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Thursday, April 26, 2007

Ind. Decisions - 7th Circuit tosses Midway crash to Illinois state courts

In Bennett et al v. Southwest Airlines, et al, a 10-age opinion today, Chief Judge Easterbrook writes:

Southwest Airlines flight 1248 landed in a snowstorm at Chicago Midway International Airport on December 8, 2005. Conditions were near the federal minimum for safe landings on Midway’s Runway 31C, which at 6,522 feet is among the shortest main runways at a commercial airport. A successful landing of the Boeing 737-700 depended on the pilot’s ability to come in at a moderate speed, touch down near the start of the runway, and apply the thrust reversers promptly. As things turned out, however, the wheels touched down 2,000 feet into the runway and thrust reversers did not deploy until 18 seconds later, when the plane was only 1,000 feet from the runway’s end. The plane smashed through a barrier and a fence; it came to rest in a street, where it crushed a car and killed one of the occupants. Twelve other people on the ground were injured, though the plane’s 98 passengers and five crewmembers were safe.

Tort suits filed in state court have been removed by the defendants (Southwest, Boeing, and Chicago) on the theory that plaintiffs’ claims arise under federal law. See 28 U.S.C. §1331, §1441(a). The district court denied a motion to remand but certified the decision for interlocutory appeal, which we accepted. 28 U.S.C. §1292(b). Defendants’ early theory that federal law occupies the field of aviation safety and thus “completely preempts” all state law has been abandoned. We must decide whether plaintiffs’ claims arise under federal law because federal aviation standards play a major role in a claim that Southwest (as operator of the flight), Boeing (as manufacturer of the airframe), or Chicago (as operator of the airport) acted negligently. * * * The defendants do not contend, nor did the district court find, that resolution of this suit revolves around any particular disputed issue of federal law. For all we can see, everything will depend on a factbound question such as whether the pilots should have executed a missed approach or, having elected to land, exercised adequate diligence in activating the thrust reversers; whether Boeing should have told air carriers not to count on thrust reversers when calculating how much runway they need; or whether Chicago should have closed the airport because of bad weather. The meaning of federal statutes and regulations may play little or no role. As defendants (and the district court) saw things, however, this does not matter: all suits about commercial air travel belong in federal court because the national government is the principal source of rules about safe air transportation, and uniform application of these norms is desirable. So put, the argument would extend Grable and the arising-under jurisdiction well beyond the scope the Justices are willing to tolerate. * * *

This circuit has held many times that claims related to air transport may be litigated in state court. [cites omitted] Grable does not change this conclusion. That some standards of care used in tort litigation come from federal law does not make the tort claim one “arising under” federal law. [cites omitted] No court of appeals has held either before or after Grable that the national regulation of many aspects of air travel means that a tort claim in the wake of a crash “arises under” federal law. Abdullah v. American Airlines, Inc., 181 F.3d 363, 375-76 (3d Cir. 1999), strongly implies that the “arising under” jurisdiction is unavailable; we now hold that this is the right conclusion.

The judgment is reversed, and the case is remanded to the district court with instructions to remand the litigation to state court.

Note that the decision on page 2 includes an apparently completely gratuitous color photo of the downed plane after it had come to rest on a city street. The opinion does not reference the photo. The bottom of the photo notes on the left side "copyright NTSB" and on the right side "aviation-safety.net." A check of that site indicates: "The Aviation Safety Network is a private, independent initiative founded in 1996. On line since January 1996, the Aviation Safety Network covers accidents and safety issues with regards to airliners, military transport planes and corporate jets." The presence of this photo raises a number of questions in my mind, which I may pursue in a later entry.

Posted by Marcia Oddi on April 26, 2007 10:29 AM
Posted to Ind. (7th Cir.) Decisions