Brosnahan v. Western Air Lines, Inc., 89-5045

• Decision Date: 22 December 1989
• Docket Number: No. 89-5045,89-5045
• Parties: Fred BROSNAHAN, Appellant, v. WESTERN AIR LINES, INC., and Delta Airlines, Inc., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 730

892 F.2d 730

Fred BROSNAHAN, Appellant, v. WESTERN AIR LINES, INC., and Delta Airlines, Inc., Appellees.

No. 89-5045.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 12, 1989.

Decided Dec. 22, 1989.

Leah J. Fjerstad, Rapid City, S.D., for appellant.

Mark F. Marshall, Rapid City, S.D., for appellee.

Before LAY, Chief Judge, and McMILLIAN and WOLLMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Fred Brosnahan appeals from an order entered in the District Court for the District of South Dakota granting a judgment notwithstanding the verdict in favor of Western Air Lines, Inc. Brosnahan brought suit against Western Air Lines for injuries he sustained while a passenger on board a Western Air Lines flight from Las Vegas, Nevada to Rapid City, South Dakota. Brosnahan was injured when a fellow passenger dropped his carry-on bag on Brosnahan's head while attempting to stow the bag in the overhead compartment above Brosnahan's seat. Brosnahan alleged that his injuries were caused by the airline's negligent supervision of the boarding process and its failure to assist passengers with carry-on luggage. After a trial on the merits, the jury returned a verdict for Fred Brosnahan in the amount of $74,600. Western Air Lines moved for a judgment notwithstanding the verdict, and the district court granted the motion. The district court let stand the jury's findings of negligence and damages, but held that Brosnahan had produced no evidence to support the jury's finding that the airline's negligence had proximately caused his injuries. For reversal, Brosnahan argues that the district court erroneously held, as a matter of South Dakota law, that the airline's negligence was not the proximate cause of his injuries. We agree, and accordingly reverse the judgment notwithstanding the verdict and remand with instructions to reinstate the jury verdict in favor of Fred Brosnahan.

I. Facts

On March 20, 1986, Fred Brosnahan and his friend Marilyn Maltaverne boarded a Western Air Lines 727 aircraft, and located their seats in Row 16 of the coach cabin. The coach cabin of the aircraft seats approximately 132 passengers, and the flight was nearly full. The boarding process was not conducted in a very orderly fashion, causing bottlenecks in the aisles and delay. After Brosnahan and his friend were seated, a passenger approached the overhead compartment located above Brosnahan's seat. The passenger made several attempts to fit his leather garment bag in the overhead compartment. Ms. Maltaverne, who was watching the passenger struggling with his bag, testified that the bag measured approximately 2 1/2 feet by 2 feet and was between 10 and 12 inches wide. She estimated it weighed forty pounds. During one last attempt, the passenger dropped the bag on Brosnahan's head, causing him permanent head injuries. ¹ Brosnahan testified that the passenger struggled with his bag for approximately 30 to 60 seconds before the accident, and that he made quite a commotion in doing so. The bag was stowed elsewhere during the flight.

Brosnahan established at trial that a flight attendant should have been, but was not, in the "bulkhead" of the coach cabin to assist passengers with carry-on items. The "bulkhead" refers to the wall dividing the coach cabin from the first class cabin, and on that particular aircraft it is located approximately 27 feet from Row 16 where Brosnahan was seated. Brosnahan suggested to the jury that a flight attendant standing at the bulkhead would have noticed the passenger struggling with his garment bag, and would have intervened to prevent the accident. In support of these allegations, Brosnahan introduced into evidence a Western Air Lines flight attendant manual requiring attendants to be "positioned at cabin divider[s] and throughout the cabin to ... help with the stowage of carry-on items." The senior flight attendant on Brosnahan's flight, Ms. Taylor Rosenburg, confirmed that on that particular flight an attendant was assigned to the bulkhead of the coach cabin to assist passengers during the boarding process. She also testified that if a flight attendant had observed that particular passenger struggling with his carry-on baggage, he or she would have rendered assistance. Based on these facts, and medical evidence establishing injury, the jury found that Western Air Lines' failure to adequately supervise the boarding process and to assist passengers with their carry-on items caused Brosnahan's injuries. The jury accordingly rendered a verdict for Brosnahan in the amount of $74,600.

The district court granted Western Air Lines' motion for a judgment notwithstanding the verdict on the ground that Brosnahan failed to prove that the airline's negligence was the proximate cause of his injuries. Fred Brosnahan v. Western Air Lines, Inc., and Delta Airlines, Inc., No. 88-5023, Mem. Op. at 4 (D.S.D. Dec. 21, 1988). The court also ruled as a matter of law that the airline's negligence was not the actual cause of Brosnahan's injuries, stating "the act of which complaint is made would have occurred had a flight attendant been standing right to the side of the negligent passenger." Id. While acknowledging that proximate cause means "an immediate cause which in natural or probable sequence produced the injury", Mulder v. Tague, 85 S.D. 544, 186 N.W.2d 884, 887 (1971), the district court ruled that a defendant is not liable for merely creating a condition which affords an opportunity for the negligent acts of a third party to produce the injury. Mem. Op. at 6 (citing Leo v. Adams, 87 S.D. 341, 208 N.W.2d 706, 709 (1973)). The district court found that Western Air Lines' negligence only afforded an opportunity for a passenger to act carelessly, and therefore its negligence was not the proximate cause of Brosnahan's injuries. Id.

Standard of Review

We review a judgment notwithstanding the verdict under the same standard followed by the district court. See SCNO Barge Lines, Inc. v. Anderson Clayton & Co., 745 F.2d 1188, 1192 (8th Cir.1984). In resolving factual questions, we must review the evidence in the light most favorable to the party against whom the motion for judgment notwithstanding the verdict is offered. Id. Because the judgment in this case was ordered against Brosnahan, we must give him the benefit of all reasonable inferences that can be drawn from the evidence. Id. If under these standards there is evidence in the record upon which a reasonable juror could find for Brosnahan, the judgment for Western Air Lines notwithstanding a verdict in Brosnahan's favor must be reversed.

As to questions of law, we review the rulings of the district court de novo. Because federal jurisdiction is premised on diversity of citizenship, 28 U.S.C. § 1332, we are bound by the law of South Dakota governing causes of action in tort. Erie Railroad Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

II.

The district court based its decision on a line of South Dakota cases recognizing a distinction between the cause of an accident and a condition affording an opportunity for an accident to occur. In the most frequently cited case, a defendant who negligently spilled bentonite on a highway was relieved of liability for injuries sustained when a negligent driver, weeks later, skidded and injured the plaintiffs. Norman v. Cummings, 73 S.D. 559, 45 N.W.2d 839 (1951). The South Dakota Supreme Court reasoned that the spilling of bentonite was a mere circumstance of the accident, known to the speeding driver, which only furnished a condition by which the independent act of the negligent driver produced the injury. Id. 45 N.W.2d at 841. The same reasoning is found in two cases where a plaintiff who was maneuvering around a disabled vehicle left on the side of the road was hit by an oncoming vehicle. See Snodgrass v. Nelson, 369 F.Supp. 1206 (D.S.D.), aff'd, 503 F.2d 94 (8th Cir.1974) (Snodgrass ); Bruening v. Miller, 57 S.D. 58, 230 N.W. 754 (1930) (Bruening ). In each case, the operator of the parked vehicle and the driver of the oncoming vehicle were found negligent, but the operator of the parked vehicle was relieved of liability because the presence of the vehicle on the side of the road was only a condition under which the acts of the negligent driver caused injury. Snodgrass, 369 F.Supp. at 1211 (decision as to parked vehicle not appealed); Bruening, 230 N.W. at 759. For the following reasons we find these cases distinguishable from a case involving allegations of negligent supervision, such as the case here.

The distinction between "condition" and "cause" applies to a negligent defendant whose failure to act created a...