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Volume XI, Issue 1 (February 2011)

Second Department Affirms Summary Judgment for Charter Carrier, Adds Finding of Preemption

As reported in a previous firm newsletter, Alimonti Law Offices, P.C. won summary judgment when the Suffolk County Supreme Court Judge held in June, 2009, that the Plaintiff failed to prove a prima facie case of negligence in his alleged trip and fall. On January 25, 2011, the Appellate Division, Second Department affirmed the summary judgment decision. See Pellechia v. Partner Aviation Enters., Inc., 2011 NY Slip Op 00496 (Jan. 25, 2011).

As a quick reminder of the case facts, Plaintiff alleged that the chartered aircraft’s stairs on which he fell were dangerous, defective, unsteady, and defectively designed. The Supreme Court held that with the maintenance records and the deposition testimony of the defendant’s Director of Maintenance, the defendant had proved that it had maintained the aircraft stairs in a reasonably safe condition and that it neither created nor had notice of the alleged dangerous condition. With regards to Plaintiff’s proffered “expert”, the Supreme Court stated that his opinions failed to establish any question of fact as he lacked the requisite “expert” qualifications.

Interestingly, in affirming summary judgment for the defendant, the Second Department agreed with the lack of Plaintiff’s expert’s qualifications, but added several other bases, including a ruling that Plaintiff’s claims of the inadequacy of the defendant’s disembarking procedures and services were preempted by federal law. The Court noted that it was irrelevant that the preemption argument was not raised by the defendant until its Reply Papers since subject-matter jurisdiction can be raised at any time. Although not addressed by either Court, this argument was, in our view proper on reply because it responded directly to Plaintiff’s opposition arguments. (For an interesting twist on pre-emption in an aviation case, see the article below— “Preemption in Aviation Products Cases?”).

The Second Department similarly rejected Plaintiff’s expert’s affidavit, though for different reasons. The Court pointed out that Plaintiff not only failed to identify the expert witness in compliance with CPLR 3101, but also he had only provided the affidavit in response to the Motion for Summary Judgment and after Plaintiff had certified the case as trial ready. Even if the Court had ignored the untimely disclosure issue, the Second Department stated that the expert’s opinion was inadmissible as improperly speculative, conclusory, and not based on industry standards.
Pellechia v. Partner Aviation Enters., Inc., 2011 NY Slip Op 00496 (Jan. 25, 2011).
Preemption in Aviation Products Case

Generally, if you ask an attorney familiar with the issue what type of aviation facts and cases will result in preemption by the Airline Deregulation Act (the “ADA”), the answer will generally deal with the realm of airline services such as the amount or frequency of food or beverages offered during a particular flight. It could be something more complex, such as an airline’s policies as to how long its passengers can sit on the ramp during a ground delay, but the frame of reference will almost certainly be an airline case.

Preemption is rarely applied in aviation products liability cases. But recently, the federal court in the Middle District of Pennsylvania in Sikkelee v. Precision Airmotive Corporation, 2010 WL 3199934 (M.D.Pa.2010), did just that. In Sikkelee, the aircraft piloted by plaintiff’s husband lost power and crashed, allegedly as a result of an engine fuel delivery system malfunction or defect. The 1976 Cessna had been overhauled just a year earlier and at that time, a rebuilt carburetor had been installed. Plaintiff individually, and as the personal representative of her husband’s estate, brought a products liability action against the manufacturers of the engine and carburetor. She alleged that the crash occurred because the defendants knowingly concealed numerous problems with the carburetor’s screws and locking mechanisms, and they failed to meet industry standards by failing to warn of these problems.

Based on the pleadings alone, the defendants moved for summary judgment, arguing that Plaintiff’s claims were preempted by the Airline Deregulation Act (“ADA”), and that Congress had intended for the ADA to preempt the entire field of aviation safety. As Plaintiff’s allegations did not include a violation of any federal standard of care, defendants argued that her state-law claims must be dismissed. The Pennsylvania District Court analyzed the controlling statutory and case law, and ultimately agreed with the defendants.

In reaching this decision, the Pennsylvania District Court reaffirmed the third circuit’s primary holding in Abdullah v. American Airlines, 181 F.3d 363 (3d Cir.1999), that federal law preempted the entire field of aviation safety. In so deciding, the court in Abdullah said that claims dealing with “in-air” safety are preempted, noting specifically that regulations adopted pursuant to the FAA which concern aspects of safety associated with flight, such as certifications and airworthiness requirements for aircraft parts, are encompassed by the preempted field of “in-air” safety. Therefore, the Court in Sikkelee interpreted the Abdullah holding to “strongly, and perhaps explicitly” suggest that the manufacture of aircraft parts falls into the category of “in-air safety” and are thus solely subject to federal standards of care. Based on Abdullah, the Pennsylvania District Court dismissed all of Plaintiff’s state law claims as preempted.

In reaching its conclusion, the Court cited not a single product liability case and seemingly took the “Airline” out of the Airline Deregulation Act. Nonetheless, it will be interesting to monitor the courts for further developments in this area.

In addition to granting the defendants’ motions, the Court authorized Plaintiff to file an amended complaint to properly assert her claims under the appropriate federal standards. On August 31, 2010 Plaintiff filed her amended complaint, and the defendants subsequently responded with another round of Motions to Dismiss/Strike Plaintiff’s Amended Complaint. Although these motions appear to be fully briefed as of January 12, 2011, the Court has not yet issued its decision.

Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir.1999).
Sikkelee v. Precision Airmotive Corporation, 2010 WL 3199934 (M.D.Pa.2010)
On The Slopes—An Ethics Presentation

On January 27, 2011 Rick Alimonti had the honor of presenting his paper entitled “Conquer Ethical Moguls and Icy Black Diamonds: Ethical Issues Utilizing an Aviation Disaster Hypothetical” at the 2011 ABA Environmental, Mass Torts and Products Liability Litigation Committees’ Joint CLE Seminar. Held in Aspen, Colorado, the three day seminar presented the hottest issues and latest developments in environmental, mass torts and products liability litigation.

For those of you unable to attend, Rick’s interactive presentation and Power Point challenged a panel of three lawyers and the audience to various ethical questions. The hypothetical questions stemmed from a simulated aviation disaster and were presented in the context of oft familiar lawyer-client scenarios. A lawyer from each of the Environmental, Mass Torts and Products Liability Committees made up the panel, and the audience participated vigorously as well. The ethical rules highlighted by Rick’s presentation included:
Rule1.2—Lawyer Shall Abide Client’s Decisions;

Rule 1.6—Confidentiality of Information;

Rule 1.7—Conflicts of Interest—Existing Clients;

Rule 3.1—Non-Meritorious Claims and Contentions; and

Rule 3.4—Fairness to Opposing Party and Counsel.
In-house and trial counsel, experts and the judiciary alike addressed these ethical issues in a spirited scholarly debate. To everyone’s enjoyment at the ABA conference, the participants to Rick’s presentation often had conflicting opinions as to what the lawyer should or should not do in reaction to a particular scenario. But as is often the case with ethical dilemmas, the obvious answer is not always the ethically correct one nor is there is always only one right answer.

Many of ALO’s ethics materials can be found in the “Presentations” section of www.alony.com.

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