Kay v. Cessna Aircraft Co., s. 74-1785

• Decision Date: 24 February 1977
• Docket Number: 75-1437,Nos. 74-1785,s. 74-1785
• Citation: 548 F.2d 1370
• Parties: Bradley KAY et al., Plaintiffs-Appellants, v. CESSNA AIRCRAFT COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1370

548 F.2d 1370

Bradley KAY et al., Plaintiffs-Appellants, v. CESSNA AIRCRAFT COMPANY, a corporation, Defendant-Appellee.

Nos. 74-1785, 75-1437.

United States Court of Appeals Ninth Circuit.

Feb. 24, 1977.

James J. McCarthy, Magana & Cathcart, Los Angeles, Cal., Ellis J. Horvitz, argued, Encino, Cal., for plaintiffs-appellants.

Rudi M. Brewster, James F. Stiven, argued, Gray, Cary, Ames & Frye, San Diego, Cal., Robert D. Brill, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS, and CHOY, Circuit Judges, and SPENCER WILLIAMS ^*, District Judge.

OPINION

SPENCER WILLIAMS, District Judge:

Julius Kay was killed when his Cessna Skymaster Model 337 airplane crashed during take-off. The 337 is a twin engine aircraft of "push-me/pull-me" design, e. g., having one pulling engine forward of the pilot as in the traditional single engine design and the second pushing engine behind the pilot and totally obscured from his view.

The undisputed evidence shows that the Cessna's rear engine stopped as Kay taxied to the end of the runway after completing his warm-up procedures in the parking lot. It is also not disputed that Kay then sat at the end of the strip for several minutes prior to take-off, and that he attempted his fatal take-off with only the forward engine operating.

With Kay's particular model of airplane, rear engine failure cannot be detected either visually or by a change in the plane's movement. This differs from the conventional twin-engine aircraft where the failure of one engine is accompanied by a sharp and violent turning motion. A thrust warning light to alert the pilot to the fact of rear engine failure had been included in early models of the Cessna 337, but was not installed in later models, such as Kay's, because it proved to be unreliable and sometimes gave false warnings. Cessna's efforts to develop a satisfactory system were unsuccessful.

Kay's widow, surviving children and the estate of Julius Kay submitted their wrongful death claim to the jury on the theory of strict products liability. Jurisdiction is premised on 28 U.S.C. § 1332, diversity of citizenship. California law with regard to products liability is therefore applicable.

Defendant argues that the absence of this warning light does not constitute a "defect" because the Owner's Manual sets forth take-off procedures which, if followed, would clearly reveal that only one engine was functioning. Cessna asserts that decedent's failure to comply with these take-off procedures was a misuse of the aircraft that was not reasonably foreseeable to defendant.

The jury found for the plaintiffs, the trial court granted defendant's subsequent motion for judgment notwithstanding the verdict, ¹ and this appeal followed.

A judgment notwithstanding the verdict is proper when the evidence permits only one reasonable conclusion as to the verdict. Cockrum v. Whitney,479 F.2d 84 (9th Cir. 1973). In ruling on a motion for judgment n. o. v. the trial judge cannot reweigh the evidence or consider the credibility of the witnesses. The evidence must be viewed in the light most favorable to the party against whom the judgment would be granted and all inferences must be drawn in that party's favor.

The judgment n. o. v. in this case was properly granted. The case was submitted to the jury on the theory of strict products liability. If a product lacks warnings or instructions as to its proper and safe use and this absence renders the product "defective," its manufacturer is liable for any proximately caused injuries. Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 71 Cal.Rptr. 306 (1968); Harris v. Belton, 258 Cal.App.2d 595, 65 Cal.Rptr. 808 (1968); Jackson v. Coast Paint and Lacquer Company,499 F.2d 809 (9th Cir. 1974); see generally Restatement (Second) of Torts § 402A.

A plaintiff may recover from the manufacturer even if the product is used in a manner not intended by the manufacturer, and therefore unanticipated by warnings or other instructions, if the unintended manner of use is reasonably foreseeable to the manufacturer. Horn v. General Motors Corporation, 17 Cal.3d 359, 131 Cal.Rptr. 78, 551 P.2d 398 (1976).

Plaintiffs' theory of recovery was that Cessna's instructions were inadequate and rendered the aircraft dangerous and were therefore defective. Alternatively, plaintiffs asserted that even if the instructions were adequate, the possibility that pilot Kay would fail to comply fully with these instructions was a foreseeable misuse of the aircraft rendering Cessna liable.

Neither of plaintiffs' theories of recovery is supported by the evidence or the reasonable inference which may be drawn from that evidence. First, Cessna provided detailed instructions regarding safety checks to be made before and during take-off. The Owner's Manual sets forth procedures the pilot should follow before take-off which include checks of the throttle settings and the magnetos. The instructions further provide that the pilot should check full-throttle engine operation early in the take-off run. ² Compliance with these procedures would have alerted the...