Anderson Aviation Sales Co., Inc. v. Perez

• Citation: 19 Ariz.App. 422,508 P.2d 87
• Decision Date: 22 March 1973
• Docket Number: No. 1,CA-CIV,1
• Parties: ANDERSON AVIATION SALES COMPANY, INC., an Arizona corporation, Appellant, v. Lucy PEREZ, Individually and as next friend of Patricia Perez, David Perez, Jr., and Sandra Perez; Charlie Perez, personal representative of the Estate of Benjamin Perez; William Charles, administrator of the Estate of Ronald Charles; Irene Dovie Sumner, personal representative of the Estate of Millard Sumner; and Nancy Sumner, as personal representative of the Estate of Elmer Sumner, Appellees. 1804.
• Court: Arizona Court of Appeals

Page 87

508 P.2d 87

19 Ariz.App. 422

ANDERSON AVIATION SALES COMPANY, INC., an Arizona corporation, Appellant, v. Lucy PEREZ, Individually and as next friend of Patricia Perez, David Perez, Jr., and Sandra Perez; Charlie Perez, personal representative of the Estate of Benjamin Perez; William Charles, administrator of the Estate of Ronald Charles; Irene Dovie Sumner, personal representative of the Estate of Millard Sumner; and Nancy Sumner, as personal representative of the Estate of Elmer Sumner, Appellees.

No. 1 CA-CIV 1804.

Court of Appeals of Arizona, Division 1, Department A.

March 22, 1973.

Review Denied May 29, 1973.

Lewis & Roca by John P. Frank, Robert C. Kelso, Mary M. Schroeder, Stidham & Galusha, by Charles C. Stidham, Lee Galusha Phoenix, Scott & Cook, Aurora, Colo., by Michael F. Scott, P.C., Denver, Colo., for appellant.

Charles M. Brewer, Ltd., Herbert Mallamo, Ward & Contreras and George Welch, Jr., Phoenix, for appellees.

OGG, Judge.

This is an appeal by Anderson Aviation Sales Company, Inc. from a jury verdict in a wrongful death case that awarded to the plaintiffs the total sum of $385,000.00 damages. The damages were apportioned among the survivors and personal representatives of the five decedents who were killed along with the defendant pilot in an airplane crash at Blythe, California on September 3, 1969. The jury verdict was rendered against the Estate of Forrest Dockery, the deceased pilot, and Anderson Aviation Sales Company, Inc. A third defendant, Madison Chevrolet, paid plaintiffs the sum of $35,000.00 during the trial and was dismissed from the case. There is still pending a cross-claim filed by defendant Anderson Aviation Sales Company, Inc. against defendant Madison Chevrolet.

The facts disclose that defendant Dockery was in the business of supplying used cars to defendant Madison Chevrolet. On the date of the fatal crash he had arranged to fly the five decedents to Blythe, California to drive back five used cars to Phoenix, Arizona.

Dockery appeared at Anderson Aviation's office at Sky Harbor Airport, Phoenix, Arizona at or about 6:30 p.m. He told Anderson Aviation's receptionist on duty that he was flying to Blythe and return and signed Anderson's lease agreement for a Piper Comanche. He appeared to be in a hurry and told the receptionist that he would file a flight plan in the air and immediately went to the rented aircraft and started preflight procedures which included checking out the rotating beacon and navigation lights. Leroy Lashbrook, chief pilot and managing agent of Anderson Aviation Sales Company, Inc., observed Dockery for about five or ten minutes performing the aforesaid preflight procedures. Lashbrook was 'pre-flighting' another of Anderson's aircraft which he was taking on a charter flight to Los Angeles. Lashbrook later cancelled his flight after obtaining a weather report that disclosed adverse weather at Los Angeles and interim points, including those east of Blythe.

Shortly before takeoff, Dockery's passengers were seen in and about Anderson Aviation's office and on the flight line.

Dockery took off with his passengers from Sky Harbor Airport at 7:01 and 14 seconds p.m. Sunset occurred in Phoenix at 6:51 p.m. At 7:01 p.m. the Federal Aviation Administration flight service station at Blythe, California reported that the Blythe Airport had sustained a power failure and was without runway lights to assist airmen in landing. Dockery first learned that the Blythe Airport was without runway lights when he called in over Quartzsite for landing instructions at Blythe. An automobile was placed at the end of the runway in the hope that the lights from the vehicle would help illuminate the landing strip.

The testimony of all the experts indicate that Dockery, while attempting to land the plane on this pitch-black night, became spatially disoriented (unable to distinguish up from down or left from right) and crashed his plane into the desert, where he and his passengers perished.

Inspection of the wreckage by experts established that at the time of the crash Dockery's engine was developing power, the propeller was rotating, the landing wheels were not down and the landing lights were not on.

The appellant, Anderson Aviation Sales Company, Inc., cites many reasons why the verdict of the jury should be set aside, but both parties agree the principal issue in this case is whether or not there was sufficient evidence of a negligent entrustment to sustain the jury verdict.

Anderson Aviation's liability is directly interwoven with its ability to foresee the consequences of leasing a plane to Dockery to carry passengers to Blythe, California on the evening of the fatal crash.

Appellees allege that Anderson Aviation was negligent when it leased the plane to Dockery, knowing he was an inexperienced pilot and not in full compliance with Federal Aviation Regulations. Appellees contend that but for the failure and neglect of Anderson Aviation to observe the rules in general use for the rental of aircraft, the flight would have been aborted and the crash avoided.

Federal Aviation Regulation Section 61.47 sets up the experience necessary before a pilot may carry passengers. This provision is generally referred to as pilot currency.

'Section 61.47(a) General. No person may act as pilot in command of an aircraft carrying passengers unless, within the preceding 90 days, he has made at least five take-offs day five landings to a full stop in an aircraft of the same category, class or type.

(b) Night Experience. No person may act as pilot in command of an aircraft carrying passengers during the period beginning 1 hour after sunset and ending 1 hour before sunrise (as published in the American Air Almanac) unless, within the preceding 90 days, he has made at least five takeoffs and five landings to a full stop during that period of the day.'

Although there was some conflict in the evidence as to his currency with the Federal Aviation Regulations, the jury--as the finder of fact--had ample evidence to determine that Dockery was not in compliance with the requirements and he clearly had not made a minimum of five takeoffs and landings at night within the preceding 90 days.

Anderson Aviation takes the position that, even if Dockery was not in compliance with the Federal Aviation Regulations, this imposes no liability on Anderson Aviation. Anderson Aviation argues that the general law applicable to bailments of vehicles is applied to aircraft crashes in Arizona by virtue of 2 A.R.S. § 2--208:

'The liability of the owner of one aircraft to * * * aeronauts or passengers * * * for damage caused by collision on land or in the air shall be determined by the law applicable to torts on land.'

We are cited Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975 (1931) for the proposition that one who rents a car to an unlicensed driver is not liable under the doctrine of negligent entrustment since the lack of a license has no relevance to whether or not the bailee is competent to operate the vehicle. The two leading Arizona cases on the negligent entrustment of an automobile hold that the owner of a vehicle can be held for negligence if he furnished an automobile to a person known to him to be inexperienced or incompetent as a driver. Lutfy, supra; Powell v. Langford, 58 Ariz. 281, 119 P.2d 230 (1941). Anderson Aviation would want us to impose the exact standards for aircraft rentals that are imposed for the rental of automobiles. We must be realistic and comment that an airplane and an automobile are different breeds of cat; what might not be negligence in the rental of a car could be gross negligence in the rental of a plane.

There is little room for error in the sky and the consequences of such error are usually magnified over a similar driver's mistake in an automobile. The skills involved and the consequences of a plane or pilot failure demand more care in the rental of a plane than is required in the rental of an automobile.

In the end the 'reasonable man' test must govern as to whether or not Anderson Aviation was negligent under the facts of this case. For cases dealing with negligent entrustment of airplanes, see: Ziser v. Colonial Western Airways, Inc., 10 N.J.Misc. 1118, 162 A. 591 (1932); Central Flying Service v. Crigger, 215 Ark. 400, 221 S.W.2d 45 (1949).

We find it was not error for the trial court to instruct on the theory of negligent entrustment and allow the case to go to the jury. Taking the evidence as we must do in the light most favorable to sustaining the jury verdict, there was ample evidence whereby the jury could find Anderson Aviation negligent for any one of several reasons:

1. Allowing all arrangements to be handled by a receptionist when the chief pilot was available and under company policy should have handled the arrangements for the flight.

2. Insufficient checking of the pilot's currency with Federal Aviation Regulations and no check-out of the pilot for night flying.

3. Allowing pilot to take off without filing a flight report.

4. Failure to notify pilot of weather conditions over Blythe and that the lights were out on the landing strip.

Appellants urge that the cumulative effect of numerous events in the conduct of this trial demands a reversal. We will now discuss and dispose of each alleged error in the conduct of the trial.

DID THE COURT ABUSE ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION FOR CONTINUANCE?

On January 4, 1971, the opening day of trial, Mr. Nathan Holt, one of the attorneys representing Anderson Aviation, was disbarred by order of the Arizona Supreme Court. A mistrial was declared and before the trial resumed the next day a motion for continuance was made by Mr. Charles Stidham who replaced Mr. Holt. Inspection of the record discloses that Mr. Holt never appeared in the case before 2:27 p.m. on January 4, 1971--the opening day of trial. He made no appearance and was not signatory to the joint pretrial statement....