Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 22, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
KELLY DAY,
Plaintiff - Appellant,
v. No. 20-4129
SKYWEST AIRLINES,
Defendant - Appellee. _________________________________
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 dismissal of the diversity action she filed
against SkyWest Airlines for personal injuries she allegedly sustained when a SkyWest
flight attendant carelessly struck her with a beverage cart. The district court granted Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 2
SkyWest’s motion to dismiss the action as preempted 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-injury 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 jurisdiction 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 forcefully 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, maintains an agent for service of process in Utah, and trains its flight attendants in a Utah training facility. SkyWest has not disputed these allegations or otherwise challenged Day’s decision 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 treated her claims as governed by Utah law, both before the district 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. 2 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 3
different ways, including “[f]ailing to maintain proper lookout during the beverage
service while pushing the beverage cart through the passenger aisle,” “[f]ailing to push
the beverage cart at a reasonable rate of speed 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]ailing to properly announce and warn passengers
that the beverage cart would be or was being pushed through the passenger aisle.” In the
contract count, Day alleged she sustained personal injuries as a result of SkyWest’s
breach of its contractual obligations to provide her with “safe carriage and transport from
her origination to her destination” and to “exercise professional, careful, and safe conduct
and judgment.” Both counts sought damages for the personal injuries Day allegedly
sustained as a result of the beverage-cart collision.
SkyWest filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. SkyWest 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 contractual provision that was breached.
In granting SkyWest’s motion to dismiss, the district court concluded that the
negligence and contract claims were both preempted by the ADA and dismissed the
complaint solely on that 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 preemption ruling, although it stated in dicta
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that “SkyWest is correct that the factual allegations of Day’s Complaint are insufficient
to state a claim for breach of contract.”
Day appeals the district court’s dismissal 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 correctly 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-injury claims of negligence and breach-of-
contract 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 court’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 with 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 personal injury action against General, 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 claim. We follow the parties’ lead in treating both as personal-injury claims to which the same general analysis will apply. 4 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 5
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 burden of showing that
federal and state law conflict.”).
The type of preemption at issue in this appeal, express preemption, applies when
Congress “defines explicitly the 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 state law is expressly preempted by a federal
preemption clause, “[w]e apply ordinary principles 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 pertinent 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 common-
law 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 that 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 “may 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 damages.” Appellee’s Br. at 17 n.12. Day
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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 defined 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, provision of food and
drink, and baggage handling, in addition to the transportation itself.’” Arapahoe Cnty.
Pub. Airport Auth. v. FAA, 242 F.3d 1213, 1222 (10th 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 governs 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 definition of “related to.” The Supreme Court has held that
this phrase is subject to the same interpretation 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 World Airlines, Inc., 504 U.S. 374,
383 (1992). Although the Court has noted that these words “express a broad pre-emptive
purpose,” id., it has warned against interpreting this phrase with “‘uncritical literalism,’”
does not dispute this argument, nor does she 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 preempted under the ADA if we find it to be “related to” an airline “service.” 6 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 7
as an overly literal interpretation of this broad and indeterminate phrase would mean that
“‘for all practical purposes pre-emption 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, 655, 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 connection with or reference to such a plan,” Rutledge v. Pharm.
Care Mgmt. Ass’n, 141 S. Ct. 474, 479 (2020) (quotation 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 while 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 referred to “rates, routes, or services,” but Congress amended this statutory language in 1994 to refer to “a price, route, 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) (quotations and citation omitted). 7 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 8
contention that the Court could not “use [its] interpretation of identical language in
ERISA as a guide,” and relying on ERISA 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 law 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 has 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 administration,” (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 scheme of substantive coverage 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’ connection 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 “forbidden connection” exists,
the Supreme Court considers the federal statute’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).
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Accordingly, in applying the Supreme Court’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 immediately and exclusively” upon airline prices,
routes, or services, or if “the existence of” airline 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 the law (1) governs a central matter of an
airline’s prices, routes, or services; (2) interferes with uniform national policies regarding
airline prices, routes, or services; or (3) will have acute economic effects that effectively
limit airlines’ choices regarding their prices, routes, and services. See id. at 320. In
applying this test, a state law is not preempted if it “has only a ‘tenuous, remote, or
peripheral’ connection with [airline prices, routes, 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 peripheral 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 state law on” airline prices, routes, and services.
Dillingham, 519 U.S. at 325.
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Applying this test to Day’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 prices, routes, or services. Rather, Utah’s common-law
negligence and contract causes of action are laws 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 people or property”); BR ex rel. Jeffs v. West, 275 P.3d 228, 232
(Utah 2012) (“[A] special relationship is not typically required to sustain a duty of care to
those who could foreseeably be injured by the defendant’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 “reference to” airline prices, routes, or
services because they do not act immediately and exclusively upon airline prices, routes,
or services, nor do they depend on the existence 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 (1990) (holding that a Texas cause of action was preempted by ERISA
because the state courts had defined the cause 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 prevail on this cause of action).
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Turning then to the question whether Utah’s negligence and contract laws have a
forbidden “connection with” airline prices, routes, and services, we first evaluate the
broader principles the Supreme Court has indicated should guide this inquiry. In this
regard, we first consider (1) the objectives of the ADA, which provide “a guide to the
scope of the state law that Congress understood would survive,” and (2) “the nature of the
effect of the state law on” airline 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 industry,” but “[n]othing in
the Act itself, or its legislative history, indicates that Congress had a clear and manifest
purpose to displace state tort law in actions that 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 legislative history indicates that Congress
intended to displace the application of state tort 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 Cir. 1998) (“[T]he proper
inquiry is whether a common law tort remedy frustrates deregulation by interfering with
competition through public utility-style regulation. . . . We consider it highly unlikely that
claims caused by careening service carts and plummeting luggage were 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
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underlying the ADA and, accordingly, both employment discrimination actions and state-
law personal-injury actions have 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 added significance in light of Congress’s failure
to provide any federal remedy for persons injured by such conduct,’” because it “‘is
difficult to believe that Congress would, without 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 bodily 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 existence 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) (explaining 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 inoperative or superfluous, void or insignificant”
(quotations and alterations omitted)). Thus, the statute as a whole “evidences
congressional intent to prohibit states from regulating the airlines while preserving state
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tort remedies that already existed at common 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” airline prices, routes, and services, 519 U.S.
at 325—a judgment in Day’s favor on her negligence and contract claims would impact
SkyWest’s prices, routes, and services only insofar as SkyWest might be required to
exercise more care in providing whatever 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 should 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 beverages,” 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 prices, routes, and services could 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 services 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 situation 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 manner 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 contract claims for monetary relief against airline). The types of effects we are concerned with here are the 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 award of monetary damages. 13 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 14
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 Congress 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 background 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 those provisions into their 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 injuries on Day during its beverage service
would not force SkyWest to remove, add, or modify any of its prices, routes, or services;
it would simply hold SkyWest to the same general obligations of due care and contractual
fealty that apply to other companies.6
6 Because the parties do not squarely address this issue, we do not address the question whether SkyWest might be subject to a heightened duty of care as a common carrier, nor do we address whether applying this heightened duty of care to SkyWest might trigger different 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 buses, normally expect to be carried safely, securely, and without incident to their destination.” (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 would consider in assessing possible risks of injury,” id., and holding SkyWest liable for a breach of this generally applicable standard of care in the context of this personal-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 claim is expressly preempted by the ADA. 14 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 15
Accordingly, we are entirely unpersuaded by SkyWest’s argument that Congress
intended for airlines’ careless infliction of personal injuries on passengers to be governed
solely by “the whims of competitive market forces.” Appellee’s Br. at 25. Although
Congress intended to deregulate airlines’ economic policies (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 legislative 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 airlines to breach contracts with impunity.” 513 U.S. 219,
236–37 (1995) (Stevens, J., concurring in part and dissenting in part); see also id. at 231
n.7 (majority op.) (noting without discussion that both American Airlines and the United
7 See Harris, 55 F.3d at 1478 (Norris, J., dissenting) (“Since economic deregulation is the key to the ADA, . . . beverage ‘services’ preempted under the ADA are limited to economic decisions regarding the provision 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. 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 provision 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.”). 15 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 16
States as amicus curiae had agreed that the ADA was unlikely to preempt safety-related
personal-injury claims); id. at 242 (O’Connor, J., concurring in part and dissenting in
part) (concluding that the non-personal-injury claims before the Court in Wolens should
be preempted, but agreeing that personal-injury 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 considerations, we conclude that Day’s contract and negligence
claims are not based on state laws impermissibly “connected with” airline prices, routes,
or services because Utah’s contract and negligence laws (at least 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 airline 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 above, a finding in Day’s favor would not
govern any central matters of SkyWest’s services, 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 foreseeably 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., concurring in part and dissenting in part).
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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 reasonable care in undertaking activities that
might foreseeably cause physical injuries to passengers. Although SkyWest asserts that
different states have different standards of care, 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 Day’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 advocate 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 dissenting 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 effectively 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 effort into training its employees to avoid
injuring passengers, but it would not constrain SkyWest’s ability to make “economic
decisions regarding the provision 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
17 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 18
“could effect fundamental changes in the carrier’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 exists for any other firm”).8 Thus, any tangential effect that Day’s
8 We note that SkyWest’s brief fails to cite to a single case in which a personal-injury claim was held to be preempted 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 alleged personal injuries in both of those cases arose from unsafe design elements or from the inherent risks of air travel rather than from employees’ failures to exercise due care in their conduct toward passengers. For instance, in Fawemimo, the plaintiff “alleged that she hit her head on a television monitor above her seat while boarding a[] flight and that her injuries 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 inconsistent standards between states, while leaving room for personal injury actions that allege an airline was negligent in carrying out its policy.” Id. The plaintiff’s claim that the aircraft’s design was inherently dangerous related to a general policy “rather than the negligent installation or maintenance 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 based on general airline policies, alleging that he developed deep vein thrombosis because the aircraft’s design did not provide adequate leg room and because the airline failed to warn its passengers of the inherent risk of deep vein thrombosis associated with air travel. 366 F.3d at 382. “[D]ecid[ing] this case narrowly by addressing 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 number of passengers who could be carried on each flight. Id. at 383, 385. The court then held that the failure-to-warn claim was preempted “[u]nder the implied preemption 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 opinion as to whether a failure-to-warn claim might escape preemption under other circumstances. Id. at 385–86. Neither of these cases affects our conclusion that Day’s negligence and contract claims are not expressly preempted by the ADA. 18 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 19
claims might have on SkyWest’s beverage services 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 carelessly 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 court erred in dismissing Day’s negligence and
contract claims as preempted 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 contract and negligence claims are subject to
implied field preemption under the Federal Aviation 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 contract 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 detailed evaluation of both 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 analysis to determine whether a specific state law was
field preempted by the Federal Aviation Act). We decline to exercise our discretion to
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consider this newly raised, inadequately briefed, 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 address 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 apparent complexity of this issue of statutory
interpretation . . . , we are reluctant to definitively opine on its merits without a full
adversarial framing of the relevant considerations.”). We express no opinion as to either
the merits of this defense or the threshold procedural question 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 argued in its motion to dismiss
that the complaint failed to adequately 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 SkyWest, and any implied contractual 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
20 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 21
complaint are insufficient to state a claim for breach of contract,” 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 include in their briefs their “contentions and the
reasons for them, with citations to the authorities . . . on which the appell[ee] relies”).
Without identifying or discussing the controlling legal standards that govern our review
of the adequacy of a complaint, SkyWest simply 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 existence of a specific contract or of any specific contractual
obligations. Cf. Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (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 pleading but also to protect
the interests of justice.” (quotations, 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 makes 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 recognizing that “consideration of material attached to a
defendant’s answer or motion to dismiss” generally “requires the court to convert the
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motion into one for summary judgment and afford the parties 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 briefing 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 address 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. Bando Chem. Indus., 9 F.3d 823, 846 (10th Cir. 1993) (“[W]e do not
understand what the district court 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 affirm 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 issue 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 First 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 address 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
22 Appellate Case: 20-4129 Document: 010110727715 Date Filed: 08/22/2022 Page: 23
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