Galowich v. Beech Aircraft Corp.

• Decision Date: 04 January 1991
• Docket Number: No. 1-89-1863,1-89-1863
• Citation: Galowich v. Beech Aircraft Corp., 568 N.E.2d 46, 209 Ill.App.3d 128, 154 Ill.Dec. 46 (Ill. App. 1991)
• Parties: , 154 Ill.Dec. 46 Ronald H. GALOWICH, Executor of the Estate of Jerald Galowich, Deceased, and Ronald H. Galowich Associates, Inc., Plaintiffs-Appellants, v. BEECH AIRCRAFT CORPORATION and National Flight Services, Inc., Defendants-Appellees.
• Court: Appellate Court of Illinois

Page 46

568 N.E.2d 46

209 Ill.App.3d 128, 154 Ill.Dec. 46

Ronald H. GALOWICH, Executor of the Estate of Jerald Galowich, Deceased, and Ronald H. Galowich Associates, Inc., Plaintiffs-Appellants, v. BEECH AIRCRAFT CORPORATION and National Flight Services Inc., Defendants-Appellees.

No. 1-89-1863.

Appellate Court of Illinois First District, Sixth Division.

Jan. 4, 1991.

Rehearing Denied March 15, 1991.

Susan E. Loggans & Associates (Davis A. Novoselsky, of counsel), Chicago, Ill., for plaintiffs-appellants.

Adler, Kaplan & Begy (Richard J. Durden, John W. Adler, John B. Austin, Georgia Michaels, of counsel), Chicago, Ill., for defendants-appellees.

Presiding Justice RAKOWSKI delivered the opinion of the court:

Plaintiffs Ronald H. Galowich, executor of the estate of Jerald Galowich, and Ronald H. Galowich Associates, Inc. brought causes of action in strict liability in tort against defendant Beech Aircraft and common law negligence against National Flight Service arising from the death of Jerald Galowich in a plane crash at Joliet airport. The jury found for defendants. Defendants filed a motion for costs and the trial court awarded $7,655.44, of which $5,081.77 was for depositions. Plaintiffs appeal both the trial finding and the award for defendants' costs, asserting jurisdiction pursuant to Supreme Court Rule 301 (107 Ill.2d R. 301). Defendants cross-appeal, claiming the award of costs below was deficient.

The issues on appeal are whether the trial court abused its discretion in: (1) denying plaintiff's motion in limine to exclude evidence of any possible navigational error by decedent during the flight but before the approach to Joliet; (2) instructing the jury on compliance with FAA standards; (3) allocating defendants' costs to plaintiffs for some depositions while denying costs for others and for per diem and mileage expenses of out-of-state witnesses. We affirm in part and reverse in part.

On February 15, 1975, Jerald Galowich was piloting a Beech King Air B-90 from Peoria to Joliet when the plane crashed on approach to the Joliet Airport. The flight had taken approximately one hour. Plaintiffs alleged that this crash was caused by the left propeller going into reverse pitch.

On December 29, 1988, plaintiffs made a motion in limine to "exclude evidence that pilot Galowich may have made a navigational error early in the flight."

At trial, defendants presented Frank McDermott, an expert witness, who testified about the contents of the audio tapes of the communications between Jerald Galowich and air traffic controllers on February 15, 1975. Galowich asked for clearance from Peoria to Chicago's O'Hare airport. He received instructions and clearance to fly to Minooka Intersection (near Minooka, Illinois). During the flight, the air traffic controller contacted Mr. Galowich and advised him he was fifteen to twenty miles south of the planned course. Galowich went into a holding pattern waiting for clearance into O'Hare, for which he expected a delay of an hour and one-half. Shortly thereafter, Galowich asked for clearance to Joliet Airport instead. During the approach to Joliet, Galowich failed to reply to some of the air traffic controllers' calls, failed to comply with some of the instructions on turns, and flew into Joliet about 100 feet below the prescribed altitude. In McDermott's opinion, Galowich was having problems flying the plane, and that fact was apparent to the traffic controllers.

Four witnesses saw the crash. Two testified that they watched the King Air approach the airport and suddenly go down. Two other witnesses, who were airport employees, stood together and observed the crash. Both observed that the King Air flew in low and three-fourths of a mile to a mile southwest of the approach which the FAA had designed for the runway. This meant that the plane would have to make an extra turn for landing. Both witnesses testified that the plane made an abnormal sound, indicating that the engine was running at higher than normal rotations per minute.

Eyewitness Martin Pegelow also testified that he made a required weather report after the accident. The weather at Joliet was foggy, with high humidity, solid overcast in the sky, and surface visibility of one statute mile.

Defendants also presented James Tilmon, a weatherman and former army and commercial pilot, who gave his opinion of the weather and Galowich's reactions as a pilot. In Tilmon's opinion, when Galowich flew off course and failed to respond to controllers, he exhibited signs of spatial disorientation. As Tilmon defined it, "[s]patial disorientation occurs when a pilot has lost his ability to recognize up, literally to know which direction he's flying or whether he is nose down or right bank or left bank." Mr. Tilmon also testified about special spatial procedures developed for when a pilot who has been flying on instruments must transfer to visual references for landing. He stated that it "is so easy to make some very bad decisions, particularly when you have your ability to see the horizon obscured by snow or smoke or anything else."

Plaintiffs showed that Galowich's failure to respond to some controllers' calls could have been due to transmission problems or communications blind spots between the controllers and Galowich.

The parties presented evidence about two types of FAA approval applicable to the Galowich King Air. Before manufacturing aircraft for sale in the United States, the manufacturer must obtain a type certificate from the FAA approving aspects of design. After manufacture, each individual aircraft needs an airworthiness certificate. The latter can be issued after the aircraft is inspected by employees of the manufacturer.

In this case, the FAA approved the propeller system design for King Air before manufacture. Plaintiffs introduced a letter, dated May 5, 1965, from the FAA advising Beech of special conditions for the propeller reversing system. According to plaintiffs' witness, a special condition must be met before type certification is granted. The witness also read parts of a second letter, dated November 15, 1965, from the FAA to Beech. The letter stated:

"Beech Aircraft Corporation is responsible for tests, fault analysis, and other investigations necessary to assure that failure or malfunction of propeller installation components and propeller control systems provided by Beech or the engine manufacturer will not cause an unsafe flight condition. * * * This office plans to make a specific finding that Beech has accomplished sufficient and satisfactory investigations to prevent unwanted propeller reversing. In this regard, Beech may wish to submit results of their investigations to this office at an early date to prevent possible certification delay."

Defendants did not present the specific finding at trial. However, no one disputes that Beech sold the aircraft in the United States, something it could not have done without type certification.

After manufacture, employees from defendant Beech Aircraft submitted information for the airworthiness certification of the particular plane involved.

The following instruction was given to the jury as Defendants' instruction No. 54:

"There was in force in the United States at the time of the occurrence in question, and at the time of the type certification of the propeller reversing system on the King Air Aircraft, certain statutes with respect to airworthiness which provided as follows:

* * * * * *

An applicant is entitled to a type certificate for an aircraft * * *, if--

(b) The applicant submits to the type design, test reports, and computations necessary to show that the product to be certificated meets the applicable airworthiness ... requirements of the Federal Aviation Regulations and any special conditions prescribed by the Administrator, and the Administrator finds--

(1) Upon examination of the type design, and after completing all tests and inspections, that the type design ... meet[s] the applicable airworthiness requirements of the Federal Aviation Regulations or that any airworthiness provisions not complied with are compensated for by factors that provide an equivalent level of safety; and

(2) For an aircraft, that no feature or characteristic makes it unsafe for the category in which certification is requested.

The FAA's special finding of compliance with the special conditions issued by the Administrator relative to the reversing propeller system on the King Air may be considered by you, together with all the other facts and circumstances in evidence in determining whether or not the aircraft was in an unreasonably dangerous condition, bearing in mind that you may conclude that the aircraft was in an unreasonably dangerous condition notwithstanding its conformance to the Federal Standards."

I.

On appeal plaintiffs contend that the trial court erred in denying plaintiffs' motion in limine to exclude evidence of any possible navigational error made by Galowich during the flight but before the fatal landing in Joliet.

Relevant evidence is generally admissible. (See, e.g., discussion and citations in Mueller v. Yellow Cab Co. (1982), 110 Ill.App.3d 504, 508, 66 Ill.Dec. 169, 442 N.E.2d 595.) Evidence is relevant if it tends to either prove a fact in controversy or render a matter in issue more or less probable, and each party may present evidence relevant to his theory of the case or inconsistent with an opponent's theory. Tzystuck v. Chicago Transit Authority (1988), 124 Ill.2d 226, 240, 124 Ill.Dec. 544, 529 N.E.2d 525.

Courts will admit evidence of what a party was doing prior to an accident depending on the degree to which that evidence "tends to show what actually or most probably occurred at the time of the [accident]." (Klavine v. Hair (1975), 29 Ill.App.3d 483, 487, 331 N.E.2d 355.) Such evidence is admissible, if "the facts and circumstances support a reasonable inference that the conduct testified to continued...