O'Brien v. Cessna Aircraft Co.

Decision Date03 November 2017
Docket NumberNo. S-15-1212.,S-15-1212.
Citation298 Neb. 109,903 N.W.2d 432
Parties Patrick O'BRIEN, appellant, and Suburban Air Freight, Inc., and Liberty Mutual Insurance Company, appellees, v. CESSNA AIRCRAFT COMPANY and Goodrich Aerospace Company, appellees.
CourtNebraska Supreme Court

Arthur A. Wolk, Bradley J. Stoll, and Cynthia M. Devers, of Wolk Law Firm, David A. Domina, of Domina Law Group, P.C., L.L.O., and Robert W. Mullin, of Houghton, Bradford & Whitted, PC., L.L.O., for appellant.

John C. Nettels, Jr., and Robin K. Carlson, of Stinson, Leonard & Street, L.L.P, and Bryan S. Hatch, of Likes, Meyerson & Hatch, L.L.C., for appellee Cessna Aircraft Company.

Elizabeth B. Wright and Andrew H. Cox, of Thompson Hine, L.L.P., and William R. Johnson and Brian J. Brislen, of Lamson, Dugan & Murray, L.L.P., for appellee Goodrich Aerospace Company.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Stacy, J.

I. NATURE OF CASE

This tort action was filed by a pilot who was injured when the plane he was flying crashed on approach to the airport in Alliance, Nebraska. After a 4-week trial, the jury returned a general verdict for the defendants. The pilot appeals, asserting 65 assignments of error. We affirm the judgment of the district court.

II. BACKGROUND

Patrick O'Brien was employed as a commercial pilot flying mail overnight between Alliance, North Platte, and Omaha, Nebraska. In February 2007, he was seriously injured when the Cessna 208B Caravan he was flying crashed through the roof of a metal building and into a utility pole during a non-precision approach to the Alliance airport. The impact occurred at approximately 2:25 a.m. in heavy fog and below freezing temperatures; night instrument meteorological conditions prevailed. O'Brien has no memory of the crash or any of his actions before the crash. He theorizes that ice accumulated on the aircraft during flight, resulting in an "ice contaminated tail stall" (ICTS) that caused the crash.

O'Brien sued the aircraft's designer and manufacturer, Cessna Aircraft Company (Cessna), as well as the designer and manufacturer of the aircraft's pneumatic deicing system, Goodrich Aerospace Company (Goodrich), asserting claims of strict liability, negligence, and fraudulent misrepresentation. Cessna and Goodrich denied O'Brien's claims and alleged the accident was the result of O'Brien's negligent operation and misuse of the aircraft.

The case was tried to a jury over a period of 4 weeks. The jury returned a general verdict for the defendants, finding O'Brien had not met his burden of proof on any of his claims. Rather than detail all of the evidence offered at trial, we summarize the evidence and set out the general theories advanced by the parties.

1. CESSNA 208B CARAVAN

At the time of the crash, O'Brien was flying a Cessna 208B Caravan (hereinafter Model 208B) owned and maintained by his employer. The Model 208B is a single-engine, turbo-prop, high-wing airplane. The Model 208B was certified by the Federal Aviation Administration (FAA) for "Flight Into Known Icing Conditions." To obtain this certification, an aircraft designer must show that the aircraft can operate safely in icing conditions. The Model 208B that O'Brien was flying was configured for such conditions and to carry cargo.

The Model 208B was designed with pneumatic deicing "boots," and the aircraft O'Brien was flying was equipped with such boots. This deicing system uses hot "bleed air" from the aircraft's engine to inflate corrugated rubberlike boots affixed to multiple parts of the aircraft. As the boots inflate and expand, accumulated ice is broken up and shed. The deicing boots are manually activated by the pilot using a switch in the cockpit.

When Cessna was designing the Caravan models, it considered several different ice-protection systems, including TKS. TKS is an anti-icing system that extrudes an alcohol/glycol-based fluid through a thin mesh to prevent ice from forming. Cessna had used a TKS system on a different plane model, but chose to use pneumatic deicing boots for the Caravan models, including the Model 208B.

2. O'BRIEN'S THEORY

O'Brien's experts testified that his aircraft suffered ICTS while flying through light-to-moderate icing conditions. Accident scene photographs taken a few hours after the crash, supported by testimony at trial, showed ice accumulation of anywhere from one-tenth to one-fourth of an inch of ice on the leading edge of the wings, and approximately one-eighth of an inch of ice on the horizontal tail. Witnesses testified that the horizontal tail keeps the aircraft balanced in flight by creating a downward lift and preventing the nose of the aircraft from pitching down. Generally speaking, when enough ice accumulates on the horizontal tail to disrupt the downward lift, ICTS can occur and the tail cannot keep the aircraft upright.

O'Brien cited various design defects in the Model 208B and its pneumatic deicing system that he claimed caused his aircraft to suffer ICTS. Specifically, he claimed the deicing system on the Model 208B was defectively designed and unreasonably dangerous in that the deicing boots provided insufficient coverage and the deicing system lacked a water separator to prevent contaminants from entering and affecting its operation.

O'Brien also claimed the crash was caused by the negligence of Cessna and Goodrich in selecting, designing, and testing the deicing system. He claimed, summarized, they were negligent in selecting pneumatic deicing boots rather than a TKS anti-icing system for the Caravan models, in failing to install a water separator for the deicing boots, in failing to provide a filter for the bleed air system, in failing to provide boots with adequate coverage for the conditions in which the aircraft would be flown, in failing to properly test the Model 208B for flight in icing conditions, in failing to warn operators and owners that the Model 208B was unsuitable for operating in icing conditions and suffers ICTS, and in failing to provide adequate instructions for operating the aircraft in icing conditions.

O'Brien also claimed Cessna fraudulently misrepresented that if the Model 208B was operated in accordance with the "Pilots Operating Handbook and FAA Approved Airplane Flight Manual," it was safe to fly in icing conditions, when it knew it was not. O'Brien alleged he relied on this false representation, which proximately caused his crash and injuries.

3. THEORY OF CESSNA AND GOODRICH

Cessna and Goodrich claimed there was no credible evidence that O'Brien's aircraft experienced ICTS and suggested the crash was caused by O'Brien's own negligence in descending below the minimum descent altitude before he had the runway environment in sight. Defense experts testified that the crash resulted from "controlled flight into terrain" caused by O'Brien's inadvertent descent below the minimum descent altitude, at night, in a single-pilot environment, due to distraction and heavy fog.

To counter evidence that the aircraft experienced a tail stall, the defense offered evidence that O'Brien's vertical and horizontal flight path, although below the minimum descent altitude, appeared to be under control and lined up with the runway. Additionally, the defense suggested the aircraft's 4-degree angle of impact into the metal building and the similar angle of the aircraft's path through the roof of the building indicated the aircraft was under O'Brien's control at the time of impact.

Cessna and Goodrich denied that the crash was caused by any malfunction or defect in the pneumatic deicing boots. They presented evidence that the weather conditions would not have required activation of the deicing boots, and they offered circumstantial evidence that O'Brien had not cycled the boots before the crash.

Cessna's expert testified that the pilots operating handbook indicates a pilot should cycle the boots as a matter of course immediately before landing and, depending on the type of ice, whenever one-fourth to three-fourths of an inch of ice has accumulated on the wing's leading edge. O'Brien has no memory of using the deicing boots before the crash, but testified it was his usual practice to wait until at least one-half of an inch of ice had accumulated on the wing's leading edge before activating the boots. A defense expert performed an ice accretion analysis using the weather data supplied by O'Brien's weather expert and determined that approximately one-tenth of an inch of ice would have accumulated on the wings' leading edges before the crash. The defense also relied on accident scene photographs showing that the protected surfaces of the plane had approximately one-tenth of an inch of ice, and roughly the same amount of ice was found on the unprotected surfaces, suggesting O'Brien had not cycled the boots before impact.

4. JURY VERDICT AND APPEAL

The case was submitted to the jury on O'Brien's claims of negligence and strict liability against both Cessna and Goodrich, and on O'Brien's claim of fraudulent misrepresentation against Cessna. The jury deliberated for approximately 8 hours before returning a general verdict for the defendants. The district court accepted the verdict, entered judgment thereon for the defendants, and directed O'Brien to pay the costs of the action. After an evidentiary hearing on costs, the court found O'Brien should be ordered to pay costs in the amount of $35,701.68 and entered judgment accordingly. O'Brien timely appealed.

III. ASSIGNMENTS OF ERROR

O'Brien assigns 65 errors, which we condense into 10. O'Brien assigns, renumbered and restated, that the district court erred in (1) excluding the testimony of his expert regarding 32 "substantially similar" plane crashes; (2) failing to enforce its discovery order compelling Cessna to produce flight test data; (3) excluding as hearsay a copy of a 2006 Airworthiness Directive affecting the Caravan models; (4) excluding exhibits showing Cessna concealed information regarding the "Caravan's susceptibility to...

To continue reading

Request your trial
44 cases
  • Dick v. Koski Prof'l Grp., P.C.
    • United States
    • Nebraska Supreme Court
    • October 30, 2020
    ...Torts, supra note 153, comment on clause (a); Restatement of Torts, supra note 148, comment on clause (b).159 O'Brien v. Cessna Aircraft Co. , 298 Neb. 109, 903 N.W.2d 432 (2017). ...
  • Weyh v. Gottsch
    • United States
    • Nebraska Supreme Court
    • June 7, 2019
    ...Clinger , 292 Neb. 237, 872 N.W.2d 37 (2015) ; Arens v. NEBCO, Inc. , 291 Neb. 834, 870 N.W.2d 1 (2015).25 See O'Brien v. Cessna Aircraft Co. , 298 Neb. 109, 903 N.W.2d 432 (2017).26 Brief for appellant at 26.27 See Donut Holdings , supra note 3.28 See Neb. Ct. R. Pldg. § 6-1108(a) (when in......
  • Dubas v. Clark Equip. Co.
    • United States
    • U.S. District Court — District of Nebraska
    • March 31, 2021
    ...exemplary damages contravene Neb. Const. art. VII, § 5, and thus are not allowed in this jurisdiction." O'Brien v. Cessna Aircraft Co. , 298 Neb. 109, 139, 903 N.W.2d 432, 458 (2017) (quoting Distinctive Printing & Packaging Co. v. Cox , 232 Neb. 846, 857, 443 N.W.2d 566, 574 (1989) ). In c......
  • Trimble v. Helwig
    • United States
    • U.S. District Court — District of Nebraska
    • June 2, 2020
    ...relationship" test enumerated in the Restatement (Second) of Conflict of Laws § 145 (1971). See O'Brien v. Cessna Aircraft Co., 298 Neb. 109, 140, 903 N.W.2d 432, 459 (2017) (applying the most significant relationship test in a personal injury case). For torts generally, the "[c]ontacts to ......
  • Request a trial to view additional results
1 books & journal articles
  • Nebraska Choice of Law: an Updated Synthesis
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 53, 2022
    • Invalid date
    ...policy where section 193 specifically covers insurance law choice). [10]See, e.g., O'Brien v. Cessna Aircraft, 298 Neb. 109, 140, 903 N.W.2d 432, 459 (2017); Yoder v. Cotton, 276 Neb. 954, 957-58, 758 N.W.2d 630, 635 (2008). [11]See, e.g., Johnson v. U.S. Fid. & Guar. Co., 269 Neb. 731, 744......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT