716 F.2d 1322 (10th Cir. 1983), 81-1805, Herndon v. Seven Bar Flying Service, Inc.

Docket Nº:81-1805.
Citation:716 F.2d 1322
Party Name:Dorine HERNDON, Personal Representative of the Estate of Charles Herndon, Deceased, and Stellaretta O'Donnell, Personal Representative of the estate of Thomas O'Donnell, Deceased, Plaintiffs, v. SEVEN BAR FLYING SERVICE, INC., Plaintiff-in-Intervention-Appellee, v. PIPER AIRCRAFT CORPORATION, Defendant-Appellant, Mitchell Industries, Inc., Third Pa
Case Date:September 02, 1983
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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716 F.2d 1322 (10th Cir. 1983)

Dorine HERNDON, Personal Representative of the Estate of

Charles Herndon, Deceased, and Stellaretta

O'Donnell, Personal Representative of

the estate of Thomas

O'Donnell, Deceased,



SEVEN BAR FLYING SERVICE, INC., Plaintiff-in-Intervention-Appellee,



Mitchell Industries, Inc., Third Party Defendant.

No. 81-1805.

United States Court of Appeals, Tenth Circuit

September 2, 1983

        Rehearing Denied Nov. 10, 1983.

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[Copyrighted Material Omitted]

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        Robert P. Smith, Law Offices of L.B. Ullstrom, Denver, Colo., for plaintiff-in-intervention-appellee.

        W.R. Logan, Civerolo, Hansen & Wolf, P.A., Albuquerque, N.M. (Cynthia A. Fry, Civerolo, Hansen & Wolf, P.A., Albuquerque, N.M., with him on the briefs), for defendant-appellant.

        Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

        WILLIAM E. DOYLE, Circuit Judge.

        This is a suit based on manufacturer's liability. It arose out of an airplane accident. Thomas O'Donnell, deceased, was a student who was practicing instrument flying. He was piloting a Piper Aztec Aircraft. He wore a visor-like hood to simulate night or poor weather flying--he could see his instruments, but was unable to see outside the plane. His instructor on the flight, Charles Herndon, was an employee of Seven Bar Flying Service, Inc. ("Seven Bar"). The accident occurred on the night of February 26, 1975, in Bernalillo County, near Albuquerque, New Mexico.

        The original action was brought by the widows of O'Donnell and Herndon. The complaint was filed in the District Court of Santa Fe County, New Mexico, on February 13, 1978, by Dorine Herndon, personal representative of the estate of Charles Herndon, and by Stellaretta Bolton (formerly Mrs. Thomas O'Donnell), personal representative of the estate of Thomas O'Donnell. The Piper Aircraft Corporation ("Piper") was named as a defendant. Seven Bar, which is the appellee here, intervened. It sought recovery for the loss of its aircraft and indemnification resulting from its settlement of a wrongful death suit made earlier with Stellaretta O'Donnell.

        On March 24, 1978, Piper removed the cause to the Federal District Court. Thereafter the case went to trial and Piper's appeal is from the judgments which were entered thereon.

        The equipment which was alleged to have caused the crash is called the pitch trim switch. It is located on the pilot's wheel. Plaintiffs relied on evidence that the pitch trim mechanisms were in the nose-down position. Their contention was that the pitch trim switch had a defective spring which caused it to hang up. Plaintiffs maintained that when O'Donnell had used the switch to modify the plane's attitude the switch had stuck. Thereupon the plane went into a full dive. Neither O'Donnell nor Herndon could correct this and the crash occurred.

        The pitch trim switch, as originally designed, used a sponge-like silicone pad underneath the rocker switch to cause it to return to the neutral position as soon as a pilot stopped applying pressure to it. In order to avoid the problems resulting from the switch sticking or hanging up, Piper modified the design. It replaced the silicone pad with two small, linked coil springs. The owners of the aircraft which had the old design were told by Piper about the necessary modifications. This was through Piper Service Bulletin 331, which was issued in 1971. Reports which followed revealed that the switch still had a tendency to hang up, so Piper again made a modification of the switch's design. It did so by shortening the coil springs. Through Piper Bulletin 527, issued November 5, 1976, the owners were told to modify the springs they had installed under Bulletin 331, by cutting away a portion of each spring's coil.

        Plaintiffs introduced into evidence Piper Service Bulletin 331, issued prior to the accident, and Piper Service Bulletin 527. The latter had been published over a year after the accident. At a pretrial conference, as well as during trial, Piper objected to admission of its Service Bulletin 527. Their argument was that as a subsequent remedial measure it was inadmissible under Rule 407 of the Federal Rules of Evidence. Plaintiffs' response was that the bulletin was admissible; that Rule 407 applied only to negligence cases and not to strict liability.

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It was relevant and was necessary to satisfy plaintiffs' burden on the issues of design defect, availability, cost and practicality. In a bench conference Piper conceded that it designed the switch. It also admitted the feasibility of the modifications. At the same time, however, Piper refused to stipulate to feasibility of the change. Indeed, at trial Piper denied the existence of a defective design. Piper's position at trial was that Herndon and O'Donnell's negligence in flying inattentively and in failing to react properly to any possible trim switch hang up caused the accident. As an alternative to forbidding admission of the bulletin, Piper originally requested the court to give a limiting instruction, but Piper neither included a limiting instruction in its requested instructions, nor did it object to the absence of such an instruction.

        The trial court allowed plaintiffs to mention the service bulletin in opening arguments. It also admitted the bulletin into evidence during the trial. Plaintiffs also sought to admit Airworthiness Directive 77-09-10 issued by the Federal Aviation Administration which required Piper Aztec owners to make the trim switch modification described in Bulletin 527 within 100 flight time hours. Plaintiffs also attempted to introduce a similar FAA directive, No. 71-12-05, which was issued to make mandatory the Bulletin 331 modification.

        The court sustained Piper's objection to these directives. Its reason was that under Rule 403 their probative value was outweighed by the possible "prejudicial conclusion of an unsafe condition made by someone in the FAA" following the Agency's "unspecified investigation." The court felt there was no need to risk the prejudicial affect the directives might produce since the Piper Service Bulletins it had admitted covered essentially the same ground and thus overemphasized the matter.

        The court also limited plaintiffs' attempts to offer the testimony of other pilots who had experienced in-flight emergencies. To avoid cumulative evidence, plaintiffs were permitted only to read the transcript of one pilot's testimony to rebut testimony of pilots offered by Piper.

        The trial lasted for thirteen days. The jury was instructed on both theories of recovery, that is negligence and strict liability. The jury could have found Piper negligent for failure to use ordinary care by designing a trim switch that was susceptible to malfunctioning or by failing to install a trim interrupt or disconnect system. Alternatively, the jury could hold Piper strictly liable for designing a trim switch that was unreasonably dangerous or for omitting a trim interrupt or disconnect system and for failing to warn owners adequately of the danger.

        The jury was also instructed that Piper asserted the defense of contributory negligence on the part of O'Donnell and Herndon in failing to use ordinary care in planning and executing their training flight.

        The jury determined that O'Donnell and Herndon were each 10% responsible for their accident and that Piper's liability was 80%. The jury calculated that Piper owed Herndon $229,000 and O'Donnell $380,000. There was some uncertainty whether the jury meant that Piper's 80% liability to Herndon and O'Donnell totalled $229,000 and $380,000, respectively, or whether those sums equaled the total of plaintiffs' damages. The court and counsel resolved that problem by treating the awards as the total damages and reducing them by 20%, and ordering Piper to pay Herndon's estate $183,200 and O'Donnell's estate $232,000, plus 80% of their taxable costs.

        Regarding Intervenor Seven Bar's claims for property damages from the loss of its aircraft and for indemnity for its settlement with Mrs. O'Donnell, based on the settlement agreement between Mrs. O'Donnell and Seven Bar, and the New Mexico Court of Appeals decision in Claymore v. City of Albuquerque, No. 4804/4805 (N.M.Ct.App. Dec. 9, 1980), reprinted in Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), the court determined that Piper should indemnify Seven Bar for 80% of the $110,000 settlement with Mrs. O'Donnell ($72,000). The undisputed value of the aircraft was

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$49,750, which the court reduced by 20% to arrive at the amount Piper owed Seven Bar for property damages. Piper was ordered to pay Seven Bar $111,800 plus 80% of its taxable costs.

        Piper moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial. Both motions were denied, and this appeal followed.


        1. Did the trial court err when it admitted a service bulletin issued by Piper over a year following plaintiffs' accident? This was pertaining to Federal Rule of Evidence 407.

        2. Did the trial court err when it apportioned the damages between tort feasors in accordance with a settlement agreement and the jury's determination of the tort feasors' percentage of comparative fault?

        We have considered the issues which are presented to us and note that they are, for the most part, trial issues. The exception is the indemnity issue which we will take up after having considered the principal evidentiary problem which is relied upon for reversal.

Rule 407 in a Products Liability Case

        Did the admission of the service bulletin issued by Piper more than a year after the accident constitute error? We conclude that it did not. The ultimate question...

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