Cosey ex rel. Hilliard v. Flight Acad. of New Orleans, LLC

• Decision Date: 12 November 2020
• Docket Number: NO. 2019-CA-0756,C/W: NO. 2019-CA-0785,2019-CA-0756
• Parties: KHIRY COSEY ON BEHALF OF HER MINOR CHILDREN, CORBIN HILLIARD AND ALLYSSA HILLIARD INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REGINALD HILLIARD, JR; TIARA LIGGINS ON BEHALF OF HER MINOR CHILD, TAKHIREE HILLIARD INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REGINALD HILLIARD, JR.; TUKEYA JARVIS INDIVIDUALLY AND ON BEHALF OF THOMAS HILLIARD; AND DOROTHY JARVIS v. FLIGHT ACADEMY OF NEW ORLEANS, LLC; JAZZ AVIATION, LLC; QBE INSURANCE CORPORATION; CHRISTIANSEN AVIATION, INC.; ABC INSURANCE COMPANY; SIGNATURE FLIGHT SUPPORT CORPORATION; ALLIANZ GLOBAL CORPORATE & SPECIALTY SE; THE ESTATE OF JAMES BIONDO; AND DEF INSURANCE COMPANY CONSOLIDATED WITH: KHIRY COSEY ON BEHALF OF HER MINOR CHILDREN, CORBIN HILLIARD AND ALLYSSA HILLIARD INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REGINALD HILLIARD, JR; TIARA LIGGINS ON BEHALF OF HER MINOR CHILD, TAKHIREE HILLIARD, ET AL. v. FLIGHT ACADEMY OF NEW ORLEANS, LLC; JAZZ AVIATION, LLC; QBE INSURANCE CORPORATION; CHRISTIANSEN AVIATION, INC.; ABC INSURANCE COMPANY; SIGNATURE FLIGHT SUPPORT CORPORATION; ALLIANZ GLOBAL CORPORATE & SPECIALTY SE; THE ESTATE OF JAMES BIONDO; AND DEF INSURANCE COMPANY
• Court: Court of Appeal of Louisiana — District of US

KHIRY COSEY ON BEHALF OF HER MINOR CHILDREN, CORBIN HILLIARD
AND ALLYSSA HILLIARD INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF REGINALD HILLIARD, JR; TIARA LIGGINS ON BEHALF OF HER MINOR CHILD,
TAKHIREE HILLIARD INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF REGINALD HILLIARD, JR.; TUKEYA JARVIS INDIVIDUALLY AND ON BEHALF
OF THOMAS HILLIARD; AND DOROTHY JARVIS
v.
FLIGHT ACADEMY OF NEW ORLEANS, LLC; JAZZ AVIATION, LLC;
QBE INSURANCE CORPORATION; CHRISTIANSEN AVIATION, INC.;
ABC INSURANCE COMPANY; SIGNATURE FLIGHT SUPPORT CORPORATION;
ALLIANZ GLOBAL CORPORATE & SPECIALTY SE;
THE ESTATE OF JAMES BIONDO; AND DEF INSURANCE COMPANY
CONSOLIDATED WITH:
KHIRY COSEY ON BEHALF OF HER MINOR CHILDREN, CORBIN HILLIARD
AND ALLYSSA HILLIARD INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF REGINALD HILLIARD, JR; TIARA LIGGINS ON BEHALF
OF HER MINOR CHILD, TAKHIREE HILLIARD, ET AL.
v.
FLIGHT ACADEMY OF NEW ORLEANS, LLC; JAZZ AVIATION, LLC;
QBE INSURANCE CORPORATION; CHRISTIANSEN AVIATION, INC.;
ABC INSURANCE COMPANY; SIGNATURE FLIGHT SUPPORT CORPORATION;
ALLIANZ GLOBAL CORPORATE & SPECIALTY SE;
THE ESTATE OF JAMES BIONDO; AND DEF INSURANCE COMPANY

NO. 2019-CA-0756
C/W: NO. 2019-CA-0785

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

NOVEMBER 12, 2020

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-09317 C\W 2016-11198, DIVISION "G-11"
Honorable Robin M. Giarrusso, Judge

Judge Daniel L. Dysart

(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano)

John D. Sileo
Casey W. Moll
LAW OFFICE OF JOHN D. SILEO, LLC
320 North Carrolton Avenue, Suite 101
New Orleans, LA 70119

Ike Spears
SPEARS & SPEARS
1631 Elysian Fields Ave.
New Orleans, LA 70117

Roderick "Rico" Alvendia
Jeanne K. Demarest
Kurt A. Offner
ALVENDIA, KELLY & DEMAREST, L.L.C.
909 Poydras Street, Suite 1625
New Orleans, LA 70112-4500

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Eric J. Allen
ZEHL & ASSOCIATES, PC
2700 Post Oak Blvd., Suite 1120
Houston, TX 77056

Cleo Fields
THE FIELDS LAW FIRM, LLC
2147 Government St.
Baton Rouge, LA 70806
COUNSEL FOR PLAINTIFF/APPELLANT

D. Russell Holwadel
Heather A. England Reznik
ADAMS HOEFER HOLWADEL, L.L.C.
400 Poydras Street, Suite 2450
New Orleans, LA 70130

Stephen P. Hall
PHELPS DUNBAR LLP
365 Canal Street, Suite 2000
New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

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DLD
RLB
JCL

This is an appeal of a trial court judgment granting motions for summary judgment in favor of defendants, Christiansen Aviation, Inc., and its insurer, Old Republic Insurance Company. After a de novo review of the record, we find that the trial court properly granted the summary judgments, and we affirm.

FACTS AND PROCEDURAL BACKGROUND

This lawsuit arises out of a tragic accident that occurred on August 27, 2016, when a Cessna 172 airplane, piloted by James Biondo, crashed into Lake Pontchartrain. Mr. Biondo had been hired to perform an aerial tour of New Orleans by Briana Davis; Ms. Davis and her boyfriend, Reginald Hilliard, Jr., were passengers in the airplane at the time of the accident. Mr. Biondo and Mr. Hilliard both perished as a result of the accident, while Ms. Davis survived. Mr. Hilliard's surviving family members filed a lawsuit seeking damages resulting from the crash.¹ The suit named a number of parties, including Flight Academy of New Orleans ("FANO"), Christiansen Aviation and its insurer, Old Republic.

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On January 1, 2019, Christiansen Aviation, the owner and lessor of the airplane, filed a motion for summary judgment seeking to be dismissed from this action on the basis that the plaintiffs would be unable to bear their burden of proof that any negligence on its part caused or contributed to the August 27, 2016 crash. Its insurer, Old Republic, filed its own motion for summary judgment, as its liability is contingent on the liability of its insured, Christiansen Aviation.

The trial court conducted a hearing on the motions for summary judgment on February 15, 2019. By judgment dated February 26, 2019, the trial court granted the motions for summary judgment, dismissing the plaintiffs' claims against Christiansen Aviation and Old Republic, with prejudice. This appeal followed.

DISCUSSION

The summary judgment procedure "is favored" and "is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La. C.C.P. art. 966(A)(2).

It is well-settled that "[a]ppellate courts review the grant or denial of a motion for summary judgment de novo, employing the same criteria that govern the trial court's determination of whether summary judgment is appropriate." Maddox v. Howard Hughes Corp., 19-0135, p. 4 (La. App. 4 Cir. 4/17/19), 268

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So.3d 333, 337 (citations omitted). A "[d]e novo review generally 'involves examining the facts and evidence in the record, without regard or deference to the judgment of the trial court or its reasons for judgment.'" Cutrone v. English Turn Prop. Owners Ass'n, Inc., 19-0896, p. 10 (La. App. 4 Cir. 3/4/20), 293 So.3d 1209, 1216 (quoting Hooper v. Hero Lands Co., 15-0929, p. 12 (La. App. 4 Cir. 3/30/16), 216 So.3d 965, 973-74.

Summary judgment is appropriate and shall be granted "[a]fter an opportunity for adequate discovery, . . . [when] the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). The burden of proof rests with the party moving for summary judgment; however, this burden does not require that the moving party "negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1). The adverse party has the "burden of produc[ing] factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

There is no dispute in this case that Christiansen Aviation is the owner of the airplane involved in the accident which it leased to FANO, a company whose business includes providing recreational aerial tours of the New Orleans area.

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FANO leased the airplane continuously since March 4, 2013, or for a period of three years and five-and-a-half months prior to the accident.

The issue in this case turns on whether, under the circumstances of this case, there are any theories under which liability can be assessed against Christiansen Aviation, as the lessor of the airplane. We note the record is void of any evidence that expressly indicates the cause of the accident. Christiansen Aviation indicates in its appellate brief that no defect or malfunction of the plane was detected when the airplane was inspected after the accident, and that the evidence points to pilot error as its cause. Plaintiffs have not disputed either of these statements and have not alleged that the airplane had a defect or other condition that caused the accident. The claims of plaintiffs against Christiansen Aviation, therefore, sound in negligence.

In its memorandum in support of its motion for summary judgment, Christiansen Aviation outlined the plaintiffs' claims against it as follows; that Christiansen Aviation: (1) "knew or should have known that the subject Cessna 172 was not fit for flight and that the use of the aircraft under such conditions could cause serious injury;" (2) "so negligently and carelessly maintained, inspected, operated, and/or services the subject Cessna 172 aircraft that it failed catastrophically during a landing approach;" and (3) "negligently entrusted" the aircraft to FANO.² In their first supplemental and amending petition, plaintiffs restated their negligent entrustment claims as follows:

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Christiansen Aviation, leased a dangerous instrument (the aircraft) to the lessees even though the Christiansen Aviation knew, or should have known, that the lessees were likely to cause an accident in risk to others.

* * * *
The lessor knew or should have known of the incompetence and/or knew or should have known that the aircraft was being used as a commercial touring aircraft and therefore required additional safety precautions, safety briefings, equipment, and instruments yet lessor took no reasonable steps to inspect the lessees' operations or require compliance with reasonable safe practices or regulations prior to entering the lease and then continued to operate under the lease without taking any of these adequate measures;

* * * *
The lessor has a duty to provide oversight to ensure that passengers fly on airplanes that are adequately selected, equipped, safely maintained, and operated by safely trained and qualified pilots; and

* * * *
Because Christiansen Aviation was negligent and grossly negligent in leasing the aircraft to the lessees without reasonable steps to make sure the lessees were complying with regulations or otherwise operating its aircraft safely, Defendant Christian Aviation is liable to plaintiff.

In support of its motion for summary judgment, Christiansen Aviation contended that the plaintiffs would be "unable to meet their burden of proving that any negligence on the part of Christiansen Aviation caused or contributed to the accident at issue." In this regard...