Davis v. Cessna Aircraft Corp.
| Decision Date | 20 September 1994 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 893 P.2d 26,182 Ariz. 26 |
| Parties | , Prod.Liab.Rep. (CCH) P 14,038 Marlin DAVIS, Sr. and Joyce Davis, husband and wife, surviving parents of Marlin E. Davis, Jr., deceased and Herbert E. Davis, deceased, and Matthew A. Davis, deceased, and Robert H. Hensley and Pamela Hensley, husband and wife, surviving parents of Robert H. Hensley II, deceased, Plaintiffs-Appellants, v. The CESSNA AIRCRAFT CORPORATION, a Kansas corporation, Teledyne, Inc., a Delaware corporation, Arizona Public Service Company, Defendants-Appellees. 91-0216. |
| Court | Arizona Court of Appeals |
Shortly after departure from the Sedona airport, a Cessna T210 airplane collided with unmarked power lines over Interstate Highway 17 ("I-17") near Camp Verde, Arizona. The crash killed the pilot, Marlin E. Davis, Jr., and the passengers, Herbert E. Davis, Matthew A. Davis, and Robert H. Hensley II (collectively, "the decedents").
Marlin and Joyce Davis and Robert and Pamela Hensley (collectively, "plaintiffs"), the surviving parents of the decedents, sued Cessna Aircraft Corporation ("Cessna"), Teledyne Industries, Inc. ("Teledyne"), and the Arizona Public Service Company ("APS") for wrongful death. Plaintiffs sought recovery against Cessna and Teledyne for negligence and products liability, claiming that the aircraft's defectively designed fuel system caused an in-flight engine failure. Plaintiffs sued APS for negligently locating the power lines and for failing to mark them so that they were visible to aircraft.
The trial court concluded that APS owed no duty of care to the decedents and granted summary judgment in favor of APS on plaintiffs' negligence claim. The court dismissed plaintiffs' strict liability claim against Cessna, finding that the claim was barred by the statute of repose, Ariz.Rev.Stat.Ann. ("A.R.S.") section 12-551 (1992) (held unconstitutional, Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 861 P.2d 625 (1993)). After a jury trial on the remaining claims against Cessna, the jury returned verdicts in favor of Cessna and Teledyne.
Plaintiffs appeal from the summary judgment in favor of APS, the dismissal of their strict liability claim against Cessna, and the jury verdicts in favor of Cessna and Teledyne. In resolving the issues on appeal, we reach the following conclusions: (1) APS did owe a duty of care to the decedents, but its failure to mark its power lines did not create an unreasonable risk of harm to normally operating aircraft and, therefore, APS did not breach its duty to the decedents to guard against the risk of unreasonable harm; (2) the trial court erred by admitting the National Transportation Safety Board's ("NTSB") probable cause conclusion that the crash was caused by the pilot "buzzing" the highway; (3) because of our supreme court's decision in Hazine, decided after the trial in this matter, holding A.R.S. section 12-551 unconstitutional, the trial court erred by dismissing plaintiffs' strict liability claim against Cessna; and (4) because plaintiffs produced no evidence from which reasonable people could conclude that Teledyne's engine was defective, the trial court should have granted a directed verdict in favor of Teledyne.
Plaintiffs have raised numerous other issues they contend require reversal. Because this matter will be retried to a different trial judge, we confine this opinion to only those issues necessary to dispose of this appeal. Accordingly, we affirm the judgment in favor of Teledyne, affirm the summary judgment in favor of APS, reverse the judgments in favor of Cessna, and remand for a new trial on plaintiffs' claims against Cessna.
Cessna moved to dismiss plaintiffs' strict liability claim, arguing that it was barred by Arizona's statute of repose, A.R.S. section 12-551. The trial court agreed, dismissed the claim, and certified the order as a final judgment under Rule 54(b), Arizona Rules of Civil Procedure. On appeal, another panel of this court concluded that because the trial court's order was not a final judgment, the order was not appealable. See Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 305, 812 P.2d 1119, 1123 (App.1991). Consequently, the panel dismissed the appeal for lack of subject-matter jurisdiction. Id. In this appeal, plaintiffs again assert that the trial court erred in dismissing their strict liability claim against Cessna.
The remaining negligence claim against Cessna and the negligence and strict liability claims against Teledyne were tried to a jury. During trial, the parties presented opposing theories about the cause of the crash. Plaintiffs argued that the crash occurred when the pilot attempted an emergency landing on I-17 after a defect in the airplane's fuel system caused the engine to fail. Cessna and Teledyne argued, however, that the airplane struck the power lines while the pilot was "buzzing" traffic on the highway.
Several eyewitnesses who saw the airplane just before it crashed testified at trial, either in person or by deposition. Plaintiffs' witnesses essentially testified that they observed the airplane flying at a lower than normal altitude and that no engine noise was associated with its flight, thus indicating engine failure. In contrast, Cessna and Teledyne's witnesses testified that the airplane was flying about thirty-five to fifty feet above the highway at a speed of approximately 130 miles per hour with its engine operating normally. Several defense witnesses also testified that the airplane gave no indication of engine failure before the crash. The jury returned verdicts in favor of Cessna and Teledyne.
APS moved for summary judgment on plaintiffs' negligence claim, arguing that it owed no duty of care to the decedents because it was not reasonably foreseeable that the pilot would attempt an emergency landing on I-17 at the site of the power lines. We disagree. Under Arizona law, APS owed a duty of reasonable care to the decedents. Whether APS violated this duty depends on whether its failure to mark the power lines created an unreasonable risk of harm to the decedents. We conclude that as a matter of law, APS's conduct in not marking the power line did not fall below the standard of care. Thus, APS was not negligent and summary judgment was appropriate. We also conclude that because plaintiffs have not raised the issue of APS's negligence in locating the power lines across the highway, this issue is abandoned.
Generally, a plaintiff may maintain a negligence action if he or she proves: (1) a duty or obligation recognized by law requiring the defendant to conform to a certain standard of conduct to protect others from unreasonable risks; (2) a failure on the defendant's part to conform to the standard required, i.e., a breach of the duty; (3) a reasonably close causal connection between the conduct and the resulting injury; and (4) actual loss or damage. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983).
The threshold issue of whether the defendant owed any duty of care to the plaintiff is usually decided by the court as a matter of law. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Duty is a " 'question of whether the defendant is under any obligation for the benefit of a particular plaintiff.' " Ontiveros, 136 Ariz. at 508, 667 P.2d at 208 (quoting William L. Prosser, Handbook on the Law of Torts § 53, at 324 (4th ed. 1971)). In the absence of precedent, unraveling the legal doctrines pertaining to duty and applying them to a particular situation is often a difficult task. Jefferson L. Lankford & Douglas A. Blaze, The Law of Negligence in Arizona § 2.5, at 11 (1992). Our supreme court, however, at least implicitly, has recognized that the owner of power lines owes a duty to use due care to protect helicopters operating in navigable airspace against unreasonable risks of harm. See Arizona Pub. Serv. Co. v. Brittain, 107 Ariz. 278, 280, 486 P.2d 176, 178 (1971). 1
Although APS is correct that the aircraft in this case was not operating in navigable airspace when it collided with APS's power lines, we decline to hold that this negates the application of Brittain to these facts. Duty is, after all, "an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." Ontiveros, 136 Ariz. at 508, 667 P.2d at 208. We conclude that the owner of power lines owes a duty to the general public, including aviators, to guard against unreasonable risks of harm. Thus, APS owed the decedents a duty to act reasonably in the light of foreseeable and unreasonable risks.
Because we conclude that APS owed the decedents a duty to act reasonably, we must determine whether APS breached that duty. The issue is whether reasonable people could differ that APS's failure to mark the power lines was conduct that fell below the standard of care and thus breached the duty. See Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990) (). Breach of duty is measured by the foreseeable risk of injury from the conduct. Markowi...
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