Goodlett v. Kalishek

• Decision Date: 01 August 1999
• Docket Number: Docket Nos. 99-9357
• Citation: 223 F.3d 32
• Parties: (2nd Cir. 2000) SANDRA M. GOODLETT, individually and as personal representative and Administratrix of the Estate of Richard Lee Goodlett, deceased, Plaintiff-Counter-Defendant-Appellee-Cross-Appellant, v. CHRISTOPHER KALISHEK, Defendant-Counter-Claimant-Appellant-Cross-Appellee. (L), 99-9413(XAP)
• Court: U.S. Court of Appeals — Second Circuit

Page 32

223 F.3d 32 (2nd Cir. 2000)

SANDRA M. GOODLETT, individually and as personal representative and Administratrix of the Estate of Richard Lee Goodlett, deceased, Plaintiff-Counter-Defendant-Appellee-Cross-Appellant, v. CHRISTOPHER KALISHEK, Defendant-Counter-Claimant-Appellant-Cross-Appellee.

Docket Nos. 99-9357(L), 99-9413(XAP)

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: June 5, 2000

Decided: August 01, 2000

Appeal from a judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge), entered after a jury trial, finding defendant partially liable for the death of plaintiff's decedent as a result of a midair collision immediately after the finish of an airplane race in which plaintiff's decedent and defendant had been participants. On appeal, defendant argues that plaintiff's action is barred under New York law by the doctrine of primary assumption of the risk.

Reversed.

[Copyrighted Material Omitted] LOUIS R. MARTINEZ (Richard Ritorto, on the brief), Martinez & Ritorto, P.C., New York, NY, for Defendant-Appellant-Cross-Appellee.

STEVEN R. POUNIAN, Kreindler & Kreindler, New York, NY, for Plaintiff-Appellee-Cross-Appellant.

Before: FEINBERG and CABRANES, Circuit Judges, and GEORGE, District Judge.^*

Judge Feinberg dissents in a separate opinion.

JOSE A. CABRANES, Circuit Judge:

The question presented in this diversity action is whether the New York doctrine of primary assumption of the risk bars plaintiff's claim for the wrongful death of her husband, Richard Lee Goodlett ("Goodlett"). Goodlett died as a result of a midair collision immediately following the finish of an airplane race in which he and defendant Christopher Kalishek ("Kalishek") had participated. Kalishek appeals from a judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge), entered September 30, 1999, after a jury trial, finding him partially liable for Goodlett's death. We agree with Kalishek that plaintiff's action is barred under New York law by the doctrine of primary assumption of the risk, and therefore we reverse the judgment of the District Court.¹

I.

The facts relevant to this appeal may be stated briefly and, unless noted otherwise, are undisputed. The action arises out of a midair collision on June 22, 1997 between an airplane flown by Goodlett and an airplane flown by Kalishek at Gabreski Airport in Westhampton Beach, New York. Goodlett and Kalishek were participants in an air race involving four single-seat home-built airplanes powered by car engines that had been modified by each pilot for use in air racing. The race was conducted around a two-mile oval racecourse, marked by six inflatable pylons, with a race lane 250 feet wide. During the race, the pilots flew their airplanes at altitudes of 30 to 150 feet and at speeds between 100 and 200 miles per hour.

The air race that resulted in Goodlett's death was organized by the Formula V Air Racing Association (the "Association"), an organization-of which Goodlett was President-composed at the time of six active race pilots and approximately 20 nonpilot members. The Association established race pilot qualifications, technical specifications for airplanes, and competition rules for the sport of "Formula V air racing." In several ways, the Association emphasized to prospective pilots the risks inherent in the sport of air racing. In a section of the Association's "Guide for the New Air Race Pilot" titled "RISKS," for example, the Association warned participating pilots:

Air racing ... contains an element of danger. Pilots have been killed in air racing accidents ... [ellipsis in original] you must be aware that the potential for injury or death is present. ... The race pilot's greatest fear is a mid-air collision between two raceplanes during a race. Several mid-air collisions have occurred during the history of air racing; usually both pilots are killed. In addition, pilots were cautioned about the "dangers inherent in participation" and the "history of air racing accidents" both when they applied for certification as race pilots and before the start of each race.

The accident that gave rise to this action occurred approximately 14 seconds after Goodlett and Kalishek crossed the finish line in the June 22, 1997 race. Goodlett finished the race in second place, well behind the first-place finisher but only 17 to 35 feet in front of Kalishek (who was, in turn, only 10 feet in front of the fourth-place finisher). After crossing the finish line, both Goodlett and Kalishek initially proceeded straight ahead at full power, and race speed, approximately 30 to 50 feet above the ground. The parties dispute what happened next-whether Goodlett made a sharp left turn around one of the racecourse pylons as if he were continuing to race or whether Goodlett initiated the proscribed landing procedures-but, in any event, Kalishek followed Goodlett into a left-hand turn. As Goodlett and Kalishek were turning, their airplanes collided. The collision caused both airplanes to crash to the ground, resulting in Goodlett's death and serious injuries to Kalishek.

Plaintiff, Goodlett's surviving wife, filed the present complaint in October 1997, alleging that Kalishek's negligence caused Goodlett's death.² The complaint did not allege intentional or reckless misconduct on the part of Kalishek. Notwithstanding a pending motion for summary judgment by Kalishek, a jury trial was commenced on August 24, 1999. At the close of plaintiff's evidence and again at the close of all the evidence, Kalishek moved for judgment as a matter of law on the ground that plaintiff's action was barred by New York's doctrine of primary assumption of the risk. In a decision from the bench, the District Court found that the doctrine would have barred plaintiff's action had the collision between Goodlett and Kalishek occurred during the race itself. However, because the collision occurred after the finish of the race, the District Court concluded that the doctrine was inapplicable and that Goodlett's assumption of the risk, if any, went to the issue of comparative fault, which was a question for the jury under N.Y. C.P.L.R. §1411 (McKinney 1997). Accordingly, the District Court denied Kalishek's motions and submitted the case to the jury.

On September 9, 1999, the jury returned a verdict finding that Goodlett was 60% at fault and Kalishek was 40% at fault for the accident. The jury awarded plaintiff damages for past loss of support, future loss of support, and conscious pain and suffering.³ After reducing the award for future loss of support to present value and decreasing the total damages in proportion to Goodlett's share of the fault, the District Court entered judgment against Kalishek in the sum of $390,213. This appeal followed.

II.

The parties agree that New York law applies to this wrongful death action. Under New York law, assumption of the risk is generally not an absolute defense to a negligence action, let alone an issue of law for the court to decide. See N.Y. C.P.L.R. §1411 (establishing that, in a personal injury or wrongful death action, "the culpable conduct attributable to the claimant ... , including ... assumption of risk, shall not bar recovery," but will "diminish[]" the damages "otherwise recoverable" by the claimant in proportion to his culpable conduct). See generally Arbegast v. Board of Educ. of S. New Berlin Cent. Sch., 65 N.Y.2d 161, 165-70 (1985) (discussing New York law before and after enactment of C.P.L.R. §1411 in 1975). In Turcotte v. Fell, 68 N.Y.2d 432 (1986), however, the New York Court of Appeals effectively established an exception to this rule for injuries sustained as a result of participation in a sport or recreational activity. By electing to participate in such an activity, the Court of Appeals reasoned, an individual "consent[s] ... to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of the participation." Id. at 439. This consent operates to relieve other participants in the activity of a duty to use reasonable care, see id. at 437-38, and, absent evidence of "reckless or intentionally harmful conduct," an action for personal injury or wrongful death will therefore be barred as a matter of law, id. at 437; see id. at 439-40.

Although similar in nature and effect, the so-called "primary assumption of the risk" doctrine differs analytically from the traditional assumption of the risk doctrine that was abolished as an absolute defense to liability by C.P.L.R. §1411. As explained by one New York court, the traditional assumption of the risk doctrine

is akin to comparative negligence; it does not bar recovery, but diminishes recovery in the proportion to which it contributed to the injuries. ... [In contrast,] the doctrine of primary assumption of risk is not a measure of plaintiff's comparative fault, but a measure of the defendant's duty of care. Primary assumption of risk eliminates ... the tort-feasor's duty of care to the plaintiff and ... constitutes a complete bar to recovery, notwithstanding [C.P.L.R. §1411].

Lamey v. Foley, 594 N.Y.S.2d 490, 494 (4th Dep't 1993); see also Turcotte, 68 N.Y.2d at 437-39 (explaining why the common law doctrine of primary assumption of the risk was unaffected by the enactment of C.P.L.R. §1411). Commentators have nevertheless criticized the continuing vitality of the doctrine of primary assumption of the risk as inconsistent with the comparative negligence regime established by §1411. See, e.g., Lee S. Michaels & Paul C. Campbell, 1993-94 Survey of New York Law: Tort Law, 45 SYRACUSE L. REV. 693, 723 (1995). Notwithstanding this criticism, our obligation in this diversity case is to apply New York law as the New York Court of Appeals would apply it. See, e.g., Rounds v. Rush Trucking Corp., 211 F.3d 185, 188 (2d Cir. 2000). Therefore, unless and until ...