View the“Aviation & Admiralty Law” issue of COMMUNIQUÉ (April 2019), the official publication of the Clark County Bar Association. See features written by members of Nevada’s legal community listed as follows:
- “Law Unique to Nevada for Aircraft Accidents” by Stephen S. Kent, Esq.
- “How Avigation Easements Apply to Real Property in Nevada” by Erica C. Smit, Capt, USAF
- “Delay Fees and the Montreal Convention” by Mark Severino, Esq. – CCBA CLE Article #5 [see note below]
- “Advance Opinion Summaries (3-1-19)” by Joe Tommasino, Esq.
Additional content may be found in the 32 pages of the full color issue of the publication (print and PDF versions), including these special features:
- “Lending a helping hand is good for the soul” By Clark County Bar President Jason P. Stoffel
- View from the Bench: Initial Impressions About Initial-Appearance Court by Las Vegas Justice Court Chief Judge Suzan Baucum
- Pro Bono Corner: Why I Value My Pro Bono Cases” by Emily A. Buchwald, Esq.
- Bar Activities
- Member Moves
- Court News
- The Marketplace
Special thanks to the following advertisers for their support of COMMUNIQUÉ (April 2019):
- Advanced Resolution Management
- Ara Shirinian Mediation
- Bank of Nevada
- Gerry Holinski Berkshire Hathaway
- Greenberg Traurig, LLP
- Jason D. Mills & Associates
- Las Vegas Aviators
- Las Vegas Legal Video
- Legal Wings
- Nevada Ballet Theatre
- Portraits to You
- State Bar of Nevada
Note in regards to CCBA Article #5: The Clark County Bar Association (CCBA) will offer 1.0 General Continuing Legal Education (CLE) Credit (for 2019) to Nevada lawyers who read the article, complete the accompanying test, and make payment to Clark County Bar Association, 717 South 8th Street, Las Vegas, Nevada, 89101, and per the offer described in the print and PDF versions of the April 2019 issue of COMMUNIQUÉ (see pages 24-29). CCBA is an Accredited Provider with the NV CLE Board.
© 2019 The content on this page was originally published in COMMUNIQUÉ*, the official publication of the Clark County Bar Association. All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.
Law Unique to Nevada for Aircraft Accidents
By Stephen S. Kent, Esq.
A. Statutory liability for aircraft crashes
Strict liability for injury arising out of the operation of an aircraft may be imposed by a special statute or rule, or by an international agreement. Nevada, by statute, has followed this approach. NRS 493.060 establishes a rebuttable presumption that the owner of an aircraft is presumed liable for damages to persons or property from an aircraft crash.
Generally, Federal law establishes the applicable standards of care for aircraft operation preempting the entire field from state and territorial regulation under principles of implied field preemption. Although federal law preempts standards of aviation safety, traditional state and territorial law remedies continue to exist for violation of those standards, inasmuch as such remedies are compatible with federal aviation standards, and the Federal Aviation Act (FAA) includes no federal remedy for personal injury or death caused by the operation or maintenance of aircraft. United Air Lines Inc. v. Krotke, 77 Nev. 308, 363 P.2d 94 (1961); Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999); Aldana v. Air East Airways, Inc., 477 F. Supp. 2d 489 (D. Conn. 2007). The airman’s information manual and advisory circulars published by the FAA provide evidence of the standard of care. (Dyer v. U.S., 832 F.2d 1062 (9th Cir. 1987; First of America Bank-Cent. v. U.S., 639 F. Supp. 446 (W.D. Mich.) In Nevada, violation of these safety requirements constitutes negligence per se. In re N-500L Cases, 691 F.2d 15, 34 Fed. R. Serv. 2d 1518 (1st Cir. 1982); Dyer v. U.S., 832 F.2d 1062 (9th Cir. 1987); U.S. Aviation Underwriters, Inc. v. National Ins. Underwriters, 117 Wis. 2d 417, 344 N.W.2d 532 (Ct. App. 1984). ) Nevada by statute (NRS 493.140) has adopted federal air regulations as the standard of care for operation of aircraft. In Nevada, therefore, the Federal Aviation Act and Federal Air Regulations (FARs)(Titles 4 and 49 CFR), are the standard of care for aircraft operation. Nevada law requires a common carrier of passengers to exercise the highest practicable degree of care that human judgment and foresight are capable of, to make its passenger’s journey safe. Whoever engages in the business of common carrier impliedly promises that its passengers shall have this degree of care. Forrester v. Southern Pacific Co. 36 Nev. 247 134 P. 753 (1913). Elements of negligence including proximate cause must be proven in an aircraft crash negligence case. Martin v. Ross, 96 Nev 916, 620 P.2d 866 (1980).
C. Strict products liability
The General Aviation Revitalization Act of 1994 (GARA) 32(a)(1)(A)&(B) imposes an 18 year statute of repose against civil actions for damages involving general aviation aircraft. Strict product liability requires a plaintiff to establish that his/her injury was caused by a defect in the product and that such defect existed when the product left the hands of the manufacturer. Shoshone Coca-Cola Bottling Company v. Dolinski, 82 Nev. 439, 443, 420 P.2d 855, 858 (1966). A product is defective which is dangerous because it fails to perform in the manner reasonably to be expected in light of its nature and intended function. Ginnis v. Mapes Hotel Corporation, 86 Nev. 408, 413, 470 P.2d 135, 138 (1970). The length and type of the product’s use determines the time for which a manufacturer may be held liable. Id. at 414. Products liability plaintiff is obligated to demonstrate causation B the product defect caused plaintiff’s damages. Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98 (1998). An alteration to a product which is substantial, unforeseeable, or actually causes the injury shields the manufacturer from liability. Robinson v. G.G.C., Inc. 107 Nev. 135, 140, 808 P.2d 522, 525 (1991).
D. The economic loss doctrine
In National Union Fire Ins. Co. Of Pittsburgh, Pa v. Pratt and Whitney Canada Inc., 107 Nev. 535, 815 P.2d 601 (1991), the economic loss doctrine precluded recovery for destruction of an aircraft on the theory that an allegedly defective engine caused the destruction.
E. Aircraft insurance
In Griffin v. Old Republic Ins. Co., 122 Nev. 479, 133 P.3d 251, causation of the crash was not required for an aircraft insurance policy exclusion requiring an annual inspection to be found valid enforceable to exclude insurance coverage for liability arising from the aircraft crash.
F. Air ambulances
NRS 450B.015 to 450B.154 establishes licensing and training regulations and standards for the operation of air ambulances. These statutes adopt in NRS 450B.140 United States Department of Transportation standards and regulations for the operation of air ambulances. These Nevada statutes address licensing, record keeping and air ambulance sanitation, but not flight operation or flight standards.
Stephen Kent of Kent Law has been involved in aviation litigation in Nevada for most of his 39 years of practice including many noteworthy Nevada cases including defending the Reno Air Race Association after the 2011 crash that resulted in the death of 11 and injury of 69, the 1990 crash of State treasurer elect Bob Seale’s aircraft by passenger Lt. Gov. elect Sue Wagner and the 2001Nimbus 4DM glider crash involving pilots William Ivans and Donald Engen former head of the Smithsonian Institution Air and Space Museum and former member of the NTSB.
How Avigation Easements Apply to Real Property in Nevada
By Erica C. Smit, Capt, USAF
If you have ever watched the fighter jets take off from Nellis Air Force Base, you may have noticed that they typically make an immediate, sharp turn westward before heading out to the Nevada Test and Training Range. You may have also seen commercial jets flying on selected flight paths when landing and taking off from McCarran International Airport. The reason these flight paths are strictly followed is due in part to avigation easements, which provide the legal right to fly through the usable airspace of another’s property.
As determined by the Supreme Court of Nevada, Nevada property owners’ usable airspace typically extends up to 500 feet above their land (although it may be higher in populated areas with tall buildings). An aircraft that flies within the usable airspace of another’s property may be considered to have trespassed and also to have committed a nuisance due to the associated noise and pollution. Unless, however, there is an avigation easement.
Typically, the lands surrounding airports are burdened with avigation easements. But not all avigation easements are created equal. Some avigation easements only prevent the landowner from filing nuisance and trespass claims. Whereas, in other cases, avigation easements impose restrictions on building and tree heights. The right to control the height of obstructions on land is referred to as a clearance easement. While avigation easements may encompass a clearance easement, there is a clear distinction between the two burdens on land.
The failure to distinguish between these types of easements proved critical in McCarran Int’l Airport v. Sisolak, 122 Nev. 645 (2006), a regulatory takings case which resulted in a landowner near McCarran Airport recovering more than $16 million based on regulations preventing him from developing structures over a certain height.
The easement at issue in Sisolak only provided a right for aircrafts to fly over the property and to cause associated noise; it did not impose any building height restrictions. Instead, the County passed various ordinances that prevented landowners in zones near the airport from building over certain heights to ensure aircrafts would have adequate access to the airport. As the airport grew, so did the building height restrictions. The restrictions at issue in Sisolak prevented building structures over three to ten feet above ground level without seeking a variance from the County. During condemnation proceedings, the landowner sought damages for the loss of what his vacant lot could have been worth if developed into a commercial enterprise, and he was ultimately successful.
On appeal, the County argued that the avigation easement served as a defense to the landowner’s inverse condemnation claim. Yet, the Supreme Court of Nevada rejected that argument, holding that the avigation easement at issue did not contain height restrictions, but simply provided an overflight easement. Because the County restricted the landowner’s usable airspace through its ordinances without compensation, the County’s actions constituted a per se taking of the property, for which Nevada law requires just compensation. Therefore, the Court affirmed the judgment of the district court.
The holding in Sisolak could have far-reaching effects in Clark County considering the County’s prior practice of recording avigation easements against landowners as a condition of development. Sisolak prevents the County from using an uncompensated avigation easement as a defense to the taking of a landowner’s usable airspace. Nevada law requires the County to proceed through its eminent domain powers.
So, next time you see jets taking off and landing on certain flight paths near an airport, you’ll know some of the reason why.
Erica C. Smit, Capt, USAF, is an assistant staff judge advocate at the United States Air Force Warfare Center, Nellis Air Force Base, Nevada. The views presented herein are those of the author and do not necessarily represent the views of the Department of Defense or its Components.
Delay Fees and the Montreal Convention
By Mark Severino, Esq.
Many of us have experienced long delays, loss of luggage, and last minute cancellations of flights. In an effort to protect passengers’ rights on domestic flights, state and federal legislation has been enacted. There are different laws, however, when it comes to international travel.
The Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”), an international treaty entered into by its member countries, is an effort to standardize liability and compensation for claims arising from international air travel. The Montreal Convention applies to “all international carriage of persons, baggage, or cargo.” 1999 WL 33292734, Art. 1. Article 19 of the Montreal Convention (“Article 19”) provides the exclusive remedy for damages in instances of delay. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161 (1999). Article 19 states that:
[t]he carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
Montreal Convention, 1999 WL 33292734, Art. 19.
Thus, an airline is not responsible for delay damages so long as the airline’s agents and employees took all reasonable measures to avoid the damage or if it was impossible for the airline’s agents and employees to take such measures.
What constitutes “all reasonable measures”?
For the purposes of Article 19 of the Montreal Convention, “all reasonable measures” has been interpreted to mean “all precautions that in sum are appropriate to the risk, i.e., measures reasonably available to defendant and reasonably calculated, in accumulation, to prevent the subject loss:” that is, measures that are “technically and economically” viable. Giannopoulos v. Iberia Lineas Aereas de Espana, S.A., Operadora, Sociedad Unipersonal, 2012 WL 5499426, at *4 (N.D. Ill. Nov. 9, 2012) citing Helge Mgmt., Inc. v. Delta Air Lines, Inc., 2012 WL 2990728, at *3 (D.Mass. July 19, 2012) (quoting Palma v. Am. Airlines, Inc., 2010 WL 5140592, at *5 (S. D. Fla., 2010) (interpreting a similar provision in the Warsaw Convention, the precursor to the Montreal Convention)). “The failure to take any particular precaution that might have prevented the loss does not necessarily prevent the carrier from relying on this defense; not every possible precaution must be taken.” Id. citing Palma, 2010 WL 5140592, at *5. The airline only needs to show that it took all precautions that, in sum, were appropriate to the risk. Id.
Courts throughout the United States have recognized that, when forces outside an airline’s control caused the delay, Article 19 relieves liability. See, e.g., Cohen v. Delta Air Lines, Inc., 751 F. Supp.2d 677, 680 (S.D.N.Y., 2010) (delay caused by weather), and Helge Mgmt., Inc., 2012 WL 2990728, at *3 (D. Mass. July 19, 2012) (delay caused by unforeseen mechanical issues). For example, in Cohen v. Delta Air Lines, Inc., 751 F. Supp.2d 677, 680 (S.D.N.Y., 2010), the district court granted summary judgment for Delta when plaintiffs’ flight delay was caused by weather conditions, and the carrier took reasonable measures to avoid the delay. The court also noted that plaintiffs “point to no evidence in the record from which a trier of fact could reasonably infer that Delta willfully caused their delay, or that Delta did not take all measures that could reasonably be necessary to avoid the delay, as prescribed by the Montreal Convention.” Id. See also, Helge Mgmt., Inc., 2012 WL 2990728, at *3 (D.Mass. July 19, 2012)(granting summary judgment for Delta when flight delays were caused, in part, by an unforeseen mechanical failure).
Though policies and procedures regarding avoidance of delays and mitigation of harm to passengers in the event of a delay may be helpful in establishing that reasonable efforts to avoid the delay had been made, the absence of such policies and procedures is not fatal to this defense so long as the airline can offer proof that all reasonable efforts had actually been made to avoid the delay.
What damages are recoverable in a Montreal Convention Article 19 delay claim?
In a Warsaw Convention case, which was a precursor to the Montreal Convention, the trial court stated that “Time is money, after all, and the Court finds that the inconvenience of being trapped for hours in an unfamiliar airport is a compensable element of damages for delay in air travel.” Daniel v. Virgin Atl. Airways, Ltd., 59 F. Supp. 2d 986, 994 (N.D. Cal. 1998).
Thirteen years later, in a matter analyzing the Montreal Convention delay damages, the court interpreted Daniel, and explained its meaning. In Rubin v. Air China, 2011 U.S. Dist. Lexis 65618 (N.D. Cal. 2011), the court held that “in order to be recoverable, such ‘inconvenience’ damages must truly encompass economic damages, and cannot simply be based upon the ‘discomfort, annoyance, and irritation’ Plaintiff experienced during the delay.” Rubin, WL 2463271, at *4 (outside cites omitted). The Rubin court was specific, and did not hold that the plaintiff could recover “inconvenience” damages without proof of some actual economic damages.
In Ikekpeazu v. Air France, No. 3:04 CV 00711(RNC), 2004 WL 2810063 (D. Conn. Dec. 6, 2004), the court held that a physician could recover loss of work damages as a result of a delay in international air travel. Ikekpeazu, 2004 WL 2810063 at *2. In Campbell v. Air Jamaica LTD, 760 F.3d 1165 (11th Cir. 2004), with regard to Article 19, the court held the plaintiff could recover flight “change fees” incurred as a result of a flight delay. Campbell, 760 F.3d at 1171. Neither case addressed whether a plaintiff could recover delay damages, however, without actual financial injury.
Based on the Ikekpeazu and Rubin decisions, for a plaintiff to recover, the plaintiff must offer some proof of actual economic harm. Purely non-economic inconvenience damages are not recoverable.
The laws of other countries
Many countries and the European Union have enacted their own statutory schemes that provide for delay damages. European Union Regulation (E.C.R.) No 261/2004 (“EU 261”) is a European Union law providing for standardized compensation to passengers as a result of delayed or canceled international air travel for flights to or from Europe. EU261 is a similar, but operationally different, law than the Montreal Convention. The Montreal Convention and EU261 cases carry different standards of law for relieving delay damage liability.
In Wallentin-Hermann v. Alitalia-Linee Aeree Italiane SpA, 2008 E.C.R. I-11061, the court discussed the differences between EU261 and the Montreal Convention. Specifically, the court deciphered the differences in the two laws’ exculpatory clauses. Under the Montreal Convention, an airline will not be liable for delay damages when “it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.” Id. at ¶29. Under EU261, delay damages can only be avoided under “extraordinary circumstances.” These standards are different and apply to different compensatory contexts. The Wallentin-Hermann court explained:
29 Under Article 19 of the Montreal Convention, a carrier may be exempted from its liability for damage occasioned by delay ‘if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures’.
30 In this respect, it must be observed that Article 5(3) of Regulation No 261/2004 refers to the concept of ‘extraordinary circumstances’, whereas that concept does not appear in either Article 19 or any other provision of the Montreal Convention.
32 Moreover, as is clear from paragraphs 43 to 47 of IATA and ELFAA, Article 19 of the Montreal Convention and Article 5(3) of Regulation No 261/2004 relate to different contexts. Article 19 et seq. of that convention governs the conditions under which, if a flight has been delayed, the passengers concerned may bring actions for damages by way of redress on an individual basis. By contrast, Article 5 of Regulation No 261/2004 provides for standardised (sic) and immediate compensatory measures. Those measures, which are unconnected with those whose institution is governed by the Montreal Convention, thus intervene at an earlier stage than the convention. It follows that the carrier’s grounds of exemption from liability provided for in Article 19 of that convention cannot be transposed without distinction to Article 5(3) of Regulation No 261/2004.
See Wallentin-Hermann at ¶¶29-30, 32.
Other countries have their own statutory schemes dealing with delay damages. For example, the Israeli Aviation Services Law (Compensation and Assistance for Flight Cancellation or Change of Conditions), 5772-2012 is an Israeli domestic remedial scheme which permits passengers of flights in or out of Israel to pursue certain claims, in Israel, for travel delays. These foreign statutes involve different standards of law for relieving carriers of delay damage liability.
Seeking delay damages in the United States pursuant to foreign laws
Claims for delay damages under a foreign statutes are generally not actionable in the United States. Volodarskiy v. Delta Airlines, Inc., 784 F.3d 349 (7th Cir. 2015) details when a foreign law may be enforced in the United States under a direct action. In order for a delay damages claim under a foreign statute to be actionable under a direct claim in the United States, the foreign law must explicitly provide for a cause of action in the U.S., or the carrier must have incorporated the law into its contract of carriage. Volodarskiy, 784 F.3d at 350, 357. The contract of carriage is an agreement between the airline and its passengers which outlines the airlines obligations to its passengers and their rights. In part, it details conditions when a passenger may recover compensation for losses relating to delays in international travel.
In Volodarskiy, several plaintiffs brought suit against Delta Airlines seeking compensation as a result of a delay in their international air travel, and pled a direct cause of action seeking damages pursuant to EU 261. Id. at 350. Delta sought dismissal of this claim “arguing that a direct claim under EU 261 is actionable only in a designated administrative body or a court in an EU Member State.” Id. at 352. The court agreed, holding that “EU 261 does not provide a private right of action that can be enforced in courts outside the EU.” Id. The Seventh Circuit affirmed the decision, holding that EU 261 cannot be judicially enforced outside of the European Union. Id. at 350, 357. The Seventh Circuit further recognized that the carrier never incorporated EU 261 into its contract of carriage. Id. at 350, 357.
Certain other courts have also suggested that EU 261 breach of contract claims could be brought against an airline if the law was incorporated into the contract of carriage. See, e.g., Polinovsky v. Deutsche Lufthansa AG, 2012 WL 1080415, at *3 (N.D. Ill. Mar. 30, 2012) (finding the breach of contract claim preempted because the carrier’s Conditions of Carriage contract did not expressly incorporate EU 261).
Similarly, the Israeli Aviation Services Law does not provide for a private right of action outside of Israel. This is evidenced by the language of the law. Paragraph 22 states that the Israeli Minister of Transport, National Infrastructure, and Road Safety is tasked with “executing the law.” Israeli Aviation Services Law, 5772-2012 at p. 19, ¶22. Again, however, if incorporated into the contract of carriage, a plaintiff may be able to pursue a breach of contract claim based upon this law.
Thus, before pursuing claims in a U.S. court for delay damages on an international flight, it is important to look at the airline’s contract of carriage to determine what remedies may be available to you.
Mark Severino, Esq. is Of Counsel at Wilson, Elser, Moskowitz, Edelman, and Dicker, LLP. Mark handles a wide array of insurance defense matters, with an emphasis on aviation and aerospace. He represents major domestic airlines, fixed-base operators, aircraft and aircraft parts manufacturers, and general aviation operators throughout the country in matters ranging from minor injuries to catastrophic injuries, including matters involving multiple wrongful deaths. He also represents major aviation government contractors in claims nationally and internationally regarding catastrophic injury cases. Mark has also been a life-long aviation enthusiast, and a licensed pilot since the age of 17.
Note in regards to CCBA Article #5 “Delay Fees and the Montreal Convention”: The Clark County Bar Association (CCBA) will offer 1.0 General Continuing Legal Education (CLE) Credit (for 2019) to Nevada lawyers who read the article, complete the accompanying test, and make payment to Clark County Bar Association, 717 South 8th Street, Las Vegas, Nevada, 89101, and per the offer described in the print and PDF versions of the April 2019 issue of COMMUNIQUÉ (see pages 24-29). CCBA is an Accredited Provider with the NV CLE Board.
COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.
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