Driscoll v. United States

• Court: U.S. District Court — District of Delaware
• Writing for the Court: LAYTON, Senior
• Citation: Driscoll v. United States, 456 F.Supp. 143 (D. Del. 1978)
• Decision Date: 21 June 1978
• Docket Number: Civ. A. No. 75-146,76-277.
• Parties: Betty Jane DRISCOLL (Cain), widow of Ellison C. Driscoll, Jr., Administratrix of the Estate of Ellison C. Driscoll, Jr., and next friend of Kerry E. Driscoll, Plaintiff, v. UNITED STATES of America, Defendant.

456 F. Supp. 143

Betty Jane DRISCOLL (Cain), widow of Ellison C. Driscoll, Jr., Administratrix of the Estate of Ellison C. Driscoll, Jr., and next friend of Kerry E. Driscoll, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 75-146, 76-277.

United States District Court, D. Delaware.

June 21, 1978.

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F. Alton Tybout, and John A. Elzufon, of Tybout & Redfearn, P. A., and Kenneth W. Lewis, of Daley & Lewis, Wilmington, Del., for plaintiff Betty Jane Driscoll (Cain).

James W. Garvin, Jr., U. S. Atty. for the District of Delaware, by Kent W. Walker and John X. Denney, Jr., Asst. U. S. Attys., Wilmington, Del., for defendant United States of America.

OPINION with FINDINGS OF FACT and CONCLUSIONS OF LAW

LAYTON, Senior District Judge.

This case is one-third of a consolidated action arising out of the May 16, 1974, crash of a Piper Cherokee airplane at the Wicomico County Airport near Salisbury, Maryland. Just as the plane left the ground upon take-off, it was struck in the rear by a jeep that was owned by the United States and driven by a Government employee. Before the pilot was able to land the plane safely, it plunged to the runway and both of its crew members were killed. One of the men who died in the crash was Ellison C. Driscoll, Jr., a flying instructor who was supervising the instrument flight training of the other crew member when the accident occurred.

Betty Jane Cain, the widow of Ellison C. Driscoll, Jr., and the administratrix of his estate, brought this wrongful death and survival action against the United States under the Federal Tort Claims Act. This action subsequently was consolidated with a similar wrongful death and survival action brought by the other crew member's widow, and with an action brought by the owner of the Piper Cherokee plane that was destroyed in the May 16, 1974, crash.

Trial of these consolidated actions was bifurcated. The liability phase was tried to this Court on July 25-27, 1977. Sitting without a jury, this Court held that the Government was liable in damages to all of the plaintiffs. Atlantic Aviation Corp. v. United States, C.A. No. 75-146 (Consolidated) (D.Del., Oct. 27, 1977) (unpublished memorandum opinion).

On January 31, and February 1-2, 1978, a trial was conducted as to damages. Extensive post-trial briefing has been completed and this case is in a posture for final disposition. I will treat each action separately and will make the appropriate findings of fact and conclusions of law in the cases individually.¹ In addition, I will rule upon certain evidential questions which were reserved at trial for a decision at this time.

DRISCOLL (CAIN) v. UNITED STATES

The plaintiff, Betty Jane (Driscoll) Cain, brought suit in three capacities. In her individual capacity, as the widow of Ellison C. Driscoll, Jr., her claim is for damages attributable to the wrongful death of her husband, including her pecuniary loss resulting from his death and her emotional suffering, loss of consortium, and other non-pecuniary losses cognizable under applicable Maryland law. As the Administratrix of the Estate of Ellison C. Driscoll, Jr., Mrs. Cain's claim is for damages for the emotional stress, and pain and suffering endured by the decedent between the time of the tort — the collision of the jeep and the plane — and the time of the crash. In her capacity as administratrix, Mrs. Cain also seeks to recover her husband's funeral expenses. Finally, as next friend of Kerry E. Driscoll, the daughter of Ellison C. Driscoll, Jr., Mrs. Cain asks for damages for the pecuniary loss sustained by the minor child as a result of the death of her father.

Evidential Rulings

Before discussing my findings of fact and conclusions of law, I will address several evidential questions which I reserved at trial for rulings at this time.

Plaintiff objected, on the ground of relevancy, to the Government's cross-examination of Mrs. Cain about her receipt of proceeds from life insurance policies whose premiums were paid by Atlantic Aviation Corp., Driscoll's employer.

Under Maryland's "collateral source" rule, such insurance benefits received by the plaintiff cannot be considered in calculating her damages where the payments came from sources wholly unconnected with the defendant. Jennings v. United States, 291 F.2d 880, 887-88 (4th Cir. 1961); Cincotta v. United States, 362 F.Supp. 386, 409 (D.Md.1973); Plank v. Summers, 203 Md. 552, 102 A.2d 262 (Ct.App.1954). Since the Government did not pay the premiums on the life insurance policies from which Mrs. Cain received death benefits, that she received such proceeds is irrelevant to this Court's determination of her recovery. Thus, the Government's cross-examination on this point was improper.

In determining the amount of monetary damages recoverable by the plaintiff, this Court will not take into account her testimony concerning her receipt of life insurance proceeds upon the death of Ellison C. Driscoll, Jr.

The Government objected to the testimony of Arthur W. Gorman concerning the employment histories, specifically the promotion histories, of several employees of Atlantic Aviation.

Mr. Gorman's testimony was offered to demonstrate that, over a specified number of years, a pilot for Atlantic Aviation would be promoted routinely through a progression of higher-paying jobs. The Government argued that evidence of such future promotions is speculative under Maryland law.

In an action for wrongful death under Maryland law, evidence of future promotions is relevant in determining the lost future earnings of a decedent. Maryland ex rel. Pryor v. Miller, 180 F. 796, 810 (D.Md.1910), modified on other grounds, 194 F. 775 (4th Cir. 1911), cert. denied, 225 U.S. 703, 32 S.Ct. 836, 56 L.Ed. 1265 (1912); Sun Cab Co. v. Walston, 15 Md.App. 113, 289 A.2d 804, 819 (Ct.Spec.App.1972), rev'd on other grounds, 267 Md. 559, 298 A.2d 391 (Ct.App.1973) (affirming appellate court's opinion as to calculation of damages). Such evidence is not speculative where the future promotions would have been automatic with the passage of time. Sun Cab Co. v. Walston, supra, 289 A.2d at 819.

Whether the evidence of a routine progression of advancement at Atlantic Aviation is sufficient to justify a finding that the decedent would have been promoted is a question for this Court to decide. The testimony of Mr. Gorman on this point is relevant to this Court's resolution of that question and is, therefore, admissible.

The Government's objection to the testimony of Arthur Gorman concerning the routine course of advancement for pilots employed by Atlantic Aviation will be overruled.

Plaintiff's exhibits PDR 1-14, the promotion records of several Atlantic Aviation pilots, were admitted subject to the Government's continuing objection that such evidence was speculative under Maryland law.

Since I have ruled that this evidence is not speculative with respect to the future promotion possibilities of Driscoll, the Government's continuing objection on this point will be overruled and plaintiff's exhibits PDR 1 through 14 will be admitted unconditionally.

Margaret J. Michaels was called as a witness on behalf of the plaintiff to testify about the Driscolls' family plans. The defendant objected to her testimony as hearsay and moved to strike her testimony following the completion of direct examination.

Mrs. Michaels was a friend of Mrs. Driscoll (Cain). She testified that in the spring of 1974, Mrs. Driscoll frequently had spoken to her of plans to have a second child.

This Court does not perceive the relevance of Mrs. Michaels' testimony to any issue of significance in this case. Furthermore, her testimony about the Driscolls' family plans clearly was hearsay under Fed. R.Ev. 802. Nevertheless, since this testimony was offered to establish Mrs. Driscoll's then-present state of mind, i. e., her plans, it arguably was admissible under Fed.R.Ev. 803(3).

The Government's motion to strike the testimony of Mrs. Michaels will be denied. However, this Court will accord little, if any, significance to her testimony and it will not form the basis for a finding of fact.

The plaintiff's expert economist, Dr. Francis X. Tannian, computed the present discounted value of the plaintiff's pecuniary loss attributable to the death of Ellison C. Driscoll, Jr. The documentary reflections of his calculations were offered in evidence as plaintiff's exhibits PDR 19 through 23. The defendant objected to the admission of these exhibits, contending that Dr. Tannian's computations were speculative in that they allegedly were based upon evidence not in the record.

The Government's objection is without basis. Dr. Tannian computed the present value of the pecuniary losses suffered by the widow and minor child of Ellison C. Driscoll, Jr., as a result of his death. In formulating his computations, Dr. Tannian took into consideration several factors: the age and health of the decedent and the plaintiff; the decedent's annual income at the time of his death; the promotion possibilities of the decedent; the patterns of income expenditure of the Driscolls; and the age of the decedent's minor child. There was testimony or documentary evidence on each of these points sufficient to permit Dr. Tannian to state his expert opinion of the present value of the plaintiff's pecuniary losses.

The Government's objection to the admission of plaintiff's exhibits PDR 19 through 23 will be overruled and these exhibits will be admitted.

Having disposed of all of the evidential questions which were reserved at trial, I will proceed to my findings of fact and conclusions of law with respect to the Driscoll plaintiffs.²

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Ellison C. Driscoll, Jr., was killed in the May 16, 1974, plane crash at the Wicomico County Airport near Salisbury, Maryland. The negligent conduct of a Government employee, the jeep driver who rammed the Piper Cherokee plane as it was...