In a feat of gymnastics not seen since Nadia Comăneci scored perfect 10’s at the 1976 Summer Olympic games, the Florida Supreme Court engaged in astounding legal gymnastics when it further diluted liability protections given passive aircraft owners and financiers under 42 U.S.C. §441121. In its July 2011 opinion issued in Vreeland v. Ferrer, the court found that a state law claim brought against an aircraft lessor under Florida’s “dangerous instrumentality” doctrine for the death of the leased aircraft’s passenger was not preempted by 42 U.S.C. §44112 because the passenger was killed while in the plane and not while on the ground beneath the plane.
The Warm-Up: The aircraft, leased by Ferrer from Aerolease, crashed after take-off killing the pilot and his passenger, Jose Martinez. Vreeland, as administrator of the passenger’s estate, contended among other things that Aerolease, as owner of the aircraft, was liable for the pilot’s negligence in the operation and inspection of the aircraft.
Under Florida’s “dangerous instrumentality” doctrine, the owner or lessor of an aircraft can be found to be vicariously liable for the negligent conduct of a pilot. However, both the trial court and court of appeals concluded that the plain language of 42 U.S.C. §44112 preempted the state law claim against Aerolease because Aerolease was not in actual possession or control of the aircraft when it crashed. Aerolease was therefore shielded from liability under Florida law. After examining the legislative history of 42 U.S.C. §44112, the court of appeals concluded that Congress intended to shield owners and financiers from liability when their aircraft was not under their control2. The Florida Supreme Court overturned this decision finding that the state law claim was not preempted by 42 U.S.C. §44112.
The Balance Beam: In reviewing the case the court first considered the longstanding history of Florida’s “dangerous instrumentality” doctrine which imposes liability on the owner of a motor vehicle for the negligence of the operator. As a result, the claimant need not prove negligent entrustment because the negligence of the operator is simply imputed to the owner as a matter of law. The Florida Supreme Court decided in 1970 that an aircraft was a “dangerous instrumentality,” items, “which by nature are reasonably certain to place life and limb in peril when negligently constructed, such as airplanes, automobiles, guns and the like.”3
The Uneven Bars: For Aerolease to be shielded from liability, the “dangerous instrumentality” doctrine must be preempted by U.S. federal law. Federal preemption arises from the Supremacy Clause of the U.S. Constitution4 which has been interpreted to provide that state laws are preempted to the extent they conflict with any federal law. Where a federal law does not expressly preempt state law, preemption may be inferred only where it is reasonable to infer that Congress, “left no room for supplementary state regulation.”5
Clause (b) of 49 U.S.C. §44112 states, “[a] lessor, owner or secured party is liable for personal injury, death or property damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party…” (emphasis added). Apparently ignoring the absolute condition that the lessor or owner be in actual possession or control of the aircraft, the Florida Supreme Court concluded that this federal law did not expressly preempt Florida’s “dangerous instrumentality” doctrine.
The All-Around: Finding no express preemption, the Court then examined whether preemption could be implied, noting that the existence of implied preemption must be narrowly construed. It is this narrow construction that further defies logic. Examining the strict wording of the statute in light of the legislative history of 49 U.S.C. §44112 (which in its original form was adopted in 1948), the Court concluded that Congress intended to shield lessors, owners and secured parties from liability for damage, injuries or death to people and property only when such people or property is on the ground or on the water (i.e. they are hit by the aircraft or a part from it)6. Because, this case involved an occupant of the aircraft and not a person or property on the ground, the Court concluded that the passenger’s claim could proceed against a passive lessor under Florida State law.
Three Gold Medals for the Justices: This case is just bad law. The lone dissenting justice who states that the majority opinion, “defies reality,” points out that the passenger died not in the air, but from the impact with the ground. A good point, but this is a distinction without a difference. The majority should never have been analyzing the issue in the first place. The plain wording of the statute requires that the lessor or owner be in actual possession or control of the aircraft. Only once this threshold issue is determined should the second question of, “on the land or on the water,” have been examined. Thus it is irrelevant whether the passenger died from impact with the ground or before it — Aerolease was not in possession or control of the aircraft.
This analysis is supported by federal case law (Matei v. Cessna Aircraft Company7) which the Florida Supreme Court ignored in favor of a Michigan case pre-dating Matei. Other states including Illinois and Rhode Island have found for different reasons that 49 U.S.C. §44112 did not preempt certain state law claims. Although limited, there is some disagreement on preemption which can be resolved either by the U.S. Supreme Court ruling on the issue or by Congress amending the statute.
Until that time, Vreeland is now the law of the State of Florida and represents a further erosion of the protections of 49 U.S.C. §44112 that passive financiers have relied upon for transactions in the U.S. and creates a friendly jurisdiction for aviation injury plaintiffs. On December 12, 2011, the defendants filed a petition for writ of certiorari seeking review of the case by the U.S. Supreme Court. While the ultimate impact of this case therefore remains unclear, passive owners and financiers should remain wary of relying exclusively on this federal statute and seek well crafted indemnities and ample insurance in order to protect their interests.
- Sec. 44112. Limitation of liability
(a) Definitions. – In this section —
(1) “lessor” means a person leasing for at least 30 days a civil aircraft, aircraft engine, or propeller.
(2) “owner” means a person that owns a civil aircraft, aircraft engine, or propeller.
(3) “secured party” means a person having a security interest in, or security title to, a civil aircraft, aircraft engine, or propeller under a conditional sales contract, equipment trust contract, chattel or corporate mortgage, or similar instrument.
(b) Liability. – A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of —
(1) the aircraft, engine, or propeller; or
(2) the flight of, or an object falling from, the aircraft, engine, or propeller. ↩
- It should be noted that the complaint also alleged the active negligence of Aerolease for negligent maintenance and inspection when the aircraft was under its control before being delivered under lease to Ferrer. While the trial court held that federal law preempted this claim as well, the court of appeals overturned that ruling and permitted that part of the claim to proceed. ↩
- Orefice v. Albert, 237 So.2d 142, 143 (1970). ↩
- “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. CONST. art VI, cl. 2. ↩
- FMC Corp. v. Holliday, 498 U.S. 52 (1990). ↩
- See note 1. ↩
- Matei v. Cessna Aircraft Company, 35 F.3d 1142 (7th Cir. 1994). ↩