*1 TOMPKINS, heirs and MYRTLE E. ALLEN TOMPKINS Ap deceased, TOMPKINS, and of HILLARY Plaintiffs v. COM UNION TRUST NORTHWESTERN pellants, HELENA, Montana, al., PANY OF et Defendants Respondents. SMITH, A. V. SMITH and ROSENA JAMES Appellants, SMITH, deceased, LARRY B. Plaintiffs heirs of COM UNION TRUST . NORTHWESTERN v HELENA, Montana, al., PANY OF et Defendants Respondents. 81-403, 81-404. Nos. 23, 1982. Feb.
Submitted May 1982. Decided 402. *2 C.W. Jr. Leaphart, argued and W. W. Leaphart argued, Helena, for plaintiff's appellants. Greef, Hamilton, Hamilton,
Recht & D. John Greef argued, Niklas, Helena, Kline & and respondents. defendants MR. JUSTICE MORRISON delivered the Court.
Plaintiffs judgment from appeal entered for defendant and the denial of a new trial a motion. This is action for wrongful death, brought Court, in the First Judicial District and Clark Lewis County. We reverse and remand for a new trial.
The action arises out of an crash in which all aboard airplane were 19, 1978, killed. On Dean September Herschel pilot Moore, III, left Missoula bound for Bozeman at 3:30 P.M- from II rented a Archer in Piper three passengers Moore had Hall, Mon- miles west Six Aviation Missoula. Executive a hill at into crashed P.M., o’clock tana, near 4:00 miles feet. The accident site 5,500 approximately Drummond, Montana. southwest of student, had obtained University a of Montana Moore,
Pilot 71 hours the crash. He had license a month prior his pilot’s in- He was 28 hours solo time. time, including flying total student as an excellent rated, but was described strument his instructor. flight P.M., but at 1:30 a weather briefing Pilot Moore obtained departure a immediately prior receive briefing did not testified, who P.M. According meteorologist 3:30 1:30 Drummond between over improved slightly weather which broken clouds P.M.; ceiling there was P.M. 3:45 at 1:30 P.M. was 3,500 4,000 feet; from the wind had lifted at 12 miles remained hour; 22 miles the visibility per to 20 miles area 15 precipitation there was throughout; had in Bozeman of Drummond. The weather southwest P.M. Rules 4:30 Flight deteriorated to Instrument *3 First, relied upon plaintiffs Plaintiffs’ two-fold. position res to establish liability. ipsa loquitur theory legal being inexperienced, Secondly, pilot, plaintiffs alleged weather which into cloudy, squally, had flown negligently to lose control caused him to disoriented and become the aircraft witness testified that expert aircraft. Plaintiffs’ overstressing wings a went into descending spiral, tail, and to come causing apart. aircraft which con- testimony
Defendant countered with expert “descending theory espoused spiral” tradicted that, witness testified expert Defendant’s plaintiffs’ expert. an line over along straight was found almost because debris not been 2,000 spiraling the aircraft could have length, feet the left wing flap Defendant’s testified that experts down. crash and that this detached the aircraft came off before the ver- the tail which controlled assembly struck and broke flap the cause of attributed tical direction. Defendant’s proof failure. accident to this equipment
The trial court submitted the case to the jury, omitting of from the instruc- plaintiffs’ theory jury tions. level, Defendant contended at trial court and here that loquitur contends, because defen- inapplicable dant’s experts testified to a cause of the crash which negated any presumption The trial negligence. court agreed. returned a verdict defendant the negligence
issues. Judgment was entered accordingly plaintiffs appeal.
Plaintiffs raise the errors: following
(1) The jury verdict for defendant was contrary to weight of evidence and the law.
(2) The District Court erred in defense allowing experts testify defective regarding since such equipment defense was not raised the pleadings.
(3)The District Court erred allowing the defense to inject the issue of strict liability into a negligence case.
(4) The District Court lo- submitting res ipsa erred quitur to the jury. 1, 2,
We affirm the District Court’s on issues rulings but reverse on issue.
4. SUFFICIENCY THE EVIDENCE OF Plaintiffs contend that verdict is jury’s contrary the evidence and to the law. Defendant produced expert which how negated plaintiffs’ theory of the accident occurred. Plaintiffs’ witness testified expert came apart because it went spiral. into Plaintiffs’ descending proof sought to establish that the descending resulted spiral from inexperienced becoming disoriented in un weather favorable conditions. proof designed Defendant’s to show such a be ill-founded debris was scat theory since 2,000 tered in a straight line over distance of some feet. There was clearly a which conflict in theories and re proof *4 v. Hoyt Gunnels quired submission of the issue to a jury. Balsam (1981), 1492, 38 633 P.2d There is suffi St.Rep. 1187. cient in in favor of support uphold jury record verdict Therefore, either the the defendant. we plaintiffs reject or first contention. plaintiffs’
174 District Court erred contend in issue
Plaintiffs Issue raised in the pleadings. of a defense not in allowing proof allowing injection District error Court alleged concerns and we These issues are intertwined strict theories. liability them together. treat was that pilot negligence answer denied
Defendant’s defendant Pursuant to this allegation, of this crash. cause acci- another cause for the offer proof establishing entitled to defendant, which offered by dent. The expert acci- failure as the cause to establish sought equipment that the decedent pilot dent, allegation negated plaintiffs’ into descending put became disoriented and spiral. 8(c), M.R.Civ.P., require does not
Rule an be as affirmative of third conduct parties pleaded v. Rolandson (1967), 270, 150 Mont. defense. See also Graham did unavoidable accident 263, 435 P.2d where this Court held affirmatively. have to be pleaded simply were not involved. Defendant liability theories
Strict the cause of the accident. offered failure as equipment such proof. clearly right permitting District Court a res instruction in ipsa give The District Court’s failure to Defendant relies this case is issue on appeal. the dispositive two cases legal support two upon principles primarily to a res First, defendant contend- instruction. opposition here, the decedent trial level and contends ed at the court control not requisite degree required did have the pilot Defendant relies upon doctrine. application v. First National Bank (D.N.M.1973), 370 F.Supp. Campbell ex- is offered also that where alleges proof 1096. Defendant such a way plaintiffs’ the cause of accident plaining available to the refuted, are allegations v. Mets (1980), Granrud relies Defendant plaintiffs. 314-315, 1384, 1386. Mont., 606 P.2d St.Rep. that, held where the Federal District Court
In Campbell,
morning
before
agency
an aircraft from
rented
crashed,
inescapable
requisite
“the conclusion is
as well
direc-
in its mechanical
control over
airplane,
*5
has not been sufficiently
tional
demonstrated to
aspects,
per-
(370
the doctrine of res
to
ipsa loquitur
mit
apply.”
F.Supp.
1099.) Plaintiffs here
to
attempt
distinguish
Campbell
decision
on
basis that the evidence in
re-
this case showed
cent and careful maintenance whereas
such
ex-
no
evidence
isted in
case
This
can be
Campbell.
distinguished
basis but we find
evidentiary
such
determination to
be
here. We
dispositive
think
to be too
Campbell decision
narrow in its
application of
and we are drawn
ipsa
to
broader
found in
interpretation
Stoddard v. Ling-Temco-
Vought,
(C.D.Cal.1980),
Inc.
Stoddard involved 14 consolidated wrongful death actions arising out of an aircraft crash which occurred when a U.S. Air Force C-135B aircraft crashed into Pacific Ocean.' Defendant Inc. had Ling-Temco-Vought, made structural to body the aircraft crash resulted changes shortly thereafter. Plaintiff alleged construc- faulty design, tion, of the aircraft inspection testing by both United States and Ling-Temco-Vought contractors during and after Each modification. of the two defendants that res argued ipsa loquitur had no because both of the two application could not defendants have “exclusive control.” Paul Judge Hatfield this rejected construction, narrow holding had loquitur application multiple defendants. Judge Hatfield said:
“LTV, al., et and the States are the United only parties for arguably responsible the accident since other defendant parties lawsuit have been exonerated. apparently Neither the United States nor can LTV escape application of res under a ‘ex- narrow interpretation clusive control’ requirement. The facts as presently alleged al., suggest LTV, defendants et and the United States are both subject Nevertheless, doctrine. if is there suffi- control, cient as to doubt can become one question of fact. Rowe, trier Northwest Inc. v. 226 Airlines, (8th 1955) F.2d 365 Cir. with v. approval cited Barnes North- (1951).” Airlines, Inc., west 233 47 410, Minn. N.W.2d (1981), 1994, 38 St.Rep. Manufacturing In Little v. Grizzly doctrine loquitur the res 839, quoted 636 P.2d this Court (1952), v. Lines Northwest Greyhound from Whitney is that: 528, 257, wherein it stated Mont. without injury, any
“When an which causes instrumentality under the exclusive control fault of the is injured person, as in is such injury the defendant at the time of injury, if the having does not occur one ordinary things course infers care, uses then the law such control proper as the cause of injury.” on the one in control an accurate statement of quoted The statement sole that exclusive and did not state However, the court law. *6 In fact it is of a case. element res necessary was a control is in Restatement stated loquitur of res ipsa not. The doctrine 328D, as follows: Second, Section of Torts is “(1) plaintiffs that harm suffered by inferred may It be of the defendant when: by negligence caused “(a) not occur ordinarily is of a kind which does the event the absence of negligence;
“(b) causes, the conduct including responsible other eliminated sufficiently and third are persons, plaintiff evidence; and
“(c) of the defen- is within the scope the indicated duty plaintiff. dant’s
“(2) to whether is the function of the court determine It or whether it be jury, drawn reasonably inference may be drawn. necessarily must
“(3) to determine whether is the fimction of the jury It conclu- case where different is be drawn any inference to be reasonably reached.” may sions inference res are the facts compel
There cases where 351, (1975), 15 Cal.3d See v. Cheatham Newing ipsa loquitur. is cases, In the inference 33. other Cal.Rptr. See Little v. Grizzly but not permissive mandatory. Manufac should be here is whether res supra. The turing, question all. submitted to the 328D, Second, to section
Comment Restatement Torts g is is instructive. The taken from Comment following language S- not, however,
“It is to the inference necessary control; defendant have such exclusive and control is exclusive one He be merely way proving his responsibility. may him, the inference be drawn responsible, may against another, where he shares the control with as in the case of the fall of a wall which each two landowners is under a du- party ... ty inspect maintain Exclusive control merely one fact which establishes responsibility defendant; if can be otherwise, established exclusive control is not essential a res case. The essential question one becomes of whether the probable cause is one which the defendant was under a duty to the plaintiff anticipate guard against.” proof exclusive control assists the plaintiff
establishing ipsa loquitur case. cause probable However, concurrent causes exist and may foreclose yet reliance upon res ipsa loquitur. case, proof failure equipment does not deny of ipsa loquitur for pilot error
application have com may bined with failure to equipment Plaintiffs’ produce result. here was proof reinforced by that a recent check of equipment had found it sound, to be but such is not proof essential. Moore, pilot, was in exclusive control of the aircraft at
the time the crash other occurred. No were occupants pilots. The fact that a third party responsible maintaining aircraft does not foreclose the of ipsa loquitur. application To such rationale would render res ipsa inapplicable engage on basis that an aircraft was manufactured someone by other than the and therefore pilot exclusive control was lacking. fact,
If in the accident of if un- speaks negligence, and evidence disputed does not the accident show resulted from another, conduct of then the doctrine of res attach. may in Mets v. our decision upon relies very
Defendant properly left the case, highway an automobile Granrud, In that supra. the driver so and killing injuring hit a pole, passenger and the accident. dece- not remember that he could severely application case depended dent’s death wrongful summary a judgment This Court affirmed loquitur. for defendant and said: there was some case, lapse it is that possible
“In the instant negligent, driver was and and that on the driver’s part and collided with that, went off the road because of the vehicle that the cause of the it is also possible But pole. telephone fault; that the cause the driver’s accident was due to of the brakes operate, accident was the failure mechanism, some other reason not failure in the steering See the driver. to lack of care on the part Speiser, due Section 26.7 Vol. Case: Res Ipsa Loquitur, Negligence (1972). be- balance of situation, probabilities In such a the vehicle which tween, an accident involving first causes of driver, second, are due to lack care care, lack reasonable are so not due to causes of accident negligent the driver was conclusion nearly equal be the result mere be found and would reasonably cannot the con- is further supported by This conclusion speculation. concerning pit- Godtland flicting Denning opinions the cause of the accident.” man arm and that a car does not case, the argued In the Mets plaintiff negligent. unless the driver is leave the road generally vehicle, of his it would if driver had control words, other shown circumstances not the road absent special not leave held that res ipsa This Court evidence in Mets case. could have oc- things because a number had no application traveled portion vehicle leave the curred to cause the and hit the roadway pole. bar, argue in the case at
The plaintiffs, the accident for negligence; struck the hill but would not have advanced argument The same itself of negligence. speaks case; i.e., causes in this Mets is advanced defendant to have produced are equally likely than error other *8 res accident, does not have application. and therefore cases. be between the two strong There seems to a parallel an In the Mets case, expert defense witness produced broke arm in the pitman steering assembly that testify arm and, in his the broken caused the opinion, pitman a to leave the Such cause would exonerate roadway. vehicle However, countered with ex- the defendant driver. plaintiff arm broke on showing that the pert testimony pitman impact. bar, In case at was offered expert testimony for the purpose reinforcing allegation plaintiffs error cause. The defense primary offered expert refuting evidence and plaintiffs’ expert sought to explain by showing accident Defendant equipment argues failing. if forcefully that not to the applicable Mets, fact situation in then could be applicable fact situation we have here. In Mets a car, without explana- tion, left the road and hit a In this pole. case, aircraft flew side a into the hill without explanation from occupants In cases, craft itself. both explanations the accident come from experts accident. reconstructing case, In each there is a between dispute experts.
Justice Daniel Shea dissented Mets. He said: is “It reasonable to assume that under normal cir- cumstances automobiles do not veer off the simply road into borrow pit unless the driver has been The negligent. majority conclusion that it is that the accident possible was not due to fault, the driver’s is, that the cause of the accident may have been due failure, to brake reason, some other is itself mere speculation. The here plaintiffs were not required eliminate all possiblities of how the accident have may happen- ed. Plaintiffs required were only to establish a basis factual infer on the of the driver. The inference is case; clear in this whether the would have accepted inference is yet another matter.” St.Rep.
1384.
We agree with this statement
from Justice Shea’s dissent.
statement
relevant here. An aircraft
into the
flying
side
a hill
speaks of
This case is a
negligence.
one for the
proper
that Mets
is in-
loquitur.
To the extent
of application
hereby
it is
overruled.
with this opinion,
consistent
(1968), 150
Knowlton v. Sandaker
relies
Defendant
case,
the evidence established
438,
“To have allowed case to conjec res would have allowed jury the doctrine of ipsa of the cause two plausible explanations ture between equally has to a failed appellant the accident. such case a that there was likelihood greater respondents’ establish has of the accident and cause proximate was the for the application failed to a crucial satisfy requirement thus v. William Jackson See ipsa loquitur. of the doctrine of res Co., P.2d 236.” Dingwall Mont. The loquitur. res ipsa facts Knowlton do
The in not support welding in which decedent was showed that the tank evidence dece- testimony was had not been ventilated. There if he had doubts any to weld in the tank dent was told not The case was plaintiffs about the tank’s explosive potential. care in sup- failure to exercise due defendant’s premised or, alternative, on the basis a chattel in the dangerous plying as evidence res that, The held ipsa loquitur. “[t]he court showed that clearly presented appellant ex- not have such Fruehauf and Sandaker did respondents if negligence, make it that their likely clusive control as would of.” the cause the injury complained any, The court Knowlton found that the conduct decedent as just any cause conduct likely to the case to go have allowed defendants. The court said: “To res would have ipsa on the basis of doctrine jury equally plausible between two conjecture allowed to jury the facts of the accident.” Under of the cause of explanations Knowlton, is compelling. such a result
The decision Knowlton controlling First, is not here. to the cause did contribute passengers Secondly, of the accident. there are not two equally plausible evidence, for the accident. other any Without explanations res itself, than the of the accident happening applies where into side of airplane an crashes a hill. When each offers party litigation testimony, expert attempting accident, alternatives are not explain equally plausible can choose thereby presented. jury to adopt offered one side to exclusion of the other. is free to all of disregard the expert testimony. Where each side produces testimony seeking explain accident, otherwise unexplainable loquitur if the may, elements are necessary have present, application.
For reasons the foregoing trial court in refusing erred a give Therefore, instruction this case. we remand for trial new with directions to in accor- proceed dance with the views herein expressed.
MR. CHIEF JUSTICE HASWELL and JUSTICES *10 DALY, HARRISON and SHEA concur.
MR. JUSTICE SHEEHY specially concurring: In addition to my that the instruc- tion should have been in given case, this I new find a trial is re- quired because the in verdict this case is against evidence. ought
It to be a judicial matter of notice that a PA-28 Piper of the here, if type involved it is flown in level within the flight recommended airspeed manufacturer, and is out kept of clouds, will not come If in air. apart true, not none of us should ever in fly airplanes.
In case, this there is no evidence from any expert breakup of this aircraft occurred either because faulty maintenance and/or because of faulty structural components in its manufacture.
The witnesses on the near the ground scene of the crash testified that the day was cloudy with occasional windy snow and sleet. They described as “cold”. temperature They heard noise of the motor of aircraft overhead, the thud heard They but not see it because of the clouds. could southwest wreckage airplane crash and saw the of its had heard noise the motor. they from where position Montana, flyer an Helena, experienced Morrison of Jeffrey inex- relatively in testified that in his opinion, this region, flight operations, pro- visual qualified only pilot, perienced avoided, have and which into which he could ceeded weather limitations, aircraft, exceed- his lost control beyond aircraft, structural causing damage, the limitations of the ed come and crash. caused the aircraft apart which turn if he could his ver- explain asked on cross examination When failure, answered he could he sion of sequence tail first because the that he assumed that the failed but were the first hit ground. tail pieces Mr. Morrison testified that In of his explanation opinion, in crashes of this a classic case of in-flight breakup this was becomes clouds, kind. The enclosed pilot, inexperienced seconds; a matter of 72 inevitably disoriented within is a build turns with its nose down and there rapid up airplane turn, in a structural spiral beyond capability airspeed to the situation responds the aircraft to withstand. The pilot on the too too by overreacting, pulling strongly quickly flight. to controlled to restore the hoping airplane controls break it forces on gravity apart. resulting Both witnesses testified for the defense. Two expert con- California, an Roberts, Jose, engineering Sheldon San Altos, California, “Bob” Los sultant, and James Jensen of R. consultant, sequence.of testified engineering the left essence, testified that they breakup airplane. left the outboard wing broke from the wing away flap then next, and the first, flap failed the middle bracket bracket the third bracket out its airstream, in the pulling failed then struck The left wing flap the inboard mooring wing. Thereafter, stabilator, a was torn off. the left of which *11 counterclockwise, off broke section tail rotated upward crash and the occurred. the in- their of
The two California based experts opinion the wreckage along bits flight positions breakup where the came ground up point ultimately plane rest the side against The were strewn over gully. parts 2,075 some feet. in however,
Nowhere California testimony, do two the reason for the of the left experts give wing separation from their version of flap. Apart of the sequence breakup, in there is of substance their nothing as to how testimony the crash why occurred.
The however, are each in their experts, strong opinion could accident not have in happened described way Jeffrey Morrison because of his supposed asáumption tail failed first. based They their distribution of the wreckage.
The distribution of the wreckage was detailed in- vestigators for the Federal Aviation Administration. Along magnetic of 325 compass heading degrees, those are parts described the following sequence:
The first wreckage is the portion tail cone. The left stabilator was found 675 tip feet further from cone. the tail left The flap found feet the left right of stabilator tip. stabilator itself was found feet beyond left stabilator The skin from tip. the left root was wing found feet outside the path flight, line of the vertical fin and rudder some 48 feet right flight and the left path, wing itself was found 215 feet ver- approximately beyond tical fin and rudder. 800 from the feet left the initial wing ground impact occurred to the remaining portion and a short distance further gully which the plane came course, to rest. Of all are distances approximate.
My review of the evidence indicates that two experts were speaking from sheer speculation refuting Morrison, Mr. and in him, several im- refuting they ignored facets portant of evidence:
1. The first in the piece wreckage flight line the tail cone. airplane
2. The left wing away had tom from its in the aircraft. root been wreckage indicated that the left had bent wing *12 184 to left was inverted the wing This means that the
downward. at the time the breakup. upon G forces exerted for which 3. The this magnetic heading airplane, compass bp Missoula, would its Bozeman from way approx- was on to as found wreckage The line of imately degrees. distribution was investigators Aviation the Federal Administration by ground degrees. The magnetic compass heading line of distribution witnesses, however, indicated If the federal direction. southwesterly inwas wreckage the was headed toward nor- right, are this investigators plane If at the the ground thern Idaho moment breakup. correct, was headed toward Califor- witnesses are the plane if it were level un- nia. The heading airplane proper east. The of the disturbed would be due nearly heading flight confirms Mr. opinion Morrison’s breakup plane in a at the time. spiral was tight 4. The left at the time of initial was breakup wing flap is retracted. In this leading edge flap pro- position, In the tected the left itself. retracted wing position, lift) on are no than (drag greater forces and wing flap rear wing other of the surfaces. any portions forces exerted The for the first only explanation separation plausible of the aircraft caused its wing left flap shuddering pressure its downward beyond structual speed capability, caused it break on the left which wing eventually exerted off.
.
the defen-
siim total therefore of the
from
testimony
about the cause nothing
dant’s witnesses told
jury
their
tenor of
sole
breakup
flight.
Morrisdn, who
is to
of Mr.
dispute
opinion
he
describe the exact
sequence
breakup
stated
could not
could the
witnesses.
anymore
expert
than
I
flim-flammed by
must therefore conclude that the
wise men
the two
background
impressive degrees
testifiers; Mr. Jensen
are
They
professional
from California.
his
here that
investigative
advised counsel for the defendant
this,
the minimum
a case such as
“probably
costs
prepare
$10,000
$50,000.”
but it
run over
would be near
could
under
case,
flight rules,
In this
visual
operating
pilot
clouds,
out of
one
dis-
stay
this aircraft was
mile
required
horizontally
1,000
1,000
tant
feet above
feet below. Mr.
kind of
Morrison’s
was that
weather
prevailing
easily
could
have avoided such clouds. That the
here,
pilot
clouds in this
is indisputable
case
pilot
flying
where
ground
because that is
witnesses heard the aircraft
was a
overhead. He
not trained for instrument
flying
circumstances,
rules. Under the
the resultant crash was near-
as
ly
19,1978.
the time of sunset of
predictable
September
A verdict cannot be
to stand
mere conjec
permitted
ture or
Fabert v. Northern
suspicion.
Ry.
(1926),
Pac.
Co.
*13
451,
MR. JUSTICE WEBER dissenting: I respectfully with the disagree conclusion of the majority that the failure the District Court to on instruct res lo- quitur I reversible error. further respectfully disagree with what is essentially a revision of the Montana rule ipsa loquitur.
Prior to this case, the rule in that, Montana has been where a defendant presents for an “equally plausible explanation” accident, which is inconsistent his with own negligence, ip- sa has no loquitur (1968), application. Knowlton v. Sandaker 98, Mont. and cases there cited. extensive presented In case the plaintiffs the present conduct on the negligent aimed at proving evidence Morrison, highly qualified experienced pilot, Mr. pilot. of the crash. Mr. “plausible explanation” gave plaintiff’s crash as the cause follows: testified as to Morrison the, into weather “It’s opinion pilot proceeded my —that his aircraft, limitations, lost control of which was beyond structual aircraft, causing exceeded the limitations and crash.” aircraft to come damages, causing apart crash, In of his view the explanation further cause of Mr. Morrison stated follows: (the I it Dean when
“Q. your pilot), So take it’s opinion he—in when he was take the your attempting yoke out of the he misused the which extra spiral, put first, fail stress on the tail section and caused that section to that true?
“A. Yes.” back on substance, Mr. Morrison indicated pulling extra section, the tail the pilot placed which controls yoke, so and broke off. stress strain on that section failed is not consistent with the loca- that conclusion Unfortunately is a highly qualified While Mr. Morrison wreckage. tion of the accident or the he had not examined either the site pilot, cause the accident His wreckage. explanation question to a hypothetical was more in the nature a reponse his Montana. years flying experience basd upon *14 crash The of the explanation” defendant’s “plausible of its testimony experts, was in the contained basically more than investigated and These men had Roberts Jensen. crashes, involving several including one hundred aircraft the accident. PA-28’s one involved in present like the Piper aircraft engineers, outstanding qualifications had They ex- collisions. These and of aircraft designers investigators aircraft at of this wreckage particular had studied the perts information, and distribution wreckage examined the length, and pat- determine the nature to conducted tests painstaking testified, conclusions their they When tern breakup. The explanations. backed detailed uncontradicted up were that of these two showed the aircraft testimony experts in the air and the disintegrated long prior that impact, disintegration order of was as follows: the left loose, at the wing edge, swung came outside and flap starting until it tore loose at the inside from the root edge around wing the structure; and then rotated the air flap through sharply surface, the stabilator which is horizontal tail cut- striking ting stabilator; off the left side of after which the re- mainder of the stabilator twisted off in one piece, thereafter the rudder itself tore The assembly off. next part come off was the left itself and at wing it failed root. wing Next fuselage the aircraft struck the ground. in a
wreckage essentially straight line spread out over in 2,000 distance excess of feet. Witness Jensen testified that in his he could not find any evidence that error pilot could have caused come off He wing flap have first. could not in see how con- flying manipulating flight trols, the could have kind of stress placed plane which would have caused the left to fail in this man- flap ner. His that of witness Roberts that showed in itself was flap or retracted Mr. up position. Jensen was asked about theory Morrison accident was the result of a dive in spiral gained which the aircraft speed, it, which on the point pilot pulled back yoke overstressing and the tail section came off the first. Mr. Jensen testified that could not have He happened way. out other pointed investigating in-flight breakups same of aircraft, been from type breakup where had he found overstressing, that the stabilator failed symmetrical- so that both halves broke off at the That ly right spar.
the manner in which this stabilator First broke. tail tip off, came and then the balance of the stabilator twisted off. Jensen Mr. further emphasized wreckage distribution is not consistent with a conclusion spiral type flight. unrebutted that of the aircraft the air disintegration mannér was both and unusual. In such particular, unique is as of the aircraft disintegration consistent with a failure *15 maintenance, or failure of the aircraft from from inadequate error. shear, by phot as with stress caused wind defendant, for the the believed suggests jury verdict of the the the defendant. Where “plausible explanation” the shows two doctrine explanations, evidence plausible As been that res is not ipsa loquitur applicable. Montana has v. stated Knowlton Sandaker: the
“To have the case to on basis go jury allowed to would have allowed the ipsa conjecture doctrine of the cause plausible explanations between two equally a to establish accident. In such case has appellant filed that there was a likelihood that greater respondents' the accident and has proximate cause negligence crucial satisfy thus to requirement application failed ” at ipsa loquitur. 447-448,436 150 Mont. the doctrine P.2d at 103. stating so majority opinion apparently
Without expressly Knowlton overrules v. Sandaker. control
With
the element of exclusive
regard
v.
case,
following
in a res
Knowlton
Sandaker
defendant
other Montana cases stated:
many
the rule
is
That
“’The
doctrine
stated
this:
simply
res any
which causes
without
injury,
an instrumentality
when
is
control
of the
under
exclusive
injured
fault
person,
such
and the
is
injury
at
time
injury,
defendant
does not occur if the one
things
in the
course of
ordinary
infers
care,
then the law
such control uses
having
proper
one in
as the cause of the
control
on
“If it can shown be there was joint responsibility the safe of this aircraft neither defendant operation need have exclusive control... The doctrine still be may [R.I.L.] suitable where it that one is shown defendant had over the control in- but later strumentality control to another.” relinquished 513 at 321. F.Supp.
The Stoddard court recognized exclusive control had been “expanded encompass multiple who are defendants with charged lawby joint for the instrumentali- responsibility added.) ty (Emphasis 321-322. injury.” F.Supp. The fact situation in the case is that present Executive Avia- tion maintained the aircraft and Moore it. Had the piloted both plaintiffs sued Aviation Executive and the phot’s estate, a res under v. ipsa application Stoddard Ling-Temco-Vought would be valid appear because exclusive control then would have been shown both defendants. This is holding Stoddard. Here Moore’s estate was the sole defendant and ex- has clusive control not been shown him. result of majority opinion is the overruling
Knowlton Sandaker, v. Little v. supra. Grizzly Manufactur- ing (1981), Mont., 839, 1994, P.2d v. St.Rep. Whitney (1952), Northwest Greyhound Lines 125 Mont. 242 257, and numerous other Montana cases. I read As various of the Montana cases on res I am ipsa loquitur frankly puzzled as status of in Montana. would have Perhaps been had the all stated that simpler majority merely previous cases on being were overruled. in denying District holding affirm the Court
I would the res instruction. the use of res ipsa instruction on lo- present suggest
I would 22.00) (No. be Instruction Guide Jury the Montana quitur The revi- today’s as to be consistent with opinion. revised so in view of broadly permissive make the instruction sion should when an which determine relaxation of the standards today’s stan- be given. Ironically instruction must offered res ipsa relax- are more in the actually majority applied dards in the as well those in the offered instruction ed than those federal instruction. permissive