Federal Preemption Is/Is Not The Answer!

During the last several days, we have seen the principle of federal preemption featured in not only the drone/UAS World, but in the more traditional world of aviation as well.

In the latter context, on April 19, the United States Court of Appeals for the Third Circuit ruled that federal law, does not preempt state law product liability claims. Sikkelee v. Precision Airmotive Corp. et al. In doing so, the Third Circuit snatched a victory away from Textron Lycoming which the District Court had given it when, in 2010, it dismissed the plaintiffs’ claims, finding that such claims, premised on state law, were preempted by federal law.

In another context, on the same day, by a vote of 95 to 3, the Senate passed its version of the Federal Aviation Administration Reauthorization Act of 2016, in which it, among other provisions, proposed that states cannot enact laws relating to the “design, manufacture, testing, licensing, registration, certification, operation, or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.”

While Plane-ly Spoken questions the necessity of such language, given the fact that we believe the Federal Aviation Administration has clearly preempted regulation of the navigable airspace and the airplanes which operate in it, including drones, the Sikkelee decision gives us pause since it appears that at least the Third Circuit believes that aviation product standards should be measured by state law and not the Federal Aviation Regulations.

Plane-ly Spoken believes the application of general state law principles of negligence and strict liability have a place in the context of aviation products, but not if the area has been spoken to by federal standards. The door which Sikkelee opens is one which will encourage plaintiffs to encourage courts and juries to “re-design” airplanes. That may be all well and good in the world of lawnmowers, chainsaws and even automobiles, but it has no place in the world of aviation, which is so pervasively regulated, monitored, surveilled and controlled by the Federal Aviation Administration. The FAA has to approve, through multiple levels of certification, every aircraft engine, airframe and most aviation/aircraft products, before they can occupy the navigable airspace.

Bottom-line . . . . . the Senate has it right and the Third Circuit has it wrong. Looks like a candidate for Supreme Court review, but that’s a subject for another day.