Journal of Air Law and Commerce
Abstract
Which level of government—state or federal—has jurisdiction to set safety standards for aviation defect design is a nuanced issue. Generally speaking, federal law preempts state law in this context by occupying the field through a regulatory scheme that permeates aviation safety. The Federal Aviation Act of 1958 (FAAct) confers its namesake agency—the Federal Aviation Administration (FAA)—the powers to prescribe the “minimum standards required in the interest of safety.” The word “minimum” has been seized upon by those on the state side of the debate to advocate that it means the floor. And they contend that those in the Union have the freedom to set so-called higher standards—the ceiling. Granted, this may be a persuasive argument in some cases, but not here. First, the FAA has a five-stage type certification process. Further, there is a production certificate and airworthiness certificate. Second, the United States has executed treaties with foreign nations over reciprocity regarding aircraft safety standards.
Airplane accident cases are emotionally charged due to their propensity to involve fatalities—the argumentum ad passiones (appeal to emotion) fallacy. This emotional response is papering over underlying issues. If an airplane has obtained certification and tragedy strikes, there may be other avenues to explore. Negligence and tort claims come to mind. Preemption of design defect claims is limited to that context. A broader holding could sweep up remedies at law that should remain available.
As of the writing of this Article, impossibility preemption is premature but looms large. If all fifty states are permitted to enact aviation safety design laws, compliance would become problematic because air travel transcends state boundaries. Additionally, conflict preemption could arise. Divergence in design defects may place plaintiffs in the position of “heads I win, tails you lose.” Adhering to the standards for one state may fall below the threshold for another, or their frameworks may be at odds. Not to mention federal requirements.
Recommended Citation
Max Birmingham, Airplane!: Does the Federal Aviation Act Preempt State Law Design Defect Claims?,
90
J. Air L. & Com.
105
(2025)
