Bostrom v. County of San Bernardino, No. E012904

• Court: California Court of Appeals
• Writing for the Court: RICHLI; RAMIREZ, P.J., and McDANIEL
• Citation: 42 Cal.Rptr.2d 669,35 Cal.App.4th 1654
• Parties: , 95 Daily Journal D.A.R. 8303 George BOSTROM, an Incompetent Person, etc., et al., Plaintiffs and Appellants, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent.
• Docket Number: No. E012904
• Decision Date: 23 June 1995

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42 Cal.Rptr.2d 669 35 Cal.App.4th 1654, 95 Daily Journal D.A.R. 8303 George BOSTROM, an Incompetent Person, etc., et al., Plaintiffs and Appellants,
v.
COUNTY OF SAN BERNARDINO, Defendant and Respondent. No. E012904. Court of Appeal, Fourth District, Division 2, California. June 23, 1995.
Certified for Partial Publication ^*

Rehearing Denied July 13, 1995.

Review Denied Sept. 20, 1995.

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[35 Cal.App.4th 1656] De Goff and Sherman, Victoria J. De Goff, Richard Sherman, Berkeley, Walkup, Melodia, Kelly & Echeverria, John Echeverria, and Daniel Dell'Osso, San Francisco, for plaintiffs and appellants.

MacLachlan, Burford & Arias, Christopher D. Lockwood and Sharon K. Burchett, San Bernardino, for defendant and respondent.

OPINION

RICHLI, Associate Justice.

George Bostrom was severely injured when the small plane he was piloting crashed on takeoff from Chino Airport. The County of San Bernardino (the County) owns Chino Airport. The County leased land at the airport to Cal West Aviation for the purpose of providing jet fueling and other services. The crash occurred because an employee of Cal West Aviation fueled the plane with jet fuel instead of ordinary aviation gas.

In this action, Mr. Bostrom and his wife Susan Bostrom (collectively the Bostroms) seek to hold the County liable for the injuries resulting from the crash. The trial court, however, granted summary judgment for the County, [35 Cal.App.4th 1657] essentially on the ground that the Bostroms were unable to introduce sufficient evidence of any cause of action that would be within any statutory exception to the general rule of sovereign immunity. On appeal, the Bostroms contend that they raised a triable issue of fact as to whether the County was liable under five distinct legal theories, each of which came within some exception to the rule of immunity. We disagree, and we will affirm.

I.

FACTUAL BACKGROUND

The following facts are taken from the papers filed in support of and in opposition to the County's motion for summary judgment. Consistent with the applicable standard of review (see part III, post ), we view the evidence in the light most favorable to the Bostroms as plaintiffs.

It is undisputed that on September 14, 1987, Mr. Bostrom was flying a Piper Aerostar which crashed when both engines failed on takeoff. The crash occurred because, while the plane was on the ground at Chino Airport, an employee of Cal West Aviation misfueled it with jet fuel instead of aviation gas. Apparently Mr. Bostrom survived;

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plaintiffs, however, allege that he sustained severe and permanent injuries.

The Piper had reciprocating engines, which use pistons. Airplanes with piston engines run on aviation gas--"avgas" for short--which is similar to gasoline. By contrast, jet engines use turbines and run on jet fuel, which is similar to diesel fuel. Putting jet fuel into a plane with a piston engine will cause the engine to fail and the plane to crash, usually shortly after takeoff.

On August 27, 1982, the FAA had issued an advisory circular entitled "Aircraft Fuel Storage, Handling and Dispensing on Airports." The advisory circular represented a guideline, not a regulation or law. It stated that "[a] written SOP [standard operating procedure] for aircraft fuel from facilities on the particular airport shall be available in the airport manager's office and in each fueling truck." It proposed a "typical fueling procedure," in which the fueling supervisor would "obtain quantity and grades of products required from airline or aircraft personnel." It also proposed "minimum standards" to serve as "a guide" for an airport's preparation of its own standards for fuel dispensing. The proposed standards provided that both fueling supervisors and "line" fueling personnel should:

"(1) Be able to identify, explain major characteristics of, and distinguish between, the various types of fuel (using flammability, color, odor, and feel) found on the airport;

[35 Cal.App.4th 1658] "(2) Be able to distinguish gasoline fueled reciprocating engines from turbine engines and explain the major features of each, and describe the type of fuels and oils used by each...."

The FAA's proposed standards required that hoses be "[e]quipped with appropriate unique fuel couplings for each product...." In December 1984, the Society of Automotive Engineers (SAE) had issued Aerospace Standard 1852, which prescribed different fuel port dimensions for piston engine and for jet aircraft. It also prescribed the dimensions of an elongated nozzle to be used for pumping jet fuel. Compliance with this standard would make it impossible to put jet fuel into a piston engine plane. Piper had sent out a service bulletin requiring its planes to be retrofitted with fuel port restrictors consistent with this standard.

Finally, in addition to the advisory circular, the FAA had also issued a recommendation that the fuel ports on piston engine planes be labeled to indicate the type of fuel required.

The County owns and operates Chino Airport. The County's goal for the airport was to develop it into the largest general aviation airport in Southern California, and the County's most revenue-producing airport. The County particularly wanted the airport to be attractive to corporate jet traffic. To accomplish this, the airport had to make jet fueling service available.

The County had adopted an "Airports Ordinance" governing public airports owned by the County. The ordinance provided, to the extent pertinent here, that the County Chief of Aviation "shall have the authority, and is charged with the responsibility, to administer and enforce the provisions of this title...." It also provided that: "All regulations and recommendations of ... the Federal Aviation Administration shall be adhered to with regard to all aspects of fueling...."

The County had entered into an agreement with Chino Jet, Inc. (CJI) by which the County leased space at Chino Airport to CJI as a fixed base operator (FBO). ¹ The agreement gave CJI various rights, including the exclusive right to sell jet fuel and the exclusive right to put in an avgas station at the airport, as well as rights to run charter flights, do pilot training, sell aircraft, modify or repair aircraft, and store or tether aircraft.

In 1985, the County decided to terminate its agreement with CJI. However, it needed to keep jet fuel available at the airport. Indeed, it was very [35 Cal.App.4th 1659] concerned about having jet fuel available for an upcoming air show. Thus, it sought someone to take over CJI's

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lease. When one John Hope learned of this, he told County officials he was interested in taking over the lease. ² Mr. Hope had no previous experience in aviation. He had never operated as an FBO before. He had never sold either jet fuel or avgas. He knew nothing about refueling airplanes. County officials became aware that Mr. Hope lacked experience as an FBO, but he told them not to worry because he would hire qualified people.

On May 12, 1986, the County entered into a written agreement by which it leased land at Chino Airport to Mr. Hope and Mr. Hope's corporation, JMI, Inc., doing business as Cal West Aviation (hereafter collectively Cal West). A major reason for the County's approval of the agreement was that it would "provide for continual jet fuel availability and servicing to aircraft at Chino Airport."

The agreement stated, "This lease is limited to the purpose of FAA approved basic and advanced flight training, FAA approved aircraft maintenance, service and avionics repair and instruments, retail sales of aviation fuel, retail jet fuel sales, rental of aircraft tie downs space, rental of aircraft and automobiles, charter flights, air taxi service, and wholesale and retail sale of aircraft." Cal West covenanted to "operate and conduct ... those business activities," "continuously and uninterruptedly," "during normal business hours." Cal West could not use the premises for any other purpose without the County's permission.

In addition to fixed monthly rent, Cal West was to pay the County 2 percent of Cal West's gross revenues, 5 cents per gallon of jet fuel received, 5 cents per gallon of aviation fuel received, 25 cents per gallon of aviation oil received, 1 percent of gross sales of aircraft owned by Cal West, and 3 percent of brokerage commissions on sales of aircraft not owned by Cal West.

Cal West covenanted "to conform to all applicable Federal, State and County Rules and Regulations." Cal West was to maintain insurance, including comprehensive general liability insurance naming the County as an additional insured, and to hold the County harmless against claims for personal injury or property damage "caused by or contributed to by any act or omission of the [tenants] in the use of the premises...." The County reserved the right to enter the premises "for the purpose of inspecting the [35 Cal.App.4th 1660] leased property for conformance to lease provisions." Finally, in lease provisions required by the FAA, Cal West agreed not to discriminate based on race, creed, color, national origin, or sex, and additionally agreed to "furnish ... accommodations and/or services on a fair, equal and not unjustly discriminatory basis to all users thereof...."

When Cal West first took over the FBO, it had no employees. At the County's suggestion, it hired two former CJI employees. They showed Mr. Hope how to refuel. Cal West sold jet fuel only. A different FBO at the airport sold avgas. Mr. Hope learned to tell that an airplane could not use jet fuel from a ring around the fuel port stating "avgas only." He never learned that jet fuel and avgas are different colors, and he never learned that avgas has an octane rating. ³ He was unaware of the SAE standard prescribing elongated jet fuel nozzles.

In June 1987, Cal West hired Mary Kathleen Asbury as a jet refueler. For about two and a half years, from 1982 to 1984, she had...