

To the majority, the summary judgment record—viewed in the plaintiff's favor—suggested the manufacturer: (i) received approval for prior type-certificate amendments, and (ii) repeatedly communicated with the FAA about purported carburetor issues in the field, but (iii) did not seek FAA approval to amend the type certificate to address those purported issues. Given its view of these distinct facts, the majority concluded that compliance with both federal and state law was not "impossible."

The dissent would have applied impossibility preemption, correctly in our view. It explained that the Supreme Court—in its decisions in Wyeth, PLIVA, and Bartlett—created a bright-line rule that, "when federal regulations prohibit a manufacturer from altering its product without prior agency approval, state-law claims imposing a duty to make a different, safer product are preempted." Dissent 6. In the aviation context, the dissent explained, manufacturers undisputedly cannot make design changes without FAA approval, meaning conflict preemption rightly applied. This analysis is sound.


While Sikkelee II's dissent correctly adheres to Supreme Court precedent, the majority's opinion does not hinder the aviation industry. First, it was a narrow, fact-based decision dependent on the unique circumstances presented in the summary judgment context. The majority did not create a categorical rule that federal aviation law never conflict preempts state tort law under "impossibility" principles.

Rather, the majority held only that, where the facts purportedly suggested manufacturer inaction despite communication with the FAA about an alleged design defect, impossibility preemption did not apply. This means that where an alleged defect is unknown, or where the FAA rejected or declined to act on a requested design alteration, Sikkelee II does not govern, and impossibility preemption could apply.

Second, while the Third Circuit declined to apply impossibility preemption on the unique facts presented, impossibility preemption still remains viable in a broader range of cases outside the Third Circuit. Sikkelee II's persuasive dissent should guide the analysis in other courts. Particularly given the strong interest in a uniform, national approach to aviation safety, a decision splitting with Sikkelee II could attract the Supreme Court's attention, resulting in a final resolution of this issue, even though the Court previously declined to review Sikkelee I's rejection of field preemption. AVCO Corp. v. Sikkelee, 16-323.

Finally, Sikkelee II addressed only impossibility preemption, not "obstacle" preemption, where "compliance with [federal and state law] is possible, but state law poses an obstacle to the full achievement of federal purposes." Maj. Op. 15 & n.7. Manufacturers should therefore continue to press obstacle-preemption defenses in future litigation, particularly since that defense has been recognized in the aviation-safety context. Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973).

Three Key Takeaways

  1. In Sikkelee II, a divided Third Circuit held, 2-1 and in light of unique facts presented on summary judgment, that federal aviation law did not conflict preempt state tort claims alleging aircraft design defects.
  2. The majority reasoned that since the summary judgment record, viewed in the plaintiff's favor, allegedly suggested the manufacturer was aware of and discussed a purported defect with the FAA, but did not seek FAA approval to amend the type certificate to address the alleged issue, "impossibility" preemption did not apply.
  3. Conflict preemption, however, should still be asserted in future aviation litigation. Sikkelee II is a narrow, fact-based decision leaving room for impossibility- and obstacle-preemption defenses in subsequent cases, both within and outside the Third Circuit. Sikkelee II's well-reasoned dissent supports this view.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions