Broadway v. WebbBroadway v. Webb
MEMORANDUM OF DECISION
The Plaintiffs who are resident citizens of the State of South Carolina bring this diversity action as administrators of the estates of Steve Brice Broadway, Billy Charles Broadway, Michael Grover Hardin, and Bobby Allen Hall, under the Declaratory Judgment Act,
On August 8, 1976, one Harold Kenneth Herron rented from the Defendant a 1969 Cessna Skyhawk aircraft, Serial Number *430 17257631 which was owned by the Defendant and parked or kept at his place of business in Houston, Texas. Herron flew the plane in company with Ed Hemphill to Sossaman’s Field in Bryson City, North Carolina on the same day. On August 9, 1976 they flew from Sossaman’s Field to Ferguson Field a few miles away to service the plane for the return trip to Houston scheduled for August 10,1976. Upon arrival at Ferguson Field they found the operator temporarily absent and decided to await his return. While Herron waited the Broadway family arrived at the airport seeking a sight-seeing trip around the mountains. Herron agreed to take them on a trip without charge. Hemphill remained on the ground to make room for the Broadways consisting of two men and two boys. The take-off appeared to be normal but a few miles from the field the plane crashed killing the pilot and all passengers.
The Plaintiffs contend that under North Carolina law the owner-lessor of an airplane is liable for damages caused by the negligence of the “renter-pilot,” while the Defendant contends that under the law of Bailments no liability exists under the facts of this case.
The Matter was heard at the September 1977 Term of this Court in Bryson City and after full consideration of the pleadings, briefs and arguments the Court now enters its findings and conclusions.
In the absence of a statute applicable to these facts the law of North Carolina which would control this case was stated by Chief Justice Stacey in
Sink v. Sechrest,
“The cases are in accord that generally a third party may not recover of the bailor for the negligent use by the bailee of the bailed chattel, in the absence- of some control exercised by the bailor at the time, or of negligence on his part which proximately contributed to the injury. 8 C.J.S., Bailments, § 40, p. 318;19 A.L.R. 1194 ; Tyson v. Frutchey,194 N.C. 750 ,140 S.E. 718 . The doctrine of respondeat superior ordinarily is inapplicable to the relationship of bailor and bailee, unless made so by statute. 6 Am.Jur. 396.”
The Plaintiffs contend that the North Carolina General Assembly changed the law by the enactment of G.S. 63-1(16) which reads as follows:
“ ‘Operation of aircraft’ or ‘operation aircraft’ means the use of aircraft for the purpose of air navigation and includes the navigation or piloting of aircraft. Any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control (in the capacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of the statutes of this State.”
The Defendant contends that the above-quoted provision appears only in the definitional portion of a uniform statute enacted by the several states to regulate certain aviation activity, and that by its adoption the North Carolina General Assembly did not change or intend to change the substantive law of bailments.
The language relied upon by the Plaintiffs is found in the Federal Aviation Act,
The first major case interpreting the language of such a statute to create liability against the owner of a leased airplane was
Hoebee v. Howe,
“It seems to us from reading our act that the intent of our Legislature is clearly to place responsibility on the owners, even though he be without control, for the conduct of one to whom he entrusts the plane. The language is unequivocal and *431 without qualification expressed or reasonably to be implied.”
The Court further relied upon a congressional committee report recommending an amendment to the Federal Act to relieve certain security holders from liability under the Act.
In 1955, the Court of Appeals for the Fifth Circuit interpreted an identical provision in the Mississippi Code to mean “that the owner who authorizes the operation of any aircraft, whether with or without the-right of legal control thereof, shall be deemed to be engaged in the operation thereof within the meaning of the statute of Mississippi. The liability of the owner is there just as much as if he were the operator of the aircraft. The owner who authorizes a pilot to use his plane becomes liable for the negligence of the pilot in the operation of the plane.”
Hays v. Morgan,
The Supreme Court of Iowa in
Lamasters v. Snodgrass,
The Court of Appeals for the Seventh Circuit in
Allegheny Airlines, Inc. v. United States of America et al.,
Three other cases cited by the Plaintiffs are
Ross v. Apple,
On the other side of the coin the Supreme Court of Minnesota in
Haskin v. Northeast Airways, Inc.,
In
Ferrari v. Byerly Aviation, Inc.,
“We are unable to agree with the plaintiff that the plain meaning of Section 22.11 establishes or creates civil liability in the owner of an airplane for the negligent operation thereof by another. Section 22.11 quoted above, is one of the definition sections of the Illinois Aeronautics Act as is the provision from which it is copied in the Federal Act. The language of the definition does not in our opinion by its plain meaning, indicate any concern with the civil liability of any party ánd in particular- does not purport to establish some special or different relationship between an airplane owner and a pilot. Liability for acts or conduct of another is neither a new nor novel concept. Language to describe such a well recognized concept is readily available and could have been easily employed if such concept was intended. Haskin v. Northeast Airways, Inc.,266 Minn. 210 ,123 N.W.2d 81 . We believe that Section 22.11 describes in general terms those parties included within or affected by the other provisions of the Aeronautics Act or the regulations promulgated under the authority thereof.”
The Court distinguished the three leading cases relied upon by the Plaintiffs here and cited with approval the cases of
Rogers v. Ray Gardner Flying Service, Inc.,
*432 “We are impelled to believe that the Illinois state legislature had no particular intent to deal with civil liability of an owner by adopting the language of the Federal Act. Consequently there is no legislative basis for plaintiffs theory of recovery.”
In
Rosdail v. Western Aviation, supra,
the Plaintiffs brought suit under the Federal Aviation Act,
“We disagree, however, that Congress intended to alter common law principles with a definitional section of a regulatory scheme. The Federal Aviation Program regulates the licensing, inspection and registration of aircraft and airmen. It makes no provision for its application to tort liability and in fact provides that nothing in the Program shall abridge or alter the remedies now existing at common law or by statute.”
In
Rogers v. Ray Gardner Flying Service, supra,
the Fifth Circuit refused to extend its holding in
Hays v. Morgan,
McCord v. Dixie Aviation Corporation,
“That section excludes certain persons from liability for injuries on the surface of the earth. On its face it was enacted to facilitate financing of the purchase of aircraft by providing that those holding security interests would not be liable for injuries caused by falling planes or the parts thereof.” (underlining in the original)
The Plaintiffs in
McCord
argued that public policy demanded relief under
Still another case involving
In
Nachsin v. De La Bretonne,
Subsequent to the decisions in the Ferrari and Haskin cases the respective state legislatures amended their statutes to impose positive clear liability on the owner of an aircraft for any accident involving his plane. The Plaintiffs argue that the action of the legislatures shows that the courts were wrong in their interpretation of the legislative intent concerning the definition *433 al statute. However, it is not the function of the court to strain to interpret an ambiguous statute in a manner which would drastically change prior law. The legislature is the proper place for such a change to take place as it did in Illinois and Minnesota.
The North Carolina Legislature has not expressed a clear intent to impose strict liability on an owner-lessor in the field of aviation. North Carolina’s aviation statute is copied from the model federal act. It contains the same language found in
Supporting the Court’s belief that the North Carolina courts would reject the Plaintiffs’ argument that the definitional statute imposed strict liability in aviation is N.C.G.S. 20-71.1 (1975) dealing with motor vehicle law. This statute provides that proof of ownership of an automobile is prima facie evidence that the vehicle was being used with the consent of the owner at the time of the accident. In the absence of proof of ownership, proof of registration shall be prima facie evidence of ownership and that the vehicle was being operated with the permission of the owner. By enacting such a statute the Legislature showed a clear intent to provide victims of automobile accidents with the opportunity to recover from the owner as well as the driver of a car involved in an accident. By enacting N.C.G.S. 20-71.1 the Legislature changed the prior common law as set out in Sink v. Sechrest. The statute only affects the law as it relates to motor vehicles. The North Carolina Legislature has not chosen to enact similar statutes in the area of aviation. With a motor vehicle statute imposing only prima facie liability on an owner of an automobile and no statute other than a definitional one relating to airplanes it would be difficult to find that the Legislature intended to impose strict liability on aircraft owners. Rather the law in North Carolina concerning the liability of aircraft owners remains the common law of Bailments as set out in Sink v. Sechrest, supra. As the Court said in Ferrari, language to describe such a well recognized concept is readily available and could have been easily employed by the Legislature if such concept was intended. The North Carolina General Assembly and the courts have been slow to impose or find strict liability in tort cases, and this Court cannot read into the definitional section of the statute in question any legislative intent to impose such liability here.
In summary, the Court finds that the law in North Carolina concerning the liability of an owner-lessor of an aircraft is governed by the common law of Bailments. There is no strict or vicarious liability imposed upon the owner-lessor by the enactment of N.C. G.S. 63-1(16) defining “operation of aircraft.” It is a matter for the Legislature if it sees fit to enact statutes providing greater protection for those damaged or injured as a result of an airplane accident. The Court concludes that under the present law *434 the Plaintiffs are not entitled to recover of the Defendant without a showing of actionable negligence. Therefore the action must be dismissed. A judgment in accordance with these findings and conclusions will be entered simultaneously herewith.
Notes
. Indiana Statute 14-109
“It shall be unlawful for any person to operate an aircraft in the air, or on the ground or water in a careless or reckless manner so as to endanger the life or property of another; or to operate an aircraft in the air, or on the ground or water with reckless disregard for the safety, property, or rights of others .”
Minnesota Statute 360.0216
Operator of aircraft deemed agent of owner
“When an aircraft is operated within the airspace above the state or upon the ground surface or waters of this state by a person other than the owner, with the consent of the owner, expressed or implied, the operator shall in case of accident be deemed the agent of the owner of the aircraft in its operation.”