Estate of Largent v. U.S.

Citation910 F.2d 497
Decision Date06 August 1990
Docket NumberNo. 89-5326,89-5326
PartiesESTATE OF C.M. LARGENT, III, Deceased, and Bobbie F. Largent, individually on her own behalf and as Executrix for the Estate of C.M. Largent, III, Deceased, Appellants, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Edward C. Carpenter, Rapid City, S.D., for appellants.

Robert J. Gross, Washington, D.C., for appellee.

Before McMILLIAN, Circuit Judge, FRIEDMAN, * Senior Circuit Judge, and ARNOLD, Circuit Judge.

McMILLIAN, Circuit Judge.

The estate of Charles M. Largent III brought this negligence action against the United States under the Federal Tort Claims Act seeking damages resulting from the failure of two Flight Service Station (FSS) Specialists to warn Largent about icing conditions on the morning of his flight from Hot Springs, South Dakota, to Modesto, California. Largent and three passengers were killed when his private plane crashed shortly after takeoff from the Hot Springs airport in the early morning of February 13, 1980. On remand from this court's decision in Norwest Capital Management & Trust Co. v. United States, 828 F.2d 1330 (8th Cir.1987) (Largent I ), the district court 1 found that Largent's negligence was more than slight compared to the combined negligence of the two FSS Specialists. Because South Dakota's comparative negligence statute bars recovery when a plaintiff's contributory negligence is greater than slight compared to the negligence of the defendant, the district court entered judgment in favor of the United States. S.D. Codified Laws Ann. Sec. 20-9-2 (1987). Largent's estate appeals. We affirm.

PROCEDURAL HISTORY

This is the third appeal taken in this case. After a bench trial, the district court found that only one of the FSS Specialists, Charles Shields, was negligent for failing to inform Largent of the icing conditions. The court nevertheless entered judgment in favor of the United States on the ground that icing was not the cause of the crash. Alternatively, the district court found that even if icing had caused the crash, Largent was contributorily negligent and his negligence was more than slight in comparison to the negligence of Shields thus barring recovery under South Dakota's comparative negligence statute. S.D. Codified Laws Ann. Sec. 20-9-2. On appeal, we reversed the district court's findings that FSS Specialist Paul Kasen was not negligent and that icing did not cause the crash, and remanded so the district court could determine whether Largent's negligence was more than slight compared to the combined negligence of both Shields and Kasen. Largent I, 828 F.2d at 1345.

On remand, the district court erroneously interpreted our statement in Largent I that the defendants were "grossly" negligent as requiring a finding that Largent's negligence was not more than slight and entered judgment in favor of Largent's estate. See id. at 1333. The United States appealed, and we remanded again with instructions that the district court make an independent determination as to whether Largent's negligence was more than slight compared to the combined negligence of the two FSS Specialists. On the second remand, the district court found that Largent's negligence was more than slight compared to the combined negligence of Shields and Kasen and accordingly entered judgment in favor of the United States. Estate of Largent v. United States, No. 83-5020 (D.S.D. June 2, 1989) (Estate of Largent ). Largent's estate now challenges this finding on appeal.

COMPARATIVE NEGLIGENCE

The facts of the case are set out in detail in our opinion in Largent I, 828 F.2d at 1331, and we will not repeat them here. The focus of our inquiry is limited to the narrow issue of whether the district court's finding that Largent's negligence was more than slight compared to the negligence of the defendants is clearly erroneous. Fed.R.Civ.P. 52(a); see Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (a finding of fact may not be set aside unless the reviewing court is left with the definite and firm conviction that a mistake has been made). We hold that the district court's finding is not clearly erroneous.

As the district court correctly stated, the term "slight" in South Dakota's comparative negligence statute has been construed by the South Dakota courts to mean "small in quantum in comparison with the negligence of the defendant." Crabb v. Wade, 84 S.D. 93, 167 N.W.2d 546, 549 (1969). Whether a plaintiff's negligence is slight compared to that of the defendant is a question of fact and varies with the facts and circumstances of each case. Urban v. Wait's Supermarket, Inc., 294 N.W.2d 793, 796 (S.D.1980).

After a careful evaluation of each party's negligence, the district court found:

[I]t is ... beyond speculation that a pilot would be negligent more than slight for flying an aircraft in the early morning hours in February with light snow falling, in a fully loaded airplane carrying three other passengers without the necessary safety margin of alternative flight plans, in an airplane without proper deicing equipment, and where the airplane is to be flown without the necessary experience as required by law and as required by common sense....

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4 cases
  • Estate of He Crow by He Crow v. Jensen, 17692
    • United States
    • Supreme Court of South Dakota
    • 21 January 1993
    ...in comparison with the negligence of the defendant." Crabb v. Wade, 84 S.D. 93, 167 N.W.2d 546, 549 (1969); Estate of Largent v. United States, 910 F.2d 497, 499 (8th Cir.1990). It is a question of fact which varies with the facts and circumstances of each case whether a plaintiff's neglige......
  • Estate of Davis by Ostenfeld v. Delo, 96-1896
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 16 June 1997
    ...that the trial court would have reached the same result had it considered the facts supported by the record. See Estate of Largent v. United States, 910 F.2d 497 (8th Cir.1990) (error harmless where inadmissible evidence was just one of several factors leading to legal conclusion and court ......
  • Havrum v. U.S.A.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 13 January 2000
    ...opinion clearly indicates that it would have reached the same conclusion without the challenged evidence. See Estate of Largent v. United States, 910 F.2d 497, 500 (8th Cir. 1990). Thus the error, if any, was harmless. See Fed. R. Civ. P. 61. The government also contends that the trial cour......
  • Good Low v. U.S., 05-1114.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 15 November 2005
    ...contributory negligence is greater than slight compared to the negligence of the defendant . . . ." Estate of C.M. Largent, III v. United States, 910 F.2d 497, 498 (8th Cir.1990). Good Low raises two arguments on appeal. First, he asserts that any negligence on his part was slight when comp......

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