Fagerquist v. Western Sun Aviation, Inc.

Dist., Apr. 29, Fourth D002309. Div. One. [No. 1987.] Minor, etc., FAGERQUIST, KRISTINA Respondent, Plaintiff and v. AVIATION, INC., WESTERN Appellant. SUN Defendant and Counsel Wooley Ralph

Kern & Jr., LaMontagne, S. Appellant. for Defendant and Luce, Forward, Scripps, Hamilton & Salem, Donald L. Ned Good and Michael D. Michaels Respondent. for Plaintiff and Opinion

WORK, J. Aviation, Western Sun (Western Sun) appeals Inc. from the $1.5 judgment million1 against entered wrongful death action brought by Fagerquist Kristina (Kristina). damage Western Sun contends the award law, is excessive as a special matter of negli and the verdict finding it gent must be set aside because of evidentiary and instructional error. finding negligence vacated; as to judgment the remainder of the is affirmed. judgment $1,465,000 by 1The was reduced to Fagerquist because of settlement to Kristina other entities. Background

Factual In October Western Sun sold David Prizio and other investors a Piper 42X aircraft. Western Sun both retails and maintains the aircraft it engines plane purchased by sells. The of the by Prizio were manufactured Lycoming, (Lycoming). Avco Inc. Prizio leased the aircraft to Air Bahia California, commercially which flew between Arizona and Mexico. Kris- father, Fagerquist tina’s (Fagerquist), pilot Thomas was an Air Bahia plane engine killed when the crashed due to malfunction. performed

Western Sun Piper, scheduled maintenance on the 42X a 100- inspection compression check, replacing hour and a cylinder the No. 6 left cylinder later, with a new Lycoming. days Fager- manufactured Three quist, piloting aircraft, Diego Long Upon a different flew from San Beach. Diego, Fagerquist his return to San Air change Fagerquist Bahia had aircraft. completed remaining legs flight plan Piper. Fagerquist of his the 42X performed up” a “run on the running rough. aircraft and determined it was plane. Western Sun sent a mechanic to check the The mechanic did some trouble-shooting replaced parts engine cleaned and some in the before plane test, engine was tested. satisfactorily. On checked out

Fagerquist plane then flew Diego without incident Tijuana from San Guaymas. However, and then to Guaymas Tuscon, Arizona, from the left engine functioning plane Experts ceased and the crashed. determined the left engine failed cylinder because of a hole in the No. 6 caused defective casting manufacturing process. in the Background

Procedural Kristina products sued Western Sun liability on two theories: Strict for selling parts, engine negligently maintaining defective aircraft and the airplane. Although complaint Kristina’s second amended identified the parts cylinder piston assembly defective the sold as manufactured Lycoming, cross-complained Lycoming. against she did not sue Western Sun Lycoming indemnification; however, cross-complaint for total this $20,000 deemed Lycoming’s payment $20,000 barred when to Kristina and to good (Code Proc., Prizio was found to be a faith S77.6.)2 settlement. Civ. § special Lycoming cylinder

The finding returned verdicts the which manufactured, defectively failed had been Lycoming engine had been defectively designed, proximately and both defects caused the fatal accident. separate A finding negligence declared Western proximately Sun’s also challenge finding good

2Westem Sun does not faith.

715 Thus, liability caused the accident. Western Sun’s was based on both strict products liability, Lycoming’s products, it because retailed defective and its negligence. own

I appeal, damages portion On Western Sun seeks reversal of judg of the only, conceding liability aspect judgment proper ment is because strictly engine is for retailing cylinder engine. liable and a defective conceding Although judgment upon liability should be sustained a strict theory, urges vigorously pass Western upon us consider and asserted negligence aspect reversible errors judgment. connected with the of the request nature of Western Sun’s “Ordinarily, is unusual. an when appellate court judgment proper concludes that affirmance of the is on grounds certain it will rest grounds its decision on those and not consider grounds may (Filipino alternative which be available. Accoun [Citations.]” Accountancy (1984) 1023, tants’Assn. v. State Cal.App.3d Bd. 155 1029- Cal.Rptr. 913].) Generally, ruling, judgment right 1030 decision or [204 upon any theory applicable of the regardless law to the case must sustained may of the considerations which challenged ruling, have to the contributed judgment. (Davey decision or v. (1897) Southern Cal. Co. 116 Pacific Appellate 117].) P. depart courts sometimes from this rule when the [48 great importance parties may nonessential matter is of to the serve litigation, future presented public avoid or where the issue continuing is of likely (Filipino interest and is to recur. Accountants’ v. Assn. State Bd. of Accountancy, supra, Cal.App.3d p. 1030.) at We find this is a case. such

Western Sun has party cross-complaint filed a third for total indemnifica against Lycoming and, finding tion negligence federal court unless the is vacated, judicata the res finding effect of this will defeat the claim for indem Kristina, hand, argues nification. on the other the issues raised in connection negligence aspect judgment with the of the need not be addressed because though the action total judgment indemnification will be barred even solely liability, is based on strict making negligence finding moot. (Standard Diego Corp. Cal.App.3d San v. A. A. Baxter Pacific of Kristina, however, 106].) position sound; As to this importance proceeding the issue remains of substantial the federal court Western Lycoming. between Sun and holding

The a Standard is that when settlement has been Pacific faith, being good as made in confirmed Code of Civil Procedure section 877.6, remaining nonsettling (c) subdivision bars the tortfeasors from main taining indemnity, regardless liability an action for their is total whether imposed p. policy. (Id. 592.) vicarious otherwise as a at or matter of deci- 716 appellate authority split Supreme Court recognizes existing and the

sion follow the Although the issue. Standard declined to has not resolved Pacific Products, Corp. (1985) Inc. holdings Angelus v. Neonex Leisure Associated Corp. Cal.App.3d Cal.Rptr. 403], (1984) Huizar v. Abex 532 and 167 [213 declaring Cal.App.3d 47], the bar of Code of Civil 534 [203 877.6, partial (c) applies actions for indem- Procedure section subdivision indemnification, only the intermediate nification and not to actions for total appellate by California’s contrary decisions to the have not been overruled highest tribunal. argues obligated will to follow Standard

Kristina the federal court Sun’s action for total indemnification barred. and determine Western Pacific particular However, federal courts are not bound a state court holding split among state courts which has when there is a the intermediate Corp. Supreme (See Aydin v. not been resolved the state Court. Loral Corp. 897, 904; Tompkins (1938) (9th 1983) Erie R. Co. v. Cir. 718 F.2d 1194, 817, 64, 1188, 1487]; 304 U.S. L.Ed. 58 S.Ct. A.L.R. [82 179, v. A. T. & T. 311 U.S. 223 L.Ed. 61 S.Ct. West Co. Thus, liability finding supporting judgment 956].) A.L.R. the strict against entered Western Sun does not bar its action for total indemnification hand, negligence as a matter of law. On the other Western Sun’s cannot be principle judicata. relitigated in of res the federal actions under finding negligence absolutely determines the total indemnifi- Because a court, solely liability judgment cation based on strict action federal Sun, design which Western manufacturing based on defects of as barred, retailer, may we could have aware not be address the issues not been negligence finding. raised relative to the

II ruling present Western Sun contends erred in could not the court plane nonparties Lycoming) caused the (e.g., evidence that conduct of crash. “point finger” at argues Western Sun it should be allowed to others who percent at fault.” The were at fault to show Western Sun was “zero court “you yourself by held such evidence irrelevant and can defend either advised prove negligent any degree [plaintiff’s] your failure to that client was may present your your overcoming any they evidence that client was prove all, necessary you anybody negligent at but I don’t think it is sum, nonparty negligence.” In Sun contends evidence of else’s Western prove negligently maintain ill- be admitted to it did not conduct should defective, prove products were Western fated aircraft and to also that inspection. the defects with reasonable Sun could not have discovered

717 Newing (1975) Western Sun relies on v. Cheatham 15 Cal.3d 351 [124 Cal.Rptr. 33], (1982) 540 P.2d Irwin v. Southwest Airlines 133 Pacific Cal.App.3d Cal.Rptr. 228], Bay Hospital and Sanchez v. General [184 Cal.App.3d inapposite (1981) Cal.Rptr. These cases do 342]. support position. They not Western evidentiary Sun’s discuss the rule permitting produce they defendants negligent to evidence were not or that negligence proximate their (Evid. Code, cause of the accident 646.) application when give the facts rise to ipsa of doctrine of res § loquitur from strong probability may which a of negligence be inferred.

Here, precluded defending Western against Sun was not from Kris proof negligent. loquitur tina’s it was a ipsa case, This is not res and the establishing personal of negligence burden Western Sun’s was Kristina’s. In rejecting request, Western Sun’s the court interjecting observed that nonparty jurors the issue of fault would tend to confuse and distract them from responsibility negligence part their to Sun, find on the of Western it potential plaintiff exists. The prejudice to party a when a defendant permitted argue is nonparties explained to are at fault Klemme v. Hoag Hospital Presbyterian (1980) Cal.App.3d Memorial 640 [163 interjection nonparty While the proportionate erroneous of 109]. negligence jury and the thereby distractions created were found not to be Klemme, prejudicial require so toas a reversal the court here followed a practical correct and more rejecting altogether. course in it

Ill Western Sun also improperly contends the court instructed the on se, per negligence based on regula- Federal (FAA) Aviation Administration tions argues erroneously given violations. Western Sun the instructions were (1) a regulation because causal connection was not established between the accident, regulations specific (2) violations to failed set a standard care, proving proximate the burden of improperly causation was required presumption shifted Western Sun who was to rebut the of causa- Code, 669.) (Evid. tion. § jury, challenged

As read to the “If you instructions state: find any Western Sun Aviation and regulations violated of the statutes which I you, proximate am about read to and that such violation was a cause of himself, injury you negli- to another or to will such find that violation was gence, proffers by preponderance Western unless Sun of the evidence that might reasonably expected person ordinary prudence did what of a acting comply similar decide law. under circumstances would with the [IT] proof, prove by to sustain Sun order such burden Western must which

preponderance of evidence that it was faced with circumstances noncompliance regula- compliance with the or prevented justified or statute provides person—Federal [43.13(a)] Regulation 3.813-A tion. Each [sz'c] [H] that, maintaining altering, performing or shall person or maintenance ‘Each acceptable methods, practices techinques and to the administrator. use [If] tools, equipment apparatus necessary test to assure You shall use the and completion accepted industry practices. If of the work in accordance with special equipment apparatus by the manufacturer or test is recommended accept- involved, equipment apparatus, equivalence he must use that or or its Requlation 43.13-B able to the administrator.’ Federal Aviation section [If] that, person altering, performing provides maintaining ‘Each or or [(b)] [sz'c] manner, preventive do work in use tools maintenance shall that such and frame, aircraft, engine, quality of such a that the condition of the air aircraft prop- propeller, assigns equal original at least to the or or work done will be regard function, erly aerodynamic with structural altered condition deterioration, qualities strength, vibration, and resistance to other affecting Regulation Aviation section 43.15-A airworthiness.’ Federal [If] [sz'c] that, ‘General, annual, provides performing a [(a)] [person] each 100-hour inspection required part [ninety-one] of this progressive or one [sz'c] inspection required Chapter chapter under 123 of this shall or an Part inspections perform manner detertmine whether the those such a as to applicable requirements. all aircraft concerned meets airworthiness [If] that, provides Regulation [(c)] Aviation 43.15-C ‘Annual Federal section [sz'c] One, inspections: person performing an or 100- each annual 100-hour performing inspection. inspection hour use a checklist while shall person’s design, provided by manufac- may be of the own one checklist turer, inspected, equipment being one from another source.’ or or obtained ^[11] ‘This checklist must include the scope and detail of items contained section, subpara- appendix Paragraph B Part.’ B of this to this [If] person after graph approving aircraft return to service an 2: ‘Each an for will, approval, aircraft inspection before run the annual or 100-hour that satisfactory performace in with engine engines accordance or to determine one, outlet, power static and idle of the manufacturer’s recommendations four, three, pressure; R.P.M.; two, and oil mag [magnetos]; fuel needles [sz'c] temperature.’ section 1345421 cylinder oil Federal Aviation [sic] [If] that, under Part provides person operating ‘Each an aircraft [135.421] configuration excluding seating for passenger a time 145.421 of certificated pilot less, comply with the manufacturer’s any of nine seats must seats purpose engine.’ ‘B. For the of programs for each aircraft recommended [If] section, instruc- manual for maintenance this manufacturer’s maintenance chapter required the aircraft by this tions set forth the manufacturer as plaintiff proof respect s burden of under engines.’ With to the and aircraft [If] Western Sun violated theory negligence, you find the defendant proof previously you, read to burden regulations of the one or more defendant, plaintiff issue of causation shifts from the to the that either on the proving any Western has the burden violation of defendant Sun bringing plaintiff’s injuries regulations proximate was not a cause in about damages.” 14 Regulations, 43.15(c)(1): A. Code Federal section of pursuant improperly Western Sun contends the was instructed to 14 Regulations, 43.15(c)(1), because, law, of Federal a Code section as matter of regulation proximately a violation of this could not the have caused accident. disagree. We provides pertinent part:

Evidence Code “(a) section 669 The failure of person presumed a to care (1) statute, exercise due is if: He violated a [fí] ordinance, or regulation of a public entity; ^[11] (2) The violation proximately person injury property; caused death or (3) injury or The death or [H] statute, ordinance, from an resulted occurrence of the which nature the or regulation was designed prevent; ^[11] (4) The person suffering the death injury person or or property persons the his was one of of the class for protection statute, ordinance, regulation adopted. whose the or presumption This “(b) may by proof be (1) person rebutted that: The [If] violating statute, ordinance, the regulation might reasonably or did what be expected person of of ordinary prudence, acting under similar circum- stances, law; comply who desired to with the ...” question proximate

The ordinarily question fact, of cause but only becomes one of law where the facts are uncontroverted and one deduc may reasonably tion inference (Whinery be drawn. v. Pac. Co. Southern 126, Atchison, (1970) Cal.App.3d 6 649], 128 Sanders v. [85 Topeka 630, Ry. Cal.App.3d & (1977) Santa Fe Co. 65 648-649 [135 Cal.Rptr. 555].) argument Western Sun’s that failure to utilize a checklist inspection during proximately of an aircraft could a matter not as of law have accident, correct, technically caused while is without substantive merit. required by adopt “The FAA is Aviation Federal Act of 1958 to governing design, performance minimum standards construction and (49 Corp. 1421(a)(1).)” (Elsworth aircraft. U.S.C. v. Beech § Aircraft 540, Cal.Rptr. 874, 630].) Cal.3d 691 P.2d The maintenance here, performance regulations governing aircraft, at issue of the were compliance the FAA manifestly enacted with the act and are aimed Elsworth, protecting public. (49 1425, at also U.S.C. see §§ 551, supra, p. (10th 1967) 37 Cal.3d French B. at v. C. A. Cir. 378 F.2d purpose 471.) 43.15(c)(1) requirement of the section that a checklist inspections prob- during performance is to ensure detection must used safety mechanic(s) inspecting the lems or malfunctions aircraft 33.1, 33.3, (See, e.g., 33.5.)3 14 C.F.R. and airworthiness. §§ theory at was Western was liable for the accident Plaintiff’s trial Sun inspected The evidence negligently and maintained the aircraft. because it not at all a checklist suggests at trial Western Sun’s mechanics did times use Further, supports if a had been during inspection. record checklist noticed, properly history properly aircraft utilized and mechanical of the Thus, engine cylinder left have been the crack would discovered. complied requirement whether whether the mechanics with the checklist and requirement comply proximate with was the cause the failure to the checklist questions determine. jury of fact for to of the accident were the 43.13(a) (b), 43.15(a), Regulations, B. 14 Federal sections and Code of and 135.421: regulations improper they were because

Western Sun contends these specific necessary the apply fail to set forth a standard of care to doctrine words, negligence per they general to a stan of se. other are too establish upon holdings of Western Sun in Endicott v. Nissan Motor dard care. relies 95, Corp. Cal.App.3d 481], A.L.R. Rimer (1977) 73 4th 917 [141 450, Corp. 1981) King v. Avtech (6th Cir. 641 F.2d and v. Rockwell Intern. Aviation, Inc., 77, support arguments. its (5th 1981) Cir. F.2d to provide: 3These sections type (a) prescribes Applicability, part of standards for the issue 33.1 This airworthiness “§ certificates, changes engines. for to those aircraft certificates and change applies show “(b) person certificate or must Each who under Part for such a compliance applicable requirements part.” of with the this appli- applicant engine the that the concerned meets “33.3 General. Each must show aircraft requirements part.” this cable of engine. installing operating manual for “33.5 Instruction and the prepare prior applicant the issuance available the Administrator to “Each must and make to engine, certificate, delivery approved type instruc- and to the at the time of of the of the owner the installing operating engine. must at least for The instructions include tions and the following: attachments, mounting engine “(a) (1) the method of Installation instructions. The location mounting aircraft, attaching engine the the maximum allowable load for the the and of and related structure. attachments accessories, pipes, description “(2) engine The to be attached to and of connections location wires, ducts, cables, cowling. and including drawing engine “(3) dimensions. An the overall outline operating “(b) Operation the Administrator. The limitations established instructions. atmosphere. correcting procedures “(2) power ratings for nonstandard The thrust or procedures, for— conditions “(3) and extreme ambient under normal recommended during flight.” (iii) Operating Starting; Operating ground; (i) (ii) on product liability involving an Endicott action automobile seat belt plaintiff car, which broke when lost struck control his an embankment trial, plaintiff argued and rolled over. the seat belt was At defective did comply because it not former Vehicle Code section 27300 which with required: “Any safety safety large in belt or harness installed a vehicle and person enough designed an shall accommodate adult and installed prevent person such materially manner as to or reduce the movement of the using upset same in the event of collision or of the vehicle.” The Court Appeal rejected plaintiff’s erroneously claim court refused instruct per allegation on a negligence theory based on the seat se belt safety prescribed by meet stating: did not standards section “Such an plaintiff any instruction was to offer unwarranted failed evidence design specify that the of the seat violated belt the statute. The statute did not physical engineering provided general standards. Rather it [Fn. omitted.] ‘prevent materially terms that seat or must belt harness reduce the move person using upset ment of the same the event of collision or of the lengthy plaintiffs vehicle.’ In this testimony record there is no belt did materially ruptured, reduce his movement before the fact that he supports was not thrown from his vehicle an inference that the belt reduced his degree. produced movement to some No technical evidence was to show any of engineering safety violation the more [pre detailed standards ... for, scribed elsewhere the previ Civil Administration]; Aeronautics as noted, ously enough preserved not of the belt had been to make such possible. Thus, any statutory evidence ... substantial evidence of violation lacking.” (Endicott is Corp., supra, v. Cal.App.3d pp. Nissan Motor at 73 928- 929.) Corp., v. supra, pilot’s inspect

Rimer Rockwell Intern. held a failure gas cap was not contributory negligence per se on the basis it violated FAA “ regulations provided: pilot which directly ‘The of command an aircraft is for, responsible to, authority and is the operation final as the of aircraft.’ 14 91.3(a) (1978)... person may operate C.F.R. ‘No a civil aircraft unless § airworthy condition, pilot it is in ... command of a civil aircraft is responsible determining for whether that aircraft is in for condition safe flight.’ (1978).” (Rimer, supra, pp. 454-455.) C.F.R. 91.29 F.2d at § appeals regulations general The court of observed these were in nature and specific did regulations specifically not create no duties. “There are which require pilot physical security cap by physically to check the fuel removing regulation it. In type negligent the absence of this Rimer was not per (Id. p. se. 455.) at [Fn. omitted.]” Aviation, Inc., supra, v. King Avtech 655 F.2d contention a viola-

tion Regulations of 14 Code of negligence Federal section 91.163 constituted per rejected. se also provided operator was owner Section 91.163 maintaining in an primarily responsible the aircraft

an aircraft clearly although regulation airworthy condition. The court held require specific thus far too broad safety, not conduct and was aimed at it did p. (Id. 79.) at a standard of care. to establish per negligence Sun relies on establish the doctrine of The cases Western statute, allegedly violated applicable rule or ordinance unless the se is specific forth a standard of conduct. sets part

However, of this case are regulations scrutiny under the context which have been governing maintenance of aircraft regulatory of a scheme 43.13, airworthy. (14 Section entitled §43.1.)4 as C.F.R. certified performed on aircraft must be (general),” rules directs work “Performance manual according maintenance performed to the “current manufacturer’s manufacturer, prepared by its Continued Airworthiness or Instructions for acceptable methods, techniques, practices to the or other specifies object of such 43.13(b) Section further Administrator....” “will of the aircraft be at least maintenance work is to ensure the condition function, aerodynamic equal (with regard to original to its ... condition deterioration, quali- strength, and other structural resistance to vibration and Regulations, Federal airworthiness).” (Italics added.) Code of affecting ties requires compliance with manufacturer’s recom- also section 135.421 in the maintenance programs “which is contained mended maintenance by the manufacturer as maintenance instructions set forth manual or added.) required chapter (14 135.421(b), italics by this ....” C.F.R. § were provided Piper Lycoming Aircraft and by manuals The maintenance expert and mechanics testimony and of witnesses into evidence introduced of the manuals to the directives for Western Sun confirmed adherence inspections and airworthiness required by the FAA. To ensure maintenance applicable airworthiness performed “all properly so that aircraft meet are jury) specifies read to the requirements” 43.15(a)( 1)), 43.15(c) (also section (§ “may which be of inspection performed by checklist shall be use of a the equipment provided by of the person’s design, own the manufacturer the one section, This source.” being inspected or one obtained from another scope of the items however, and detail requires the checklist to include the part. appendix this in an to contained (as Applicable to the “Scope appendix and Detail of Items

This entitled Inspections,” 100-Hour in and Aircraft) To Be Included Annual Particular Except pertinent part: “(a) provides as Regulations, 43.1 section 4 14 Code of Federal maintenance, governing section, part prescribes the provided paragraph (b) this rules of this having maintenance, any (1) a U.S. airworthi rebuilding, Aircraft preventive alteration of and certificate____” ness specific inspected during inspections. discloses the items to be aircraft regulations require specific charged conduct actions those individuals inspection-maintenance responsibilities. regulatory scheme, with the This here, regulations challenged prescribes which the includes conduct that is safety required specific. both oriented and Evidence showed the checklist was inspections Further, provided they speci- of the for the maintenance aircraft. steps any fied the seeing signs exact mechanic should take when of trouble during inspections. appendix jury, ample

While this was not read to the there was evidence responsible maintaining find the mechanics inspecting and aircraft the specific prescribed duty had a to follow the details the maintenance Although regulations specifically delineating manuals. the steps the to be during maintenance/inspection (nor taken anof aircraft were not read requested read) although jury, regulations actually to be to the read general nature, are more we prejudicial find no error in view of wealth regarding specific of required evidence conduct such during maintenance/inspections.

C. Over Western objection, Sun’s the court instructed: proof respect plaintiff’s

“With theory negligence, burden of under you find regula- Western Sun violated defendant one or more of the previously proof tions read you, the burden of on the issue of causation plaintiff defendant, shifts from the to the that either defendant Western Sun of proving any regulations has burden violation was not a proximate plaintiff’s in bringing injuries damages.” cause about This instruction is on the based rationale v. Lone Hotel Palm Haft Cal.Rptr. 745, (1970) 3 Cal.3d P.2d eased significantly 465] plaintiff’s in establishing liability burden on the In the negligence theory. special instruction, Fagerquist plaintiff absence this as would have the prove only burden to comply that Western Sun failed to with federal regulations aircraft, in maintaining comply also that but the failure to proximately caused the in death this case. policy grafted exception general

Public has a narrow to where a the rule comply mandatory requirements failure to defendant’s with of a statute regulation prevents plaintiffs conclusively proving injuries from their were proximately by Haft, provide caused that failure. In a hotel owner failed to lifeguard protect patrons swimming pool though injuries a to from even a lifeguard’s presence required. persons statutorily was Two drowned. Although presence lifeguard there were no witnesses to the of a establish prevented statutory drownings, would have the court held that once the the suggestion presence of a life- strong the violation was shown and there was a damages, weighed minimized guard policy would have avoided or at least the Haft, it shifting in to In was favor of the burden on causation the defendant. inability plaintiffs advantage deemed unfair to a defendant to take of a allow proximate solely to the to abide establish cause because defendant failed lifeguard present drownings have the law. Had a not been either the would testify or, occur, they would be witness could occurred did there a who drownings. question having had to the cause of the of whether a Since the lifeguard place prevented drownings the in would have the or minimized required injuries only speculated, policy bear the could a defendant to showing provide lifeguard not factor burden of failure to the was a causal drownings. in the present case, only occupant of the

In the the accident killed the plane, pilot. ample failed to to show Western Sun the There is evidence provide regula required by level of the the service maintenance federal erroneously shifting-burden tions. The trial the instruction court believed required by opinion this court’s in McGee v. Cessna Co. Aircraft Appeal Cal.App.3d In the McGee Court 542]. jury refusing found the trial to that an aircraft court erred instruct defendant, Cessna, proving aircraft manufacturer had the burden of an passenger’s postcrash proximately injuries caused Cessna’s were proof regulations. violating actually FAA We bore burden of held Cessna substantially under the an the same that case instruction facts given. objects, as the to have one which Western Sun now should been experts proximate to the crash McGee the were conflict as cause and However, regulations allegedly destroyed had the FAA aircraft. because compli- design, requirements violated went to for basic aircraft the failure of identically an manufac- ance could be deduced from examination of aircraft conclude Cessna tured. There was evidence from which the could occupants post- regulations protect from violated FAA to aircraft intended clearly a survivable injuries crash fire of the nature McGee incurred after cockpit required engine and the regulations crash. The a between the shield cockpit intruding into for passengers prevent to be from able to flames period destroyed the shield of 15 the fire minutes. Because policy crash-aircraft, testing. stretched was not available for McGee Haft’s regulation safety caused analysis apply comply a failure with a where seconds, inspection. preventing destroyed to be than 40 shield less Thus, required provide the failure shield flame-resistant injuries to likely the bum substantially minutes was to have caused to be unavailable passenger and was factor which caused the evidence plaintiffs to at trial. person injured regulations

When the is of the class the violated are designed protect injury type promulgated and the regulation is the was avoid, injury proximately there is an inference the flowed from the viola tion. McGee that inference was sufficient to shift the burden.

However, the inference of causation in this case is not as direct as Here, cylinder or McGee. the defective number-six in the aircraft Haft engine certainly almost caused or at least contributed to the accident. The cylinder defective when was manufactured Avco and then later retailed airplane Although to the owner of this and installed Western Sun. Western accepts liability warranty theory, Sun under a strict necessarily it does not negligent. Fagerquist’s follow its sale and installation were The real thrust of complied inspection case is that had Western Sun with the strict and mainte requirements regulation installation, nance it would have detected the after repairs cylinder defective and made before the crash. cylinder’s developed

Western Sun admitted the casting defect had following being operated into a crack installation while at normal combus- temperatures. eventually developed cylinder tion The hole which in the was pilot operated not related to the manner in which the aircraft. It was problems hole which would set off the chain of mechanical which made the airplane power engine lose the immediately of one before the crash. expert, Savage,

Western pilot experience Sun’s stated the rough- would a running engine during cylinder taking the time erosion of the defective was place. precisely complaint pilot It is brought this which the to Western Sun’s taking flight attention before off on the fatal and to which Western Sun’s allegedly negligent inspection only response maintenance was directed. Its although injectors personnel was clean the fuel Western Sun knew its had injectors cleaned the fuel preceding three times two months. Since this procedure required previous months, had not been at all in the this should perform problem have alerted it that it should a check if to see the latest float injector malfunctioning, was because the were nozzles the cause was compression. compression due to reduced A check would have detected a leakage casting cylinder, necessarily from the but not which had a defective yet developed opening prox- any placing into the metal. Even a hand in imity cylinder cylinder which lacks to the wall would have indicated a compression properly burning because will cooler than are those which shop proper procedure Although their fuel. was Western Sun’s chief stated it clogged injector cylin- inspecting trouble-shooter nozzle to hand-test the ders, Thus, supports September this was not evidence done on 30th. finding cylinder, eventually overheating the crack in the which caused fire, present the resultant oil Western detectable at the time Sun was September complaint left-engine- called to trouble-shoot 30th Moreover, running-rough. horoscope had a been utilized the crack would (A horoscope optical have been visible. is an cylinder device inserted into the through sparkplug hole Therefore, to view the interior surface.) appears strong suggestion proper there is a maintenance, required by as regula- tions, prevented would have the accident. However, spite of some similarities to the issues discussed in Haft McGee, significant First, there are differences. the evidence was not

destroyed by prevent the crash so as to reconstruction, accident analysis and scientific cylinder examination of the engine. fact, defective engine following test cylinder crash showed the compression defective had lost Second, and it was removed and examined. regulation violations here do directly go inability plaintiff to the proximate to establish Here, contrary causation.5 Haft, compliance to the facts in regula- with the requirements tory plaintiff’s would not have eased evidentiary burden in proving negligent inspection Western Sun’s and maintenance proximately Thus, caused the policy accident. applied reasons relied inon and as Haft present McGee are not here. While the certainly evidence is finding sufficient to sustain negli gence, it is not conclusive as verdict, a matter of law contrary and a i.e. a finding plaintiff carry proof did not the burden proxi on the issue of causation, supportable. mate is also reasonably probable Because it is a more favorable verdict as to negligence Western Sun’s liability would have resulted jury properly had the been instructed proof regarding proxi on the burden of cause, mate finding negligence as to (Cervantez is Penney vacated. v. J. C. Co. 24 Cal. 3d 579 975].) 595 P.2d

IV meritlessly Western Sun $1.5 claims the award of million to Kristina is so excessive as a matter passion of law it must be deemed the result of prejudice, asserting: poor took one look young girl, at brain “[T]he damaged birth, compensated from her not for the loss she sustained as father, a result of the death of her but rather for the substantial losses she sustained as a result of the she damaged.” (Original is brain italics.) fact

Kristina was bom with physical severe brain and other making defects her dependent totally defects, on others. Because of numerous severe birth she surgeries, speak has had several clearly, unable to must have dental work performed anesthesia, general under properly, is unable to eat suffers from fact, airplane sky, 5In witnesses testified to the manner which the fell from the the defects pilot’s contributory negligence, pilot and the lack of i.e. the lack of error. mentally severely retarded. normally and is diarrhea, walk cannot constant care, expectancy her life supervision and requires Although constant she died, her father her mental devel- years old when years. Kristina was ten 69.7 three-year-old child and her communi- a opment approximately that of nine-month-old child. Kristina of a equivalent to those skills were cation language which her father understood and by sign her needs communicated anyone else. her better than used with special had a Kristina and her father relation- evidence showed

Substantial love, appreciated handicaps, her father’s affection ship. Despite her Kristina affection; meaningfully extremely his and was attention; responded and mother states she was unable they together. Kristina’s happy when were experiences gave her positive opportunities and husband give Kristina provide, the mother could not exposed Kristina to activities to the child. He growth plans for the child’s future and devel- taking sailing. He discussed her opment. positive relationship Fager- described the between

Seven other witnesses mother, Fagerquist quist Although divorced from Kristina’s and Kristina. spent quality custody in and care and time with her. There shared Kristina’s relationship deeply caring loving Nothing between the two. and was a and relationship together. or their time no one interfered with their $150 Fagerquist paid only per argues A. Western month child Sun Fagerquist’s expectancy support. $1,800 year, over life the total amount At $70,000.” support not have exceeded From this lost “could Kristina premise, amount awarded for noneconomic losses exceeds it concludes the million, a matter of law because it bears no reason- $1.4 as sum excessive pecuniary or losses. relationship economic able to Kristina’s appellate a claim of excessive review of governing The rules Angeles v. Los Transit Lines damages succinctly are summarized Seffert 161, “The 498, 364 P.2d 506-507 (1961) 56 Cal.2d 337]: [15 question, first to the discretion of committed damages amount of is a fact judge motion new of the trial on a jury and next to the discretion case, frequently, as in this see the witnesses They trial. see and hear the result, As a all impairment that has resulted therefrom. injury and the decision of the trial court presumptions are in favor of the [citation]. materially of the trial court appellate from that power court differs of the ground appellate court can interfere on question. An passing on this large ground the verdict is so only on the judgment is excessive that the prejudice suggests passion, blush, that, the conscience at first it shocks Driveway (See v. Auto Co. part jury.” Schroeder corruption of the on Cal.Rptr. 622, 662]; see also Bertero 908,919 523 P.2d (1974) 11 Cal.3d [114 728 Corp.. 43, (1974) Cal.Rptr. 184,

v. National General Cal.3d [118 878].) P.2d 65 A.L.R.3d

Western Cal.App.3d Sun cites Estate D’India 942 Cal.Rptr. 165], proposition recovery losses, for the for noneconomic such comfort, companionship, society, as loss of training, advice are recover only may [they] pecuniary able “to the extent that ... assessed terms particular (Id. 947; p. original under evidence case.” italics.) at present Since the award for the greater noneconomic losses in case is 15times presumed the losses, than amount awarded for Kristina’s economic Western argues award, therefore, Sun clearly the excessive. Western Sun’s measuring “pecuniary overly device for loss” is restrictive and narrow. “Damages wrongful ain are to pecuniary death action limited the loss by limitation, suffered one because of death the of another. This [Citations.] however, prevent recovery society does not for loss of... comfort and ... provided pecuniary these elements are considered in relation reasonable to (Fields Riley (1969) Cal.App.3d 308, loss. v. 1 313-314 [Citations.]” [81 Cal.Rptr. 671].) measuring “In damages the wrongful action,] suffered ... a death the [in suffered____

jury ... society entitled to consider the loss of and comfort [is] by There is yardstick appeal no fixed and absolute which a court on can measure of damage, being the value these elements of if it sufficient the appears amount awarded to bear a reasonable relation to the elements of loss entitled to considered jury, fixing and the of the amount is committed to the of jury first sound discretion and second to the like judge passing discretion of the trial aon motion new trial. [Citation.]” (Lasater Scavenger Cal.App.2d 217, (1945) v. Oakland Co. 71 220 [162 Cal.Rptr. (See 486].) also Merlo v. Standard (1976) &Acc. Ins. Co. 59 Life D’India, Cal.App.3d 5, Cal.Rptr. supra, 17 416].) Estate 63 [130 of 942, Cal.App.3d plaintiff’s comfort, surviving evidence of the loss of society support appeal finding by was conflict and the from a probate payments plaintiff by court to the made the decedent did not consti “support.” Appeal plaintiff tute of Court concluded did establish support pecuniary consequence a matter law as of a loss of of the death plaintiff’s of the mother and there was sufficient record evidence support findings probate here, By of the court. contrast support, comfort, evidence uncontradicted showed Kristina suffered loss of love, guidance affection and as a of the It result death her father. was attempt place within the “pecuniary” discretion a value to intangible these losses suffered That Kristina. evaluation is not so exces presumption passion prejudice. (See sive as to it from raise resulted (1977) Cal.App.3d 451, Stuyvesant Little v. Ins. Co. 466 [136 Life reported distinguish- 653].) factually That Sun has Western cited wrongful awarded less for the death where children have been able cases propriety about the of this award. parents does not alter our conclusion their suggests Kristina’s mental retardation Finally, B. Western Sun preclude appreciating her from her father’s love must be deemed to Therefore, alleges if were a child. companionship fully as as she “normal” society were not must be less than she the value of lost comfort argues excessiveness of the award becomes even more retarded. It then handicapped proportionalizes given award this pronounced when one equivalent, greater, amount to which a “normal” child would child to an but have to be entitled. language in argument

Western Sun’s relies on Zaninovich v. American Airlines, App.Div.2d 873], suggesting Inc. N.Y.S.2d wrongful mongoloid child’s share of a settlement for the death of both parents justifiably given healthy her could be less than that to each of three part siblings, inability perceive intangible her to ever the loss because of award, parents’ upholding appellate from her death. In the trial court’s the here, problem present court in Zaninovich with a not how to divide was faced single among parentless By reducing award four minor children. the child, mongoloid one-half-year-old amount available to the two and the court justified increasing nonhandicapped seven- and the amounts available to her five-year-old, the handi and seven-month-old sisters. The court considered proper capped proven expectancy speculated a allo child’s shortened life justify awarding lesser share because cation between the children would her a institutionally trial for no more evidence showed she could be maintained per Thus, $200 during than reduced court considered month her lifetime. Further, specula multiple which do not here. its factors Zaninovich exist parental regarding capacity appreciate mongoloid tion child’s limited suprising support comfort and is documented. This is not because mongolism (Down’s appears contrary suffering Persons from to be to fact. (III Syndrome) “unusually The New are defined as sociable and affectionate.” Britannica, Ready (15th 1981) ed. Micro Encylopedia Reference and Index p. 648.) paedia, Syndrome,” “Down’s

Here, knowing likely will remain Kristina’s loss she evaluated expectancy. It remaining years of life living “childlike” while out her 69.7 would be more for it to have found she would not have been unreasonable might be able to father than who seriously damaged by loss of her a child maturation, through rather than less. compensate deprivation normal for this

Disposition Judgment finding negligence vacated; as to the is the remainder judgment is affirmed. J.,*

Benke, concurred. Acting Concurring WIENER, J., Dissenting. P. I agree everything with majority opinion except part set forth in which states Sun “Western $1.5 meritlessly claims the award of million to Kristina so excessive as passion of law it must be prejudice____” matter deemed the result of or ante, p. 726, (Maj. opn., argument added.) italics I believe the has merit. I Accordingly, modify would judgment.

We are judgment told before we can reverse on ground large verdict is excessive the verdict must be so that it shocks the conscience passion, and suggests prejudice, corruption part or jury. on the of the (Schroeder v. Driveaway (1974) 908, Cal.Rptr. Auto Co. 11 Cal.3d 919 [114 622, 662]; Corp. 43, 523 P.2d v. Bertero National General 13 Cal.3d 608, 529 P.2d 878].) general A.L.R.3d This state- ment, however, simplistic apparent hardly with such clarity as an serves objective appellate basis action. We know that if we were to conduct a survey damage on the award in cases this other we would varied receive responses—some judges outraged verdict; others, would be at the size of the majority, such range. as the would conclude the verdict is within a reasonable judicial I process involving believe the allegedly trial court review of exces- sive in appellate requires verdicts new trial motions or later review more principled approach applying objective guidelines personal, than rather response judge visceral of the individual trial or the collective viscera of a appellate three-judge panel. justice concept in our of uniformity—people

Inherent notion is the of positions equal justice more or less similar should receive treatment. The system sporting lucky should not be viewed as a venture where certain ones “Big Spinoff” can win simply particular happens because jury to be generous inordinately money. requires with someone else’s Fairness persons types injuries who receive certain with resultant economic loss compensated in comparable should be a rational manner to others with injuries. only respect uniformity similar Not is this essential for our for justice system, predictability obligated but reasonable is essential for those expect to cover these financial risks. We insurers and business institutions plan contingencies effectively arising injuries loss death. from due to or * Assigned Chairperson of the Judicial Council.

731 problems plan- impossible, difficult, if uniformity can create not Lack of the infinite range damages borders on these losses ning to cover amorphous conscience. only by standard of governed have planning with the courts which The rational source of should rest be, experience digest and expertise verdicts. Courts should and ranges extrapolate to set reasonable relevant data from these cases are able to pretrial such that settle- to assist counsel at conferences of settlement values trial. Thus because of the theoret- ments can be reached without the need for verdicts, runaway practical importance judicial over and control ical incorrect, they doing so those when are courts must act to revise verdicts courts, courts, including appellate fail to so objective manner. When in an creating gambling with jeopardize system an incentive for those they act they only objective in an manner benefit instincts. When courts act applied case, they supply order to be parties to the but a rational immediate in other cases. expect precision suggest I mathematical

I would not want these remarks including wrongful reaching damages any tort case those for an award of precision illusory judge would be and the death. “Insistence on mathematical approximations juror must be allowed a fair latitude to make reasonable practical experience.” Blidberg Roth guided by judgment (Whitaker and v. 554, quoted Company (4th 1961) in Sea-Land child Cir. 296 F.2d Services, 9, 24, S.Ct. Inc. v. Gaudet U.S. L.Ed.2d 806].) practical experience here I believe we can

Using judgment causes of action guided by how California law treats similar should jurisdictions. in this results reached in other cases and other I refer to the say treats similar causes of action When I how California loss of of action for permit a child to maintain a cause fact that we do not parents wrongful injury the for the parental resulting from to consortium Airlines, Inc. 19 Cal.3d negligence party. (Borer of third v. American 858].) here, if Western Sun’s conduct 563 P.2d Thus 441 [138 in a coma quadriplegic or to be to become a had caused Kristina’s father though damages would be identical nothing even her Kristina would receive wrongful father’s death. suffered because of her to those Borer, with does not deal I which makes clear that it do not mean that death, should control wrongful statutorily authorized cause of action for the Airlines, Inc., pp. supra, at 451- 19 Cal.3d thinking. (Borer v. American our must be consid- expressed in say policy I Borer 452.) do that the statements arising from the for loss of evaluating damage awards consortium ered wrongful parent. of intangible, nonpecu- death of a “Loss consortium is an loss; compensation niary plaintiffs will monetary regain not enable to the mother; companionship guidance simply of a it will establish a fund so plaintiffs upon adulthood, reaching when will be less in of maternal need guidance, they wealthy unusually say will be men plain- and women. To ‘compensated’ superficial; tiffs have been for loss reality they their have they compensated; suffered loss for which can be they obtained, never have instead, a essentially future benefit unrelated to that loss. ignore providing

“We cannot the social burden of damages for loss of parental merely money pay consortium because the to such awards comes ‘negligent’ initially from the Realistically defendant or his insurer. payment of by burden of awards for loss of consortium must be borne public premiums generally or, otherwise, increased insurance in the danger greater enhanced that accrues from the people number of may who go any choose without insurance. We must also take into account the cost system of administration of a pay awards; determine and consortium since virtually parent every injury engender serious to a would a claim for loss children, expense of consortium on behalf of each of his or her settling of Airlines, Inc., litigating (Borer such claims would be sizeable.” v. American supra, p. 447.) 19 Cal.3d at points difficulty determining also of proper

Borer out amount of damages parental of the context loss of explaining, consortium “Plaintiffs $100,000 each; prayed yet here have for what standard could we deter- $10,000 that an inadequate, $500,000 mine award or one of Airlines, Inc., (Borer supra, p. excessive?” v. American 448.) at Cal.3d provides of Civil Code Procedure section 377 that an heir is entitled to an damages against person maintain action for causing death damages case, is entitled such “as all the may under circumstances of the just, (Italics added.) damages support ...” Those include the financial which the child have from would received the deceased reasonable and the compensation love, companionship, comfort, affection, care, loss of advice, guidance, education, training, protection, services, society, solace, support, any or moral other benefits which the child has lost reason parent’s general her of his or death. In more terms the are damages broken categories. down into economic and noneconomic this case the economic monthly $150 damages support child does not translate into more than $100,000. represents $1.5 The bulk million award noneconomic damages. enthusiastically agree wholeheartedly majority’s

I with statement particularly that Kristina was vulnerable to her father’s loss. Nonetheless her in In in context of other awards California. award must be evaluated making I the results of at least this evaluation have reviewed and considered involving damages wrongful death. 50 cases California and elsewhere they are here There is no case in which the economic losses are as small as which single large is as as the one where the noneconomic loss for a child approved. majority has now generalizing say invariably In I that from these cases believe it is fair to largest component plaintiffs support. loss of a award is for loss of Here $100,000. support only is about Another relevant factor on whether the verdict is excessive is to consider placed plaintiffs the trial record and the value on the case counsel. If there anyone insight damages is who should have as a award of should to what fair plaintiffs appreciates lawyer be it is who has lived with the case and its plaintiffs lawyer highly respected nuances and subtleties. this case is a experienced expert litigation. superb in aircraft He is a advocate who obvi- ously ability compassion, has the to communicate his sense of fairness sympathy jury. to the arguing damages jury plaintiffs explained to the counsel Kristina’s years.

father expectancy nothing stronger had a life of 39.1 He said there was parent suggested than the love of a for a child. if Counsel there were tragic parent parent a event and a not live could to assist his child the would pleased if he ability somebody or she could at least have the to hire as replacement doing things to assist in those that would have been done parent. argued, the now deceased Counsel “And if have one could someone they life,... somebody could they count on for the rest of their if could hire $25,000 year today’s purchasing power, talking like that at and I’m not $977,500 shrinking money, you multiply about the if value of that would be approach you going it out. Now that doesn’t mean are to take that as the [IT] formula, something may guidance you.” or the but it is be of legitimately damages jury. sugges- Counsel left the amount of His tion, however, they meaningful. as to how should reach their conclusion is In broad terms counsel asked the to return an award of a million dollars. I think reasonable to conclude that an award is excessive when it exceeds $500,000 sought by plaintiffs lawyer by percent; the amount a factor of 50 terms. absolute adopt argument But even we were to counsel’s that a fair award of $25,000 annually appropriate, gross does the determination of the amount $977,500. equal ignores yield capital. If we use the That amount on present yield percent necessary value table and the low the total amount produce $25,000 annually years $425,500, approximately for 39 is less argued half jury.

than of what counsel to the I Thus here believe one can reasonably plaintiff’s case, thought conclude that including counsel both loss, $525,000. economic and noneconomic did not exceed upon foregoing Based I damages conclude the amount of is excessive. This conclusion is disproportionate based on the fact the award is to the amounts awarded in other cases both here and in other states and substan tially sought by plaintiff’s exceeds the amount counsel. The award reflects expressed the concern in Borer that Kristina has received a future benefit Airlines, Inc., (Borer unrelated to her supra, loss. v. American 19 Cal.3d at p. 447.) Consequently, I modify judgment.1 would I Because have been persuade my colleagues unable to either of damages that a modification legally specific necessary, damages proper amount of which I believe is becomes irrelevant.

Appellant’s petition Supreme for review the July Court was denied 1987. using have, analysis (See 1Arecent federal I case the same as reached a similar result. Trevino (9th 1986) 1512.)

v. United States Cir. 804 F.2d

Case Details

Case Name: Fagerquist v. Western Sun Aviation, Inc.

Court Name: California Court of Appeal

Date Published: Apr 29, 1987

Citation: 236 Cal. Rptr. 633

Docket Number: D002309

Court Abbreviation: Cal. Ct. App.