Hendren v. Ken-Mar Airpark, Inc.

• Decision Date: 08 June 1963
• Docket Number: No. 43290,KEN-MAR,43290
• Citation: 382 P.2d 288,191 Kan. 550
• Parties: Lora HENDREN (now Lora Frost) et al., Appellants, v.AIRPARK, INC., Appellee.
• Court: Kansas Supreme Court

Page 288

382 P.2d 288

191 Kan. 550

Lora HENDREN (now Lora Frost) et al., Appellants, v. KEN-MAR AIRPARK, INC., Appellee.

No. 43290.

Supreme Court of Kansas.

June 8, 1963.

Syllabus by the Court.

The wife and surviving children of a decedent who lost his life in the crash of an airplane brought a wrongful death action against the operator of a private noncontrolled airport from which the fatal flight originated on the ground that it was negligent. The trial court sustained a demurrer to the plaintiffs' evidence and on appeal it is held: The trial court did not err, the plaintiffs' evidence having failed to establish any negligence on the part of the operator of the airport, all as more particularly set forth in the opinion.

Thomas A. Wood and Clifford L. Malone, Wichita, argued the cause, and Mark H. Adams, Charles E. Jones, William I. Robinson, J. Ashford Manka, Mark H. Adams, II, John S. Seeber and Philip L. Bowman, Wichita, were with them on the brief, for appellants.

Spencer L. Depew and Lawrence E. Curfman, Wichita, argued the cause, and Lawrence Weigand, Byron Brainerd, Charles W. Harris, Orval J. Kaufman, J. Ruse McCarthy, Donald A. Bell and J. L. Weigand, Jr., Wichita, were with them on them brief, for appellee.

SCHROEDER, Justice.

This is a wrongful death action brought by the surviving spouse and children of Raymond Hendren who lost his life in the crash of an airplane. The airport operated by the defendant, Ken-Mar Airpark, Inc., is alleged to have been the airport where the fatal flight originated. Killed with Hendren was his brother-in-law, Glen St. Vrain, allegedly the pilot and a member of a flying club called Pegasus, which was the owner of the airplane involved.

Appeal has been duly perfected from an order of the trial court sustaining a demurrer to the plaintiffs' evidence.

The only question presented is whether the plaintiffs' evidence was sufficient to show any negligence on the part of Ken-Mar Airpark, Inc., and if negligent, that such negligence was the proximate cause of the crash and death of the plaintiffs' decedent.

At approximately 1:00 o'clock a. m. on January 9, 1960, a Piper airplane belonging to the Pegasus Flying Club and occupied by the plaintiffs' (appellants') decedent, Raymond Hendren, and his brother-in-law, Glen St. Vrain, took off from the airport of Ken-Mar Airpark, Inc. (defendant-appellee) heading in a southerly direction. About a quarter of a mile south of the end of the runway the plane crashed into the middle of a field and burned. Both occupants were killed. St. Vrain, supposedly the pilot, was a member of the Pegasus Flying Club to which the airplane belonged. He held only a student pilot's license, having taken all of his instructions from Carl Buck, an employee of Ken-Mar. He had a maximum of twenty-five hours and thirty-five minutes flying time as shown by his log book. The last instruction St. Vrain had was on September 13, 1959, nearly four months prior to the fatal accident.

The Tri-Pacer airplane involved was purchased from Ken-Mar a year or two prior to the crash. It was hangared at Ken-Mar at the southwest corner, and was never kept at any other airport. The airport is located and operates several miles northeast of the city of Wichita, Kansas, as a private noncontrolled airport, which means there is no tower or method of controlling air or ground traffic of airplanes. The airport has existed as a private corporation operating for profit for approximately seventeen years. It consists of hangars along the west side of the airport and an administration building located in approximately the middle of the row of hangars along the west side. To the east of the hangars and administration building are runways for the take-off and landing of aircraft. Ken-Mar is engaged in the sale of aircraft, the doing of charter flying, airplane rentals, giving flight instruction, renting of hangar space for storing customer-owned aircraft, and the sale of oil and gas for aircraft. The airport is open at all times, day and night. At night the runway lights were turned on, and this was true of the night in question.

The Pegasus Flying Club rented hangar space from Ken-Mar where the airplane was kept while not in use. Gasoline and oil for the plane were procured from Ken-Mar, and various members of the club took flight instruction at Ken-Mar.

Some of the hangars at the airport have doors that open and close and others do not have doors. Most of the hangars which have doors cannot be locked. A board is kept in the administration building where the parties may leave their keys to the hangar doors, if any, and also the keys to the airplanes if they desire. They are not required to keep the keys at Ken-Mar. A teletype machine was maintained in the administration building, which brings in weather data.

At the time of the crash there was a heavy fog in the area. The McConnell Air Force Base official weather report for the night in question indicates that there was generally an unlimited ceiling although for a very short time there were scattered clouds and a ceiling measured at 1,200 feet above surface. This surface weather observation also recites that during this time visibility was five miles. McConnell Air Force Base is located approximately six to seven miles south of the Ken-Mar airport.

The crash was discovered at approximately 9:00 o'clock a. m. on January 9, 1960, and was investigated by officers of the Sedgwick County sheriff's department and by the Civil Aeronautics Board. This investigation disclosed there was no mechanical or structural failure of the aircraft or in-flight distress prior to its impact with the ground. In addition, the aircraft prior to the flight had received proper care in accordance with Civil Aeronautics regulations.

It is not known who was flying the airplane at the time of the crash as the airplane was equipped with dual controls and could be piloted from either the right or left front seat. It was impossible to determine which occupant of the airplane occupied the right or left seat.

The evidence presented by the plaintiffs is to the effect that the crash of the airplane was caused by human error. Plaintiffs' expert witness, Charles F. Fisher, an experimental test pilot for the Boeing Company, after qualifying as an expert witness, testified in response to a hypothetical question outlining the facts in evidence, that in his opinion the crash of the airplane was caused when the pilot suffered a disorientation and lack of reference to the horizon and to the lights of the city, which condition is commonly called vertigo, at which time he lost control of the aircraft and inadvertently flew it into the ground. He further testified that the loss of the reference or horizon occurs when there is lack of proficiency of the pilot. Hendren had no pilot training whatever, and if it is assumed that St. Vrain was at the controls, he had only twenty-five and one-half hours flying time. According to the expert, St. Vrain could not possibly have achieved any instrument proficiency. He further testified on cross examination that vertigo could have happened to a reasonably proficient pilot because of the particular conditions existing, unless he had had considerable training in instrument flying. The conditions existing to which he made reference were a heavy fog, darkness and turning away from the city lights.

There are no known witnesses to the fatal plane crash. The evidence disclosed St. Vrain and Hendren were known to have been drinking beer on the evening of January 8, 1960, having arrived at about 9:30 o'clock p. m. on that evening at the Paladin Bar located on South Broadway in the city of Wichita, Kansas. At about midnight St. Vrain and Hendren left the Paladin Bar and were not seen again until their bodies were found the following morning in and near the wreckage of the crashed airplane.

On the night in question a janitor-flight line attendant was the sole Ken-Mar employee on duty. He was doing some custodial clean-up work in the airport administration building on the night of January 8, 1960, and the early morning of January 9, 1960. He recalled seeing what may have been the Pegasus Piper airplane proceed down the airport runway to the south as if making a take-off early in the morning of January 9, 1960, but he did not at any time see the occupants of the airplane, and he had no knowledge of the identity of the occupants of the airplane. He testified that the field was illuminated with lights for the use of planes taking off and landing, and that only one plane took off after 12:00 o'clock on the night in question. He made no effort to determine who was piloting the airplane, or whether there were any passengers in it. In fact, he did nothing to ascertain the nature of the flight, the identity of the occupants of the plane, the lawfulness of the flight, nor did he take any other affirmative action with respect to the anticipated flight. Moreover, he was instructed by Mr. Isaacs, Ken-Mar's manager, that he was not to check the identity or qualifications of any persons taking an airplane which was not owned by Ken-Mar.

The manager and president of Ken-Mar, Mr. Isaacs, testified that he had taken his first flying in 1932 and had been quite active in aviation since 1944. In the early part of 1960 there were approximately 100 planes based at Ken-Mar, 25 owned by Ken-Mar and 75 by others. During this period there were approximately four or five flying clubs based at Ken-Mar. He testified that Ken-Mar did not control in any sense any of the flying clubs, their requirements or their use of the field. He had no knowledge of how many members of the Pegasus Club, or of the other flying clubs, were not fully qualified as pilots, nor did he make any effort to determine whether they were qualified, although Ken-Mar furnished flying instruction to the flying clubs and their members. He expressed the opinion that Ken-Mar could not legally...