COUNSEL:

Daniel C. Cathcart of Magana, Cathcart, McCarthy & Pierry, Los Angeles, CA (William G. Gilstrap, of William G. Gilstrap, P.C., Albuquerque, NM, with him on the brief), for plaintiff-appellee.

David K. Watkiss of Watkiss & Saperstien, Salt Lake City, UT (H. Dickson Burton of Watkiss & Saperstien, Salt Lake City, UT, W.R. Logan of Civerlolo, Hansen & Wolf, P.A., Albuquerque, NM, with him on the brief), for defendant-appellant.

Michael C. Maher, President, Jeffrey Robert White, for Ass'n of Trial Lawyers of America, Washington, DC, amicus curiae.

Stuart M. Gerson, Asst. Atty. Gen., Robert V. Zener, Appellate Litigation Counsel, Jeffrey Clair, Atty. Dept. of Justice, Washington, DC, Don V. Svet, U.S. Atty., Albuquerque, NM, Walter B. McCormick, Jr., Gen. Counsel, Paul M. Geier, Asst. Gen. Counsel for Litigation, Dale C. Andrews, Deputy Asst. Gen. Counsel for Litigation, U.S. Dept. of Transp., Kenneth P. Quinn, Chief Counsel, James S. Dillman, Asst. Chief Counsel for Litigation, Melanie R. Miller, Atty., Federal Aviation Admin. for the U.S., amicus curiae.

Stanley J. Green of Dunaway & Cross, Washington, DC (Gary E. Cross, and Matthew F. Hall, with him on the brief), for General Aviation Mfrs. Ass'n, amicus curiae.

John S. Yodice, of Yodice Associates, Washington, DC (Donald L. Hardison, with him on the brief), and L. Richard Musat, of Treece, Alfrey & Musat, P.C., Denver, CO, for Aircraft Owners and Pilots Ass'n, amicus curiae.

Before LOGAN, Circuit Judge, LAY, Senior Circuit Judge, [FN 1] and BARRETT, Senior Circuit Judge.

[FN 1] Honorable Donald P. Lay, Senior Circuit Judge for the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Piper Aircraft Corporation brings this interlocutory appeal under 28 U.S.C. 1292(b), challenging pre-trial rulings by the district court. Edward Cleveland brought suit against Piper for injuries he received in 1983 while piloting a Super Cub airplane, which crashed during takeoff. He alleged he suffered severe injuries due to the negligent design of the plane. In May 1986, a jury returned a $2.5 million verdict in favor of Cleveland. [FN 2] On appeal this court determined the special verdict form improperly restricted jurors from allocating fault to all potentially responsible parties. See Cleveland v. Piper Aircraft Corp., 890 F.2d 1540, 1546-51 (10th Cir.1989), reh'g denied, 898 F.2d 778 (10th Cir.1990). A new trial was awarded Piper. On remand, the district court permitted Piper to amend its answer and assert a defense that state common law was preempted by the Federal Aviation Act of 1958 and its corresponding regulations. [FN 3] The district court, among other rulings, denied Piper's motion for summary judgment on this defense. Additionally, the trial court granted plaintiff's motion to limit the second trial to the issue of liability and ruled that only the witnesses and exhibits presented in the first trial could be introduced in the second trial. Piper sought permission to appeal these rulings under 28 U.S.C. s 1292(b); the trial court certified the appeal and this court granted permission.

[FN 2] After considering the jury's findings on Piper's culpability, the trial judge reduced the award to $1,042,500 plus post-judgment interest and costs.

[FN 3] See 49 U.S.C.App. 1301 et seq. (1988).

Cleveland was injured July 8, 1983 while attempting to take off from the Mid-Valley Airport in Los Lunas, New Mexico, in a Piper Super Cub Model PA-18-150. The plane was towing a glider that was attached by rope to the aircraft's tail. Cleveland and a cinematographer were planning to film the glider's flight for a television commercial. With assistance from a Federal Aviation Administration (FAA) certified mechanic, Cleveland had removed the front pilot's seat from the plane and installed a camera. At the time of the accident, Cleveland was piloting the plane from the rear pilot seat. [FN 4]

[FN 4] As we noted previously, evidence at trial showed Piper "permitted the plane to be flown from the rear seat and provided a large trapezoidal window for photography." Cleveland, 890 F.2d at 1554.

Cleveland's wife, the conservator of his estate, brought this diversity action against Piper, which manufactured and sold the Super Cub in 1970. At the conclusion of the trial, a jury determined that Piper negligently designed the aircraft without adequate forward vision from the rear seat and negligently failed to provide a rear shoulder harness. However, the jury was not asked to compare the negligence of the parties responsible for the initial collision -- the plane striking the van -- with the negligence of those responsible for the second injury -- Cleveland's head striking the camera. On this basis, we reversed and ordered a new trial. Id. at 1546.

Piper claims that the district court erred in denying its motion for summary judgment on preemption grounds. The basic principles of law in this area are well settled. Piper argues that the Federal Aviation Act of 1958, 49 U.S.C.App. 301 et seq., and the regulations it has spawned impliedly preempt state tort actions by occupying the field of airplane safety. It asserts that the web of federal laws and regulations govern the field in a comprehensive manner, leaving no room for state regulation. Preemption questions turn on congressional intent. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988). The mere fact that Congress has enacted detailed legislation addressing a matter of dominant federal interest does not indicate an intent to displace state law entirely. English v. General Elec. Co., 496 U.S. 72, 87, 110 S.Ct. 2270, 2279, 110 L.Ed.2d 65 (1990); Hillsborough County v. Automated Medical Lab., Inc., 471 U.S. 707, 716-20, 105 S.Ct. 2371, 2376-79, 85 L.Ed.2d 714 (1985). Congress may reserve for the federal government the exclusive right to regulate safety in a given field, yet permit the states to maintain tort remedies covering much the same territory. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 253, 104 S.Ct. 615, 624, 78 L.Ed.2d 443 (1984). This is so even though an award of damages may have the same effect as direct state regulation. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959). The Supreme Court has recently emphasized:

Consideration of issues arising under the Supremacy Clause "start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress."

The district court determined the plain language of the Federal Aviation Act suggests that Congress intended that the Act have no general preemptive effect. We agree.

Congress enacted the Federal Aviation Act of 1958, Pub.L. No. 85-726, 72 Stat. 731, "to establish a new Federal agency with powers adequate to enable it to provide for the safe and efficient use of the navigable airspace by both civil and military operations." H.R.Rep. No. 2360, 85th Cong., 2d Sess. 1, reprinted in 1958 U.S.C.C.A.N. 3741, 3741. The Act directed the Federal Aviation Agency to regulate "air commerce in such manner as to best promote its development and safety and fulfill the requirements of national defense." Pub.L. No. 85-726, s. 103, 72 Stat. 740 (1958) (codified at 49 U.S.C.App. 1303 (1988)). Although the legislative history states the Act provides the Federal Aviation Agency with "full responsibility and authority" over safety, H.R.Rep. No. 2360, reprinted in 1958 U.S.C.C.A.N. at 3741, the Act also assigned the Civil Aeronautics Board responsibility for safety, [FN 5] "emphasized ... that air carriers themselves retained certain responsibilities," [FN 6] and did not address what, if any, responsibility remained for the states.

[FN 5] Pub.L. No. 85-726, s 102, 72 Stat. 740 (1958) (current version at 49 U.S.C.App. 1302 (1988)); H.R.Rep. No. 2360, reprinted in 1958 U.S.C.C.A.N. at 3747-48.

[FN 6] United States v. Varig Airlines, 467 U.S. 797, 804, 104 S.Ct. 2755, 2760, 81 L.Ed.2d 660 (1984).

Nothing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies.

[FN 7] Piper has cited several cases finding that Congress intended to occupy the field of pilot safety, thereby precluding enforcement of state laws pertaining to regulation of employee drug use. See French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir.1989) (drug testing); Northwest Airlines, Inc. v. Gomez-Bethke, 34 Fair Empl.Prac.Cas. (BNA) 837, 1984 WL 1040 (D.Minn. Apr. 1, 1984) (employment rights of chemically dependent workers). Although these cases suggest Congress intended uniformity of regulation, they are not persuasive because they address pilot regulation and because they do not involve tort claims that implicate the savings clause of 49 U.S.C.App. 1506, which shows contrary congressional intent. Similarly, the Supreme Court's decision in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), did not involve allegations of defective design of an airplane. It involved a municipality's efforts to regulate airplane noise, which the Court found "remains peculiarly within the competence of FAA, supplemented now by the input of EPA." Id. at 640, 93 S.Ct. at 1863.

[FN 8] We held in McCord that Congress did not intend to create a separate private cause of action contrary to common law by enactment of the Act. 450 F.2d at 1131. We noted, however, that "[t]he Act particularly provides that nothing therein shall in any way abridge or alter the remedies now existing at common law." Id. The opinion also observes Congress's power to "preempt state law with respect to liabilities for torts arising out of the operation of airplanes." Id.

[FN 9] The Morales Court held that the preemption provisions of 49 U.S.C.App. 1305, enacted in 1978 to address rates and routes, expressly preempt the state truth-in-advertising laws. 504 U.S. at ---- - ----, 112 S.Ct. at 2040-41.

[FN 10] But cf. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 635-40, 93 S.Ct. 1854, 1860-63, 36 L.Ed.2d 547 (1973) (the "pervasive nature of the scheme of federal regulation of aircraft noise" indicates intent to preempt).

[FN 11] We will restrict the effect of a savings clause such as the one here in limited circumstances. For example, in Morales, the Court stated a savings clause should be limited if it is superseded by a more specific substantive provision, such as a preemption clause. 504 U.S. at ----, 112 S.Ct. at 2037. This Act contains an express preemption provision that "relates to rates, routes or services of any carrier," 49 U.S.C.App. 1305, and not to tort claims such as these.

In other situations the Court has limited a savings clause if it presents "an irreconcilable conflict between the statutory scheme and the persistence of common-law remedies," Nader v. Allegheny Airlines, 426 U.S. 290, 299-300, 96 S.Ct. 1978, 1984-1985, 48 L.Ed.2d 643 (1976) (holding no irreconcilable conflict), or if it would "undermine [a] carefully drawn statute," International Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805, 813, 93 L.Ed.2d 883 (1987). Common law remedies do not interfere with the Act's goal of promoting safety. See 49 U.S.C.App. 1302, 1303 (1988); H.R.Rep. No. 2360, 85th Cong., 2d Sess. 1, reprinted in 1958 U.S.C.C.A.N. 3741, 3741. The Act further suggests a lack of conflict because it empowers the Secretary of Transportation to establish "[s]uch minimum standards governing the design ... of aircraft ... as may be required in the interest of safety." 49 U.S.C.App. 1421(a)(1).

[FN 12] The Court stated:

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a "reliable indicium of congressional intent with respect to state authority," Malone v. White Motor Corp., 435 U.S. [497] at 505, 98 S.Ct. [1185] at 1190 [55 L.Ed.2d 443 (1978) ] "there is no need to infer congressional intent to pre-empt state laws from the substantive provisions" of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690, 93 L.Ed.2d 613 (1987) (opinion of Marshall, J.). Such reasoning is a variant of the familiar principle of expressio unius est exclusio alterius: Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not preempted.

Cipollone, 505 U.S. at ----, 112 S.Ct. at 2618.

[FN 13] In Morales v. Trans World Airlines, 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), the Supreme Court gave a broad reading to the preemptive provision in 42 U.S.C.App. 1305(a). The Court held that the section's prohibition of state enforcement of any law "relating to rates, routes, or services of any air carrier" preempts state regulation of airline advertising. Id. at ---- - ----, 112 S.Ct. at 2040-41. We agree with the parties in this case that even a broad reading of the phrase, "relates to," would not encompass the safety regulations at issue here.

[FN 14] But see French v. Pan Am Express, Inc., 869 F.2d 1, 3 (1st Cir. 1989) (rejecting this argument pre-Cipollone). The court in French mistakenly relies on City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), which it states implicitly rejected this argument when it found the Act impliedly preempts application of municipal noise ordinances to air flights. However, the City of Burbank opinion is inapplicable because s. 1305's preemptive provision was enacted into law five years after the City of Burbank decision. See Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705.

[FN 15] See Pub.L. No. 85-726, 72 Stat. 731.

[FN 16] See Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705; see also Civil Aeronautics Board Sunset Act of 1984, Pub.L. No. 98-443, 98 Stat. 1703 (making a minor amendment to the preemption provision of 49 U.S.C.App. 1305(a)).

[FN 17] The House Report concerning the Airline Deregulation Act of 1978 states its express preemption language "will prevent conflicts and inconsistent regulations" caused by the lack of a specific provision allocating state and federal jurisdiction over air service. H.R.Rep. No. 95-1211, 95th Cong., 2d Sess. 16 (1978), reprinted in 1978 U.S.C.C.A.N. 3737, 3752. The Report observed that without such a provision federal and state authorities had required passengers traveling between two cities to pay different fares depending on whether they were flying interstate or intrastate. Id., reprinted in 1978 U.S.C.C.A.N. at 2751-52.

It is significant that in passing the 1978 Act, Congress also considered safety concerns. Congress asked the Civil Aeronautics Board to prevent "deterioration in established safety procedures," Pub.L. No. 95-504, s 102, 92 Stat. 1706, directed the Secretary of the Transportation to prepare annual reports on air safety because of Congress's concern that the Act "result in no diminution of the high standard of safety in air transportation attained in the United States," id. s. 107(a), 92 Stat. 1709, and required the Secretary of Transportation to promulgate new safety regulations as needed, id. s. 107(d), 92 Stat. 1710. Not only are none of these requirements inconsistent with state common law duties, but juxtaposed against the simultaneous enactment of express preemption of rates and routes, they show that Congress did not intend to preempt lawsuits over design defects.

We conclude that Congress has not indicated a "clear and manifest" intent to occupy the field of airplane safety to the exclusion of state common law. To the contrary, it appears through the savings clause that Congress has intended to allow state common law to stand side by side with the system of federal regulations it has developed.

Piper also suggests that the Federal Aviation Act impliedly preempts state tort claims because the federal regulatory framework actually conflicts with state common law duties. Such a conflict will be found if it is "a physical impossibility" to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 .Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or when the state law is an obstacle to accomplishing Congress's full purposes and objectives, California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 581, 107 S.Ct. 1419, 1425, 94 L.Ed.2d 577 (1987) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)). In particular, Piper focuses on Cleveland's claims that the plane's design was defective because it leaves a rear-seat pilot with poor forward visibility and because the rear seats lack shoulder harnesses. We find that is not impossible to meet both state common law standards and the federal regulations.

Piper maintains that Cleveland's claims are an attack on the tailwheel design, which is approved by the FAA. See 14 C.F.R. pt. 25 app. A. However, the federal regulations Piper has cited require only that the plane be designed "so that ... [t]he pilot's view is sufficiently extensive, clear, and undistorted, for safe operation." 14 C.F.R. 23.773(a)(1). The regulations do not require the precise design that Piper has utilized. As the district court noted, Cleveland has presented evidence that Piper could have improved visibility without altering the tailwheel design simply by raising the rear pilot seat. Thus, there is no irreconcilable conflict.

Piper also asserts that it fully complied with the seat belt requirements because the regulations in place when the FAA approved its design of the plane did not require shoulder harnesses. It asserts that the FAA did not make later requirements retroactive. This, however, is not an argument for preemption since it would have been possible to install a shoulder harness on the rear pilot's seat without conflicting with the federal regulations.

Furthermore, as noted previously, the Federal Aviation Act authorizes promulgation of "minimum standards." 49 U.S.C.App. 1421. By themselves, minimum standards such as these are not conclusive of Congress's preemptive intent. Ray v. Atlantic Richfield Co., 435 U.S. 151, 168 n. 19, 98 S.Ct. 988, 1000 n. 19, 55 L.Ed.2d 179 (1978). However, minimum standards may be evidence of such intent. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 147-48, 83 S.Ct. 1210, 1219-20, 10 L.Ed.2d 248 (1963). The district court determined that by designating the standards as minimum, Congress indicated that it did not want to bar states from adopting additional or more stringent standards. See also Holliday v. Bell Helicopters Textron, Inc., 747 F.Supp. 1396, 1400-01 (D.Haw.1990); Perry v. Mercedes Benz of North America, Inc., 957 F.2d 1257, 1264-65 (5th Cir.1992) ("minimum standard" requirement for automobiles). This is consistent with the Act's purpose of promoting safety. 49 U.S.C.App. 1302, 1303; H.R.Rep. No. 2360, 85th Cong., 2d Sess. 1, reprinted in 1958 U.S.C.C.A.N. 3741, 3741. The United States, however, suggests an alternative interpretation. It urges that rather than giving states the option to heighten standards, the "minimum standards" limitation allows manufacturers to improve safety beyond that which the federal government requires. This, too, would be consistent with the Act's purposes. While we are skeptical that Congress was concerned that administrative agencies and manufacturers would otherwise feel constrained to improve the safety of products, we need not resolve this ambiguity. In determining congressional intent on preemption questions, we look for "clear and manifest" indicators. English v. General Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990). We find none here.

Piper also suggests that Cleveland's claims are preempted because the FAA and its predecessor agencies approved the airplane's design. However, FAA approval is not intended to be the last word on safety. The FAA has given manufacturers broad responsibilities for assuring their own compliance by appointing aircraft company employees to "act as surrogates of the FAA in examining, inspecting, and testing aircraft for purposes of certification." United States v. Varig Airlines, 467 U.S. 797, 807, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984). The Varig Court said:

The FAA certification process is founded upon a relatively simple notion: the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains the responsibility for policing compliance. Thus, the manufacturer is required to develop the plans and specifications and perform the inspections and tests necessary to establish that an aircraft design comports with the applicable regulations; the FAA then reviews the data for conformity purposes by conducting a "spot check" of the manufacturer's work.