* Chief District Judge of the Eastern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91-6070.

Charles E. Gene SMITH and Joan Smith, et al., Plaintiffs-Appellants,

v.

AMERICA WEST AIRLINES, INC. and Connie Lynn Weaver, Defendants-Appellees.

Oct. 14, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS and JONES, Circuit Judges, and PARKER * , District Judge.

EDITH H. JONES, Circuit Judge:

This appeal presents the question whether the Airline Deregulation Act of 1978 preempts a

state law claim for negligence relating to the airline's alleged failu re t o employ adequate safety

measures. The district court held that the plaintiffs' causes of actio n were preempted by 49

U.S.C.App. § 1305 and dismissed the complaint. We affirm in light of our unpublished opinion in

Baugh v. Trans World Airlines, Inc., No. 90-2074, 915 F.2d 693 (Table) (5th Cir. Sept. 14, 1990)

and our published opinio n in O 'Carroll v. American Airlines, Inc., 863 F.2d 11 (5th Cir.), cert.

denied, 490 U.S. 1106, 109 S.Ct. 3158, 104 L.Ed.2d 1021 (1989).

I.

BACKGROUND

On January 16, 1 990, America West flight 727 was hijacked en route to Las Vegas from

Houston. The hijacker forced the pilot to land the aircraft in Austin, Texas, so that it co uld be

refueled and flown to Cuba. At the Austin airport, police overpowered the hijacker and placed him

under arrest.

Passengers on the airplane brought a lawsuit in state court against America West and Connie

Lynn Weaver claiming that the defendants were negligent in permitting the hijacker to board t he

a ircraft . The defendants removed the action to federal court and promptly moved to dismiss theaction on the ground that the plaint iffs' state law tort claims were preempted by t he Airline

Deregulation Act of 1978 (ADA), 49 U.S.C.App. § 1301 et seq., and that no implied cause of action

existed under the Federal Aviation Act. The district court granted the defendants' mo t io n and

dismissed the complaint. The plaintiffs appeal.

II.

DISCUSSION

In Baugh, supra, we held that a state-law tort claim for personal injury is preempted by 49

U.S.C.App. § 1305 if the claim relates to the airline's rates, routes, or services. The claim in B augh,

for a stewardess's having negligent ly st omped on a passenger's foot, was held to be related to

services. We have criticized the breadth of B augh 's preemption analysis in Hodges v. Delta Airlines,

Inc.,

--- F.2d

----, No. 91-6037, re leased concurrently herewith. Plaintiffs' petition here alleges

several acts or omissions of negligence and gross negligence by America West and Weaver. These

allegations gene rally accuse America West and Weaver of failing to warn or protect ticketed

passengers against hazards which were known or should have been known to the defendants by

allowing Jose Manuel Gonzales-Gonzales to board flight 727 at Houston Intercontinental Airport.

The plaint iffs allege that America West and Weaver failed to use boarding practices stringent enough

to prevent Gonzalez-Gonzalez from boarding the aircraft, as a result of which plaintiffs' safety was

seriously compromised.

This lawsuit posits claims that are more closely related to airline services than those in Hodges

or Baugh. Further, in O 'Carroll v. American Airlines, Inc., 863 F.2d 11 (5th Cir.), cert. denied, 490

U.S. 1106, 109 S.Ct. 3158, 104 L .Ed.2d 1021 (1989), thi s court hel d that § 1305 preem

pted, as

related t o "services", the claims of a passenger who was bumped from a flight because of

disorderliness. It is a difficult question whether any negligence that can be attributed to the

defendants for permitting Gonzales-Gonzales to board flight 727 is integrally "related to" the airline's

services and has the "forbidden significant effect" that compels § 1305 preemption. M orales v. Trans

World Airlines, Inc., --- U.S.

----, 112 S.Ct. 2031, 2039, 119 L.Ed.2d 157 (1992). It may be that

allowing this lawsuit to proceed wou ld neit her have a significant regulatory effect on the airline'sservices nor would it impermissibly cause common-law regulation of boarding practices. Until this

court overturns or modifies its opinions in Baugh and O'Carroll, however, further speculation on the

preemptive scope of § 1305 is moot.

Therefore, the judgment of the district court must be AFFIRMED.