Moe v. Avions Marcel Dassault-Breguet Aviation, DASSAULT-BREGUET

Citation727 F.2d 917
Decision Date30 January 1984
Docket Number82-1257,DASSAULT-BREGUET,Nos. 82-1256,82-1258 and 82-1259,s. 82-1256
Parties14 Fed. R. Evid. Serv. 1666 Dolores E. MOE, Eric R. Moe, Kris L. Moe, and Leif A. Moe; Judy Elaine Renzelman, individually, and as conservator and next friend of Minor, Brad Allen Renzelman; Elaine L. Whistler, Paul W. Whistler, Diane Whistler Awalt; Joan Elaine Anderson, individually, and as Guardian ad litem and next friend of Minors, Elizabeth Joan Anderson and Christopher Andrew Anderson; Beverly L. Miles; and the Mountain States Telephone and Telegraph Company, a Colorado corporation, Plaintiffs-Appellants and Cross-Appellees, v. AVIONS MARCELAVIATION, Falcon Jet Corporation, and the Garrett Corporation, Defendants-Appellees and Cross-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Myles J. Dolan and L.B. Ullstrom, Denver, Colo. (Robert J. Truhlar, Denver, Colo with them on brief), for plaintiffs-appellants and cross-appellees.

W. Robert Ward, Denver, Colo. (Edward J. Godin, Denver, Colo., and Matthew J. Corrigan, New York City, with him on brief), for defendant-appellee and cross-appellant Avions Marcel Dassault-Breguet Aviation.

Ronald O. Sylling, Denver, Colo. (John W. Grund and David M. Setter, Denver, Colo., with him on brief), of Tilly & Graves, P.C., Denver, Colo., for defendant-appellee and cross-appellant Falcon Jet Corp.

Richard C. Coyle, of Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash. (Keith Gerrard and Rex C. Browning of Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., with him on brief), (Edwin S. Kahn of Kelly, Haglund, Garnsey and Kahn, Denver, Colo., also with him on brief), for defendant-appellee and cross-appellant The Garrett Corp.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

The plaintiffs-appellants appeal from a judgment entered on jury verdicts for the defendants-appellees in an action for damages for wrongful deaths, personal injuries and property damages on theories of negligence and strict product liability arising from an airplane crash near Denver, Colorado at 4:52 a.m. on April 3, 1977. Jurisdiction vests by virtue of diversity of citizenship under 28 U.S.C. Sec. 1332. Plaintiffs claimed multiple theories of negligence and defect as the cause of the crash, including defective design of the autopilot system, runaway to the high position of the artificial feel system (Arthur Q), clogging of the suction filters for both of the two independent hydraulic systems, or a combination of the above, together with defect of the powerplant system and a failure to warn.

The airplane involved in the crash was a French manufactured Falcon 10 twin engine turbofan-powered aircraft owned by Mountain Bell, capable of carrying two pilots and seven passengers. The plane was manufactured in France by Avions Marcel Dassault-Brequet Aviation (AMD), a French corporation. The engines of the aircraft were designed, manufactured and sold by the Garrett Corporation (Garrett), a California corporation. Falcon Jet Corporation (Falcon Jet) is a Delaware corporation, engaged in the business of purchasing Falcon 10 aircraft from AMD and selling, maintaining, and providing logistic support and advice for the aircraft sold in the United States. The subject aircraft was sold by AMD to Falcon Jet, which in turn sold the plane to Mountain Bell in September, 1974. The plane had been in continual use by Mountain Bell from September, 1974, to the date of the crash on April 3, 1977. The crash resulted in the deaths of pilots Kenneth Moe and Rodney Renzelman and Mountain Bell employees-passengers Douglas Whistler and Andrew Anderson. Beverly L. Miles, a passenger-employee, alone survived the crash. She suffered extensive, permanent injuries. The aircraft was destroyed.

The trial was separated by the trial court on liability and damages. The trial on liability was before a twelve person jury. It lasted five and one-half weeks. At the outset, we observe some basic rules governing our appellate review. In Miller v. City of Broken Arrow, Okl., 660 F.2d 450, 455-56 (10th Cir.1981) we said, inter alia:

... In a diversity of citizenship case the federal district court sits as a state trial court and applies the law of the forum state, Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.1979), cert. denied, 444 U.S. 931 [100 S.Ct. 275, 62 L.Ed.2d 188] ... (1979). The federal district court [or jury if tried to jury], as trier of fact, has the responsibility of weighing the credibility of the witnesses. Bingham v. Bridges, 613 F.2d 794 (10th Cir.1980). On appeal, the reviewing court must view the evidence in the light most favorable to the prevailing party. Rasmussen Drilling v. Kerr-McGee Nuclear Corp., 571 F.2d 1144 (10th Cir.1978), cert. denied, 439 U.S. 862 [99 S.Ct. 183, 58 L.Ed.2d 171] ... (1978). A judgment may be affirmed on any ground arising from the record. Casto v. Arkansas-Louisiana Gas Company, 597 F.2d 1323 (10th Cir.1979). Findings of a trial court will not be disturbed on appeal unless they are clearly erroneous. Volis v. Puritan Life Insurance Company, 548 F.2d 895 (10th Cir.1977), Fed.Rules Civ.Proc. Rule 52, 28 U.S.C.A. ...

A recital of the facts follows. The Falcon 10 aircraft was thoroughly tested and met the Federal Aviation Administration (FAA) requirements in 1973. Mountain Bell had owned and operated the aircraft for some two and one-half years prior to the crash. It had been flown about 1,550 hours, and had no history of hydraulic system or Arthur Q (artificial feel system) problems. The day prior to the crash the plane had been given a 150 hour periodic inspection by two licensed aviation mechanics employed by Mountain Bell. They certified the airplane as airworthy. The evidence of what transpired during the accident flight consisted primarily of tape recordings between the crew and the FAA traffic controller, the FAA radar data, the wreckage of the aircraft, data compiled and analyzed by the National Transportation Safety Board (NTSB), testimony and statements of the surviving passenger, Beverly L. Miles, and the testimony of Donald Mosher, the FAA controller on duty at Stapleton Airport Tower who watched the flight of the plane to the crash site on a radar scope and who listened to the radio communications. Prior to takeoff in the early morning darkness, with experienced pilot Kenneth Moe in command and experienced co-pilot Rodney Renzelman serving as crew, the FAA controller had to correct the crew's mistaken read back of its takeoff clearance, and soon after takeoff the controller reminded the crew that it forgot to turn on the plane's transponder. The aircraft climbed to an altitude of 12,000 feet where the crew reported a "little problem" and requested clearance to return to Stapleton. During the course of communications, the cabin pressure horn in the cockpit could be heard. Beverly Miles testified that there was an oxygen mask drop during the flight. During the 150 hour inspection, the Mountain Bell aviation mechanics had pulled the circuit breakers for the pressurization equipment of the airplane, but apparently did not reset them. The crew turned the plane left to return to Stapleton and then made two descending 360 degree left turns, during which a crew member radioed that the aircraft was "out of control," followed by a crew call of "May day, May day, May day" and, finally, "we have no trim, no hydraulics ... no control." Controller Mosher testified that following the two descending turns, the plane flew about seven miles of relatively straight flight when the crew requested vectors or headings for a landing on Runway 35. They were assigned a heading of 170 degrees. The crash occurred in a wheat field northeast of Stapleton about fifteen seconds after the assigned heading was given. Mosher testified that there were no crew transmissions concerning power, control or other problems after clearance was given.

The plaintiffs' theory of the crash was that the Falcon 10 had a defective flight control system. Plaintiffs' expert, Alvin S. White, testified that the probable cause for the crew's loss of control of Falcon 10 was a combination of problems in the flight control system, including the hydraulic system, the artificial feel system (Arthur Q) and the autopilot, which plaintiffs contended to be the most dangerous system. Other expert witnesses called by the plaintiffs were Loren Martin, Dean Stull, Maxwell Dow and John M. Wetzler. The evidence reflects that if a pilot engages the autopilot and then attempts to fly the aircraft manually with the autopilot engaged, the autopilot causes the plane to respond opposite to the pilot's control inputs. There is no clear warning that the autopilot is still engaged after the pilot attempts to disengage it by use of the yoke disconnect switch. Plaintiffs' evidence was that the stiffness of Arthur Q runaway, or hydraulic clogging, masked and camouflaged the fact that the autopilot had not disengaged. Further, plaintiffs presented evidence that neither engine was producing power, nor capable of producing power, at the point of crash. This was predicated on the testimony of Mr. John M. Wetzler, an expert, that the tailpipes on both engines collapsed (imploded or were completely shut prior to impact) resulting from the violent flight maneuvers and gyrations while the plane was out of control. Wetzler did not testify that the engine design was defective. Plaintiffs contended that the flight control system failure and the subsequent loss of engine power were the contributing and ultimate causes of the crash.

The defendants' defended the plaintiffs' claims of negligence and sale of a defective product on denial and affirmative defenses of voluntary, unreasonable use of a defective product with knowledge of the specific danger, and misuse of the aircraft as the cause of the accident.

All parties presented expert witnesses who related different opinions as to the cause...

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