Tag Archives: FAA

Service animal dog bites passenger on commercial flight

Service animal dog bites are becoming more common.  Recently, a trial court in Spokane dealt with a service dog bite on a commercial flight.  The following is from Scott Brooksby’s article in the American Bar Association’s Mass Torts Practice Points, March 31, 2016:

Court Holds ACAA Preempts Passenger Claim Arising From Service Dog Bite

A recent Washington state trial court opinion held that federal field preemption under the Air Carrier Access Act (ACAA) preempts state-law tort claims arising from a service-dog bite that caused injuries to another passenger on a commercial flight. Sullivan v Alaska Air Group Inc., No. 15-02-00227 (Spokane Cnty. Feb. 29, 2016).

In Sullivan, the plaintiff was a passenger on a Horizon Air flight from Seattle to Spokane. On the same flight, defendant Wenzel was accompanied by his Rottweiler service animal. Wenzel and the dog were initially seated in the rear of the plane, but were moved to the front to better accommodate the size of the animal. On arrival, the service animal allegedly bit the palm of the plaintiff as she disembarked.

The plaintiff brought state-law negligence claims and contended that the airline had a duty to protect her from the harm caused by the service animal, and that the animal posed a foreseeable risk. Horizon Air argued that the ACAA preempts the plaintiff’s claims, either through conflict or field preemption. Horizon argued that the FAA has been empowered by Congress to promulgate rules and regulations in regard to airline safety and rules that should be afforded to passengers who may have need of a service animal. The airline argued that the rules and regulations establish a national standard that completely covers the issue of service animals on airplanes, and, therefore, the national standard preempts any state-law tort claim that would undermine the ACAA.

Washington state courts previously held that Congress may preempt local law where the federal government intended to exclusively occupy a field. Campbell v. Dep’t of Soc. & Health Servs., 83 P.3d 999, 1009 (Wash. 2004). The court also relied on a Ninth Circuit holding that under the ACAA, the secretary of transportation is authorized to promulgate rules governing air commerce and safety, and, pursuant to that authorization, the Department of Transportation has issued “detailed requirements that airlines must meet to comply with the ACAA.” Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1000 (9th Cir. 2013).

The regulations state in part that a carrier must permit a service animal to accompany a passenger with a disability to any seat as long as the animal is not precluded (too large, poses a direct threat to health and safety of others, or would cause a significant disruption of service by doing so). 14 C.F.R. § 382.117. If the animal is not precluded, the carrier must permit the animal to ride in the cabin. Therefore, the airline had a duty to do two things: (1) establish that the animal is in fact a service animal; (2) determine if the animal presents either a direct threat to the health and safety of others or a significant threat to the disruption of airline service. Thus the ACAA establishes the standard of care that Horizon Air owed the plaintiff and preempts any different or higher standard of care that may exist under Washington law. See Gilstrap, 709 F.3d at 1007.

The defendant dog owner assured Horizon that he was aware of the airline’s rules regarding service animals, which stated in part, that the owner must show evidence, either through a type of harness or markings on the harness or other credible assurances that the animal is a service animal. The dog was wearing a harness indicating that it was a service animal. The owner also established that the animal had flown on Horizon or its partners 12 times since 2009 without any incident. The court held that taken together, these facts established that Horizon fulfilled its duty to determine that the animal was a service animal and based on past experience would not disrupt the flight.

The court found that airline passenger safety as it relates to service animals was pervasively regulated by the ACAA, and concluded that the federal statutes and regulation preempt any applicable state standards of care. See 14 C.F.R. § 382.117. The court concluded that because Horizon Air had fulfilled its duties through compliance with the pervasive regulations of the ACAA, it was entitled to summary judgment.


New FAA Air Traffic Organization Policy Order to Establish Air Traffic Organization Safety Management System



Federal agencies, such as the Federal Aviation Administration (“FAA”), a branch of the U.S. Department of Transportation, are continuously working to improve air safety, and the enabling legislation for such agencies provides them with rulemaking power to accomplish the goal of improved safety.  With the recent series of commercial airline crashes, air safety is once again a source of anxiety for many air travelers.  Although statistically, decade after decade, air travel continues to prove itself as by far one of the safest modes of travel, air crashes capture the attention of the public in a way that is uniquely gripping as compared to other transportation disasters.  The recent commercial crashes, MH 370 on March 6 (location unknown), MH 317 on July 17 (Eastern Ukraine), Trans Asia Airlines flight GE 222 on July 23 (Penghu Islands) and Air Algerie flight 5017 on July 24 (Northern Mali) collectively represent approximately 700 fatal injuries to passengers and crew in the space of 138 days.

Although none of these incidents occurred inside United States-controlled airspace, parts of U.S. Airspace are unquestionably some of the busiest in the world.  Regulation and control of U.S. Airspace is controlled by federal law which preempts state law in all such matters.

On May 30, 2014, the FAA issued Order JO 1000.37A, entitled “Air Traffic Organization Safety Management System” (“Order”).  The Order will take effect on September 1, 2014.  This will provide a brief overview and summary of key aspects of the Order.

The mission of the Air Traffic Organization (“ATO”) is to provide a safe and efficient series of air navigation services in the National Airspace System and in the United States-controlled international oceanic air space.  This includes communications, navigation, surveillance and air traffic management services.  The Order specifically establishes the Safety Management System (“SMS”) as the foundation upon with the ATO’s safety efforts are conducted and measured.


The SMS is a multidisciplinary, integrated, and closed-loop framework used to help maintain safe and efficient air navigation services and infrastructure.  The Order requires the ATO SMS to be a framework for three specific areas:

  1. The development of safety policy and processes
  2. The promotion of a safety culture that identifies and reports activities that are potentially or actually detrimental to system safety; and
  3. The identification, continuous monitoring, auditing, and evaluation of hazards and the assessment and mitigation of safety risk within the National Airspace System (“NAS”) and United States-controlled international/oceanic airspace.

Structure of The Safety Management System

The four structural components that make up the SMS are

  1. Safety Policy.  This contains the requirements, standards and guidance to establish and execute SMS and promote a positive safety culture.
  2. Safety Risk Management.  This contains the processes and procedures established and followed ty ATO safety practitioners to identify hazards, analyze and asses risks.
  3. Safety Assurance.  This consists of the processes and procedures within the ATO SMS that ensure the ATO is operating according to expectations and requirements.  Safety Assurance provides validation of SR< efforts for proper operations, systems and equipment and identification of adverse safety trends.
  4. Safety Promotion.  Communication of proper safety practices through advocacy of the principles of a positive safety culture, employee training and compliance with ATO orders.


The bulk of the contents of the Order provide the intended mechanics for implementation and execution of the SMS and are beyond the scope of this summary.  However, with the skies becoming ever more crowded and the recent concerns over pilot fatigue, deficient CRM with some airlines, fly-by-wire and ever more complex aircraft, SMS appears to be a step in the right direction.  Whether the framework and structural components can be executed remains to be seen.

Olson Brooksby PC maintains an active aviation practice including the defense of aircraft and component part product liability claims and negligence claims resulting in personal injury and property damage and aviation related commercial disputes.