Clawans v. U.S.

• Decision Date: 23 November 1999
• Docket Number: No. CIV. A. 98-3312.,No. CIV. A. 98-3053.,No. CIV. A. 98-4568.,CIV. A. 98-3053.,CIV. A. 98-3312.,CIV. A. 98-4568.
• Parties: Roslyn CLAWANS, Individually and as Co-Executrix of the Estate of Stanley Clawans, deceased, Plaintiffs, v. UNITED STATES of America, et al., Defendants. Richard Adamo, Individually and as Administrator Ad Prosequendum for the heirs at law of Nicholas Adamo, Plaintiffs, v. United States of America, et al., Defendants. Ethel M. Schaal, Plaintiff, v. United States of America, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

75 F.Supp.2d 368

Roslyn CLAWANS, Individually and as Co-Executrix of the Estate of Stanley Clawans, deceased, Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Richard Adamo, Individually and as Administrator Ad Prosequendum for the heirs at law of Nicholas Adamo, Plaintiffs, v. United States of America, et al., Defendants.

Ethel M. Schaal, Plaintiff, v. United States of America, et al., Defendants.

No. CIV. A. 98-3053.

No. CIV. A. 98-3312.

No. CIV. A. 98-4568.

United States District Court, D. New Jersey.

November 23, 1999.

COPYRIGHT MATERIAL OMITTED

Steven R. Pounian, Brian J. Alexander, Kreindler & Kreindler, New York, NY, for Plaintiffs Adamo.

William W. Lanigan, Somerville, NJ, Executor of Plaintiff Estate of Schaal.

Raymond M. Tierney, Jr., Bruce L. Shapiro, Gregory B. Pasquale, Shanley & Fisher, Morristown, NJ, for Plaintiff Estate of Schaal.

David A. Sokasits, Hoboken, NJ, for plaintiff Ethel Schaal.

Wendy L. Rome, U.S. Department of Justice, Washington, D.C., Daniel J. Gibbons, Assistant U.S. Attorney, Office of the U.S. Attorney, Newark, Steve Dunn, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C., for Defendant United States of America.

Richard E. Genter, Wolk & Genter, Philadelphia, PA, for Plaintiffs Clawans.

Beth A. Hardy, Francis & O'Farrell, Morristown, NJ, for Defendant Schott.

OPINION

WOLIN, District Judge.

These three consolidated actions arise as a result of the crash of a small private aircraft in Brandywyne, Maryland, on October 2, 1996. This matter comes before the Court on the parties' motions for a ruling as to the applicable substantive law governing this action. Specifically, the United States seeks a determination that Maryland law governs all claims asserted against it pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 ("FTCA") and that Maryland law also governs its cross-claims against co-defendants. The remaining defendants argue that Maryland law should also govern the state law claims between the parties. Plaintiffs argue that New Jersey law should govern all state law claims. For the reasons set forth below, this Court finds that Maryland law governs all claims asserted against the United States under the FTCA; that New Jersey law governs the state law claims between the parties on the issue of damages; and that Maryland law governs the issue of apportionment of fault and thus the cross-claims for contribution between the parties.

BACKGROUND

On October 2, 1996, Elmer W. Schaal, Jr. was piloting a single engine Piper aircraft carrying passenger Nicholas Adamo and Stanley Clawans. The plane departed from Somerville, New Jersey, with an intended destination of Washington Executive Airport in Clinton, Maryland. (Shapiro Aff., Ex. N, ¶ 10). The purpose of the flight was for Mr. Adamo and Mr. Clawans to attend a business meeting in Maryland. (Gibbons Cert., Ex. 2). Both Mr. Adamo and Mr. Clawans as well as pilot Schaal were residents of New Jersey. (Shapiro Aff., Ex. A, ¶ 1; Ex. H, ¶ 3; Ex. N, ¶ 1). The plane was owned by Lelia Schlott, who is also a resident of New Jersey. (Id., Ex. B, ¶ 8, 15).

Before reaching its intended destination, the plane crashed in Brandywyne, Maryland, killing all three occupants on board. (Id., Ex. B, ¶ 14).

Thereafter, three separate wrongful death actions were filed. Despite the number of claims, there are essentially three theories of liability relating to the plane crash. First, there are claims that pilot Schaal negligently operated the aircraft by, inter alia, violating his air traffic control clearance and descending below his assigned altitude. Second, there are claims brought pursuant to the FTCA, that the air traffic controllers at the Washington National Terminal Radar Approach Control Facility ("TRACON") in Alexandria, Virginia, which is operated by the Federal Aviation Administration, negligently failed to notify pilot Schaal that he was approaching the airport at an altitude that was too low, and failed to relay critical audio and visual safety warnings. Finally, there are claims against owner Schott that she negligently failed to provide an airworthy aircraft.

Roslyn Clawans first filed an action for the wrongful death of Stanley Clawans against the United States and the Estate of pilot Schaal. (Id., Ex. A). Schaal's executor filed a third party complaint against owner Schott and the County of Somerset¹ and a cross-claim for contribution against the United States. (Id., Ex. B). The United States filed a cross-claim for contribution against the Estate of Schaal, and Schott filed cross-claim against co-defendants for contribution. (Id., Ex. D, E). The County of Somerset filed cross-claims for contribution. (Id., Ex. F)

Plaintiff Richard Adamo, Nicholas Adamo's father, filed a second action for the wrongful death of his son against the United States, the Estate of Schaal and Schott. (Id., Ex. H). The Estate of Schaal filed a third party complaint against the County of Somerset and cross-claims for contribution against the United States and Schott. (Id., Ex. I) The United States filed a cross-claim for contribution against the Estate of Schaal and Schott filed cross-claims for contribution against all defendants. (Id., Ex. J, K). The County of Somerset also filed cross-claims for contribution. (Id., Ex. L)

Plaintiff Ethel Schaal filed a third action for the wrongful death of pilot Elmer Schaal, Jr., against the United States and Schott. (Id., Ex. N). Schott impleaded the Estate of Schaal as a third-party defendant and asserted cross-claims for contribution. (Id., Ex. O)²

DISCUSSION

1. The Claims Under the FTCA

All three actions against the United States were brought pursuant to the FTCA. The FTCA confers exclusive jurisdiction on federal district courts for claims against the United States for "personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government," and further provides that such liability should be determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The phrase "law of the place" has been construed to include that state's conflict of laws principles. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Because the alleged negligent acts of the air traffic controllers occurred in Virginia, the rights and liability of the United States are governed by the law of the State of Virginia.

Virginia follows the rule of lex loci delicti. See McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979). Under that principle, the substantive law of the "place of the wrong" governs. Id. In airplane accident cases, courts following the rule of lex loci delicti have found that the appropriate state law is the law of the situs of the crash. See, e.g., Thornton v. Cessna Aircraft Co., 886 F.2d 85 (4th Cir. 1989); Spring v. United States, 833 F.Supp. 575 (E.D.Va.1993). The crash here occurred in Maryland.³

In the motion before the Court, none of the parties dispute that Maryland law applies to all claims against the United States pursuant to the FTCA. Accordingly, this Court holds that all claims asserted against the United States under the FTCA are governed by Maryland law.

2. The State Law Claims

This Court has supplemental jurisdiction over the remaining state law claims. Accordingly, it will apply the choice of law rules of New Jersey, the forum state, to those claims. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). New Jersey has rejected the traditional rule of lex loci delicti in favor of the more flexible "governmental-interest" test. That test seeks to apply "the law of the state with the greatest interest in governing the specific issue in the underlying litigation." Fu v. Fu, 160 N.J. 108, 118, 733 A.2d 1133 (1999).

The first prong of the analysis requires a determination that an actual conflict exists between the laws of Maryland and New Jersey. No party has argued that a conflict exists with respect to any issues relating to standards of liability.⁴ However, there is one significant difference between the laws of New Jersey and Maryland with respect to allocation of fault between joint tortfeasors, which in turn, implicates the parties' cross-claims for contribution. Additionally, there are differences between the two states' laws with respect to non-economic damages.

First, under the Comparative Negligence Act, New Jersey allows a trier of fact to apportion liability among joint tortfeasors based on his or her proportionate degree of fault. N.J.S.A. 2A: 15-5.2. The trier of fact may also consider the negligence, if any, of the plaintiff in apportioning fault. By contrast, under Maryland Law, liability among tortfeasors is apportioned on a pro rata basis, without regard to degree of fault of each defendant. Md. Code Ann. § 3-1402; see Chilcote v. Von Der Ahe Van Lines, 300 Md. 106, 476 A.2d 204 (1984). Maryland is also a strict contributory negligence jurisdiction and does not recognize comparative fault. Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 456 A.2d 894 (Md.1983).

The laws of Maryland and New Jersey also diverge with respect to the type of non-economic losses recoverable by a parent for his or her adult children. Under New Jersey law, a parent can recover for the loss of companionship, guidance, advice and counsel to the extent it is "confined to its pecuniary element." Green v. Bittner, 85 N.J. 1, 14, 424 A.2d 210 (1980). Maryland, on the other hand, until recent amendment,⁵ did not allow recovery for such losses for the death of an adult child, unless the child was receiving at least 50% of his or her support from the parent. Md.Code Ann., § 3-904(e) (revised 1997); see Carolina Freight Carriers Corp. v. Keane, 311 Md. 335, 534 A.2d 1337 (Md.1988) (applying law prior to revision). Maryland also imposes a cap on non-economic damages; there is no such monetary...