Cavner v. Cont'l Motors, Inc.

• Decision Date: 18 March 2019
• Docket Number: No. 76178-1-I,76178-1-I
• Parties: STACIE CAVNER and PRESTON CAVNER, husband and wife, and parents of HUDSON CAVNER and MYLES CAVNER, minors; RACHEL ZIENTEK, a single woman; TAMMY ZIENTEK and MICHAEL ZIENTEK, husband and wife, and parents of Rachel Zientek; THE ESTATE OF MYLES CAVNER, by its personal representative CAROLANN O'BRIEN STORLI; CAROLANN O'BRIEN STORLI, as litigation guardian ad Litem for HUDSON CAVNER, a minor, Appellants/Cross-Respondents, v. CONTINENTAL MOTORS, INC., a foreign corporation, Respondent/Cross-Appellant, NORTHWEST SEAPLANES, INC., a Washington corporation; and ACE AVIATION, INC., a Washington corporation, Defendants.
• Court: Washington Court of Appeals

STACIE CAVNER and PRESTON CAVNER, husband and wife,and parents of HUDSON CAVNER and MYLES CAVNER, minors;RACHEL ZIENTEK, a single woman; TAMMY ZIENTEK and MICHAEL ZIENTEK, husband and wife,and parents of Rachel Zientek; THE ESTATE OF MYLES CAVNER,by its personal representative CAROLANN O'BRIEN STORLI; CAROLANN O'BRIEN STORLI,as litigation guardian ad Litem for HUDSON CAVNER, a minor, Appellants/Cross-Respondents, v. CONTINENTAL MOTORS, INC., a foreign corporation, Respondent/Cross-Appellant,NORTHWEST SEAPLANES, INC., a Washington corporation;and ACE AVIATION, INC., a Washington corporation, Defendants.

No. 76178-1-I

COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE

March 18, 2019

UNPUBLISHED OPINION

ANDRUS, J. — Preston Cavner, his wife, son, and babysitter were seriously injured, and another son killed, when the single-engine Cessna airplane Preston piloted crashed on takeoff from an Anchorage, Alaska airport. Two families sued the aircraft engine manufacturer, Continental Motors, Inc. (CMI), under Washington's Product Liability Act, Chapter 7.72 RCW, alleging design and manufacturing defect claims and a failure to warn claim. After CMI alleged that pilot error caused the crash, Stacie, Hudson, and Myles's estate asserted a contingent cross-claim against Preston.

The trial court dismissed the design defect claim based on Estate of Becker v. Avco Corp., 192 Wn. App. 65, 365 P.3d 1273 (2015) (holding airplane design defect claim preempted by federal aviation law). The parties tried the manufacturing defect and failure to warn claims against CMI and the cross-claim against Preston. The jury exonerated CMI of any liability and found Preston 100 percent at fault for the crash.

Plaintiffs appeal, seeking a new trial on all claims, and CMI cross-appeals certain legal rulings in the event we remand any claim for trial.

We reverse the dismissal of Plaintiffs' design defect claim. We affirm the jury's finding that Preston was negligent and that his negligence was a proximate cause of the crash. We affirm the jury's findings for CMI on the manufacturing defect and failure to warn claims. We remand for a trial limited to the question of whether CMI's engine was not reasonably safe as designed, whether any design defect was a proximate cause of the crash, and if so, how much fault to allocate between CMI and Preston Cavner.

FACTS

Stacie and Preston Cavner own a lodge in remote Alaska. Preston, a licensed pilot, regularly flew to the lodge from an Anchorage, Alaska airport. InMarch 2010, Preston purchased a 1976 Cessna U206F airplane in Washington for his family's use at the lodge. The Cessna had a six cylinder engine, model no. IO-520-F, manufactured by Alabama-based CMI.

Because the Cessna U206F is considered a "high performance airplane," Preston needed additional instruction before he could obtain a Federal Aviation Administration (FAA) endorsement to act as pilot in command of this model of plane. Preston hired an instructor to travel with him as he flew the plane from Washington to Alaska to provide the requisite instruction. Preston experienced no problems with the plane's engine while en route to Alaska. He then used the plane almost daily between March 2010 and June 1, 2010, without incident.

On May 31, 2010, Preston and his family flew to Anchorage to pick up Rachel Zientek, a 16-year-old family friend who planned to stay with them for the summer to look after the children. The following day, Preston loaded the plane with lumber, tile, grout, groceries, luggage, and other family possessions to deliver to the lodge. He fueled the plane and loaded his passengers. Stacie sat in the front passenger seat, holding Myles, age 4, in her lap. Rachel sat in the seat behind Preston, holding Hudson, age 2, in her lap.

On takeoff, the plane lifted off, flew approximately one half mile, and crashed into an abandoned building. A fire engulfed the plane, killing Myles. Stacie sustained a collapsed lung, and severe burns over her entire body, leading to the amputation of her legs below the knee and of a part of her right hand. Hudson sustained severe burns on his head, ear, shoulder, forearm, left hand, and right foot. Preston had extensive facial injuries and burns to his legs, and lost thesight in his right eye. Rachel's injuries included vertebral fractures, third degree burns to her arms, and more severe burns to her legs, specifically her feet and ankles, which resulted in removal of all ten toes.

In May 2012, Plaintiffs, Preston, Stacie, and Hudson Cavner, the Estate of Myles Cavner, Rachel Zientek, the babysitter, and her parents, Tammy and Michael Zientek, filed suit against CMI.¹ They alleged that CMI was liable for the plane crash because the engine components were not safe as designed or manufactured, and that CMI failed to provide adequate instructions on how to properly test for adequate compression in the engine's cylinders. Plaintiffs also named as defendants Ace Aviation, Inc. and Northwest Seaplanes, alleging they failed to detect unreasonably low compression in the engine's cylinders during inspections. Plaintiffs settled with these defendants before trial.

CMI contended Preston overloaded the plane, failed to load it properly to ensure an appropriate center of gravity, failed to secure the load which shifted during the crash, pinning the passengers, and misused the wing flaps during takeoff. CMI alleged Preston's negligence was the sole cause of the crash. Stacie, Hudson, and Myles's estate filed a contingent cross-claim against Preston.²

Before trial, this court held that a claim of design defect in an aircraft fuel system was preempted by federal law. Becker, 192 Wn. App. at 79. Based on theCourt of Appeals decision in Becker, the trial court dismissed Plaintiffs' design defect claim, and excluded evidence of engine design defects as irrelevant, except as relevant to the Plaintiffs' failure to warn claim.

During a three-month trial, the parties presented competing experts who opined on the existence of manufacturing defects, the adequacy of CMI's instructions to mechanics for diagnosing cylinder compression problems, and causation.

Plaintiffs' manufacturing defect claim was based on expert testimony that there were metal "burrs" (sharp metal edges) in check ball housings in the cylinders, a defect in the manufacturing process. Their experts testified that the presence of burrs violated CMI's design specifications. They opined that burrs break off and lodge between the check ball and its seat, making the valves inoperable. One expert, Donald Sommer, testified the metal burrs caused the valves in Preston's engine to seal improperly, leading to a loss of engine power and ultimately the crash.

CMI presented evidence that a post-crash examination of the check ball housings revealed no burrs present in the cylinders. CMI's experts testified that even if burrs were present, they would have been caught in the engine's oil filter and would have been too small to cause engine failure.

Plaintiffs based their failure to warn claim on CMI's decision to depart from an aviation industry compression test and to develop its own protocol for evaluating the adequacy of cylinder compression in its engine. Plaintiffs' experts opined thatCMI failed to warn of compression problems with this model of engine and that CMI promoted the use of an unsafe compression testing protocol.

CMI disputed Plaintiffs' evidence that its compression testing protocol was inadequate. It presented evidence that the protocol was supported by engineering tests, had been approved by the FAA, and had been in use for decades.

The parties also disputed the cause of the plane crash. Plaintiffs' experts testified that Preston's Cessna crashed because the engine lost cylinder compression and could not develop full power. They attributed the loss of compression to defective valve lifters and the presence of burrs in the check ball housings. But CMI presented expert testimony that post-crash testing proved the engine had the capability of developing full power, and that the valve lifters operated without problems. CMI also presented testimony from several eyewitnesses of the crash who did not see or hear anything suggesting the plane lost power while in flight.

To support its claim that pilot error caused the crash, CMI presented evidence that Preston loaded the Cessna in excess of the maximum allowable gross takeoff weight of 3,600 pounds, violating FAA regulations and the pilot operating handbook for this plane.³ CMI also presented evidence that Preston failed to calculate the center of gravity and failed to balance the load to maintain the appropriate center of gravity.

Plaintiffs' experts did not dispute that Preston overloaded the plane. While they disagreed as to the exact weight of the fully loaded plane, all agreed the plane, with passengers and cargo, was at least 471 pounds overweight. Nevertheless, the parties disputed whether Preston's overloading the Cessna rendered the plane unsafe to fly. CMI's experts testified that the FAA, by setting a maximum takeoff weight of 3,600 pounds, determined flying that model of plane above its weight limit was not safe. Plaintiffs' experts disagreed that the plane was unsafe to fly and testified that Preston's overloading the plane did not cause the accident.

CMI's experts also testified that Preston's use of wing flaps during takeoff contributed to the crash. Preston testified he set the wing flaps at 30 degrees on takeoff. According to CMI's experts, the maximum flap angle allowed by the FAA on takeoff is 20 degrees if the plane is at or below the maximum gross takeoff weight. Further complicating the situation, Preston had hired a mechanic to install a fiberglass exterior cargo carrier, known as a "belly pod," on his plane. The belly pod manufacturer issued a supplemental pilot operating handbook that specified the maximum flap deflection on takeoff for a plane modified with its belly pod could be no...