Connelly v. Arrow Air, Inc.

• Decision Date: 03 July 1990
• Docket Number: No. 89-806,89-806
• Citation: 568 So.2d 448
• Parties: 15 Fla. L. Weekly D1762 Karen Ruth CONNELLY, individually, and as Administratrix and/or Personal Representative of the Estate of Joseph Robert Connelly, deceased, Appellant, v. ARROW AIR, INC., Appellee.
• Court: Florida District Court of Appeals

Page 448

568 So.2d 448

15 Fla. L. Weekly D1762

Karen Ruth CONNELLY, individually, and as Administratrix and/or Personal Representative of the Estate of Joseph Robert Connelly, deceased, Appellant, v. ARROW AIR, INC., Appellee.

No. 89-806.

District Court of Appeal of Florida Third District.

July 3, 1990.

Rehearing and Rehearing En Banc Denied Nov. 6, 1990.

Barranco, Kellough & Kircher and Steven Kellough, Miami, for appellant.

Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley and Edward D. Schuster, Fort Lauderdale, Thornton, David, Murray, Richard & Davis and Aurora Ares, Miami, for appellee.

Before BASKIN, FERGUSON and JORGENSON, JJ.

FERGUSON, Judge.

Appellant, the widow of an airline co-pilot who was killed in the course of his employment, brought this wrongful death action against the employer, Arrow Air, alleging that the workers' compensation immunity provided by section 440.11(1), Florida Statutes (1983), is not a bar because the employer's conduct which caused her husband's death was so outrageous as to amount to an intentional tort. This appeal is brought from a final summary judgment for the employer on a determination that the conduct complained of did not rise to the level of an intentional tort.

In several cases, the Supreme Court of Florida has indicated that the burden of an employee to prove that an employer's act of negligence rose to the level of an intentional infliction of harm, although heavy, is not impossible. ¹ The question presented is whether the evidence, viewed in a light most favorable to the appellant, demonstrated conclusively that the employer's actions were not "substantially certain" to cause injury or death to its employees.

Arrow Air's flight 950, a DC-8 aircraft, crashed on December 12, 1985, during take-off after a refueling stop in Gander, Newfoundland en route from Cairo, Egypt. All eight members of the crew, as well as the 248 United States servicemen aboard, were killed. The flight was being operated pursuant to a contract with the Multinational Force and Observers (MFO) by terms of which Arrow agreed to transport military troops between the United Arab Republic and the United States. Arrow realized over two million dollars in revenue from the MFO contract. There is evidence that Arrow, to avoid losing the lucrative deal, intentionally misstated its capacity to carry the mandatory maximum weight and that, in fact, Arrow had, prior to the crash, sold the last plane it owned which was capable of complying with MFO weight requirements. Arrow, according to the appellant's witnesses, consciously pursued a course of conduct which subordinated passenger and crew safety to concerns for company profits.

Former Arrow pilots testified, at congressional hearings before the Permanent Subcommittee on Investigations on Airline Safety, that they were overworked and coerced economically to fly more hours than FAA regulations permitted, and that they routinely operated the aircraft in a defective condition because the company's operational losses necessitated cost-cutting measures in the form of deferred maintenance and repairs. Malfunctioning items on Arrow planes were reported only on in-bound trips so as to eliminate costly non-base repair expenses and flight delays. At other times only marginal maintenance was performed, leading to unsafe conditions.

Problems with the exhaust gas temperature (EGT) for flight 950's number four engine, noted fifteen times from October through December 1985, were ignored. A malfunctioning EGT gauge was detected on the Cairo-Cologne leg of the trip, preceding the arrival to Gander but, allegedly, the relief flight crew was purposefully not notified of the problem. In order to keep the engine temperature within take-off limits the crew was required to retard the throttle, thereby reducing thrust and power. There was testimony that prior elevated EGT temperature and recurrent compressor stalls, or disruptions of air flow through the engine, were not corrected. Former employees detailed a history of sticking thrust reversers on the same plane, and failure to have the reverser brushings in overhaul condition. Twenty write-ups on the leaking hydraulic system were documented between June and December 1985. Thirteen quarts of hydraulic fluid were added before the Gander take-off.

According to one witness, Arrow deliberately used an average of passenger weights in order to conceal the actual flight load which, in all likelihood, exceeded the zero fuel or maximum allowable structural limits take-off weight--critical to assure the calculation of correct speed. The use of lower speed, based on the lighter weights calculated by the previous Cairo crew, resulted in reduced thrust and degraded take-off performance. By one account, the aircraft load may have exceeded the basic operating weight by 10,000 pounds. Consistent with that opinion there was testimony that the aircraft seemed to "fly heavy."

It was further alleged that the flight was not airworthy and was operated in violation of FAA regulations because of 1) missing cargo compartment panels, 2) thrust reverser lights signalling an EGT problem, 3) engine four's elevated temperature (forty degrees higher than other engines), 4) elevator control column ratcheting, and 5) excessive use of hydraulic fluid to beef up the defective main system. The cockpit voice recorder (CVR) was also inoperable. A former Arrow pilot, Captain Daniel Hood,...