Balcar v. Aircrafters, Inc.

• Decision Date: 30 June 1976
• Citation: 360 A.2d 155
• Parties: Frank BALCAR, Plaintiff, v. AIRCRAFTERS, INCORPORATED, a Delaware Corporation, Defendant.
• Court: Delaware Superior Court

Page 155

360 A.2d 155

Frank BALCAR, Plaintiff, v. AIRCRAFTERS, INCORPORATED, a Delaware Corporation, Defendant.

Superior Court of Delaware, New Castle County.

Submitted Jan. 13, 1976.

Decided June 30, 1976.

Decision after trial.

Michael R. Shapiro, of O'Donnell & Hughes, Wilmington, for plaintiff.

Wayne N. Elliott, of Prickett, Ward, Burt & Sanders, Wilmington, for defendant.

TAYLOR, Judge.

This case was heard without jury. Therefore, this opinion contains the Court's factual findings as well as conclusions of law.

Plaintiff's airplane was damaged while at defendant's airport near Rehoboth during a severe thunderstorm on the evening of July 4, 1970. Plaintiff had landed at the airport on July 2 or 3, 1970 and he had secured the airplane to moorings installed at the airport and had used tie-down ropes furnished by the airport. He placed the airplane at its location and tied it in place. He had not moved the airplane since he placed it there.

In the late afternoon of July 4, when he was driving in the vicinity and it appeared that a thunderstorm was imminent, he stopped at the airport and checked to see that the ropes were tight. Shortly thereafter, the storm hit the area and plaintiff's airplane was moved by the wind about 200 feet and came to rest on top of another airplane. The only other airplane which was moved by the storm was an airplane in the same line with plaintiff's airplane. Near the airport, and in direct line with the airport, the wind broke tops of trees in a fifty-foot path.

The airplane had been secured by ropes which were tied to rings which were permanently fastened to the airplane, one ring at the tail of the airplane, and one ring at each wing strut. Each rope was tied at the ground end to an eye fastened in the ground. When the airplane was examined after the storm, the rope tied to the tail ring had been broken six or seven inches from the ring, and the rope tied to the starboard strut ring also had been broken. The rope tied to the port strut ring had not broken. A sisal rope was tied to the port ground eye, and it extended in the direction the airplane had moved. This rope did not appear to have broken.

Plaintiff charges defendant with negligence in several respects discussed hereafter.

Turning to the extent of defendant's duty, defendant provided open space for the pilots to store their airplanes and provided tie-down ropes and ground fastenings, commonly called 'tie-down facilities'. For this, plaintiff paid $2 or $3 per day. Defendant did not place the airplane or undertake to secure it or check its fastenings, since at this airport these were done by the airplane pilot. Thus, if defendant is to be held liable, it must rest upon the failure of defendant to provide proper tie-down facilities.

Plaintiff contends that the liability for storage of his airplane is governed by the law of bailment, under which there is a presumption that if the bailee had taken due care of the object nothing would have happened to it. 8 Am.Jur.2d, Bailments § 67, p. 972. Where a bailment exists and the item which was in good condition upon delivery to the bailee is not returned in the same condition, the presumption of negligence arises which defendant must rebut. 43 A.L.R.3d 607 et seq.; 44 A.L.R.3d 862.

This rule rests upon the realities arising from the transfer of possession and control of the items to the bailee. 8 Am.Jur.2d, Bailments § 67, p. 972. The facts in this case are that defendant indicated the area in which plaintiff was to leave his plane, and defendant provided the tie-down fastenings and ropes. Plaintiff placed the plane at its mooring location, tied the ropes to the plane, locked the plane and kept the key. Defendant did not undertake to care for or provide protection for the plane other than that afforded by the fastenings and ropes. This arrangement between plane owner and airport has been held not to constitute a bailment. Hoffman v. King Resources Co., Colo.Supr., 530 P.2d 961 1975); Simons v. First National Bank of Denver, 30 Colo.App. 260, 491 P.2d 602 (1971).

In support of its contention that a bailment relationship exists here, plaintiff has cited Zanker v. Cedar Flying Service, Inc., 214 Minn. 242, 7 N.W.2d 775 (1943) and Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962). In both of these cases, the airport operator took possession of and placed the plane in storage. The remaining case relied on by plaintiff is Meyer v. Moore, Okl.Supr., 329 P.2d 676 (1958) in which the Court found without discussing the applicable principles that a bailment existed and held that the airport operator had a duty to use ordinary care in safeguarding the plane. I conclude that plaintiff here did not transfer possession of the plane to defendant and hence a bailment was not created. Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185 (1965); Lewallen v. Board of Levee Commissioners, La.App., 166 So.2d 566 (1964).

The applicable test here is whether defendant satisfied its duty to plaintiff with respect to the fastenings and ropes which it furnished for plaintiff to tie down his airplane. The ground fastenings did not fail. The rope system did fail. The applicable standard is that of reasonable care. Did the airport operator use reasonable care in supplying and maintaining the ropes which it provided, taking into consideration the usage to be made of the ropes? Hoffman v. King Resources Company, supra; Simons v. First National Bank of Denver, supra; Meyer v. Moore, supra; Quam v. Nelson-Ryan Flight Service, 274 Minn. 475, 144 N.W.2d 551 (1966); Central Aviation Co. v. Perkinson, 269 Ala. 197, 112 So.2d 326 (1959).

Whether negligence existed here must be inferred from the circumstances since there is no direct evidence of negligence. Plaintiff's contention is that the damage was caused by the separation of the port tie-down ropes. No contention is made that the other two tie-down ropes were inadequate. It does not appear that the port tie-down rope broke. It does appear that the port tie-down was not a single continuous rope. One supposition is that the rope which remained attached to the plane was spliced or tied to another rope and that one portion was nylon and the other portion was sisal, causing the splice or knot to slip. An alternate supposition is that one rope had been tied through a knot in another rope. Another alternate supposition is that the rope had been spliced to a short rope at the ground tie-down. It has not been shown that any of these alternate fastenings is improper per se.

Defendant had a duty to provide tie-down ropes which would withstand wind forces which could reasonably be anticipated. Alamo Airways, Inc. v. Benum, supra; Hoffman v. King Resources Company, supra. This test, of course, applies to fastenings, knots, splices, as well as to continuous pieces of rope.

The immediate conclusion would be that where there was no force or causation other than wind, the failure of the tie-down system by separation of the ropes indicates that defendant did not meet its duty to plaintiff. This conclusion would seem to be strengthened by the fact that all of the planes tied at the airport remained in place with the exception of plaintiff's plane and...