Cargill v. Balloon Works, Inc., 19674
| Decision Date | 24 May 1991 |
| Docket Number | No. 19674,19674 |
| Citation | 185 W.Va. 142,405 S.E.2d 642 |
| Parties | Margaret G. CARGILL, Administratrix of the Estate of Angel Teresa Cargill, Plaintiff Below, Appellant, v. BALLOON WORKS, INC., a North Carolina Corporation; Joe M. Holt, Jr., d/b/a Greenbrier Balloon, Inc.; Joe M. Holt, Jr.; and Foxfire, Inc., a West Virginia Corporation, Defendants Below Balloon Works, Inc., a North Carolina Corporation, Defendant Below, Appellee. Brenda PERKINS, Administratrix of the Estate of Richard E. Perkins, Plaintiff Below, Appellant, v. BALLOON WORKS, INC., a North Carolina Corporation; Joe M. Holt, Jr., d/b/a Greenbrier Balloons, Inc.; and Joe M. Holt, Jr., Defendants Below Balloon Works, Inc., a North Carolina Corporation, Defendant Below, Appellee. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Syl. Pt. 3, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987).
2. " Syl.Pt. 12, Board of Educ. v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).
Barbara H. Lupton, James A. McKowen, Hunt & Wilson, Charleston, for appellants.
Daniel R. Schuda, Steptoe & Johnson, Charleston, for appellees.
This is an appeal by Brenda Perkins, administratrix of the estate of Richard E. Perkins, deceased, and Margaret Cargill, administratrix of the estate of Angel Cargill, deceased, from a final order of the Circuit Court of Putnam County entered on April 4, 1989. The appellants contend that the trial court erred by refusing to allow the appellants' witness, Peter Asp, to testify as an expert and to give opinion evidence in support of the appellants' theory of liability. We agree with the contention of the appellants and therefore reverse the decision of the Circuit Court of Putnam County.
On April 20, 1980, appellant Brenda Perkins' decedent, Richard Perkins, piloted a hot air balloon manufactured and designed by the appellee, Balloon Works, Inc. (hereinafter "Balloon Works"). Mr. Perkins' brother, Jerry Perkins, and Margaret Cargill's decedent, Angel Cargill, were passengers in the balloon. During a flight, a small tear appeared at the bottom of the balloon envelope. The tear continued upward through the balloon envelope and stopped at the top of the balloon near the area of a heavy circumferential load tape. The balloon envelope collapsed and descended to the ground. All three occupants were killed.
Separate civil actions, alleging negligence in the manufacture and design of the balloon, were instituted against the appellee by the appellants. Appellant Brenda Perkins, administratrix of the estate of her late husband, Richard E. Perkins, filed her civil action against Balloon Works, as well as other defendants who are not parties to this appeal, on August 11, 1981, in the Circuit Court of Putnam County. Appellant Margaret Cargill, administratrix of the estate of her late daughter, Angel Cargill, filed her civil action against Balloon Works and the other defendants on March 19, 1982, in the Circuit Court of Kanawha County. By order dated October 29, 1985, the Cargill action was transferred to the Circuit Court of Putnam County, and by order dated November 5, 1987, the two actions were consolidated for trial in the Circuit Court of Putnam County.
Trial by jury of the consolidated cases began on July 24, 1988. In support of their theory of negligent manufacture and design of the balloon, the appellants attempted to introduce the opinion testimony of Peter Asp and sought to have him qualified as an expert witness. The trial court, however, found that Mr. Asp was not qualified to give expert opinion testimony with respect to the appellants' theory of the case, because Mr. Asp had no training or expertise in the specific area of hot air balloon design and manufacture. Consequently, absent the evidence sought to be introduced through the appellants' sole expert, the trial court found that the appellants had failed to present any evidence of negligence or defective manufacture or design and directed a verdict in favor of the appellees.
The appellants vouched the record with Mr. Asp's testimony and now appeal from the lower court's judgment order entered on April 4, 1989. On April 12, 1989, the appellants filed a motion for a new trial, and their motion was denied by the lower court on September 7, 1989.
During the trial of this matter, the appellants attempted to introduce expert testimony in support of their theory of negligence in the design or manufacture of the balloon. Specifically, the appellants' theory of the case may be summarized as follows: 1
1. that Balloon Works, as manufacturer of the balloon, had negligently designed the balloon by using only one "load tape" (a heavy circumferential band of webbing) located in the top portion of the balloon envelope.
2. that all other major balloon manufacturers other than Balloon Works design their balloons with three load tapes, one at the bottom of the balloon envelope, one just below the equator, and one in the top portion of the balloon envelope.
3. that load tapes are capable of stopping small tears in the balloon envelope, such as the tear in the present case, from becoming large tears which destroy the entire balloon envelope.
4. that the tear in the present case did stop when it reached the single load tape in the top portion of the balloon envelope.
5. that the tear in the present case would not have propagated and the balloon accident would not have occurred if the balloon had been equipped with three load tapes.
The appellants offered Peter Asp, a certified balloon pilot with over 250 hours of flight time, as an expert witness. Mr. Asp's credentials, qualifications, and experience also included his activities as the manager of a commercial ballooning operation, operator of a hot air balloon station providing services and repairs for approximately fifty balloons annually, trainer of student balloon pilots, and salesman of balloons. Mr. Asp also possessed a certificate entitling him to conduct balloon repairs and inspections, had lectured on balloon safety, and operated a repair shop certified to service most major manufacturers of balloons. He had written articles dealing with balloons, weather conditions, repair, and parts, and was personally familiar with the type of balloon in question in this action, the Balloon Works Firefly Model 7.
With regard to the specific balloon involved in this accident, Mr. Asp personally visited the crash scene and spoke with eyewitnesses. He personally inspected the wreckage and the remnants of the balloon envelope. Furthermore, he examined topographical maps of the crash scene and reviewed materials concerning the crash, including the accident report compiled by the National Safety and Transportation Board.
Subsequent to the lower court's refusal to permit the introduction of testimony by Mr. Asp as an expert witness, counsel for the appellant vouched the record with Mr. Asp's expected testimony. He testified that other balloon manufacturers placed load tapes in locations both above and below the equator of a balloon envelope. Balloon Works, however, failed to equip its balloons, specifically the model in question, with the load tape in the bottom portion of the balloon envelope. Mr. Asp further testified that if the balloon in question had been so equipped, the tear which originated in the bottom portion of the balloon envelope would have stopped when it reached the lower load tape, rather than propagating upward to the load tape in the top portion of the envelope. If the tear had stopped at a load tape in the bottom portion of the balloon envelope, Mr. Asp testified that the balloon envelope would have retained enough shape to allow the pilot the control his descent in a manner similar to that of a parachute descent.
In disallowing the introduction of Mr. Asp's testimony as an expert witness, the trial court appears to have made a distinction between Mr. Asp's general qualifications as a ballooning expert and his specific qualifications as an expert in balloon design or manufacture. As the appellees have emphasized, Mr. Asp is not a licensed aeronautical engineer and does not have a degree in aeronautical engineering or any other field of engineering or balloon design. He has neither designed nor manufactured a hot air balloon and has never been employed by a designer or manufacturer of balloons. Furthermore, he has never studied the selection or use of particular fabrics in balloons, has never before this incident investigated a balloon accident, and did not obtain his repairman's certificate until five years after the accident in question. Mr. Asp did, however, possess his repairman's certificate at the time his testimony was sought to be introduced.
The appellees also stressed that Mr. Asp obtained his repairman's certificate without any test or examination...
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