Cousins v. Instrument Flyers, Inc.

• Decision Date: 14 July 1977
• Citation: 396 N.Y.S.2d 655,58 A.D.2d 336
• Parties: Norman L. COUSINS, Plaintiff-Appellant, v. INSTRUMENT FLYERS, INC. and Piper Aircraft Corp., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 655

396 N.Y.S.2d 655

58 A.D.2d 336

Norman L. COUSINS, Plaintiff-Appellant, v. INSTRUMENT FLYERS, INC. and Piper Aircraft Corp. Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

July 14, 1977.

Alfred S. Julien, New York City, of counsel (Fuchsberg & Fuchsberg, New York City, attys.), for plaintiff-appellant.

William J. Junkerman, New York City, of counsel (William F. Martin, Jr., New York City, with him on the brief, Haight, Gardner, Poor & Havens, New York City, attys.), for defendant-respondent Instrument Flyers, Inc.

Benjamin E. Haller, New York City, of counsel (Hill, Betts & Nash, New York City, attys.), for defendant-respondent Piper Aircraft Corp.

Before BIRNS, J. P., and SILVERMAN, EVANS and CAPOZZOLI, JJ.

EVANS, Justice.

Plaintiff, the pilot of a rented aircraft, was injured when it ran out of fuel and crash-landed in a farmer's field in Pennsylvania. This action is brought to recover damages against Piper Aircraft Corporation, the manufacturer of the airplane, and against Instrument Flyers, Inc., the owner and lessor of the airplane.

The common law negligence cause of action was dismissed on consent leaving the one predicated on strict products liability. Following a jury verdict in favor of the defendants, plaintiff moved for a new trial, or for a judgment for plaintiff non obstante veredicto, claiming Pennsylvania law applies and that it was error for the court to apply New York law.

Prior to 1960, New York was a strict lex loci delictus state. In Goldberg v. American Airlines, Inc., 23 Misc.2d 215, 217, 199 N.Y.S.2d 134, 136, aff'd. 12 A.D.2d 906, 214 N.Y.S.2d 640), Mr. Justice Steuer said: "It is the place of injury that determines the rights of the parties". Beginning with Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, exceptions to the strict lex loci delictus rule began to appear. In Neumeier v. Kuehner, 31 N.Y.2d 121, 127, 335 N.Y.S.2d 64, 69, 286 N.E.2d 454, 457, it was held:

"When in Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 supra, we rejected the mechanical place of injury rule in personal injury cases because it failed to take account of underlying policy considerations, we were willing to sacrifice the certainty provided by the old rule for the more just, fair and practical result that may best be achieved by giving controlling effect to the law of the jurisdiction which has the greatest concern with, or interest in, the specific issue raised in the litigation."

Resolution of the conflicts of law questions now requires examination of the facts and circumstances in the case in order to determine which jurisdiction has the most significant relationship with the issues involved.

This action was commenced in New York, where plaintiff resides. Defendant Piper is a Pennsylvania corporation doing business in New York with its principal place of business in Pennsylvania, and defendant Instrument Flyers is a New Jersey corporation whose sole asset is the airplane in question which was hangared in New Jersey. Plaintiff rented the aircraft from Instrument Flyers in New York. At the time of rental, plaintiff was a lawyer associated with a New York law firm. His purpose in renting the plane was to fly to Michigan on firm business, and incidentally to transport the wife of one of the firm's partners to Michigan where she was to join her husband. On the date of the accident, plaintiff picked up the airplane in New Jersey, flew to Queens County and then to Westchester Airport where he picked up his passenger, topped off his fuel tanks and filed a flight plan indicating the Jefferson-Ashtabula Airport in Ohio as his destination. Enroute, the airplane ran out of fuel and crash-landed in a field near Erie, Pennsylvania.

It is too clear to dispute that New York State has a more significant relationship to the occurrence and to the parties than has the State of Pennsylvania. The only contact this case has with Pennsylvania is the fact it is the state of incorporation of one of the defendants and is the state in which the airplane fortuitously crash-landed. New York, on the other hand, appears to be the center of gravity of significant contacts. Plaintiff resides in New York, he is employed in New York, the flight was in connection with business of plaintiff's New York law firm, New York State is the place where the rental agreement for the plane was entered into, where the flight originated, and was the return destination of the airplane. Finally, New York State is where the plaintiff's cause of action was commenced. On the basis of the many foregoing elements, this court is satisfied that New york law properly governed the elements of and the defenses to plaintiff's strict liability cause of action.

Citing Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622, the trial court ruled contributory negligence was a defense in a strict liability case. Plaintiff's reliance on "second accident" theory is of no avail. Simply stated, he claims the aircraft was defective because it lacked shoulder harnesses and other alleged crash-worthiness features, which defects caused him injuries in excess of injuries he would have suffered if the aircraft had been properly equipped. Plaintiff argues contributory negligence should not bar injury-causing defects as opposed to accident-causing defects, and seeks support for his position in Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164.

Plaintiff's reliance is misplaced. Spier v. Barker (supra) holds, inter alia, that non-use of an available seat belt should be strictly limited to the jury's determination of the plaintiff's damages and in mitigation of same, and should not be considered by the triers of fact in resolving the issue of liability, and has no discernible relation to a theory that would remove contributory negligence as a bar to secondary or aggravated injuries.

The elements of, and defenses to, a strict products liability cause of action are specifically set forth in the Court of Appeals decision in Codling v. Paglia, 32 N.Y.2d 330, 342, 345 N.Y.S.2d 461, 469, 298 N.E.2d 622, 628.

"We accordingly hold that, under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: . . . (3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages."

This position of the Court of Appeals has been repeated in subsequent strict products liability decisions, specifically Velez v. Craine & Clark Lumber Corp., 33 N.Y.2d 117, 350 N.Y.S.2d 617, 305 N.E.2d 750; Bolm v. Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644, 305 N.E.2d 769 and Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571.

Plaintiff contends that Bolm (supra) is meaningless unless interpreted to remove contributory negligence as an issue in crash-worthiness actions. On the contrary, Bolm rejects the thesis that one who is contributorily negligent may recover and explicitly holds that the standards for imposing liability for unreasonably dangerous design defects are general negligence standards, citing Larsen v. General Motors, 8 Cir., 391 F.2d 495, 502.

The trial court was therefore correct in charging contributory negligence as a defense in this strict products liability action.

Accordingly, judgment, Supreme Court, New York County, rendered August 17, 1976, after a trial by Fraiman, J., and a jury, should be affirmed without costs.

Judgment, Supreme Court, New York County, entered on August 17, 1976, affirmed, without costs, and without disbursements.

All concur except CAPOZZOLI, J., who dissents in an opinion.

CAPOZZOLI, Justice (dissenting):

In this case we have a New York plaintiff, a Pennsylvania manufacturer, a New Jersey owner lessor, and the aircraft was being piloted by the plaintiff, with Ohio its destination. The accident occurred in Pennsylvania, the state in which the defendant, Piper Aircraft Corp., has its home office. The defendant, Instrument Flyers, is a New Jersey corporation, with its principal base of operations and primary corporate address and office at Teterboro Airport, Teterboro, N. J. The aircraft was registered, based and insured there.

Plaintiff had used the defendants' aircraft on 28 different occasions prior to December 19th, 1968. Each time that the plaintiff arranged for the use of the aircraft it was to further his own experience as a pilot and he always went to New Jersey, where the aircraft was based, to take possession of it. On this last occasion, after which the accident happened, the flight originated at Teterboro Airport, in New Jersey, and was to end there after a planned trip to Ohio.

Although the old rule of lex loci delictus is no longer strictly applied, as it formerly was, the fact still remains that, unless the circumstances of a particular accident justify an exception to such rule, that rule still has force. This rule is displaced when the rights and liabilities of the parties are determined by the law of the state which has the most significant relationship to the occurrence and the parties. See: Restatement of the Law (2), Conflict of Laws (2d), §§ 6, 145 and 146.

As was said in Babcock v. Jackson, 12 N.Y.2d 473, at p. 484, 240 N.Y.S.2d 743, at p. 752, 191 N.E.2d 279, at p. 285:

"Where the issue involves standards of conduct, it is more than likely that it is the law of the place of the tort which will be controlling but the disposition of other issues must turn, as does the issue of the standard of conduct itself, on the law of the jurisdiction which has the strongest interest in the resolution of the particular issue presented."

In the same case, at p. 483, 240 N.Y.S.2d at p. 750, 191...