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June 3, 1996

AMERICAN AIRLINES, INC., Defendant. MARC BOBKIN and DOREEN BLACK, Plaintiffs, v. AMERICAN AIRLINES, INC., JOHN DOE, RICHARD ROE, and SALLY SOE, Individuals Whose Identities Are Currently Unknown, Defendants. JOHNSIE HUNTLEY and JAMES HUNTLEY, Plaintiffs, v. AMERICAN AIRLINES, INC., Defendant. BETH SEITZ and SHERI FLOMAN, Plaintiffs, v. AMERICAN AIRLINES, INC., Defendant.

The opinion of the court was delivered by: SCHEINDLIN


 I. Introduction

Plaintiffs essentially claim that [American's] pilots negligently flew directly into a developing thunderstorm which they knew to contain potentially severe turbulence. Plaintiffs further claim that the pilots failed to provide adequate warning to the passengers so as to cause them to fasten their seatbelts prior to the turbulence encounter.

 Def. Brief (Nov. 15, 1995) *fn1" at 7. However, the Huntley plaintiffs allege that American did instruct the passengers to fasten their seatbelts, and that Huntley complied with this instruction, but that the seatbelt failed and caused Huntley to be thrown from her seat. Cplt. (Huntley) PP 16-19.

 Defendant has moved in limine to establish the applicable law governing the standard of care that applies to American. Plaintiffs contend that because their personal injury actions are based on the negligence of the airline's employees, the actions are tort claims governed by state common law Defendant argues that Plaintiffs' claims are expressly preempted by the Airline Deregulation Act of 1978 (ADA), or, alternatively, implicitly preempted by the Federal Aviation Act of 1958 (which the ADA amended). See Def. Brief (Dec. 4) at A-1; Pl. Brief (Bobkin) at 2.

 II. Preemption: General

 The Supremacy Clause of the Constitution provides that any state law that conflicts with a federal law is "without effect." Maryland v. Louisiana, 451 U.S. 725, 746, 68 L. Ed. 2d 576, 101 S. Ct. 2114 (1981) (citing McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 427, 4 L. Ed. 579 (1819)); see also U.S. Const. Art. VI, cl. 2. Federal law displaces state law where

(1) Congress expressly preempts state law; (2) Congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme; or (3) state law conflicts with federal law or interferes with the achievement of federal objectives.

 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 n.1 (5th Cir. 1995) (en banc) (citing Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713, 85 L. Ed. 2d 714, 105 S. Ct. 2371 (1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 77 L. Ed. 2d 490, 103 S. Ct. 2890 (1983)). However, there is a presumption against preemption. In order to "avoid 'unintended encroachment on the authority of the States, . . . a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find preemption.'" Rombom v. United Air Lines, Inc., 867 F. Supp. 214, 218 (S.D.N.Y. 1994) (quoting CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664, 123 L. Ed. 2d 387, 113 S. Ct. 1732 (1993)). The areas of health and safety have traditionally been within the police powers of the states. See Hillsborough County, 471 U.S. at 715 (1985) (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604, 97 S. Ct. 1305 (1977)). The presumption that a state's police powers are not to be federally preempted may be overcome upon a showing that preemption was the "'clear and manifest purpose of Congress.'" Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947)); see also California v. ARC America Corp., 490 U.S. 93, 102, 104 L. Ed. 2d 86, 109 S. Ct. 1661 (1989); Hodges, 44 F.3d at 338; Von Hundertmark v. Boston Professional Hockey Ass'n, Inc., CV-93-1369, 1996 WL 118538, at *5 (E.D.N.Y. March 7, 1996).

 III. Statutory Framework

 Until 1978, the Federal Aviation Act of 1958, 49 U.S.C. App. § 1301 et seq. (FAA), "gave the Civil Aeronautics Board (CAB) authority to regulate interstate airfares and to take administrative action against certain deceptive trade practices." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 119 L. Ed. 2d 157, 112 S. Ct. 2031 (1992). However, the FAA did not "expressly preempt state regulation of intrastate air transportation." Hodges, 44 F.3d at 335 (emphasis added). Rather, it contained a saving clause providing that "nothing . . . in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." 49 U.S.C. App. § 1506. Thus states could continue to regulate intrastate airfares and enforce their own laws against deceptive trade practices. Morales, 504 U.S. at 378.

 In 1978, Congress amended the FAA by passing the Airline Deregulation Act (ADA), an economic deregulation statute. Congress "determined that efficiency, innovation, low prices, variety, and quality would be promoted by reliance on competitive market forces rather than pervasive federal regulation," and thus "enacted the ADA to dismantle federal regulation." Hodges, 44 F.3d at 335. "To prevent the states from frustrating the goals of deregulation by establishing or maintaining economic regulations of their own," Congress included an express preemption provision in the ADA. Id. Section 1305(a)(1) expressly preempts the states from "enacting or enforcing any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air ...

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