Cleveland By and Through Cleveland v. Piper Aircraft Corp.
| Decision Date | 15 November 1989 |
| Docket Number | 86-2265,Nos. 86-2112,s. 86-2112 |
| Citation | 890 F.2d 1540 |
| Parties | Prod.Liab.Rep.(CCH)P 12,344 Edward Charles CLEVELAND, By and Through the Conservator of his Estate, Kathleen CLEVELAND; and Kathleen Cleveland, Individually, Plaintiffs-Appellants and Cross-Appellees, v. PIPER AIRCRAFT CORPORATION, a corporation, Defendant-Appellee and Cross-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Daniel C. Cathcart of Magana, Cathcart, McCarthy & Pierry, Los Angeles, Cal. (Richard E. Ransom of Richard E. Ransom, P.A., Albuquerque, N.M., with him on the brief), for plaintiffs-appellants and cross-appellees.
David K. Watkiss of Watkiss & Campbell, Salt Lake City, Utah (Tracy H. Fowler of Watkiss & Campbell and W.R. Logan of Civerolo, Hansen & Wolf, P.A., Albuquerque, N.M., with him on the brief), for defendant-appellee and cross-appellant.
Before SEYMOUR and EBEL, Circuit Judges, and RUSSELL, District Judge. *
This case arises from a bizarre set of facts. On July 8, 1983, Edward Charles Cleveland attempted to take off from Mid-Valley Airport, Los Lunas, New Mexico, in a Piper Super Cub Model PA-18-150 aircraft, towing a glider attached to the aircraft's tail with a rope. Mr. Cleveland was piloting the aircraft from the rear seat and was secured by a seat belt but not a shoulder harness. The front pilot's seat had been removed the evening before at the direction of Mr. Cleveland and Robert Mudd, the glider pilot and an F.A.A. certified mechanic, and a camera and camera mount had been attached to the base of the removed front seat. This was done because it was Cleveland's intent to film the glider in flight for a television commercial. Stephen Marks, a cinematographer, was in the front of the aircraft facing rearward, seated on two by fours fitted with a furniture pad and secured with a seat belt. During take-off the plane collided head-on with a van which had been parked at the end of the runway. Shortly before impact, the tail of the plane rose off the ground, and the glider became airborne. Mr. Mudd, the glider pilot, saw the van on the runway and released the tow rope, allowing the glider to sail over the collision.
At the time of the accident, the Super Cub aircraft was owned by Etchison "Greg" Lill. Mr. Lill employed Mr. Cleveland as a glider tow pilot at Valley High Soaring, which operated glider planes at the Mid-Valley Airport. Mr. Lill and Mr. Cleveland were involved in a dispute with John Wood, the owner of the airport, concerning the glider operation's compliance with FAA rules and regulations. Two days prior to the accident, Mr. Wood had stopped Mr. Cleveland on the taxiway by turning his van crosswise in front of Mr. Cleveland's aircraft. He warned Mr. Cleveland that he was not going to fly from the airport if he did not comply with the rules and regulations. The day before the accident, Mr. Wood had called the FAA, notified them that he was closing the airport and blocked the north end of the runway and taxiway of the airport during daylight hours with blocks, a box and several parked vehicles. A court hearing concerning Valley High Soaring's operations at Mid-Valley Airport had been scheduled for 9:00 a.m. on the day of the accident. Mr. Cleveland was aware that the airport had been closed the day before the accident and was aware of the scheduled hearing. When Mr. Wood awoke on the day of the accident, he saw activity and lights at the north end of the airport. He then drove his van onto the south end of the runway and parked it in the center of the runway, facing north, leaving its headlights on. Shortly thereafter, the aircraft struck the van head on. The fuselage of the plane broke in two upon impact. Mr. Cleveland's head struck the camera resulting in serious head and brain injuries.
Mr. Cleveland's wife, the conservator of his estate, brought this diversity action against Piper Aircraft Corporation, which manufactured and sold the Super Cub aircraft in 1970, claiming in negligence and strict liability that the airplane had inadequate rear seat pre-flight visibility, which caused the collision, and lacked a rear seat harness, which caused the injuries. Mrs. Cleveland's individual claim for loss of consortium was dismissed. 1
Plaintiff filed a motion in limine to exclude "cause of crash evidence" as irrelevant to his "second collision" crashworthiness case, which motion was denied. Plaintiff also filed a motion for certification to the New Mexico Supreme Court of the question of whether evidence of the cause of the initial crash is admissible in a "second collision" crashworthiness case which is limited to damages from enhanced injuries caused by the second impact only. Plaintiff stated in his motion that he would pursue only the claim for damages from enhanced injuries in the second collision if evidence of causation was limited to that relevant to cause of the enhanced injuries and the apportionment of fault concurring in their cause. This motion was also denied. Plaintiff's action then proceeded to trial based on two theories of design negligence under New Mexico law--inadequate forward visibility from the rear pilot's seat during take-off and lack of a shoulder harness for the rear pilot's seat.
Following a five-day jury trial, the case was submitted to the jury on a special verdict form. Defendant objected to the special verdict form inasmuch as Question No. 7B, directed to the second collision or crashworthiness claim, only permitted the jury to compare Piper's negligence in failing to provide a rear seat harness to the negligence of Cleveland, and did not permit the jury to compare therewith the negligence of non-parties whose negligence was the proximate cause of Plaintiff's crashworthiness injuries. The objection was overruled. The jury found that Piper was negligent in the design, manufacture and/or sale of the aircraft without adequate forward vision from the rear seat; that this negligence (referred to at trial and herein as "design negligence," as distinguished from what was referred to at trial and will be referred to herein as "crashworthiness design negligence," i.e., the lack of a rear seat shoulder harness) was "a proximate cause of injuries and damages to plaintiff Ed Cleveland"; that Piper was also negligent in not installing a rear seat shoulder harness at the time of sale of the aircraft or was negligent in not later fitting the plane with a rear seat shoulder harness; that this "crashworthiness design negligence" was a proximate cause of injuries and damages to Cleveland; and that 100% of Cleveland's injuries were attributable to crashworthiness or lack of a shoulder harness. R.Vol. I at Tab 108. 2 The jury found that Cleveland's total damages caused by design negligence due to inadequate forward vision and by crashworthiness negligence due to lack of a rear shoulder harness were $2,500,000. 3 The jury compared the following persons' and entity's negligence as to the design negligence or inadequate forward visibility claim and assigned these percentages of negligence to them: Cleveland, 42.5%; Piper, 41.7%; Wood, 0%; Mudd, 15.8%. 4 With respect to the crashworthiness claim, the jury compared the negligence of Cleveland and Piper only, finding that Cleveland's negligence accounted for 8.4% of the damages and Piper's accounted for 91.6% of the damages for this claim. 5 The trial court thereafter entered judgment in favor of Plaintiff Edward Charles Cleveland and against Defendant Piper Aircraft Corporation in the amount of $1,042,500 plus post-judgment interest and costs. R.Vol. I at Tab 111. The court apparently arrived at the amount of the judgment by multiplying the percentage of negligent fault attributed to Piper on the design defect or forward vision claim, only, times the total amount of damages the jury found Plaintiff sustained as a result of the accident and the lack of crashworthiness of the aircraft. On the same day, Plaintiff filed a motion to enter judgment on proportionate liability for crashworthiness design negligence in the amount of $2,290,000, a figure arrived at by multiplying Piper's 91.6% comparative negligence times the total amount of damages, $2,500,000, since the jury determined that 100% of the damages were attributable to the lack of a shoulder harness.
Thereafter Defendant moved alternatively for judgment notwithstanding the verdict or for a new trial. As grounds for its motion, Defendant asserted the absence of any proof of negligence in design and of proximate cause and that the accident and Plaintiff's conduct were unforeseeable as a matter of law. The district court denied these motions.
Plaintiff appeals to this Court, asserting as the sole basis for error the district court's failure to enter judgment on the crashworthiness claim rather than on the forward visibility claim. Defendant Piper cross appeals, asserting that the district court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict because 1) Plaintiff's evidence of crashworthiness design negligence did not meet New Mexico's standard of proof for design negligence--a showing of deviation from laws, regulations or industry standards; 2) Plaintiff's evidence failed to establish that any design negligence proximately caused Plaintiff's injuries; 3) Plaintiff's conduct was unforeseeable as a matter of law; and 4) the conduct of Plaintiff and of Mr. Wood were independent intervening causes as a matter of law. Defendant also asserts that the district court should have ordered a new trial and committed reversible error because it rejected a standard New Mexico special verdict form, employing instead one which did not permit the jury to compare the negligence of all persons or entities, including non-parties, which proximately caused Plaintiff's injuries, and which was inconsistent with the court's pretrial rulings and misleading.
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