By lеave of Court defendant Trans World Airlines, Inc., re-files its motion for summary judgment to plaintiff’s second amended complaint, the same as filed to plaintiff’s original complaint herein.
The plaintiff, Ira L. Braughton, brings this action individually and on behalf of the Estate of his Deceased Wife, Ester L. Braughton, and his two children, Linda Kay Braughton and Connie June Braughton, who were age nine and six, respectively, at the time of their death. The action is brought in three counts for the wrongful death of the above-named decedents, arising out of the “Grand Canyon Disaster” occurring on June 30, 1956. The disaster occurred in the vicinity of Flagstaff, Arizona; hence Arizona law and the Wrongful Death Statute of that State provide the basis for this action. Jurisdiction is here premised on diversity of citizenship and requisite jurisdictional amount. Trans World Airlines, Inc. (TWA) and United Air Lines, Inc. (UAL) are Delaware corporations. Plaintiff is a resident of the State of Kansas. Suit was originally filed in the United States District Court for the Southern District of New York on December 10, 1957, and subsequently transferred to this Court pursuant to Section 1404(a) of Title 28 U.S.C.A.
Defendant TWA has moved for summary judgment in its favor on the claims asserted against it. Tersely stated, the factual premise of such motion is that plaintiff’s decedents accepted passage on the TWA plane involved in the above casualty, under certain gratuitous passes which contained specific “Conditions of Contract.” TWA contends that such “Conditions of Contract” bar recovery of any damages from it as here claimed, even if it is assumed that plaintiff could establish by evidence some common law *139 negligence on its part in causing the casualty in question. However, it should be noted that in paragraph “Thirtieth” of his second amended complaint plaintiff alleges that “the accident and the death of this plaintiff’s decedents was occasioned wholly or in part by the gross and wanton negligence of the defendant Trans World Airlines, Inc., its agents, servants and employees, in the ownership, operation, control, dispatch and maintenance of its aircraft and airline facilities.” Notwithstanding, the Court is of the opinion that TWA’s motion supra is ripe for ruling, regardless of the nature of the issues raised thereby, in light of the particular facts before the Court adduced and established at pretrial conference.
Fourteen (14) cases arising out of the Grand Canyоn Disaster have been filed in this Court. All such cases are pending before this Judge. Numerous pre-trial conferences have been held in certain consolidated groups of such cases. At those pre-trial conferences evidence has been adduced, much by stipulation of the parties, concerning records, the contents of written documents, directives, and regulations of TWA, United Air Lines, Inc., and the Government, relating and applicable to the circumstances leading up to and surrounding that disaster. Although some of the cases mentioned merely name United Air Lines, Inс. as defendant therein; others join TWA as a party defendant. In light of that situation, many questions of law and fact have been developed as common to all such litigation. Counsel for all of the parties plaintiff and defendant therein were invited by the Court to attend and participate in all pre-trial conferences held relating to the above casualty, even though a particular conference was not scheduled in their particular case or in each of the above-mentioned eases, to the end that evidence adduced and stipulations made, of a general character, would be made known to, and be made available to, all counsel at subsequent pre-trial conferences and the actual trial of the ease or cases in which they were retained, without the necessity of retracing established facts as to which there could be no dispute. Counsel for plaintiff, Braughton, and TWA have co-operated with the Court in the above endeavor, and have been present at all such conferences. As a consequence, the actual trial of the issues in the case at bar will bе materially expedited and shortened as the result of the record made at the pre-trial conferences so held by this Court in respect to the Grand Canyon Disaster. A transcript of the proceedings had at all such conferences has at all times been on file in this Court, available to all interested counsel and parties. To the extent that said transcripts are pertinent to the issues in this case, and for the purpose of ruling TWA’s instant motion for summary judgment herein, said transcripts are now made a part of the record in the instant action.
Suffice to say, that from thе evidence adduced and facts established of record in the aforementioned transcripts as to which there can be no dispute between the parties, here, as well as from the orders entered by this Court in Consolidated Cases Nos. 11061, 11110, 11116, 11138 and 11388, which are incorporated herein by reference, it is transparent that, assuming all facts to be true which plaintiff here states he will rely on at the trial of this case to establish gross and wanton negligence on the part of TWA, it is the opinion of this Court that the same are wholly insufficient to require that issue to be submitted for determination by the trier of the facts herein, and that, if such procedure should hereafter follow, this Court would be required to direct a verdict in favor of TWA on that issue at the close of the plaintiff’s case. That being so, TWA’s motion for judgment in its favor on the claim plaintiff here makes against it, is now ripe for ruling.
It is undisputed in the record here that Ira L. Braughton, an employee of TWA, applied to TWA for passes for his wife and two daughters for a round-trip between Kansas City, Missouri, and Los Angeles, California, that they might take a personal vacation. Such pass privilege *140 was exercised by Mr. Braughton and granted to his wife and children, subject to certain regulations contained in the TWA Management Policy and Procedure Manual. It is thereby established that passes provided by Trans World Airlines to its employees are granted without charge therefor. Said privileges are not obtained by TWA employees pursuant to any collective bargaining agreement, nor assured to such employees by any contract of employment. Said passes are not a part of the wages or consideration paid to TWA employees for their services. The wages and salaries of TWA employees are not affected in any way by the pass privileges. However, a service charge of $1.00 for each 500 miles, or fraction thereof, up to a maximum of $10.00, is placed on employees of TWA, to defray a portion of the expense TWA incurs in issuing passes to its employees and members of their families. The Company derives no profits from such service charge, but expects thereby to approximately break even on some of the expense items incident to issuance of passes, such as food served, Pass Bureau maintenance, insurance, forms, and the handling of them, which add to the Company’s cost. Under such policy, children pay one-half the amount of the cash service charge. No tax is paid on the service charge which is collected at the ticket counter when the pass is delivered to the person to whom it is issued.
As above noted, passes were issued to plaintiff’s wife and his two children, in accordance with the TWA Management Policy and Procedure Manual. When such passes were delivered to Mrs. Braughton, she paid a $6.00 service charge for the pass issued to her, and a $3.00 sеrvice charge on each of the children’s passes. Mrs. Braughton then signed her pass and signed the children’s names to each of their passes. Each of said passes contained the following stipulation :
“Conditions of Contract.
“* * * insofar as transportation furnished hereunder is not subject to the rules of said Convention, the holder agrees to assume all risk of accident and loss of every character, including personal injury, death, and loss or damage to property, and agrees that TWA shall not be liable for any such loss, damage, injury or death, whether caused by the negligence of TWA or its agеnts or otherwise.”
It is admitted that the rules of “Warsaw Convention” do not apply to the case at bar because international travel is not involved herein.
Mrs. Braughton and her two daughters boarded TWA Flight 2, Lockheed Constellation aircraft, in Los Angeles, California, at 9:01 A.M., P.S.T., for their return home to Kansas City, Missouri, from the vacation trip. United Air Lines Flight 718, a DC-7 aircraft, took off from the same airport at 9:04 A.M. The said airplanes came into collision at approximately 11:30 A.M., M.S.T., in the vicinity of Flagstaff, Arizona. For the purpose of this motion, we here adopt plaintiff’s statement of facts which he сlaims establish gross and wanton negligence on the part of Trans World Airlines, Inc., which are as follows:
“Trans World Airlines (TWA) flew its airplane in question at an altitude of 21,000 feet, and was at such altitude at the time of the collision, although it knew that the United Air Lines (UAL) plane in question was traveling pursuant to a flight plan of 21,000 feet altitude and that the two planes were on courses that crossed, and that the two planes were converging in the same vicinity at approximately the same time, and even though TWA had been denied permission by the Civil Aeronautics Administration (CAA) to fly at the altitude of 21,000 in controllеd airspace due to the flight plan of UAL at that altitude.
“The TWA plane could have made its entire flight on a Federal Airway in space controlled by CAA and in a space area to which neither the UAL plane in question nor any other *141 plane would be assigned. Nevertheless, the TWA plane went outside the controlled airspace on a route of TWA’s choosing through the Grand Canyon area, a heavily traveled area, and was in such uncontrolled area at the time of collision, even though the weather forecast for the area on the day of the сollision was thunderstorms with high clouds building up to 25,000 and 30,000 feet.”
(Note: The above statement of facts was filed with the Court after preliminary, or get-together, pre-trial conference was held in relation to the Grand Canyon Disaster cases. Subsequent thereto, substantial use of the pre-trial facility has been employed in connection with the litigation arising therefrom. As a consequence, it has been conclusively established before this Court that the casualty in question occurred “off airways” and not within a specifically controlled “area” or “zone” established by CAA, subject to “аdvisory or warning service” by ARTC personnel. (See P.T. Trans, and Memo. Consol. Cases, 11061, 11110, 11116, 11138 & 11388, Oct. 6,1959, this Court.) Nevertheless, for the purpose of the record, plaintiff requests that the Court consider the above statement of facts in connection with any ruling made on the instant motion of TWA for summary judgment. The conflict between the facts as stated by plaintiff and those conclusions established and shown to exist beyond any doubt, does not militate against a ruling here being made on such motion.)
In the absence of facts establishing gross or wanton negligence on the part of TWA, there can be no question but thаt the “Conditions of Contract” under which a TWA pass was issued to Mrs. Braughton exonerate TWA from liability for any ordinary negligence claim alleged by plaintiff as causing her wrongful death, (cf.) Northern Pacific Railway Company v. Adams, 1904,
But, notwithstanding such “Conditions of Contract” provision bars a claim for Mrs. Braughton’s death, it is plaintiff’s further contention, relying on Pennsylvania Company v. Purvis, 1906, 128 Ill, App. 367, and Flower v. London and North-Western Ry. Co. (C.A. 1894 C.A. 2, Hugh B.
In the case at bar it is clearly* established that the passes issued to plaintiff’s decedents were without consideration except that contained in the “Conditions of Contract” printed on the reverse side thereof. True, plaintiff states that “one of the reasons for (his) accepting employment” with TWA was that he had been advised he “would be entitled to passes on TWA flights for myself and the members of my family.” Yet, there is no evidence in this record that tends to establish such a condition was ever made a part of plaintiff’s contract of employment with TWA, such as considered by the Court in Martin v. Greyhound Corporation, 6 Cir., 1955,
As said in thе Pinnell case, supra, the passes in question “cannot be otherwise construed than as a (gratuitous) benefit” to the plaintiff’s decedents. As such, said passes are the only premise upon which plaintiff might sustain proof of the allegations of his complaint, that his “decedents were lawfully aboard” one of TWA’s aircraft at the time of the disaster. “Absent a consideration” other than that established for the issuance of the passes in question, plaintiff’s decedents were “trespassers” on the TWA aircraft, and — -“this simply is passing.” 263 S.W. loc. cit. 185.
Plaintiff’s contention that the bringing of the instant actiоn is tantamount to a repudiation of any contract his infant decedents had with TWA, cannot premise liability on TWA at common law. As above stated, there can be no question but that Mrs. Braughton was, at most, a gratuitous licensee on the TWA plane. She was accompanied in that status by her two children. It has been held that a minor child accompanying
*143
its mother on a shopping mission has the same status as the mother, and is not a mere licensee if the mother is invited to enter on the premises of another. See, Grogan v. O’Keefe’s Inc.,
It is conceded that a carrier may not, by stipulating with a gratuitous passenger, relieve itself from liability for wanton and willful misconduct. New York Central Ry. Co. v. Mohney,
As above noted, the casualty in question occurred in Arizona. Hence the substantive law of Arizona is controlling upon the question of whether or not a submissible issue for gross and wanton negligence on the рart of TWA can be sustained under the undisputed facts as known by the parties. Nine (9) opinions of the Supreme Court of the State of Arizona have been cited to this Court for consideration in determining whether the facts here spell out gross and wanton misconduct on the part of TWA. In Arizona, as elsewhere, it is a question of law whether facts adduced are sufficient to submit to a jury the issue of gross and wanton negligence, as will appear from the following. In Bryan v. Southern Pacific Co.,
“Wanton negligence is highly potent, and when it is present it fairly proclaims itself in no uncertain terms. It is ‘in the air’, so to speak. It is flagrant and evinces a lawless and destructive spirit.” 252 P.2d loc. cit. 575.
In Robinson et ux. v. Lehnert,
“ ‘ * * * Although conduct to be reckless must be negligent in that it is unreasonable, it must be something more than negligent. It must not only be unreasonable, but it must contain a risk of harm to others in excess of that necessary to make the conduct unreasonable and therefore, negligent. It must involve an easily perceptible danger of substantial bodily harm or death and the chance that it will so result must be great.’ Restatement, Torts, sec. 500, Comment a.” (Emphasis supplied.)
In Barry v. Southern Pacific Company,
Section 500, Restatement of the Law, Torts, Vol. 2, was cited by the Supreme Court of Arizona in connection with its definitiоn of wanton and willful misconduct in the Barry, Butane Corp., Robinson, Southern Pacific Co., Alabam Freight Lines, and Womack cases, supra. The remaining cases applied a test of gross negligence also in accordance with the Restatement rule. Suffice to say, it appears that the Supreme Court of Arizona has adopted the following Restatement rule as the law of Arizona:
“Sec. 500. Reckless disregard of safety defined.
“The actor’s conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know the facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other, but also involves a high degree of probability that substantial harm will result to him.” (Rest, of the Law, Torts, Vol. 2.)
The question of what constitutes gross negligence in the air has not been decided by the Arizona Courts. However, no reason presently appears why the courts of that state would not apply the ordinary rules of the common law to the fact situations and relationships created by aircraft as they would to carriers of passengers on land, (cf.) “Death of, or injury to, occupant of airplane from collision or near-collision with another aircraft.”
In the ease at bar, the only factual situation relied on by plaintiff to establish gross and wanton negligence is that TWA had been denied a clearance for 21,000 feet, presumably because of UAL’s Flight Plan, which showed that UAL was flying at that altitude; that TWA then requested, and obtained from A.R.T.C., a “1,000 on top”; that TWA knew, or by the exercise of due care should have known of such facts and condition, and that the same might, or would create a peril of collision between the TWA and UAL airplanes. Such facts are wholly insufficient, as a matter of law, to establish gross and wanton negligence on the part of TWA. Knowledge of the fact that the two planes were converging on the same general arеa, at the same altitude, could only be relevant for consideration by the trier of the fact as to the degree of care used by the TWA pilot to determine the probability of harm that might, or would reasonably arise and result from that factual situation. Gross and wanton negligence can only be established where it is shown that one intentionally did an act or failed to act under circumstances which invoked “a high degree of probability that substantial harm will result” to another. (Restatement supra.) The undisputed fact is, that all the occupants of the TWA and UAL airplanes perishеd in the Grand Canyon Disaster. Gross and wanton negligence on the part of TWA can only here be premised on facts from which the intent or mental processes of the pilot and copilot of its own plane may be inferred in the factual situation when the two airplanes were actually “seen or should have been seen.” There is no such evidence, adduced or available, to establish that matter in the case at bar.
*146 TWA’s motion for summary judgment in its favor on the claim here asserted by plaintiff against it is sustained. Judgment will be entered in respect thereto when judgment is entered on the remaining issues between plaintiff and United Air Lines, Inc.
It is so ordered.