Crist v. Civil Air Patrol

• Citation: 53 Misc.2d 289,278 N.Y.S.2d 430
• Parties: Virgil CRIST, as Guardian of Paul Crist, Richard Crist, and David Crist, infants under the age of fourteen years, and Virgil Crist individually, and Sylvia Jean Crist, Stanley Kata, as Guardian of Madeline Kata, Deborah Kata, Denise Kata, Ellen Kata, and Stephen Kata, infants under the age of fourteen years, and Stanley Kata individually, Virginia Kata, Lillian Crist, and Virgil C. Crist, Plaintiffs, v. CIVIL AIR PATROL a/k/a Civil Air Patrol, Inc., Defendant.
• Decision Date: 23 March 1967
• Court: United States State Supreme Court (New York)

Page 430

278 N.Y.S.2d 430

53 Misc.2d 289

Virgil CRIST, as Guardian of Paul Crist, Richard Crist, and David Crist, infants under the age of fourteen years, and Virgil Crist individually, and Sylvia Jean Crist, Stanley Kata, as Guardian of Madeline Kata, Deborah Kata, Denise Kata, Ellen Kata, and Stephen Kata, infants under the age of fourteen years, and Stanley Kata individually, Virginia Kata, Lillian Crist, and Virgil C. Crist, Plaintiffs, v. CIVIL AIR PATROL a/k/a Civil Air Patrol, Inc., Defendant.

Supreme Court, Special Term, Nassau County, Part I.

March 23, 1967.

Wormser, Koch, Kiely & Alessandroni, New York City, Robert E. Quirk, New York City, of counsel, for plaintiffs.

Patrick F. Adams, Mineola, for defendant; O'Hagan & Reilly, by Henry J. O'Hagan, Mineola, of counsel.

MEMORANDUM

THOMAS P. FARLEY, Justice.

This is a motion for summary judgment in an action against the owner of an airplane which crashed, causing injury to persons and property on the ground.

The affidavits presented reveal the following: On November 16, 1963, a C-45 Beechcraft airplane crashed shortly after taking off from Zahn's Airport in Amityville, New York. The plane landed on the lawn of property owned by the plaintiff, Stanley Kata, located in North Lindenhurst, which is about one half mile from the airport. The pilot and two occupants of the plane were killed on impact and the log maintained by the crew was lost in the burning wreckage. As a result of the crash, personal injury was sustained by the plaintiffs, Stanley Kata, his wife and children, and the family of a relation who was visiting the Katas at the time. In addition, the Kata house and two parked automobiles were damaged.

Defendant, Civil Air Patrol, Inc., admits ownership of the airplane as well as that the flight was made in the course of its business by authorized personnel.

Under section 251 of the General Business Law, enacted in 1959, an owner of aircraft is liable for death or injury to person or property resulting from the use or operation of the aircraft with the permission of the owner 'in any case where the person using or operating the aircraft * * * would be liable'. The purpose of this Statute is to make the owner of an airplane liable for its operation just as the owner of a motor vehicle is similarly held liable under section 388 of the Vehicle and Traffic Law (formerly section 59). Section 251, however, differs from the Vehicle and Traffic Law in that it does not attempt to resolve the question of whether the owner's liability is absolute or is based on negligence or other fault. That issue was expressly left open for determination by a Court or by future legislation (1959 Report of the Law Revision Commission, Leg.Doc. No. 65(J), p. 23, et seq.; see also, 1958 Report, Leg.Doc. No. 65(I), p. 659, et seq.).

The plaintiffs in this case argue that injury to persons or property on the ground caused by an airplane falling to the earth constitutes a trespass for which damages may be assessed without regard to fault. This argument finds support in Rochester Gas & Electric Corporation v. Dunlop, 148 Misc. 849, 266 N.Y.S. 469, decided in 1933, where absolute liability was imposed for damage caused to an electric transmission tower by an airplane making a forced landing. The theory upon which liability was predicated was that there was an intentional rather than accidental trespass. The Dunlop case was followed by two decisions rendered in the Federal Courts sitting in New York (Margosian v. U.S. Airlines, 127 F.Supp. 464, (E.D.N.Y.1954); Hahn v. U.S. Airlines, 127 F.Supp. 950 (E.D.N.Y.1954)), but has been recently rejected by the Supreme Court of New York in Wood v. United Air lines, Inc., 32 Misc.2d 955, 223 N.Y.S.2d 692 (1961) affirmed 16 A.D.2d 659, 226 N.Y.S.2d 1022. The New York Court of Appeals has not considered the question as yet.

Preliminarily, it should be noted that some jurisdictions impose strict liability for ground damage caused by airplanes by statutory provision. (See Prosser, The Handbook of the Law of Torts, 2nd ed., 1955, § 61, p. 346.) The Restatement of Torts of the American Law Institute which originally recommended strict liability on the theory that aviation was an ultrahazardous activity has since modified its position to restrict the imposition of absolute liability to situations where the nature of the flight itself presents a hazard as in the case of testing experimental aircraft (Restatement, Torts, Vol. 1, 2nd ed. 1965, § 165). Professor Prosser points out that the question whether there should be strict liability or liability based on negligence has not been conclusively determined by any significant trend of decisions reached in this country (Prosser, The Handbook of the Law of Torts, 2nd ed., 1955, § 61, p. 344).

In Wood v. United Air lines, Inc., supra, plaintiffs moved for summary judgment in an action to recover for personal injuries and property damage sustained in their apartment as a result of a midair collision between two airliners. The motion was denied and the decision affirmed by the Appellate Division (16 A.D.2d 659, 226 N.Y.S.2d 1022). Although the facts in the Wood, and Dunlop cases differ somewhat, the Court at Special Term, in Wood, after an analysis of the authorities, specifically rejected the claim that absolute liability may be imposed on the trespass theory. The rationale applied in arriving at this conclusion is, in the opinion of the Court, sound.

Technological advances and development, and the experiences of the last two decades have dissipated the universal early fears that flying was an ultrahazardous occupation. The application of the trespass theory advanced in the Dunlop case appears to be based to some extent on a recognition of such earlier fear. The opinion, for example, reads (pp. 851-852, 266 N.Y.S. pp. 472-473): 'The correctness of that statement (that airplanes fall from causes over which the pilot has no control) we believe cannot be questioned, At least in the present state of aircraft development. * * * When, therefore, a man takes over another man's land a machine which he knows is liable to crash upon and do injury to that land and the...