PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ KELLY DAY, Plaintiff - Appellant,

v. SKYWEST AIRLINES, Defendant - Appellee. No. 20-4129

________________ _________________ Appeal from the United States District Court for the District of Utah (D.C. No. 4:20-CV-00013-DN)

________________ _________________ Bradley J. Stoll of Katzman, Lampert & Stoll, Wayne, Pennsylvania, for Plaintiff– Appellant. Scott M. Petersen (Tanner J. Bean with him on the brief) of Fabian VanCott, Salt Lake City, Utah, for Defendant–Appellee.

________________ _________________ Before BACHARACH , BRISCOE , and MURPHY , Circuit Judges.

________________ _________________ MURPHY , Circuit Judge.

________________ _________________ I. INTRODUCTION Kelly Day appeals the district court’s di smissal of the diversity action she filed against SkyWest Airlines for personal injuri es she allegedly sustained when a SkyWest flight attendant carelessly struck her with a beverage cart. The district court granted FILED United States Court of Appeals Tenth Circuit 

### August 22, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 12 SkyWest’s motion to dismiss the action as pr eempted under the Airline Deregulation Act (“ADA”), which preempts state laws “related to a price, route, or service of an air carrier.” 49 U.S. C. § 41713(b)(1). We agree with our sister circuits that personal-injur y claims arising out of an airline employee’s failure to exercise due care are not “related to” a deregulated price, route, or service. Therefore, exercising ju risdiction under 28 U.S.C. § 1291, we reverse the district court’s dismissal of Day’s action and remand for further proceedings consistent with this opinion.
II. BACKGROUND Day alleges she flew as a fare-paying passenger on a SkyWest flight from Oregon to Texas on January 11, 2019. During the flight’s beverage service, a SkyWest flight attendant “caused the beverage cart to forcef ully strike . . . Day’s right shoulder causing her significant injury and damage to her body.” Day filed a two-count diversity complaint in the United States District Court for the District of Utah, alleging claims of negligence and breach of contract. 1 In the negligence count, Day alleged SkyWest and its employees acted negligently in several

1 The complaint alleges that SkyWest is incorporated in Utah, has its principal place of business in Utah, ma intains an agent fo r service of pro cess in Utah, and trains its flight attendants in a Utah training facility. Sk yWest has not disputed these allegations or otherwise challenged Day’s decisi on to file this case in the District of Utah. Although the complaint does not specify the applicable law governing Day’s negligence and contract claims, the parties have consistently tr eated her claims as governed by Utah law, both before the distri ct court and on appeal . Accordingly, we follow the parties’ lead in treating Day’s claims as Utah common-law claims of negligence and breach of contract. Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 23 different ways, including “[f]ailing to mainta in proper lookout during the beverage service while pushing the beverage cart throu gh the passenger aisle,” “[f]ailing to push the beverage cart at a reasonable rate of spee d through the passenger aisle so as to avoid striking passengers with the beverage cart and/or minimize the damages resulting from any contact with a passenger,” and “[f]aili ng to properly announce and warn passengers that the beverage cart would be or was bein g pushed through the passenger aisle.” In the contract count, Day alleged she sustained pe rsonal injuries as a result of SkyWest’s breach of its contractual obliga tions to provide her with “s afe carriage and transport from her origination to her destination” and to “e xercise professional, careful, and safe conduct and judgment.” Both counts sought damage s for the personal injuries Day allegedly sustained as a result of the beverage-cart collision. SkyWest filed a motion to dismiss the comp laint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. SkyWes t sought dismissal of the negligence claim on the basis of ADA preemption and argued that the contract claim should be dismissed because (1) it was redundant of the negligence claim, and (2) the complaint failed to identify a specific contract or cont ractual provision that was breached. In granting SkyWest’s motion to dismiss, the district court concluded that the negligence and contract claims were bot h preempted by the ADA and dismissed the complaint solely on th at basis. The court acknowledged in a footnote that SkyWest had raised other arguments regarding the contract claim, but the court concluded it did not need to address these arguments based on its pr eemption ruling, altho ugh it stated in dicta Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 34 that “SkyWest is correct that the factual allegations of Da y’s Complaint are insufficient to state a claim for breach of contract.” Day appeals the district court’s dismi ssal of her complaint, arguing that her personal-injury claims do not fall within the scope of the ADA’s preemptive scope. In response, SkyWest argues the district court co rrectly dismissed both of Day’s claims as expressly preempted by the ADA. SkyWest also asks us to affirm the district court’s ruling on alternative grounds. For the reasons set forth below, we conclude the district court erred in ruling that Day’s personal-in jury claims of neg ligence and breach-ofcontract were preempted by the ADA. 2 We decline to address SkyWest’s alternative arguments for dismissal. We therefore reverse and remand this case for further consideration by the district court.
III. ANALYSIS
A. Express Preemption under the ADA We review the district cour t’s preemption ruling de novo. See Cerveny v. Aventis,
Inc. , 855 F.3d 1091, 1096 (10th Cir. 2017). Because SkyWest is “[t]he party claiming preemption,” it “bears the burden of showing w ith specificity that Congress intended to preempt state law.” Mount Olivet Cemetery Ass’n v. Salt Lake City , 164 F.3d 480, 489

2 The parties do not dispute that both of Day’s claims may be characterized as personal-injury claims, cf. Walker v. U.S. Gen., Inc. , 916 P.2d 903, 905 (Utah 1996) (“Walker filed this persona l injury action against Gene ral, alleging negligence, breach of contract, and gross negligence. ”), and each party’s preemption arguments address both claims together under this broader “personal injury” category rather than raising separate preemption arguments for each specific clai m. We follow the parties’ lead in treating bot h as personal-injury claims to which the same general analysis will apply. Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 45 n.4 (10thCir. 1998); see also Cook v. Rockwell Int’l Corp. , 618 F.3d 1127, 1143 (10th Cir 2010) (“Because Defendants advocate preemption, they bear the burd en of showing that federal and state law conflict.”). The type of preemption at issue in this appeal, express preemption, applies when Congress “defines explicitly th e extent to which its enactments pre-empt state law.” Emerson v. Kan. City S. Ry. Co. , 503 F.3d 1126, 1129 (10th Cir. 2007) (quotations and alteration omitted). To determine whether a st ate law is expressly preempted by a federal preemption clause, “[w]e apply ordinary princi ples of statutory interpretation, looking initially to the plain language of the federal statute.” Chamber of Commerce of U.S. v. Edmondson , 594 F.3d 742, 765 (10th Cir. 2010). The ADA’s preemption provision states in pe rtinent part that “a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b )(1). The parties do not dispute that commonlaw claims of negligence and breach of contract may fall within the scope of this provision in certain circumstances. See Northwest, Inc. v. Ginsberg , 572 U.S. 273, 281 (2014) (holding that “state common-law rules fall comfortably within the language of the ADA pre-emption provision,” because they have “the force and effect of law”). 3 Rather,

3 In its brief, SkyWest acknowledges th at contract claims generally are not preempted by the ADA. See Am. Airlines, Inc. v. Wolens , 513 U.S. 219, 228 (1995). Nevertheless, SkyWest argues, the ADA “m ay preempt any state-supplied common law rule which attaches additional terms to a contract, such as an implied covenant of good faith and fair dealing or punitive da mages.” Appellee’s Br. at 17 n.12. Day Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 56 the parties simply dispute whether Day’s claims in this case are impermissibly “related to” an air carrier’s “service.” Although this court has not directly defi ned what activities fall within the scope of the word “service,” we have cited favorably to the Fifth Circuit’ s determination that “service” includes “‘items such as ticketing, boarding procedures, pr ovision of food and drink, and baggage handli ng, in addition to the transportation itself.’” Arapahoe Cnty. Pub. Airport Auth. v. FAA , 242 F.3d 1213, 1222 (1 0th Cir. 2001) (quoting Hodges v. Delta Airlines, Inc. , 44 F.3d 334, 336 (5th Cir.1995) (en banc)). Because the parties both assume that this definition go verns the issues before this court, we likewise assume for purposes of this appeal that the Hodges definition applies, meaning that an airline’s “provision of food and drink” constitutes a “service” for purposes of the ADA’s preemption provision. We turn then to the defin ition of “related to.” The Supreme Court has held that this phrase is subject to the same interpretati on as the virtually identical phrase “relate to” in the preemption provision of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1144(a). Morales v. Trans Wo rld Airlines, Inc. , 504 U.S. 374, 383 (1992). Although the Court has noted th at these words “express a broad pre-emptive purpose,” id. , it has warned against inte rpreting this phrase with “‘uncritical literalism,’”

does not dispute this argument, nor does sh e contend her contract claim involves no implied duties or other common-law rules and thus escapes preemption under this standard. We therefore assume for purposes of this appeal that Day’s contract claim, like her negligence claim, will be preempt ed under the ADA if we find it to be “related to” an ai rline “service.” Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 67 as an overly literal interpretati on of this broad and indetermin ate phrase would mean that “‘for all practical purposes pre-emp tion would never run its course,’” Gobeille v. Liberty
Mut. Ins. Co. , 577 U.S. 312, 319 (2016) (quoting N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U.S. 645, 65 5, 656 (1995)). See also Dan’s City Used Cars, Inc. v. Pelkey , 569 U.S. 251, 256, 260 (2013) ( holding that “the breadth of the words ‘related to’ does not mean the sky is the limit” in rejecting a defendant’s preemption argument under a statute that “[b]orrow[s] from the ADA’s preemption clause”). To set limits on this phrase, the Court has held that a “state law relates to an ERISA plan if it has a co nnection with or reference to such a plan,” Rutledge v. Pharm. Care Mgmt. Ass’n , 141 S. Ct. 474, 479 (2020) (q uotation omitted), and the Court has “adopt[ed] the same standard ” for the ADA, which therefore preempts “[s]tate enforcement actions having a connection with, or reference to, airline ‘rates, routes, or services.’” 4 Morales , 504 U.S. at 384. As this test was originally developed in the ERISA context, it was intended to provide a “workable standard[]” to “ensure that ERISA’s express pre-emption clause receives the broad scope Congress intended wh ile avoiding the clause’s susceptibility to limitless application.” Gobeille , 577 U.S. at 319–20

. The Court’s ERISA jurisprudence clarifies how this test should be applied. Cf. Morales , 504 U.S. at 384–87 (rejecting

4 The ADA originally referr ed to “rates, routes, or services,” but Congress amended this statutory language in 1994 to re fer to “a price, r oute, or service.” “Because Congress intended this amendment to be without substantive change, courts refer to the two versions interchangeably.” Ventress v. Japan Airlines , 603 F.3d 676, 681 n.2 (9th Cir. 2010) (quota tions and citation omitted). Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 78 contention that the Court could not “use [ its] interpretation of identical language in ERISA as a guide,” and relying on ERIS A cases to resolve arguments regarding preemption under the ADA). In the ERISA context, a state law bears an impermissible “reference to” ERISA only if (1) “a State’s la w acts immediately and exclusively upon ERISA plans” or (2) “the existence of ERISA plans is essential to the law’s operation.” Gobeille , 577 U.S. at 319–20 (quotations omitted). “A law that does not refer to ERISA plans may yet be pre-empted if it ha s a ‘connection with’ ERISA plans.” Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc. , 519 U.S. 316, 325 (1997). Specifically, a state law may have an impermissible “connection with” ERISA if (1) it “governs a central matter of plan admi nistration,” (2) it “interferes with nationally uniform plan administration,” or (3) “acute, albeit indirect, economic effects of the state law force an ERISA plan to adopt a certain sc heme of substantive c overage or effectively restrict its choice of insurers.” Gobeille , 577 U.S. at 320 (quotations and alterations omitted). “Pre-emption does not occur, however, if the state law has only a ‘tenuous, remote, or peripheral’ connecti on with covered plans, as is the case with many laws of general applicability.” Dist. of Columbia v. Greater Wash. Bd. of Trade , 506 U.S. 125, 130 n.1 (1992) (citation omitted ). To determine whether a “f orbidden connection” exists, the Supreme Court considers the federal statut e’s objectives “‘as a guide to the scope of the state law that Congress understood would survive,’” as well as “the nature of the effect of the state law” on the subject matter of the federal statute. Dillingham , 519 U.S. at 325 (quoting Travelers , 514 U.S. at 656). Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 89 Accordingly, in applying the Supreme Co urt’s “connection with or reference to” test in the ADA context, a state law has an impermissible “reference to” airline prices, routes, or services if the law “acts immedi ately and exclusively” upon airline prices, routes, or services, or if “the existence of” ai rline prices, routes, or services “is essential to the law’s operations.” Gobeille , 577 U.S. at 319–20. A state law that does not “refer to” airline prices, routes, or services under this test may nevertheless be preempted as impermissibly “connected with” them if th e law (1) governs a central matter of an airline’s prices, routes, or services; (2) inte rferes with uniform natio nal policies regarding airline prices, routes, or services; or (3) w ill have acute economic effects that effectively limit airlines’ choices regarding thei r prices, routes, and services. See id. at 320. In applying this test, a state la w is not preempted if it “has only a ‘tenuous, remote, or peripheral’ connection with [airline prices, rout es, or services], as is the case with many laws of general applicability.” Greater Wash. Bd. , 506 U.S. at 130 n.1 (quoting Shaw v. Delta Air Lines, Inc. , 463 U.S. 85, 100 n.21 (1983)); see also Morales , 504 U.S. at 390 (“To adapt to this case our language in Shaw , ‘[s]ome state actions may affect [airline fares] in too tenuous, remote, or periphera l a manner’ to have pre-emptive effect.” (quoting Shaw , 463 U.S. at 100 n.21) (alterations in original )). In evaluating a state law for the existence of a “forbidden connection,” we will consider (1) “the objectives of the [ADA] as a guide to the scope of the state law that Congress understood would survive,” and (2) “the nature of the effect of the stat e law on” airline prices, routes, and services. Dillingham , 519 U.S. at 325. Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 910 Applying this test to Da y’s negligence and contract claims, we conclude they are not preempted under the “reference to” part of the test because the state laws invoked by Day do not refer to airline pr ices, routes, or services. Rather, Utah’s common-law negligence and contract causes of action are la ws of general applicability that apply to any individuals or corporations whose actions may foreseeably injure others or who enter into contractual arrangements. See Summerill v. Shipley , 890 P.2d 1042, 1043, 1045 (Utah Ct. App. 1995) (holding that a defendant is liable for negligence if he fails to meet “the general standard of care,” which requires “[a] person . . . to use reasonable care to avoid injuring other pe ople or property”); BR ex rel. Jeffs v. West , 275 P.3d 228, 232 (Utah 2012) (“[A] special relationship is not t ypically required to sustain a duty of care to those who could fores eeably be injured by the defe ndant’s affirmative acts.”); Am. W. Bank Members, L.C. v. State , 342 P.3d 224, 230-31 (Utah 2014) (“The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages.” (quotation omitted)). These laws make no “r eference to” airline prices, routes, or services because they do not act immediately and exclusiv ely upon airline prices, routes, or services, nor do they depend on the existenc e of airline prices, routes, or services for their operation. See Gobeille , 577 U.S. at 319–20; cf. Ingersoll-Rand Co. v. McClendon , 498 U.S. 133, 140 (19 90) (holding that a Texas cause of action was preempted by ERISA because the state courts had defined the cau se of action to expressly refer to ERISA plans, such that “a plaintiff must plead, and the court must find, that an ERISA plan exists” for the plaintiff to prev ail on this cause of action). Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1011 Turning then to the questi on whether Utah’s negligence and contract laws have a forbidden “connection with” airline prices, r outes, and services, we first evaluate the broader principles the Supreme Court has indi cated should guide this inquiry. In this regard, we first consider (1) the objectives of the ADA, wh ich provide “a guide to the scope of the state law that Co ngress understood would survive,” and (2) “the nature of the effect of the state law on” airlin e prices, routes, and services. Dillingham , 519 U.S.
at 325. On the first consideration, we agree with our sister circuits that Congress enacted the ADA to achieve “the economic deregulation of the airline in dustry,” but “[n]othing in the Act itself, or its legislative history, indi cates that Congress had a clear and manifest purpose to displace state tort law in actions th at do not affect deregulation in more than a peripheral manner.” Charas v. Trans World Airlines, Inc. , 160 F.3d 1259, 1265 (9th Cir. 1998) (en banc) (emphasis added) (quotations omitted); see also Hodges , 44 F.3d at 338 (“Significantly, too, neither the ADA nor its le gislative history indicates that Congress intended to displace the application of state to rt law to personal physical injury inflicted by aircraft operations, or that Congress even considered such preemption.”); Taj Mahal Travel, Inc. v. Delta Airlines, Inc. , 164 F.3d 186, 194 (3d Ci r. 1998) (“[T]he proper inquiry is whether a common law tort remedy frustrates deregulati on by interfering with competition through public utility-s tyle regulation. . . . We c onsider it highly unlikely that claims caused by careening service carts a nd plummeting luggage we re to be removed from state adjudication.”); Branche v. Airtran Airways, Inc. , 342 F.3d 1248, 1258–59 (11th Cir. 2003) (explaining that competition between airlines is the primary concern Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1112 underlying the ADA and, accord ingly, both employment disc rimination actions and statelaw personal-injury actions ha ve typically been held to fall outside the scope of the ADA’s preemption clause). Congress’s silence regarding the ADA’s potential displacement of state tort laws “‘takes on adde d significance in light of Congress’s failure to provide any federal remedy for persons injured by such co nduct,’” because it “‘is difficult to believe that Congress would, with out comment, remove all means of judicial recourse for those injured by illegal conduct.’” Hodges , 44 F.3d at 338 (quoting Silkwood v. Kerr-McGee Corp. , 464 U.S. 238, 251 (1984)). Moreover, despite the lack of a federal remedy, Congress specifically requires air carriers to carry insurance “sufficient to pay . . . for bodi ly injury to, or death of, an individual or for loss of, or damage to, property of others, resulting from the operation or maintenance of the aircraft.” 49 U.S.C. § 41112(a). “A complete preemption of state law in this area would have rendered any requirement of insurance coverage nugatory,” and thus this provision “can only be understood to qualify the scope of ‘services’ removed from state regulation” by the ADA’s preemption provision. Hodges , 44 F.3d at 338; see also Taj Mahal , 164 F.3d at 194 (“[T]he continued existen ce of statutorily mandated liability insurance coverage is strong evidence that Congress did not intend to preempt state tort claims.”); Corley v. United States , 556 U.S. 303, 314 (2009) (explain ing that “one of the most basic interpretive canons” holds “that a statute should be construed so that effect is given to all its provisions, so that no part will be inop erative or superfluous, void or insignificant” (quotations and alterations omitted)). T hus, the statute as a whole “evidences congressional intent to prohibit states from re gulating the airlines while preserving state Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1213 tort remedies that already existed at comm on law, providing that such remedies do not significantly impact federal deregulation.” Charas , 160 F.3d at 1265. As for the second consideration that Dillingham directs us to consider—“the nature of the effect of the state law on” ai rline prices, routes, and services, 519 U.S. at 325—a judgment in Day’s favor on her ne gligence and contract claims would impact SkyWest’s prices, routes, and services only insofar as SkyWest might be required to exercise more care in providing what ever services it decides to provide. 5 Cf. Harris v. Am. Airlines, Inc., 55 F.3d 1472, 1478 (9th Cir. 1995) (Norris, J., dissenting) (reasoning that negligence and other personal-injury claims based on an airline’s repeated provision of alcoholic beverages to a drunk and abusive passenger shou ld not be preempted under the ADA because an award of damages “would not regulate the economic or contractual aspects of the airline’s provision of beverage s,” even if it might “affect the airline’s training or security practices”); see also Charas , 160 F.3d at 1263 (en banc overruling of

5 SkyWest suggests its pri ces, routes, and services c ould also be affected by the economic impact of a damages award in Day’s favor, but the cases SkyWest cites to support this argument are inapposite , and SkyWest does not explain how a damages award would have a forbidden effect on its prices, routes, or services. Even if SkyWest’s fares or servic es could arguably be affected by the financial losses it might experience as a result of a verdict in Day’s favor, this would not in itself support the conclusion that Day’s claims have an impermissible connection to SkyWest’s prices, routes, or services. Any award of damages in any context may alter the airline’s financial s ituation and thus indirectly impact the airline’s prices, routes, and services, but an award of damages in and of itself will “affect airline fares in too tenuous, remote, or peripheral a ma nner to have pre-emptive effect.” Morales , 504 U.S. at 390 (quotations and alterations omitted); cf. Wolens , 513 U.S. at 224–26 (allowing class-action plaintiffs to pursue cont ract claims for mone tary relief against airline). The types of effects we are con cerned with here are th e acute effects of a finding of liability based on a particular cause of action, not the peripheral economic effects that may flow from a financial loss caused by an aw ard of monetary damages. Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1314 Harris ) (holding that “Judge Norris . . . got it right” and the majority in Harris erred in finding personal-injury claims preempted by the ADA). This is not the type of “public utility-style regulation” that Congre ss intended the ADA to preempt. Taj Mahal , 164 F.3d at 194. Rather, Utah’s negligence and contract causes of action are akin to “generally applicable backgroun d regulations that are several steps removed from prices, routes, or services, such as prevailing wage laws or safety regulations, [which] are not preempted, even if employers must factor thos e provisions into thei r decisions about the prices that they set, the routes that they use, or the services that they provide.” Dilts v. Penske Logistics, LLC , 769 F.3d 637, 646 (9th Cir. 2014 ). Finding SkyWest liable for its allegedly negligent infliction of personal in juries on Day during its beverage service would not force SkyWest to rem ove, add, or modify any of its prices, routes, or services; it would simply hold SkyWest to the same gene ral obligations of due care and contractual fealty that apply to other companies. 6

6 Because the parties do not squarely address this issu e, we do not address the question whether SkyWest might be subjec t to a heightened duty of care as a common carrier, nor do we address whether a pplying this heighten ed duty of care to SkyWest might trigger differ ent ADA preemption concerns. See Lamb v. B&B Amusements Corp. , 869 P.2d 926, 930 (Utah 1993) (“ The heightened standard of care required of common carriers is predicated on the principle that persons using ordinary transportation devices , such as elevators and bus es, normally expect to be carried safely, securely, and without incide nt to their destinat ion.” (quotations and alterations omitted)). Even if a defendant is not subject to this heightened duty of care, it must exercise “care according to the nature of the circumstances that a reasonably prudent person woul d consider in assessing possible risks of injury,” id. , and holding SkyWest liable for a breach of th is generally applicable standard of care in the context of this pe rsonal-injury case would not impose a public-utility-style regulation on SkyWest’s economic decisions. Thus, SkyWest has not met its burden of establishing that Day’s negligence cl aim is expressly preempted by the ADA. Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1415 Accordingly, we are entirely unpersua ded by SkyWest’s argument that Congress intended for airlines’ careless infliction of personal injuries on passengers to be governed solely by “the whims of co mpetitive market forces.” Appellee’s Br. at 25. Although Congress intended to de regulate airlines’ economic polic ies (such as, for instance, the decision not to offer a beverage service or to offer a different range of beverages than other airlines), nothing in the ADA or its le gislative history supports the view that Congress also intended to immunize airlines from liability for any violations of generally applicable negligence or contract laws. 7 As Justice Stevens reasoned in his partial concurrence in American Airlines v. Wolens , both “the standard of ordinary care” and contract principles are “general background rule[s] against which all individuals order their affairs,” and “[s]urely Congress did not intend to give airlines free rein to commit negligent acts subject only to the supervision of the Department of Transportation, any more than it meant to allow ai rlines to breach contracts with impunity.” 513 U.S. 219, 236–37 (1995) (Stevens, J., concurri ng in part and disse nting in part); see also id. at 231 n.7 (majority op.) (noting with out discussion that both Ameri can Airlines and the United

7 See Harris , 55 F.3d at 1478 (Norris, J., di ssenting) (“Since economic deregulation is the key to the ADA, . . . beverage ‘services’ preempted under the ADA are limited to economic decisions re garding the provision of drinks, e.g., whether or not to provide drinks on any flight, and co ntractual decisions about whether to charge for the drinks or provide them free. If Ms. Harris were ultimately to recover damages in this case, the judgment . . . would not regulate the economic or contractual aspects of the airline’s pr ovision of beverages.” (citation omitted)); Charas , 160 F.3d at 1266 (“We conclude that when Congress enacted federal economic deregulation of the airlines, it intended to insulate the industry from possible state economic regulation as well . . . . It did not intend to immunize the airlines from liability for personal injuries caused by their tortious conduct.”). Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1516 States as amicus curiae had agreed that th e ADA was unlikely to preempt safety-related personal-injury claims); id. at 242 (O’Connor, J., concurri ng in part and dissenting in part) (concluding that the non-personal- injury claims befo re the Court in Wolens should be preempted, but agreeing that personal-inju ry claims against airlines may not be preempted by the ADA). “Unsurprisingly, airlines do not compete on the basis of likelihood of personal injury, i.e., onboard safety, and as such it does not undermine the pro-competitive purpose of the ADA, as set forth in Wolens , to permit states to regulate this aspect of air carrier operations.” Branche , 342 F.3d at 1258 (citation omitted). In light of these consider ations, we conclude that Da y’s contract and negligence claims are not based on state laws impermi ssibly “connected with” airline prices, routes, or services because Utah’s cont ract and negligence laws (at le ast as applied in this case) do not govern a central matter of an airline’s prices, routes, or services; do not interfere with uniform national policies regarding airlin e prices, routes, or services; and will not cause acute economic consequences that would effectively limit airlines’ choices regarding their prices, routes, and services. See Gobeille , 577 U.S. at 320. Specifically, for the reasons explained a bove, a finding in Day’s favor would not govern any central matters of SkyWest’s serv ices, but would only require SkyWest, like all other businesses, to honor its contractual obligations and to comply with the general duty of care toward those who might be fore seeably injured by its affirmative acts. BR , 275 P.3d at 232; Summerill , 890 P.2d at 1043, 1045; Am. W. Bank , 342 P.3d at 230-31; Wolens , 513 U.S. at 236–37 (Stevens, J., concu rring in part and di ssenting in part). Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1617 Furthermore, SkyWest does not point to any uniform national policies that would be impeded by the requirements under Utah law for SkyWest to comply with its contractual commitments and to exercise re asonable care in undertaking activities that might foreseeably cause physical injuries to passengers. Although SkyWest asserts that different states have different standards of car e, it does not cite to a single case to support this proposition as a reason for preemption, nor does it otherwise provide any basis for this court to conclude that a finding in Da y’s favor would interfere with “nationally uniform” policies regarding airline prices, routes, or services. See Rockwell Int’l , 618 F.3d at 1143 (“Because Defendants advoca te preemption, they bear the burden of showing that federal and state law conflict.”); see also Wolens , 513 U.S. at 236–37 (Stevens, J., concurring in part and dissen ting in part) (reasoning without citing to any specific state laws that both “contract law” and “the standard of ordinary care” are “general background rule[s ] against which all individuals order their affairs”). Finally, SkyWest has failed to show that a verdict in Day’s favor could cause acute economic effects that would effectiv ely limit SkyWest’s choices regarding its prices, routes, and services. See Gobeille , 577 U.S. at 320. A damages award in Day’s favor might incentivize SkyWest to put more e ffort into training its employees to avoid injuring passengers, but it wo uld not constrain SkyWest’s ability to make “economic decisions regarding the provisi on of drinks, e.g., whether or not to provide drinks on any flight, and contractual decisions about whether to charge for the drinks or provide them free.” Harris , 55 F.3d at 1478 (Norris, J., dissenting); cf. Tobin v. Fed. Express Corp. , 775 F.3d 448, 456 (1st Cir. 2014) (holding that the ADA preempted tort claims that Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1718 “could effect fundamental changes in the carrie r’s current or future service offerings” by “regulat[ing] how [the air carrier] operates its core business,” but contrasting such claims to “everyday personal injury claims” which “may not impose any greater duty on an airline than that which ex ists for any other firm”). 8 Thus, any tangential effect that Day’s

8 We note that SkyWest’s brief fails to cite to a singl e case in which a personal-injury claim was held to be pr eempted by the ADA. Day does identify two such cases in her reply brief, Fawemimo v. Am. Airlines, Inc. , 751 F. App’x 16 (2d Cir. 2018), and Witty v. Delta Air Lines, Inc. , 366 F.3d 380 (5th Cir. 2004), but she points out that these cases involved very different facts than those at issue in this case. In particular, the al leged personal injuries in bot h of those cases arose from unsafe design elements or from the inherent risks of air travel rather than from employees’ failures to exerci se due care in their conduc t toward passengers. For instance, in Fawemimo , the plaintiff “alleged that sh e hit her head on a television monitor above her seat while boarding a[] fli ght and that her inju ries were the result of an unsafe aircraft design.” 751 F. App’x at 17. The Second Circuit held that this claim was preempted under the Fifth Circuit’s Hodges analysis because, “under Hodges , § 41713(b)(1) preempts claims that challenge airline policies and could potentially create inconsiste nt standards between states , while leaving room for personal injury actions that al lege an airline was negligent in carrying out its policy.” Id. The plaintiff’s claim that the aircraft’s design was inhe rently dangerous related to a general policy “rather than the negligent installation or mainte nance of her specific monitor or seat,” and the court therefore found it preempted based on Hodges

. Id. The plaintiff in Witty likewise raised a claim base d on general airline policies, alleging that he developed deep vein throm bosis because the aircraft’s design did not provide adequate leg room and because the ai rline failed to warn its passengers of the inherent risk of deep vein thrombosis asso ciated with air travel . 366 F.3d at 382. “[D]ecid[ing] this case narrowly by addre ssing the precise issues before [it],” the Fifth Circuit held that the ADA expressly preempted the plaintiff’s leg-room claim because, unlike the claims in Hodges , this claim would have a significant economic effect on airlines’ prices by reducing the num ber of passengers w ho could be carried on each flight. Id. at 383, 385. The court then he ld that the failure-to-warn claim was preempted “[u]nder the implied preemp tion doctrines of field preemption and conflict preemption.” Id. at 384. The court noted that this holding was narrow, and it directly stated that it was not expressing an opi nion as to whether a failure-to-warn claim might escape preemption under other circumstances. Id. at 385–86. Neither of these cases affects our conclu sion that Day’s negligence a nd contract claims are not expressly preempted by the ADA. Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1819 claims might have on SkyWest’s beverage se rvices or the airline’s fares are “too far removed from Congress’s deregulatory purpose to warrant preemption.” Dirty Boyz Sanitation Serv. Inc. v. City of Rawlins , 889 F.3d 1189, 1200 (10th Cir. 2018)

. Allowing a damage award when a flight attendant car elessly injures a passenger with a beverage cart will “neither significantly determine what services [airlines] will provide nor require [airlines] to provide a service not available in the market.” Id. We therefore hold that the district cour t erred in dismissing Day’s negligence and contract claims as pr eempted by the ADA.
B. Alternative Arguments for Affirmance SkyWest asks us to affirm the district court’s decision on two alternative grounds. Specifically, SkyWest argues that (1) Day’s cont ract and negligence claims are subject to implied field preemption under the Federal Av iation Act of 1958, and (2) Day’s contract claim fails to state a claim upon which relief may be granted, both because her complaint did not adequately identify a relevant cont ract or contractual duty, and because the contract claim is duplicative of the negligence claim. SkyWest did not raise a field-preemption argument below and devotes little space to this issue in its appellate briefing, even though preemption is a “somewhat Byzantine area of the law,” Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc. , 693 F.3d 1195, 1203 n.4 (10th Cir. 2012), requiring a de tailed evaluation of bot h state and federal law, see, e.g. , US Airways, Inc. v. O’Donnell , 627 F.3d 1318, 1325–29 (10th Cir. 2010) (conducting a lengthy multi-step an alysis to determine whethe r a specific state law was field preempted by the Federal Aviation Act). We decline to exercise our discretion to Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1920 consider this newly raised, inadequately brie fed, and analytically complex issue in the first instance on appeal. See Singleton v. Wulff , 428 U.S. 106, 121 (1976) (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.”); Dutcher v. Matheson , 733 F.3d 980, 989 (10th Cir. 2013) (“While the parties complied with our instruction to addr ess Class Action Fairness Act jurisdiction in supplemental briefing, we do not believe it appropriate to resolve this thorny question without further development in the district court.”); United States v. Lamirand , 669 F.3d 1091, 1098 n.7 (10th Cir. 2012) (“Given the appare nt complexity of this issue of statutory interpretation . . . , we are reluctant to de finitively opine on its merits without a full adversarial framing of the releva nt considerations.”). We express no opinion as to either the merits of this defense or the thres hold procedural questi on whether SkyWest may raise this new affirmative defense on remand. SkyWest’s second alternative argument for relief is directed at the contract claim and is premised on two independent grounds: (1 ) the adequacy of the allegations in Day’s complaint, and (2) Utah law regarding overlapping contract and tort claims. In support of the first of these grounds, SkyWest argue d in its motion to dismiss that the complaint failed to ad equately plead a claim for breach of contract because it did not establish the existence of a particular contract or identify a specific contractual provision breached by SkyWes t, and any implied contract ual duties were necessarily preempted. In granting SkyWest’s motion to dismiss on the basis of preemption, the district court stated in dicta that “SkyWest is correct that the factual allegations of Day’s Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 2021 complaint are insufficient to state a claim for breach of c ontract,” App. at 136 n.13, but it did not elaborate on this comment. On appeal, SkyWest addresses this matter on just one page of its appellate brief, in which it fails to cite to a single case or discuss a single legal principle. See Fed. R. App. P. 28(a)(8); 28(b) (directing appellees to incl ude in their briefs their “contentions and the reasons for them, with citations to the authorities . . . on wh ich the appell[ee] relies”). Without identifying or discu ssing the controlling legal standa rds that govern our review of the adequacy of a complaint, SkyWest si mply asserts that Day’s broad allegations regarding the existence of a contract and the duties of safe carriage and safe conduct are inadequate to plead the existe nce of a specific contract or of any specific contractual obligations. Cf. Dias v. City & Cnty. of Denver , 567 F.3d 1169, 11 78 (10th Cir. 2009) (“A complaint will survive dismissal only if it alleges a plausible claim for relief—that is, the factual allegations must be enough to raise a right to relief above the speculative level. Even so, granting a motion to dismiss is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleadin g but also to protect the interests of justice.” (q uotations, alterations, and citations omitted)). SkyWest does not address whether Day’s breach-of-contract claim might plausibly be premised on implied contractual duties, which SkyWest incorrectly argued below were necessarily preempted by the ADA. Moreover, SkyWest make s the cursory assertion that this court can affirm the dismissal of Day’s complaint based on a document SkyWest attached to its motion to dismiss, without re cognizing that “consideration of material attached to a defendant’s answer or motion to dismiss” generally “requi res the court to convert the Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 2122 motion into one for summary ju dgment and afford the partie s notice and an opportunity to present relevant evidence.” Tal v. Hogan , 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). “Deprived of meaningful adversarial brie fing regarding this [argument], as well as a reasoned district court decision resolving it, we believe that the most prudent and fair course is to allow the district court to addr ess this [argument] in the first instance on remand . . . .” Sylvia v. Wisler , 875 F.3d 1307, 1326 (10th Cir. 2017); see also Gates Rubber Co. v. Ba ndo Chem. Indus. , 9 F.3d 823, 846 (10th Ci r. 1993) (“[W]e do not understand what the district c ourt meant, nor do we have the benefit of the district court analysis beyond its mere conclusion that the merger doctrine is not applicable. Accordingly, we must remand for further analysis of this element as well.”). Finally, SkyWest argues that we can affi rm the dismissal of Day’s contract claim because it is duplicative of her tort claim. The district court declined to address this issue, which requires a determination of whether and how various Utah Supreme Court cases cited by the parties might apply when a plaintiff pleads both contract and tort causes of actions. The parties briefed this is sue on appeal, but only in a few pages of each of their respective briefs. “Rather than examining and resolving the merits of the[ir] contentions, . . . we adopt the better practice of leaving the matter to the district court in the first instance.” Evers v. Regents of Univ. of Colo. , 509 F.3d 1304, 1310 (10th Cir. 2007); see also Comm. for the Fi rst Amendment v. Campbell , 962 F.2d 1517, 1527 (10th Cir. 1992) (“Although the parties have briefed the legal issue of qualified immunity on appeal, we decline to addr ess the issue without the benefit of the district court’s thoughts on the issue.”); Pac. Frontier v. Pleasant Grove City , 414 F.3d 1221, 1238 (10th Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 2223 Cir. 2005) (“Where an issue has been raised, but not ruled on, proper judicial administration generally favors remand for the district court to examine the issue initially.”).
IV. CONCLUSION For the reasons set out above, we REVERSE the district court’s dismissal of Day’s claims and REMAND this matter to the district court for further proceedings consistent with this opinion. Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 23