Blum v. Airport Terminal Services, Inc., s. 53432

CourtCourt of Appeal of Missouri (US)
Citation762 S.W.2d 67
Docket NumberNos. 53432,53433 and 53485,s. 53432
PartiesJoseph H. and Edith BLUM, Respondents-Cross-Appellants, v. AIRPORT TERMINAL SERVICES, INC., Appellant, and Midcoast Aviation, Inc., Cross-Respondent, and The City of St. Louis, Appellant, and Skycraft Air Transport, Inc., Cross-Respondent.
Decision Date27 September 1988

Page 67

762 S.W.2d 67
Joseph H. and Edith BLUM, Respondents-Cross-Appellants,
v.
AIRPORT TERMINAL SERVICES, INC., Appellant,
and
Midcoast Aviation, Inc., Cross-Respondent,
and
The City of St. Louis, Appellant,
and
Skycraft Air Transport, Inc., Cross-Respondent.
Nos. 53432, 53433 and 53485.
Missouri Court of Appeals,
Eastern District,
Division Three.
Sept. 27, 1988.

Page 69

Joseph A. Murphy, Peter Maginot, St. Louis, for Airport Terminal Services, Inc. and Midcoast Aviation Inc.

Robert E. Keaney, St. Louis, for City of St. Louis.

John S. Sandberg, St. Louis, for Blum.

Lawrence G. Crahan, Frank N. Gundlach, St. Louis, for Skycraft.

SMITH, Judge.

In the evening of January 9, 1984, a DC-3 cargo plane crashed shortly after take off from Lambert International Airport. The co-pilot Milko Blum, a Canadian citizen and resident, was killed. His parents brought a wrongful death lawsuit against four defendants. Appeals from that lawsuit as to all defendants were taken and have been consolidated in this court.

Airport Terminal Services, Inc. (ATS) operates under a lease from the City of St. Louis and provides refueling service for airplanes at Lambert. There is no dispute that the cause of the crash was the fueling of the DC-3 by ATS' employee with jet fuel instead of low lead aviation gasoline. ATS was sued for its negligence in misfueling the airplane. Midcoast is the parent of ATS. It was sued for the same charged negligent acts as ATS. The City of St. Louis was sued as the owner-operator of the airport on the basis that it negligently failed to regulate the practice of aircraft servicing entities at the airport in several specified ways. Skycraft is the owner of the DC-3 and the employer of both the pilot and Blum. It was sued on the basis that it negligently failed to equip its plane with devices to prevent misfueling and for the negligence of its pilot, Cox, in taking off after two previous take-off attempts were aborted.

The trial court dismissed Skycraft from the case on motion on the basis that the workers' compensation law rendered it immune from common law liability. The court directed a verdict as to Midcoast at the conclusion of the plaintiffs' case on the basis that the evidence did not establish any duty running from Midcoast to the decedent. The case as to ATS and the City was submitted to the jury which found each negligent and awarded damages of $1.5 million, apportioned 75% to ATS and 25% to the City. Plaintiffs appeal the court's orders as to Skycraft and Midcoast; ATS and the City appeal from the judgments entered against them based upon the jury verdict.

The plane landed at Lambert with a cargo of automobile parts. After unloading by the consignee, the pilot requested Tim Wandling, an ATS employee, to top off the main tanks with Avgas 100 octane low lead fuel. Wandling was the only ATS employee at the refueling station on that night. It was his first night working by himself. He had been in training for a week previous at the cargo refueling station. Two weeks was the usual training period. Prior to that time he had worked part-time as a ramp agent for ATS and in December 1983, started fueling full-time in the passenger terminal area. In that area only jet fuel was used. Wandling was eighteen years old in January 1984 and had recently graduated from high school.

Jet fuel is a highly refined kerosene with a very low octane rating. Octane is a measurement of the capacity of gasoline to burn rapidly rather than explode in an engine. The higher the octane the more consistent the power supplied to the engine. Because of its low octane rating and explosive nature, jet fuel creates great heat within an engine and when utilized in piston driven aircraft literally melts the engine. Its use in such aircraft inevitably causes engine failure, most usually on or shortly after takeoff. Until the engine failure actually begins, there is little or no indication to the pilot either from his senses or his instruments that a problem exists.

Misfueling of aircraft with jet fuel instead of aviation gas has been a recurring problem within the airline industry for several years. F.A.A. recommendations have been promulgated to address the problem, the thrust of which are to emphasize the need for clear marking and identification of the fuel contained in the tanks and vehicles used for refueling and the proper training

Page 70

of personnel. Industry groups have addressed the problem also and have made available decals to be placed upon hoses and nozzles utilized for refueling so that the refueler can tell by looking at the hose or nozzle the type of fuel being utilized. The record supports a finding that the City, Midcoast and ATS were aware or should have been aware of this industry problem and the efforts to correct it.

On the night in question, Wandling went to an aviation gas truck to fill the DC-3 refueling order. He knew that jet fuel should not be used in a piston driven plane such as a DC-3. He had never, however, been informed as to why it should not be used, and not until after the crash was he made aware of the catastrophic consequences inevitably resulting from such misfueling. When Wandling attempted to start the truck it was cold and would not start. After approximately five minutes, he went to the adjacent truck, believing it to contain aviation gasoline also. Instead, it contained jet fuel. The trucks were identical in appearance. Each did contain three signs, one on the back and one on each side, identifying the contents of the truck. The size of these signs is not clear from the record but photographs would indicate they are less than six inches in height. The area was lighted but not highly illuminated. The keys to all trucks were left in the trucks so it was not necessary to return to the office for the key. None of the nozzles or hoses contained decals identifying the contents of the truck. No identification of the contents was contained on the door or in the cab of the truck. Wandling drove the truck to the airplane, got on each wing and filled the main tanks. Blum was also on the wing checking the oil, which Wandling did not know how to do.

The plane proceeded to the runway for takeoff with Cox in charge but Blum actually operating the controls. The plane started down the runway and Cox ordered the takeoff aborted. He had an intuitive feeling that the engines were not generating proper power. Nothing in the instruments indicated any problem. Cox received authority to take off in the opposite direction from the same runway and after some additional testing of the engines takeoff again commenced. Cox also aborted that takeoff as a result of the same intuitive feeling. Again the instruments did not reflect any problem.

After the second abort a call was placed by the DC-3 to ATS to verify the type of fuel placed in the plane. This call was received by an operator who found the request unusual but passed the request on to Wandling. The operator had no training in dealing with such requests. Wandling responded that the plane had been refueled with aviation gasoline which information was conveyed by the operator to the plane. Each truck contains two meters. One, the reset meter, tells how much gasoline has been utilized in each refueling, and is reset before each refueling. The other meter, the continuous flow meter, is not reset and tells how much fuel altogether has been taken from the refueling vehicle. By utilizing records of each truck, kept on clipboards in the office and the continuous flow meter it is possible to quickly tell the source of the fuel placed in any given airplane. Wandling was unaware of this method of checking. He made no checks before responding to the DC-3's request for verification of the fuel. He had received no instruction on what checks he should make if such a request was received.

After receiving verification of the fuel, and following some additional engine tests, the DC-3 took off. At that time Cox believed whatever the problem that he had felt existed had cleared up, a not uncommon occurrence with airplanes. The instruments indicated everything was normal. Shortly after takeoff and just as the wheels were retracted both engines began smoking and lost all power. The instruments showed an engine head temperature "against the stops." Cox, who assumed the controls upon the power failure, succeeded in avoiding several subdivisions and a nearby hotel, and crash-landed the plane next to a highway. He survived the crash. Blum was semi-conscious at the scene, then lapsed into a coma and died three days later from his injuries. He was twenty-two

Page 71

years old with over 4000 hours flying time as a pilot. After the crash, Wandling stated he believed the only mistake he made was getting in the wrong truck. The cause of the crash was determined to be the refueling of the plane with jet fuel.

Each of the appeals involves different legal issues and will be considered separately.

PLAINTIFF'S APPEAL AGAINST SKYCRAFT

In response to plaintiffs' petition Skycraft filed its motion to dismiss on the basis that the court lacked subject matter jurisdiction because the workers' compensation law furnishes the exclusive remedy against it. The court granted that motion. Subsequently, plaintiffs filed an amended petition against the remaining defendants omitting Skycraft as a defendant. Skycraft contends that action constituted a waiver or abandonment of plaintiffs' right to appeal the court's action in dismissing Skycraft. The general rule in Missouri is that an amended petition operates as an abandonment of the original petition. Scott v. Gibbons, 611 S.W.2d 387 (Mo.App.1981) .

The cases which have established this rule arise where a plaintiff has attempted to invoke a different theory in his original petition against a defendant than the one eventually relied upon in the trial court. Scott v. Gibbons, supra; Laux v. Motor Carriers Council of St. Louis, Inc., 499...

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