*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 failure to employ adequate safety

measures. The district court held that the plaintiffs' causes of action 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 We affirm in light of our unpublished opinion in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 opinion 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, 1990, 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 could 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 the

aircraft. The defendants removed the action to federal court and promptly moved to dismiss the
action on the ground that the plaintiffs' state law tort claims were preempted by the 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' motion 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 Baugh,

for a stewardess's having negligently stomped on a passenger's foot, was held to be related to

services. We have criticized the breadth of Baugh 's preemption analysisin Hodges v. Delta Airlines,

Inc., --- F.2d ----, No. 91-6037, released concurrently herewith. Plaintiffs' petition here alleges

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

allegations generally 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 plaintiffs allege that America West and Weaver failed to use boarding practicesstringent enough

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

seriously compromised.

Thislawsuit posits claimsthat are more closelyrelated to airline servicesthan those inHodges

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), this court held that § 1305 preempted, as

related to "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

defendantsfor permitting Gonzales-Gonzalesto board flight 727 isintegrally "related to" the airline's

services and hasthe "forbidden significant effect" that compels § 1305 preemption. Morales 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 would neither have a significant regulatory effect on the airline's
services nor would it impermissibly cause common-law regulation of boarding practices. Until this

court overturns or modifiesits opinionsin Baugh and O'Carroll, however, furtherspeculation on the

preemptive scope of § 1305 is moot.

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