692 F.2d 1209 (9th Cir. 1982), 81-5062, United Scottish Ins. v. United States

Docket Nº:81-5062.
Citation:692 F.2d 1209
Party Name:UNITED SCOTTISH INSURANCE, Kathryn Fleming, Maxine Cearley, Simone Weaver & John W. Dowdle, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
Case Date:October 08, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1209

692 F.2d 1209 (9th Cir. 1982)

UNITED SCOTTISH INSURANCE, Kathryn Fleming, Maxine Cearley,

Simone Weaver & John W. Dowdle, Plaintiffs-Appellees,

v.

UNITED STATES of America, Defendant-Appellant.

No. 81-5062.

United States Court of Appeals, Ninth Circuit

October 8, 1982

Argued and Submitted June 10, 1982.

Page 1210

John C. Hoyle, Washington, D. C., Robert R. Smiley, III, Smiley & Lear, Washington, D. C., for defendant-appellant.

Richard F. Gerry, San Diego, Cal., for plaintiffs-appellees.

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

Before CHAMBERS, GOODWIN and PREGERSON, Circuit Judges.

GOODWIN, Circuit Judge.

Fourteen years ago an air taxi crashed in Nevada because a defective fuel line for a gasoline-burning cabin heater caught fire in flight. The aircraft had been inspected and certified for airworthiness by the Federal Aviation Administration (F.A.A.). This is the second appeal to this court. The pertinent facts and most of the applicable law are set forth in our earlier opinion. United Scottish Ins. Co. v. United States, 614 F.2d 188 (9th Cir. 1979).

This case was remanded to the district court to determine whether California courts would impose a duty of due care by applying the good samaritan doctrine, formulated in Restatement Second, Torts, Secs. 323 and 324A and, if so, whether, under the facts of this case, California courts would find this duty breached if a private person had conducted the inspection and issued the certificate of airworthiness in question.

The trial judge, citing California cases, 1 answered both questions in the affirmative and confirmed the judgment earlier entered on behalf of plaintiffs under the Federal Tort Claims Act. 28 U.S.C. Sec. 2671, et seq.

In this second appeal, the government challenges the trial court's rulings on the application of the good samaritan rule and also challenges the trial court's rulings on other questions left open in the first appeal.

In order for good samaritan liability to lie under Secs. 323 or 324A the defendant must have undertaken to render a service to the injured party or to another for the protection of the injured party. This service must have either increased the risk of injury to the person injured or caused that person to rely on proper performance of the service. See S. A. Empresa de Viacao (Varig

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Airlines) v. United...

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