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Practice and Procedure in Civil Actions

The ordinary rules of negligence are applicable to cases of damage to persons and property caused by aircraft[i].  In an action for personal injuries received in an airplane accident, the plaintiff has the burden of proving that the operator or the aviator was negligent in the operation of the airplane and of showing that such negligence was the proximate cause of the injury complained of.

The allegations requisite to a cause of action for negligence are[ii]:

  • facts showing a duty of care owed to defendant,
  • negligence constituting a breach of the duty, and
  • injury to the plaintiff as a proximate result.


The application of ordinary rules of negligence to aviation fixes a greater degree of responsibility because the operation of an aircraft in a normal legal manner cannot be classified as negligence per se[iii].

A federal district court has jurisdiction of a case alleged to arise under federal statutes or regulations concerning the manner of operation of aircraft[iv].  A cause of action arises under federal law, when the plaintiff’s complaint raises issues of federal law[v].

Federal aviation laws and regulations are binding on state courts and the courts are to take judicial notice of such laws and regulations[vi].

Although Congress intends to provide a federal defense to state actions with the Federal Aviation Act, 49 USCS § 40101, it does not intend to completely displace state law and create a federal forum[vii].

The Warsaw Convention[viii], the Convention for the Unification of Certain Rules Relating to International Transportation by Air, is the exclusive means for filing a personal injury suit against air carriers in international transportation[ix].

A suit for damages subject to the provisions of Warsaw Convention must be brought in one of four locations[x]:

  • the domicile of the carrier;
  • the principal place of business of the carrier;
  • the carrier’s place of business through which the contract has been made; or
  • the place of destination.


The Warsaw Convention applies to divest both state and federal courts of subject matter jurisdiction where the U.S. is not one of the four specified fora[xi].

In Salis v. Ghana Airways, 9 A.D.3d 421 (N.Y. App. Div. 2d Dep’t 2004), the court held that the Warsaw Convention, which limits the liability of carriers to a specified amount per kilogram, is the supreme law of the land, of which state courts will take notice.

[i] Todd v. Weikle, 36 Md. App. 663 (Md. Ct. Spec. App. 1977).

[ii] Peter W. v. San Francisco Unified Sch. Dist., 60 Cal. App. 3d 814 (Cal. App. 1st Dist. 1976).

[iii] Brunt v. Chicago Mill & Lumber Co., 243 Miss. 607 (Miss. 1962).

[iv] Roosevelt Field, Inc. v. North Hempstead, 84 F. Supp. 456 (D.N.Y. 1949).

[v] Fournier v. Lufthansa German Airlines, 191 F. Supp. 2d 996 (N.D. Ill. 2002).

[vi] Associated East Mortg. Co. v. Young, 163 N.J. Super. 315 (Ch.Div. 1978).

[vii] Fournier v. Lufthansa German Airlines, 191 F. Supp. 2d 996 (N.D. Ill. 2002).

[viii] 49 USCS § 40105.

[ix] Bartolomeu v. China Airlines, 53 Fed. Appx. 406 (9th Cir. Cal. 2002).

[x] In re Air Disaster Near Cove Neck, 774 F. Supp. 725 (E.D.N.Y. 1991).

[xi] Sopcak v. Northern Mt. Helicopter Servs., 924 P.2d 1006 (Alaska 1996).

Inside Practice and Procedure in Civil Actions