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Piper Aircraft Corporation brings this interlocutory appeal under 28 U.S.C. ง 1292(b), challenging pre-trial rulings by the district court. Edward Cleveland brought suit against Piper for injuries he received in 1983 while piloting a Super Cub airplane, which crashed during takeoff. He alleged he suffered severe injuries due to the negligent design of the plane. In May 1986, a jury returned a $2.5 million verdict in favor of Cleveland.² On appeal the court determined the special verdict form improperly restricted jurors from allocating fault to all potentially responsible parties. See Cleveland v. Piper Aircraft Corp., 890 F.2d 1540, 1546-51 (10th Cir.1989), reh'g denied, 898 F.2d 778 (10th Cir.1990). A new trial was awarded Piper. On remand, the district court permitted Piper to amend its answer and assert a defense that state common law was preempted by the Federal Aviation Act of 1958 and its corresponding regulations.³ The district court, among other rulings, denied Piper's motion for summary judgment on this defense. Additionally, the trial court granted plaintiff's motion to limit the second trial to the issue of liability and ruled that only the witnesses and exhibits presented in the first trial could be introduced in the second trial. Piper sought permission to appeal these rulings under 28 U.S.C. ง 1292(b); the trial court certified the appeal and this court granted permission.

FACTS OF THIS CASE

Cleveland was injured July 8, 1983 while attempting to take off from the Mid-Valley Airport in Los Lunas, New Mexico, in a Piper Super Cub Model PA-18-150. The plane was towing a glider that was attached by rope to the aircraft's tail. Cleveland and a cinematographer were planning to film the glider's flight for a television commercial. With assistance from a Federal Aviation Administration (FAA) certified mechanic, Cleveland had removed the front pilot's seat from the plane and installed a camera. At the time of the accident, Cleveland was piloting the plane from the rear pilot seat.⁴

A few days before Cleveland planned to shoot the commercial, the owner of the Mid-Valley airport became concerned about the safety of the operation and about compliance with FAA regulations. The owner closed the airport to prevent Cleveland from taking off. On the morning of the accident, the owner noticed activity at the airport and parked his van in the runway to prevent takeoffs and landings. Shortly thereafter, Cleveland attempted to fly the reconfigured Piper airplane. During takeoff, the aircraft struck the owner's parked van. Cleveland's head struck the camera, resulting in serious head and brain injuries.

Cleveland's wife, the conservator of his estate, brought this diversity action against Piper, which manufactured and sold the Super Cub in 1970. At the conclusion of the trial, a jury determined that Piper negligently designed the aircraft without adequate forward vision from the rear seat and negligently failed to provide a rear shoulder harness. However, the jury was not asked to compare the negligence of the parties responsible for the initial collision--the plane striking the van--with the negligence of those responsible for the second injury--Cleveland's head striking the camera. On this basis, THE court reversed and ordered a new trial. Id. at 1546.

Piper claims that the district court erred in denying its motion for summary judgment on preemption grounds. The basic principles of law in this area are well settled. Piper argues that the Federal Aviation Act of 1958, 49 U.S.C.App. งง 1301 et seq., and the regulations it has spawned impliedly preempt state tort actions by occupying the field of airplane safety. It asserts that the web of federal laws and regulations govern the field in a comprehensive manner, leaving no room for state regulation. Preemption questions turn on congressional intent. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988). The mere fact that Congress has enacted detailed legislation addressing a matter of dominant federal interest does not indicate an intent to displace state law entirely. English v. General Elec. Co., 496 U.S. 72, 87, 110 S.Ct. 2270, 2279, 110 L.Ed.2d 65 (1990); Hillsborough County v. Automated Medical Lab., Inc., 471 U.S. 707, 716-20, 105 S.Ct. 2371, 2376-79, 85 L.Ed.2d 714 (1985). Congress may reserve for the federal government the exclusive right to regulate safety in a given field, yet permit the states to maintain tort remedies covering much the same territory. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 253, 104 S.Ct. 615, 624, 78 L.Ed.2d 443 (1984). This is so even though an award of damages may have the same effect as direct state regulation. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959). The Supreme Court has recently emphasized:

Examine question: II As an agent who is selling aviation insurance, your clients ask you about CLAIMS OF FEDERAL PREEMPTION as a defense in determining how much liability does he needs to have, and why? Your client also wants to know if state claims are preempted by federal law. Based on the above case, how would you explain an aviation policy regarding preemption to your client. Your answer will determine if your client will buy a aviation policy from your agency . . Please explain Federal Preemption so that any layman can understand it as it applies to a aviation policy. Your answer is to be in essay format.

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