the decision of wyatt versus lavonne two thousand and nine supreme court decision has changed the landscape of evaluation of preemption analysis in these types of cases even though it wife was not a field preemption case well and i must tell you we are hearing from everybody in your situation that while this changed the landscape well your honor i would point to a recent supreme court decision of of crosby and which had said you argument that why it's in terms of its similarities with this very case we have a situation where states have been involved in aviation safety for since the initial flights in these matters in one thousand nine hundred fifty eight when the f a a was passed there were state standards of care there were aviation is different from drug manufacturing i mean aviation and railroads and we had a case of weeks ago i mean we've we have policies having to do with certain things involving interstate and the national transportation that are just different from you know individual actions for you know against a drug manufacturer well your honor i would say that they're analogous and particularly under the circumstances of this case we can't ignore the fact that this plane had already landed was parked at the gate  and if so is the distinction that plane in the air is governed by the f a a regs but a plane on the ground is governed by if the different jurisdiction or law it's governed by state common will your honor because there is there is what's the reason distinction between the plane in the air and the plane on the ground because congressional intent legislative history starts with the idea that these the f a a was pas because of differing flight rules between military planes and civil planes and the concern was air management pilot regulation safety features and conduct that takes place in the air and as well as you say under the a d n a deregulation act you've got routes rates and services that are specifically preempted you know it has to do a lot more with just the air and this might even qualify as a service service being provided by attendants well your honor i believe that the wall in supreme court decision has put that issue to rest as well as numerous other circuit and district court opinions a personal injury cases do not the safety regulations that has it it is only addressed the rate through since rates routes and services which occurred in one nine hundred seventy eight so from fifty eight to seventy eight they're aware of this they are common all standards from seventy eight fall word they still work with state standards of care the gaspe decision which i referred in my brief talked about the use of f a a regulations to establish negligence for say yet   that everything every aspect should apply there is a specific standard that applies squarely to this fact pattern if that's dandridge is and doesn't that standard apply here well only with regard to the controlling of discrimination against passengers i would i would strongly well in the course of doing what you need to do to not discriminate you follow it or you are doing something different from what you would have this person that you would have the attendant violate the ac i would you not know your honor because the a c l u does not prohibit the offering  of assistance in fact the a cia and in part three eighty two speaks not only of the request for assistance but also the offering of assistance and acceptance of that existence but then there's other provisions think cited by your colleague about how this is the way you're supposed to act toward the disabled you're not supposed to be overly in food you're not supposed to do this i mean you know damned if you do when you're damned if you don't well your honor materials cited by my opponent it says on two different occasions offer of assistance only a passenger appears to need help in another location there was a similar type of language that if apparent that the passenger needs help you can certainly offered and there's no prohibition against offering assistance let me ask you this why do we have to pick and choose why can't  and the overarching requirement of the f a a that requires the airline employees to refrain from reckless and careless conduct why can't they both inform the standard of care for the situation here or i mean if one is about discrimination and others about negligence because it talks to careless and reckless ninety one thirteen section and one thirteen does talk about careless and reckless but it talks about it in reference to the operation of aircraft and it's my contention that this aircraft was no longer being operated when we talk about flight time first of all a pilot's  when it's not yes yes with regard to aircraft operations the pilot operates the aircraft the pilots command over the aircraft and crew and passenger safety occurs only during  flight time that's fourteen c f r one twenty one five thirty three there are been a lot of district court cases that have said that that's not correct that that say air safety includes you know the icing and all kinds of other i'm speaking specifically of ninety one thirteen i mean use ninety one thirteen as a blanket of protection as well as a gap filler to support its holding a field preemption yet in this case if ninety one thirteen doesn't exist because we're not talking about necessarily the the conduct of the pilot and flight crew we're also talking about ground personnel assistance such as ramps or somebody standing at the bottom of the stairs that's going to come from ground personnel and it's going to be different in every state they've got to realize that we came down in new york versus we came down in pennsylvania versus we came down in virginia we're supposed to do this here or there that we're going to be inconsistent if you're talking about a jury that's that's that's making a determination of whether or not the conduct is n ask or not ask under the same search situation in this particular case the flight attendant thought that the person needed help went to the stairs said that he motioned for someone to come to the bottom of the stairs yet ye unified national air transportation system that we're going to have many jurisdictions in the country decide on a stately state basis what is and isn't the standard of safety once the plane is parked that's what comes down to you right it's my yes that is my contention that juries operating under stay calm a low standard should make that decision and what is what is it you're relying on in the case law or the regs rather twi that that will tell us that yeah that's in fact what congressman because congress over the past fifty years has not issued and expressed preemption covering these issues in the covering you know safety regulations in their entirety i would agree that there are discrete areas that are that that's certainly preempted that's already been recognized i'm not arguing against that but can taj mahal and up dula be read together consistently or are they inherently inconsistent and the taj mahal is got some pretty good language from your side right were where the judge weiss says things like it is highly unlikely that congress intended to deprive passengers of their common rights to recover for death or personal injury sustained in aircrafts for example ok that kind of language be read consistently with the field preemption language of a bill or not well the field preemption of a i just think i believe went too far is overly broad and wasn't intended to cover this this conduct that occurs on the ground when they point to twenty ninety one thirteen they were talking about the comprehensive overriding catch all regulation addressing pilot and crew member conduct we're beyond that when the plane is on the ground when the pilot's command is no longer existing over the crew member and passenger safety is there specific language in a dual of that that you rely on to say will one when they were look in the air ninety one thirteen in of do they meant the operation of the specifically of the comprehensive system governing pilot and crew member conduct it doesn't go beyond that without ninety one thirteen you don't have a blanket of protection you don't have the gap filler and now you need something and because congress has not acted expressed preemption given its knowledge and understanding that state common law was playing a part for years and years decades to to  me i would suggest indicates that congress did not intend complete field preemption of all aspects of aviation safety well i guess what judge jordan asked you is where elsewhere that says once this plane is parked and we're dealing with the crew and maybe not the pilot why the why in ninety one thirteen goes out the window well that general standard of care to refrain from operating in a careless or reckless manner why why is that no longer apply well because ninety one thirteen only concerns itself with the with pilot with operation of aircraft and only pilots operate where do you find them i mean i don't know that you aren't terrorists aren't stairs supposed to be you know certified and inspected and isn't there federal regulation on this the stairway well the stairway doesn't come down until the engines off certainly there is an intent to regulate that aren't aren't stairs covered by well there is there are no prevalent regulations governing the design of stairways that was fully described and set forth in the ninth circuit opinion in martin versus midway that's also two thousand and nine opinion that's in my that's in my brief hear from mr stern about that so had anyone argued in the court below  the discussion ever get to the question of whether this actually constituted negligence well only to the extent the judge ludwig said that in his opinion the careless and reckless standard wasn't proved because there wasn't grave life threatening conduct as thirteen regardless of whether or not there may be some specific regulation and that it has to be you know it's in compas in the in the evaluation of standards of care even if you want to say nine hundred thirteen exist it's still there as a blanket it please the court when name is jonathan stern i'm with this nader firm and i would like to start out by acknowledging that i come before the court with an argument that probably at first strikes is counter intuitive we have a man in this case with one leg on crutches and the law as we framed it is that he is not required to be offered assistance by the air carrier i think when you look at the background to this however it makes complete sense in the in the air carrier access act congress directed the secretary of transportation to promulgated regulations that would both ensure nondiscriminatory treatment of qualified handicapped individuals but also to ensure safe carriage of those passengers as well as all others and i ask a question certainly i think there's there's two different things happening here there's an argument that there's federal preemption that the f a a takes over the field and that there's careless careless and reckless is a standard for operation  there's case law that says careless and reckless doesn't supply a standard there has to be something more then there's the a c a a is the a c a a it specifically says this does not mean to take over you still have to comply with safety regulations so it says in it almost you know this is not a safety regulation is the a c a a relevant here as a standard of care or is the a c a a here relevant as a regulation that supplies the you know the the requisite regulatory safety provision under careless and reckless are i'm trying to figure how how they relate and whether this is really a preemption case or a case where you say we have a federal standard of care that definitely applies here and that's it well i think judge rendell there's a little bit of both going on here that with respect to the a c l u as your honor recognized in questioning mr general the flight attendant would be in a no win situation excuse me the flight attendant is instructed by the technical manual issued by the d o t not to assume that someone with a handicap requires assistance because many such people take great pride and this plaintiff is a great example he took great pride in his ability to be mobile on his own he said in his deposition that he'd been on his crutches for twenty seven years and i don't only fallen once before this and i can do things nobody can believe so the a c a provides the standard with respect to the question of whether a person with a disability must be offered assistance by the airline without a request well wait a second that's  doesn't that isn't what you're asking us to do is to morph something which by its terms is judgment when it is not a safety regulation into a safety regulation you quote in your brief the regs that say  this is a detailed comprehensive national regulation based on federal statute that substantially if not completely occupies the field of nondiscrimination on the basis of end cap and your trial in other words this is a nondiscrimination regulation how does it become a safety regulation when it says in it it's not supposed to be taken over say well what it says actually judge jordan is that you still have to comply with the f a a safety regulations it does not cause that's the safety regulation right well no because congress had a dual mandate for the aca regulations they were to address that set up a very curious result mr stern because what you're suggesting is that if an able bodied person trip down the same set of stairs that they would not get the kind of safety rights that a person with crutches would if you know if the ak or a q lation which is directed specifically disabled people is really a safety regulation are there two different safety regulations one for the able bodied and one for the disabled yes and my religion that is the f a a safety regulations while there they were disabled or non disabled there is no applicable specific regulation so i think in this context the able bodied passenger would be evaluated his claim would be evaluated under ninety one point thirteen under the careless or reckless standard but in this case the claim to assistance is based entirely on adds disability there were so that the totally able parson who falls down those steps could present to a jury as a question of fact whether or not the the  airline crew acted carelessly or recklessly but mr al assad did not know mr ellis said could benefit from the careless or reckless standard if his claim were based on something other than his disability but it is not it originally was when he first brought the complaint he did allege that there were conditions of the steps  thirteen zero five a one preempts c related personal injury claims related to airline operations close quote should we give what the government said in an amicus brief in another case about old statutory interpretation any weight in what we do here i think this court dealt with that issue in abdula because what the court said is this the standards that are provided by these  comprehensive regulations are all encompassing and state law cannot add to those standards but the way we're going to deal with this issue of the recognition that indeed passengers could bring a cause of action if they were hurt as a result of violations of those standards is that we are going to allow state law to supply the cause of action but not standard so so the state laws the remedy but the standard is a federal one is from page three sixty seven of the opinion we hold the federal law establishes the political standards of care in the field of air safe the generally this preempting the entire field from state and territory regulation when it says air safety i understand your opponent to be saying that's operation in the air if they'd just if this court the third circuit meant to say it's in to preempt the entire field of say passenger safety it could have said passenger safety but it's an air safety because when the pilots flying the plane you don't want the several states get in the mix but when the plane when the pilot isn't flying the plane and it doesn't have to do with one in determining the standard of care in aviation it would be negligence actually court mr for not only to specific regulations but also to the overall concept that aircraft may not be operated in a careless or reckless manner in other words the operation of the being operated it's just on the ground people get on and off and one that is obviously we disagree about where you draw that line if for example this were a case involving something that occurred in the terminal i would not make this argument to the court but this occurred as the airplane the airplane arrives at the gate parks there is operation of the aircraft involved in opening the door putting down the stairs and discharging the passengers but that's all happened i mean the aircraft is parked it's stop the stairs are down that the assertion here isn't i was hit by the stairs that it's that i trip down the stairs this will help so is the distinction then that you're touching the aircraft i mean if  stepped off the stairs and then tripped on the tarmac would your assertion be because nobody helped him no airline person was there would your assertion be that now it's state law well no it would not be my assertion because my argument is that there are three different preemption rationale with four four that you just said that it wouldn't matter if it happening would be state law if that was in the terminal what's the difference between trippin in the terminal because no airline percent helps you and tripping on the tarmac no i was with focused your honor on the dual question and in terms of abdul a preemption that stops when you're no longer involved in the operation of the aircraft so what is if the if the point of this if the the demarcation point is operation of the aircraft once the plane is parked the engines are off the stairs are down in what sense is the aircraft being operated i maintain that until you have discharged your passengers you're still operating the aircraft and in fact the record reflects that the pilot was still in his seat in the cockpit the flight attendant is still performing his duties so it is it is the physical contact with the plane that makes the difference as the devil the definition of the regulatory definition of operation is use of the aircraft i think you are using the aircraft when you are going down the stairs that are actually an integral part of the aircraft these are air stairs they're part of the door so trip on the stairs you're governed by federal law one step away on the tarmac you're governed by state law no your honor my contention is that i've doula would end of the tarmac when i get off the airplane onto the tarmac that's the end of abdulah as now i just said europe but  i have i am arguing that conflict preemption applies here and that would apply anywhere along that route it wouldn't have to be on the airplane and as well that's a weird is that in where's your conflict prevention argument as i'm going into the terminal as i'm driving up to the terminal no it doesn't and the question before the court here on the way to the airport does does well the question is does the air carrier have a duty to affirmatively offer assistance to a passenger with a disability and the answer is they do not any place on the way to the airport if you could if someone could make an argument that they otherwise would have such a duty anywhere in the terminal if they want the assistance they ask for it and the reason for that when the d o t was mandated to pass these regulations to bring aca into force they used regulatory negotiation they actually brought interest groups together in order what if there's a fire when there's a fire on the airplane i mean what if there's a situation created that you know that standard of care and speaking enthusiastically and not you know offering help you know may go out the window well what about if this situation the person's coming down the stairs and it's observed by a couple people that this is this is not going to go well you know aren't there situations they create a different reaction from attendance than what the nondiscrimination policy says should normally occur and those are things you should normally think about having to do with someone safety in an unusual situation it indeed just rendell and what we're talking about in this case is the normal situation well i'm not sure you know maybe somebody realized that he needed trouble and maybe we're not just in the a c a maybe we're under careless and reckless just careless and reckless also apply or would you say because there is no specific f a a requirement under the careless and reckless standard and then careless and reckless don't apply well i think in the example your honor gave the careless and reckless standard would apply for all passengers and in an emergency situation out of the norm not again mr ellis said head claims that there were defects in the stairs water on the stairs i saw on the stairs those were all withdrawn they were withdrawn because it is deposition i asked him about those and he said they didn't exist i'm sorry you should change  be so careless and reckless is the answer if you have an emergency then i think the flight crew's conduct is of value weighted as to all we would give leave to mr to replete under the appropriate standard no i could i don't see why we would do this this case was trial ready it had a full record and there had been pleading of other reasons that you might have applied the careless or reckless standard they were all withdrawn the only issue remaining was whether or not the airline was obligated to offer mr  passenger on the flight was on you're not saying it's a good negligence claim it's the same as a matter of the procedural record here he's made a negligence claim right well he's made a negligence claim but he has taken any reason that there might be to apply the careless and reckless standard he's withdrawing all of those and he has said the only question is whether the airline is obligated to offer him assistance and the only rationale for that assistance is his disability i mean you don't think this is an unusual situation where airline personnel and really i think is question is were they careless in not offering him assistance and and you see a man with one leg who's having difficulty roberts there was there was no request for assistance in fact the record reflects that on fording the flight in boston he was offered and declined assistance and he took great pride in his ability to do all these things he was not somebody who who wanted or appeared there's the record reflects the flight attendant said this man looked extraordinarily capable doesn't this go to the question of whether there was negligence at all that's the argument you're making is that even if there was a negligence clean there there isn't i mean even if he had made a negligence claim which i understand you to be saying you don't think he did but if he did there really wasn't negligence here i'm not sure how that goes to the question we're dealing with which is conflict preemption argument and that would cover anything to do with wherever you are in the terminal or anyplace else so my question t is is your assertion that somehow there abdul of vacated taj mahal that there's nothing left of that opinion oh tom taj mahal deals with the airline deregulation act express preemption and doesn't it doesn't it specifically say in numerous spots in that opinion we don't think that congress was trying to push the states out of the business of dealing with ordinary state torts well that's the holding of the case right you asked your honor whether whether you could reconcile the two cases i think they're easily reconciled in the reconciliation is that abdula recognizes that congress did not intend to deprive passengers of the right to recover for personal injuries but that federal law would provide the standards by which such claims would be what would be left the taj mahal if we accepted your argument it's taj mahal doesn't deal with doesn't deal with the issue of this disabled passengers so you're relying on the distinction made at the outset that there's a different safety regulation for the able bodied and yes there is the person with a disability has this rule and i would like us enough if i may just very briefly circle back to the point i started to make which is that this was done by regulatory negotiation and the paralyzed veterans of america the national council on independent living the american council of the blind the national association of protection advocacy systems and other ones with i'm sorry i have one very specific question asked if you had cited regulation you said this is the definition of operation of an aircraft and you gave a citation what was that like i don't think i gave the i believe it's in one four point one fourteen c f r one point one it would say it says that operation of aircraft means to use an aircraft right including piloting not limited to but including piloting and related to that i know that mr general cited to the court a preamble from the what is now ninety one point thirteen b which is not for the purpose of air navigation and that it's very clear that that only applies when you don't intend to fly the airplane such as when you're doing maintenance which clearly is not the case or right thank you very much thank you counsel thank yes well argu