Arney v. United States

Decision Date11 May 1973
Docket NumberNo. 71-1448.,71-1448.
Citation479 F.2d 653
PartiesDaniel Henry ARNEY and Charles H. Baker, Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Richard T. Sykes (argued), Encino, Cal., for plaintiffs-appellants.

James Stotter, II, Asst. U. S. Atty. (argued), Robert E. Moore, Jr. (argued), Kirtland & Packard, David Clarke (argued), of Chase, Rotchford, Drukker & Bogust, Los Angeles, Cal., for defendants-appellees.

Before CHAMBERS and CARTER, Circuit Judges, and WILLIAM B. ENRIGHT,* District Judge.


JAMES M. CARTER, Circuit Judge:

This is an appeal from three summary judgments granted respectively to (1) the United States of America, (2) Ray Heady, doing business as Aircraft Associates (hereafter Heady); and (3) Skyways Aircraft Ferrying Service, Inc. (hereafter Skyways) and Continental Air Services, Inc. (hereafter Continental), on the grounds that there were no material issues of fact involved.

The sole question is the propriety of the granting of the motions for summary judgment and the summary judgments thereafter entered. We reverse.

Because this case has been troublesome to us and for the assistance of the trial court on remand, we discuss the case in more detail than we ordinarily would in reversing the grant of a motion for summary judgment.

The action was brought under the admiralty jurisdiction of the district court, 28 U.S.C. § 1333(1). Appellant Arney was the pilot, and appellant Baker was the navigator of a Beechcraft Baron which crashed in the ocean on February 10, 1966, while on a flight from Oakland, California to Honolulu, Hawaii. They claim personal injuries and property damage as a result of the crash.


The aircraft was owned by Continental, who contracted with Skyways to ferry the plane to Vietnam. Skyways hired Arney and Baker, as independent contractors, to fly the aircraft from California to Vietnam. As originally constructed the plane had a gas tank that held 140 gallons of gas, but it was necessary to increase the fuel capacity for the long over-water flight. Skyways hired Heady to install a long-range fuel system which added 200 gallons to the aircraft's fuel capacity. Specifications for the fuel system modification were provided by Skyways. However, appellant Arney alleges that the auxiliary fuel system was vented out the bottom of the aircraft at the instance of Walter Friedman, an inspector of the Federal Aviation Agency (hereafter FAA), over Arney's objections and contrary to the general practice of venting out the top of the plane, so as to provide ram air which assists in getting all of the fuel out of the tank.

After the installation of the additional fuel system, the aircraft and its fuel system were inspected and certified by Friedman. The additional fuel-carrying facilities and navigation equipment added excess weight to the plane, bringing it above the weight for which it was flight certified by the FAA. Approval of the modifications was necessary, and a special ferry permit was required for the flight under applicable FAA regulations.1 The ferry permit, signed by Friedman for the FAA, was obtained in Long Beach, California on February 8, 1966. One of the conditions of the authorization was that "Any alteration made to this aircraft during the effective period of this permit shall invalidate this permit." Appellants knew the terms of the permit which conformed with the regulations, supra, note 1, and contained the restrictions deemed necessary for safe operation of the modified aircraft, including the restriction just quoted.

On February 8, 1966, appellants flew the first leg of the flight, from Long Beach to Oakland, without incident. The next day, February 9, appellants started on the second leg, from Oakland to Hawaii, but returned to Oakland because they allegedly found the fuel system to be defective.

At appellants' request, Heady sent a man, Grier, from Long Beach to Oakland to repair the aircraft. Grier repaired a radio, and made changes involving the fuel and dump lines in the auxiliary fuel system.

Appellant Arney, in his deposition, stated that he knew the system had been altered. R. 29-30 Similarly, appellant Baker indicated that he knew that alteration required FAA re-approval. R. 30 Other testimony of record indicated that Baker assisted Grier in making the changes to the aircraft's fuel system. R. 40 Later, however, Arney's affidavit in opposition to the motions for summary judgment of the nongovernmental defendants indicated that he had subsequently studied fuel systems more intensively and learned that the supposed alterations Grier made to the fuel system were "insignificant" and did not constitute "alterations" sufficient to invalidate the flight permit.2

Without securing further FAA inspection or approval, appellants on February 10, 1966, attempted to fly from Oakland to Hawaii. The crash occurred on this flight, when the auxiliary fuel system allegedly failed to deliver all of its fuel. Arney and Baker subsequently brought this action for negligence and breach of warranty in the installation and certification of the ferry fuel system.

Summary Judgment

In granting summary judgment for the defendants, the trial judge found that there were no genuine issues of material fact, and that Arney and Baker could not prevail as a matter of law, because they knowingly made the ill-fated flight without a valid flight permit. Although not expressly articulated by the judge in his findings of fact and conclusions of law, it appears that he must have found (1) that the alterations to the fuel system were made, and were significant enough to invalidate the permit; and (2) that under applicable law, flying without a valid permit constituted contributory negligence, barring recovery by Arney and Baker under any state of the facts supportible by the record.

None of the parties cited any authority, and we are aware of none, which establishes negligence per se under the Act and regulations set out, supra, note 1. Before we could affirm the judge's ruling that plaintiffs were contributorily negligent as a matter of law, we must consider, apparently in a case of first impression, whether violation of these regulations would constitute negligence per se, if a defendant had violated them, and hence that such violation is contributory negligence when allegedly violated by plaintiffs herein.

"The accepted rule now is that a breach of statute by plaintiff is to stand on the same footing as a violation by defendant.
. . . . . .
"It seems clear that safety statutes . . . usually are designed for the broad purpose of preventing accidents or dangerous situations, . . . in which the plaintiff is quite as likely to be hurt as the defendant; and it is not difficult to discover a purpose to protect him by setting up a standard of his own conduct, the unexcused violation of which is negligence in itself." Prosser, Torts, ch. 5, § 35, pp. 204-05 (3d ed. 1964); see Illinois Central R. Co. v. Messina, 240 U.S. 395, 36 S.Ct. 368, 60 L.Ed. 709 (1916).

Under California law, which applies here, negligence per se creates a rebuttable presumption only, and is not conclusive upon the trier of fact. Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897 (1958). In overcoming that presumption, the "test is whether the person who violated the statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law." Id., 50 Cal.2d at 624, 327 P.2d at 900.

"The violation of a statute . . . is negligence per se only if the person injured or damaged is within the class intended to be protected by the statute . . . . Violation of a statute intended to protect the interest of the state, or of the community at large, rather than that of any particular individual or class, is not negligence per se." 35 Cal.Jur.2d, Negligence, § 18, at 504-06 (1957).

The resulting harm must be of the nature that the statute was designed to prevent, and the violation must be the proximate cause of the injury. Id., §§ 19-20, at 507-08; Prosser, supra, at 194-98.

These general principles apply to our case. The Civil Aeronautics Act, the predecessor to the Federal Aviation Act of 1958,3 was enacted, and regulations promulgated thereunder, to promote civil aviation while assuring maximum safety in the air. Rosenhan v. United States (10 Cir. 1942), 131 F.2d 932, 934, cert. denied, 318 U.S. 790, 63 S.Ct. 993, 87 L.Ed. 1156. The 1958 Act had the same purposes. 1958 U.S.Code Cong. & Adm.News, p. 3741. The purpose of the certification of aircraft under the 1958 Act and regulations was to reduce accidents, and the government may be liable for negligence in improper issuance of a type airworthiness certificate. Rapp v. Eastern Air Lines, Inc. (E.D.Pa.1967), 264 F.Supp. 673, 676, 680, aff'd sub nom., Scott v. Eastern Air Lines, Inc. (3 Cir. 1968), 399 F.2d 14, cert. denied, 393 U.S. 979, 89 S.Ct. 446, 21 L.Ed.2d 439. The certificate is valid only so long as the plane is kept in repair, and it has been held that it is the pilot's duty to see that the plane is so maintained. Gibbs v. United States (E. D.Tenn.1965), 251 F.Supp. 391, 396.

The safety of pilots and others aboard aircraft, as well as persons on the ground, depends upon the airworthiness certification program under the Act. We hold that the appellants, Arney and Baker, were within the class intended to be protected by the regulations and that the alleged harm suffered was of the kind which the regulations were intended, in general, to prevent. The accident which occurred was exactly the sort of risk that might reasonably be anticipated to flow from violation of the Act and the regulations promulgated thereunder. Therefore, if there was an alteration in the Beechcraft Baron aircraft sufficient to invalidate the flight permit, a...

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