Haley v. Pan American World Airways, Inc.

• Citation: 746 F.2d 311
• Decision Date: 16 November 1984
• Docket Number: No. 84-3217,84-3217
• Parties: 16 Fed. R. Evid. Serv. 941 Thomas W. HALEY, Ann S. Haley, Plaintiffs-Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., et al., Defendants-Appellants. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 311

746 F.2d 311

16 Fed. R. Evid. Serv. 941

Thomas W. HALEY, Ann S. Haley, Plaintiffs-Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., et al., Defendants-Appellants.

No. 84-3217

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 16, 1984.

Deutsch, Kerrigan & Stiles, Francis G. Weller, Marc J. Yellin, John P. Volz, U.S. Atty., New Orleans, La., for defendants-appellants.

Michael X. St. Martin, Houma, La., Jobe & Gurley, Tony Bryson Jobe, New Orleans, La., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, POLITZ and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

On July 9, 1982, Michael H. Haley, the son of appellees here, was aboard Pan American World Airways Flight 759 when it crashed in Kenner, Louisiana. Haley, along with all 138 passengers and seven crew members, was killed when the Boeing 727 disintegrated upon impact with the ground. After a damages trial, ¹ the jury returned a verdict in favor of Michael's parents, Thomas W. Haley and Ann S. Haley, and against Pan American World Airways, Inc. and the United States of America, awarding the Haleys $15,000 for the mental anguish suffered by Michael "prior to the first impact between the plane and the ground," and $350,000 to each parent for the loss of the decedent's love and companionship. ² The trial court denied defendants' motions for judgment notwithstanding the verdict and for new trial.

Pan Am contends that Louisiana does not allow recovery for pre-impact pain and suffering and that the trial judge abused his discretion in admitting evidence on this issue. The evidence that was introduced, it argues, was insufficient to support the jury's finding that the decedent suffered any such pre-impact fear. Pan Am also challenges as excessive the damages awarded for both pre-impact fear and for loss of love and companionship. We find that Louisiana law permits recovery for a decedent's pre-impact fear and that there was sufficient evidence to support the jury's $15,000 award for this element of damages. We remand, however, with instructions to grant a new trial on the amount of wrongful death damages unless the plaintiffs accept a remittitur to the maximum we consider allowable on the record.

I

We follow the Louisiana law of damages in this diversity suit. Despite the parties' urging, we find no Louisiana court which has squarely confronted the issue of whether the fear a decedent experiences prior to both death and physical impact is a legally compensable element of damages. It appears to be undisputed that the Pan Am 727 disintegrated, and Michael died immediately upon impact with the ground.

A broad compensatory principle lies behind Article 2315 of the Louisiana Civil Code. ³ Louisiana, therefore, has long recognized that negligence, which causes fright and serious personal injury, is actionable, Stewart v. Arkansas Southern Railway Co., 112 La. 764, 36 So. 676, 677 (La.1904), and that "fright, fear, or mental anguish while an ordeal is in progress is legally compensable." Dawson v. James H. Stuart & Deaton, Inc., 437 So.2d 974, 976 (La.Ct.App.1983); Carroll v. State Farm Insurance Co., 427 So.2d 24, 25-26 (La.Ct.App.1983); Butler v. Pardue, 415 So.2d 249, 252 (La.Ct.App.1982); Kyle v. City of New Orleans, 357 So.2d 1389, 1391 (La.Ct.App.), writ ref'd, 359 So.2d 1307 (La.1978); Singleton v. Townsend, 339 So.2d 543, 544 (La.Ct.App.1976); Hoffman v. All Star Insurance Corp., 288 So.2d 388, 389 (La.Ct.App.1974), writ ref'd, 290 So.2d 909 (La.1974); Rezza v. Cziffer, 186 So.2d 174, 179 (La.Ct.App.1966). ⁴ As Pan Am correctly points out, many of these cases deal with recovery for post-impact mental anguish associated with physical injury. Indeed, article 2315 most commonly compensates for pain and suffering endured by a decedent after injury but before death. See Guidry, supra, 377 So.2d at 322. Louisiana jurisprudence, however, indicates that fright or mental anguish is a separate element of compensable damages, apart from oft-accompanying physical injury. ⁵ In Dawson, supra, for example, the jury compensated the injured plaintiff for the "extreme terror that he would lose his life," experienced "during the ordeal," as well as for the physical symptoms flowing therefrom, experienced afterward. 437 So.2d at 976. Louisiana would, in fact, appear to permit recovery for negligently-induced fright, even in the absence of actual physical injury. ⁶ Carroll, supra, 427 So.2d at 25-26; Butler, supra, 415 So.2d at 252.

While Louisiana courts then, have never expressly allowed recovery for pre-impact apprehension in anticipation of imminent death, they do allow recovery for fear during a negligently produced ordeal. We are not prepared to conclude that the Louisiana courts would sever such an "ordeal" into before and after impact components.

This mirrors our reasoning in Solomon v. Warren, 540 F.2d 777 (5th Cir.1976), cert. denied, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977). In Solomon, plaintiffs' parents died when, after radioing for aid, their small aircraft crashed into the sea. While there was admittedly no evidence as to the length of time the couple suffered before death or whether they died immediately upon impact, the district court was " 'convinced that both of the deceased knew of the impending crash landing at sea, knew of the imminent dangers involved, and are certain to have experienced the most excruciating type of pain and suffering (the knowledge that one is about to die, leaving three cherished children alone).' " Id. at 792. In upholding the district court's conclusion that Florida would permit recovery for the decedent's conscious pain and suffering prior to death, we stated:

While in the garden variety of claims under survival statutes, including the Florida Statute--fatal injuries sustained in automobile accidents and the like--the usual sequence is impact followed by pain and suffering, we are unable to discern any reason based on either law or logic for rejecting a claim because in this case as to at least part of the suffering, this sequence was reversed. We will not disallow the claims for this item of damages on that ground.

Id. at 793 (citations omitted). ⁷

It would appear then, that Louisiana would recognize a cause of action for pre-impact fear experienced by a decedent in apprehension of impending death. ⁸ The district court was therefore correct, both in denying Pan Am's motion for judgment notwithstanding the verdict based on the ground the Haleys had failed to state a claim under Louisiana law, and in admitting evidence of pre-impact fear to aid the jury in assessing damages. The cases cited by Pan Am in support of its contention go instead to its stronger sufficiency argument.

Louisiana courts condition a "survival" claimant's recovery on proof of pre-death pain and suffering. Daniels v. Conn, 382 So.2d 945 (La.1980). This generally requires affirmative evidence that a decedent was "conscious" after the accident, and did in fact, suffer pain. See, e.g., Bialy v. State, 414 So.2d 1273 (La.Ct.App.1982), writ denied, 417 So.2d 367 (La.1983); Chausse v. Southland Corp., 400 So.2d 1199 (La.Ct.App.1981), writ denied, 404 So.2d 278 (La.1981); Blanchard v. Rodrigue, 340 So.2d 1001 (La.Ct.App.1976); Addison v. Travelers Insurance Co., 281 So.2d 805 (La.Ct.App.1973); McDaniel v. Welch, 234 So.2d 833 (La.Ct.App.1970). ⁹

Pan Am argues that the record evidence is insufficient to support the finding that Michael Haley suffered any "conscious" pre-impact fear, as no passenger survived to relate what Michael may have experienced; nor were there any eyewitnesses to testify as to the path or trajectory of the plane prior to its crash. The only evidence offered on this issue was a videotape simulation of the takeoff and crash of Flight 759; a stipulation explaining the known facts culled from investigation; and the videotaped testimony of both parties' experts. The parties stipulated that the Pan Am plane took off and rose to an altitude of 163 feet before beginning its fatal descent. While the plane rolled to its left, testimony indicated there was no change in gravitational forces. The plane's wing struck a tree fifty-three feet above ground, and the aircraft rolled, impacted and disintegrated some four to six seconds later. Plaintiffs' expert, a psychiatrist who had treated survivors of aircraft accidents and was familiar with the physiological effects of stress, explained the five levels of anxiety that culminate in panic. ¹⁰ He then rendered his opinion that "most of the people [aboard Flight 759], if not all, would be in an absolute state of pandemonium, panic and extreme state of stress," at least from the time the plane hit the tree, if not from the beginning of its descent and roll, until impact seconds later. Defendant's expert expressed uncertainty as to whether "any of the passengers, in fact realized that they were about to die." He conceded, however, that when the passengers experienced a "violent change in the plane, the last couple of seconds," they "certainly would have been thrown about and fighting for their lives and experienced a whole different situation." (emphasis added).

A number of courts have disallowed recovery in similar situations for lack of evidence the decedent was aware of the danger or in fact suffered any pre-impact terror. In Shatkin v. McDonnell Douglas Corp., 727 F.2d 202 (2d Cir.1984), for example, the Second Circuit reversed a jury award for pre-impact pain and suffering, finding no evidence the decedent-passenger was awake, let alone aware that anything was wrong. Id. at 207. The rolling of the plane, the only possible indicia of danger to this particular passenger, was as compatible with normal airline traffic patterns as with imminent disaster. Id. at 206-07. In Shu-Tao Lin v. McDonnell Douglas Corp., supra, a case arising out of the same air disaster as...