Background
On June 22, 2022, a Vietnam-era UH-1B “Huey” helicopter operating at a public event called the “Huey Reunion” at Logan County Airport in Logan, West Virginia suffered an engine failure mid-flight. During its emergency descent, the aircraft struck inactive, unmarked powerlines owned by Appalachian Power Company — lines that had been decommissioned since 1996 and hung 231 feet above a road — and crashed, killing all aboard, including Kevin M. Warren.
Tessa Warren, individually and as administratrix of Kevin Warren’s estate, filed a wrongful death action against Appalachian in September 2023, alleging negligence in failing to mark or remove the inactive powerlines. She contended that Appalachian breached a common law duty and violated Federal Aviation Administration guidance on powerline marking. Appalachian moved for summary judgment, arguing that the Federal Aviation Act and its implementing regulations preempted state negligence standards of care and that, under 14 C.F.R. § 77.17, its powerlines were not an “obstruction to air navigation” because they predated the FAA and did not exceed the regulatory height thresholds relative to nearby airports.
The Circuit Court of Logan County granted summary judgment for Appalachian in June 2025. The circuit court found that Warren had waived her preemption challenge by failing to contest it in her summary judgment response, that FAA regulations set the applicable duty, and that the powerlines did not constitute an obstruction under 14 C.F.R. § 77.17. The court also found no foreseeable common law duty. Warren appealed.
The Court’s Holding
The Intermediate Court of Appeals affirmed. The court first held that Warren waived her preemption arguments by failing to adequately respond to Appalachian’s summary judgment motion on that issue. Her conclusory statement that the case was “broader than violations of FAA regulations” — unsupported by legal authority — and her reliance on a hearing transcript from a related case were insufficient to preserve the argument. The court further held that, even if preserved, her arguments would fail on the merits.
Applying federal circuit precedent nearly uniformly holding that the FAA field-preempts state aviation safety standards of care, the court concluded that 14 C.F.R. § 77.17 — which defines the criteria for an “obstruction to air navigation” — established Appalachian’s duty in this matter. Because Warren never argued that the powerlines met the regulatory definition of an obstruction, and presented no evidence to that effect, she could not show that Appalachian breached any duty. State common law duties and alternative regulatory standards such as the National Electric Safety Code could not be substituted for the FAA-defined duty.
Judge S. Ryan White concurred in the judgment only, writing separately to argue that the case should have been resolved on the simpler, settled ground that the accident was not reasonably foreseeable to Appalachian and that the court should have avoided reaching the broad federal preemption question. He expressed skepticism of the majority’s reliance on McMahon Helicopter Services, cautioning that the absence of federal regulation below a threshold height does not, by itself, demonstrate congressional intent to displace state law in that space.
Key Takeaways
- The FAA and its regulations — in particular 14 C.F.R. § 77.17 — preempt state-law standards of care for negligence claims concerning obstructions to air navigation; plaintiffs may still bring state tort claims, but must prove a violation of federal regulatory standards to establish breach of duty.
- A plaintiff who fails to adequately contest a preemption argument in opposing summary judgment waives that argument; conclusory assertions and references to proceedings in related cases are insufficient to preserve the issue.
- Inactive, decommissioned powerlines that predate the FAA and do not exceed the height thresholds in 14 C.F.R. § 77.17 relative to nearby airports are not “obstructions to air navigation” under federal law, insulating their former operator from liability under a preempted negligence standard.
- Judge White’s concurrence signals a live circuit-level debate over whether Part 77’s silence below its regulatory thresholds reflects congressional intent to occupy the field or instead leaves room for supplemental state-law duties — a question the majority did not need to, and arguably should not have, reached.
Why It Matters
This decision extends a growing line of federal authority holding that the FAA occupies the field of aviation safety standards to West Virginia state courts, and it does so in a factual context — unmarked, decommissioned infrastructure struck during an emergency descent — that will recur wherever aging power, communications, and utility infrastructure exists near low-altitude flight paths. Attorneys pursuing wrongful death and personal injury claims arising from aviation accidents must now build their negligence theories around provable violations of FAA regulations rather than state common law or industry codes alone.
Judge White’s concurrence is a signal worth watching. His caution against using McMahon-style reasoning — that federal regulation of structures above a threshold implicitly displaces state law for structures below it — preserves space for future litigants to argue that state courts retain authority over hazards the FAA has simply chosen not to address. If that argument gains traction, it could significantly affect liability exposure for utility companies and other infrastructure owners whose structures fall beneath federal obstruction thresholds but nonetheless pose real hazards to low-flying aircraft.