Bolick v. Sunbird Airlines, Inc.

• Decision Date: 05 December 1989
• Docket Number: No. 8921SC80,8921SC80
• Citation: 96 N.C.App. 443,386 S.E.2d 76
• Court: North Carolina Court of Appeals
• Parties: Edward Alan BOLICK v. SUNBIRD AIRLINES, INC. and Mountain Airlines, Inc.

Page 76

386 S.E.2d 76

96 N.C.App. 443

Edward Alan BOLICK v. SUNBIRD AIRLINES, INC. and Mountain Airlines, Inc.

No. 8921SC80.

Court of Appeals of North Carolina.

Dec. 5, 1989.

Smiley and Mineo by Robert A. Mineo, Raleigh, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice by William F. Womble, Jr., Donald F. Lively, and Mary J. Davis, Winston-Salem, for defendants-appellees.

LEWIS, Judge.

Plaintiff brings forth three assignments of error. First, he contends that the lower court committed error in excluding from evidence the National Transportation Safety Board's (NTSB) Factual Report. Second, he contends that the court erred in not instructing the jury on negligence per se when evidence showed that the flight crew violated Federal Aviation Administration Regulations (FARs). Third, plaintiff alleges the court erred in instructing the jury on the doctrine of "sudden emergency."

During the course of the trial below, plaintiff sought to admit the factual report or investigator's report section of the NTSB report. The judge denied introduction of the report itself but did allow "specific portions of it to be used as contain factual information obtained by Walter Stiner [NTSB investigator] himself based upon the factual documents from interviews of witnesses who have testified in open court or through their depositions to the extent certain documents from the NTSB report were used by them." Plaintiff contends that the entire factual report is admissible under 49 U.S.C.App. Section 1441(e) and Rule 803(8)(C) of the North Carolina Rules of Evidence.

49 U.S.C.App. Section 1441(e) governs the use at trial of NTSB reports and states:

No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports.

Federal cases which have looked at this provision have distinguished between the factual portion of the NTSB report and the portion which embraces a determination of probable cause, and have reached a consensus that Section 1441(e) only excludes that part of the report which expresses the agency view as to probable cause. The factual portions are admissible. Travelers Ins. Co. v. Riggs, 671 F.2d 810, 816 (4th Cir.1982); American Airlines, Inc. v. United States, 418 F.2d 180, 196 (5th Cir.1969); Berguido v. Eastern Air Lines, Inc., 317 F.2d 628, 631-32 (3rd Cir.1963), cert. denied, 375 U.S. 895, 84 S.Ct. 170, 11 L.Ed.2d 124 (1963).

The fact that this evidence is not barred by Section 1441(e) is not conclusive of the question, however, because it does not consider the admissibility of the testimony under the rules of evidence. Id. G.S. 1B, Chap. 8C-1, Rule 803(8)(C) allows the admission of "records, reports, statements or data compilations ... setting forth (c) in civil actions ... factual findings resulting from an investigation made pursuant to authority granted by law unless the sources of information or other circumstances indicate a lack of trustworthiness." However, any hearsay contained in the report must also fall under one of the hearsay exceptions. See G.S. 1B, Chap. 8C-1, Rule 805. In John McShain, Inc. v. Cessna Aircraft Co., 563 F.2d 632, 636 (3rd Cir.1977), the court upheld the trial court's exclusion of the NTSB report to the extent it consisted of statements of pilots or other witnesses because they equal inadmissible hearsay:

To the extent that the NTSB reports offered by McShain consist of the statements of pilots or other witnesses regarding the accidents, they constitute inadmissible hearsay evidence. The Advisory Committee's Notes make clear that Federal Rule of Evidence 803(8) exempts from the hearsay rule only reports by officials; and of course, the pilots and other witnesses are not officials for this purpose. Moreover, the memoranda submitted to the government by its investigators often contained statements from witnesses which would make such memoranda encompass double hearsay.

Accord, Colvin v. United States, 479 F.2d 998 (9th Cir.1973) (Rule 803(8) excluded statement of an eyewitness to a traffic accident contained in the accident report prepared under the Federal Tort Claims Act); Ramrattan v. Burger King Corp., 656 F.Supp. 522, 529 (D.Md.1987) (defendant's motion to exclude portions of police report referring to statements by bystanders granted because witnesses' statements were not "factual findings resulting from an investigation within the meaning of Rule 803(8).")

State v. Acklin, 317 N.C. 677, 346 S.E.2d 481, (1986) is distinguishable. In Acklin, the Supreme Court ruled that the trial court prejudicially erred in excluding SBI lab reports under Rule 803(8)(C). However, the State in that case did not contest the admissibility of the reports, but instead argued that any error committed by the trial court was not prejudicial. Id. at 682, 346 S.E.2d at 484. Furthermore, the SBI report was comprised of reports prepared by state officials who were present to testify at trial.

In this case the NTSB reports contained statements by pilots, witnesses and other non-officials who were not present to testify at trial. The trial court properly exercised its discretion in excluding the hearsay portions of the NTSB report. To the extent portions were admissible independent of the report, those portions were admitted. We find no error.

Plaintiff alleges Captain Harper failed to comply with 14 C.F.R. Section 91.116 which details the approach to be flown on an instrument flight landing and explains the missed approach procedures a pilot may execute in appropriate circumstances. 14 C.F.R. Section 91.116(c) provides:

No pilot may operate an aircraft ... below the authorized [decision height] unless ... that descent rate will allow touchdown to occur within the touchdown zone of the runway of intended landing.

The touchdown zone is defined as the first 3,000 feet of the runway. Plaintiff claims Captain Harper's failure to land in the touchdown zone and her decision not to execute a missed approach constitutes negligence per se and assigns as error the failure of the trial court to instruct the jury on negligence per se for the flight crew's alleged violation of C.F.R. Section 91.116(c).

The FARs are administrative regulations established by the Federal Aviation Administration and have the force and effect of law; persons and operations to whom they apply must abide by them. 49 U.S.C.App. Section 1348 (1988). The North Carolina General Assembly has incorporated the FARs as applicable to intrastate flight by virtue of G.S. Section 63-20. Captain Harper and First Officer Van Hoy admitted that the FARs applied to the conduct of Sunbird flight 808.

The FARs constitute a general code of conduct that, by its terms, places discretion in the hands of the pilot in command of an aircraft. Part 91 of the FARs simply provides specific requirements applicable to the technical aviation field but vest final authority in the pilot in command. 14 C.F.R. Section 91.3, applicable to every regulation included in part 91, specifically provides that the pilot in command is the final authority as to the operation of the aircraft and reserves to the pilot in command the authority to "deviate from any rule ... to the extent required to meet an...