Berkebile v. Brantly Helicopter Corp.

Citation219 Pa.Super. 479,281 A.2d 707
PartiesCatherine K. BERKEBILE, Executrix under the Will of Cloyd G. Berkebile, Appellant, v. BRANTLY HELICOPTER CORP.
Decision Date21 September 1971
CourtSuperior Court of Pennsylvania

Laurence H. Eldredge, Philadelphia, for appellant.

Sidney L. Wickenhaver, Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN and CERCONE, JJ.

JOCOBS, Judge.

Cloyd G. Berkebile was killed on July 9, 1962, when the Brantly B--2 helicopter he was piloting crashed near Franklin, Pennsylvania. This action was brought by his executrix under the wrongful death and survival statutes against Brantly Helicopter Corporation which manufactured the helicopter. The case was tried before a jury and a verdict was returned for the defendant. After plaintiff's new-trial motion was denied, judgment was entered on the verdict and plaintiff appeals alleging errors in the charge and in rulings on evidentiary matters.

The case was tried on the theory of strict liability for physical harm by the supplier of a defective chattel under Restatement (Second) of Torts § 402A (1965). Section 402A was adopted as the law of Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and reads in pertinent part as follows:

'(1) One who sells any product in a defective condition unreasonably dangerous to the user * * * is subject to liability for physical harm thereby caused to the ultimate user * * *.

'(2) The rule stated in Subsection (1) applies although (a) the seller has exercised and possible care in the preparation and sale of his product. * * *'

Decedent took delivery of the helicopter on January 27, 1962, and on the date of the crash it had 198.5 hours in the air. Decedent received instructions on operating the helicopter from defendant's distributor and on March 29, 1962, he was licensed to fly it. On July 9, 1962, decedent flew alone from his home to an airport at Franklin, a distance of 91 miles. There he asked for 100-octane gasoline which was not available. The airport manager offered to get the gasoline from an airport in Oil City ten miles away. Decedent, however, said he had enough gasoline to fly to Oil City and took off. When he had flown only two miles his helicopter fell into a wooded area and he was killed. While the helicopter was still in the air, and before it disappeared into the trees, a seven-foot section of one of the three rotor blades broke off.

The plaintiff advanced two theories of liability: (1) that the blade broke because it was defectively constructed and (2) that the helicopter was dangerously defective in its autorotational characteristics. The first theory was properly presented to the jury and presents no problem. On the second theory the plaintiff argues that the court's charge improperly removed that issue from the jury.

When the engine of an airborne helicoptor stops, the helicopter will fall to the ground unless the rotor blades are placed in autorotation. When the blades are placed in autorotation, their angle differs from that of flight and they will continue to revolve and the plane may be glided to a safe landing. If the blades are not put in autorotation they may be snapped off in the air as the plane falls by hitting against stops which are necessary for their control while on the ground. The helicopter is placed in autorotation by pushing the 'collective pitch stick' all the way down.

Plaintiff contended at trial that following an engine failure the pilot in a B--2 helicopter is afforded insufficient time to go into autorotation. The time was variously estimated by the witnesses to be between one and two seconds. Portions of the testimony supported plaintiff's contention that the pilot had only one second and that one second was insufficient. Defendant presented evidence to show that decedent ran out of gasoline. Defendant contended that decedent then either failed to push the stick forward or did not push it soon enough.

If, as contended by plaintiff, the helicopter did not allow the average pilot sufficient time to go into autorotation was there a defective condition under § 402A? In order to be defective it is not necessary that errors be made in manufacture; a properly made product is defective if its design is unreasonably dangerous. Dyson v. General Motors Corp., 298 F.Supp. 1064 (E.D.Pa.1969); W. Prosser, Torts 659 (4th ed. 1971). 'The prevailing interpretation of 'defective' is that the product does not meet the reasonable expectations of the ordinary consumer as to its safety.' Prosser, supra at 659. It is thus apparent that a helicopter whose design does not allow an average pilot to go into autorotation in time to save his life is sold in a defective condition.

The main problem raised is the lower court's treatment of the alleged defective condition of the autorotational design. The plaintiff argues that the court never submitted the issue to the jury, having determined as a matter of law that the one-second second time allowed was sufficient. The defendant contends that the issue was submitted to the jury, but argues that it never should have been.

A reading of the court's charge convinces us that the issue was not submitted to the jury. The trial judge charged properly that damage sustained during abnormal use of a product is not evidence of a defect. However, he then charged that failure to push the 'collective pitch stick' down in one second was abnormal use. This conclusion followed naturally from his statement earlier in the charge that having one second to put the helicopter into autorotation is enough because the Federal Aviation Agency's regulations say that one second is enough. The charge further states that if the rotor blade flew off because of a dangerous condition in its make-up, then that would be the proximate...

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33 cases
  • Wilson v. Piper Aircraft Corp.
    • United States
    • Supreme Court of Oregon
    • 23 Mayo 1978
    ...446 (10th Cir. 1976); Banko v. Continental Motors Corporation, 373 F.2d 314, 315-16 (4th Cir. 1966); Berkebile v. Brantly Helicopter Corporation, 219 Pa.Super. 479, 281 A.2d 707, 710 (1971). We have found no cases holding that compliance is a complete defense. We hold that it is That is not......
  • Rucker v. Norfolk & W. Ry. Co.
    • United States
    • Supreme Court of Illinois
    • 19 Octubre 1979
    ...Aff'd (5th Cir. 1976), 535 F.2d 657; La Gorga v. Kroger Co. (W.D.Pa.1967), 275 F.Supp. 373, 378; Berkebile v. Brantly Helicopter Corp. (1971), 219 Pa.Super. 479, 485, 281 A.2d 707, 710; see also Bailey v. Boatland of Houston, Inc. (Tex.Civ.App.1979), 585 S.W.2d 805, 812 (dissent) (if a plai......
  • Majdic v. Cincinnati Mach. Co.
    • United States
    • Superior Court of Pennsylvania
    • 29 Enero 1988
    ...This is also the law in Pennsylvania. See: Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986); Berkebile v. Brantly Helicopter Corp., 219 Pa.Super. 479, 281 A.2d 707 (1971). Instantly, the defense expert offered by Cincinnati Machine was allowed to refer to an ANSI standard for pow......
  • Jones v. White Motor Corp.
    • United States
    • United States Court of Appeals (Ohio)
    • 29 Septiembre 1978
    ...design is unreasonably dangerous. Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229; Berkebile v. Brantly Helicopter Corp., 219 Pa.Super. 479, 281 A.2d 707. See generally W. Prosser, Law of Torts § 99 (4th ed.). From the record before us, a jury could reasonably have ......
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