Hoffman v. Simplot Aviation, Inc.

• Decision Date: 08 August 1975
• Docket Number: No. 11648,11648
• Citation: 539 P.2d 584,97 Idaho 32
• Parties: Fred HOFFMAN et al., Plaintiffs-Respondents, v. SIMPLOT AVIATION, INC., et al., Defendants-Appellants.
• Court: Idaho Supreme Court

Page 584

539 P.2d 584

97 Idaho 32

Fred HOFFMAN et al., Plaintiffs-Respondents, v. SIMPLOT AVIATION, INC., et al., Defendants-Appellants.

No. 11648.

Supreme Court of Idaho.

Aug. 8, 1975.

Rehearing Denied Sept. 18, 1975.

Phillip M. Barber, of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for defendants-appellants.

E. Don Copple, of Davison, Copple & Copple, Boise, for plaintiffs-respondents.

SHEPARD, Justice.

This is an appeal from a judgment in favor of plaintiffs-respondents following trial and jury verdict in an action resulting from an airplane accident. The principal questions presented are: 1) whether the rule of strict liability in tort in the field of products liability as adopted by this Court in Shields v. Morton Chemical Co., 95 Idaho 674, 518 P.2d 857 (1974) should be extended beyond sales and into the area of personal services, and, 2) the application of the doctrine of implied warranty to personal services and availability of the defenses of fault or negligence. We decline to so extend the rule of strict liability and hold that the jury was erroneously instructed as to the doctrine of implied warranty. We reverse and remand for a new trial.

The facts giving rise to this action, while lengthy in recitation, are not particularly complex or involved nor are they essentially in dispute between the parties. The case is remarkable in this respect, however, that a structural part of an early vintage single engine airplane failed during flight causing its crash and the pilot is alive to prosecute this action.

In 1971 plaintiff-respondent Fred Hoffman purchased a 1939 Piper Cub single engine airplane for $1,500. It was cleaned and repaired with Hoffman doing much of the work himself. In September 1971 Hoffman was attempting to land that aircraft on a landing strip at a farm near Boise. On landing, the plane hit a ditch causing the left landing gear to fold beneath the aircraft, bending the propeller and damaging the left wing tip. In November 1971 Hoffman contacted defendant-appellant Simplot Aviation, Inc. relative to the repair of the aircraft. During the course of conversations there was discussion relative to the desirability of transporting the airplane on a trailer to the Simplot facility at Boise Airport. A decision was made (by whom it is not clear) to repair the plane at the farm strip to the extent that it could be flown to the Boise Air Field for further repairs at the Simplot facility.

Defendants-appellants Gasparotti and Larson, employees of Simplot, were dispatched to the farm landing strip where they dismantled portions of the aircraft and transported them to the Simplot facility. On December 4, they returned to the landing strip with new parts and those that had been repaired which they installed in and on the aircraft. A visual examination of the entire aircraft was then made by Gasparotti, during which he also inspected and tested the brakes and tachometer of the aircraft.

Gasparotti and Larson possessed substantial background in the field of maintenance and repair of small aircraft. They possessed inspection authorization from the Federal Aeronautics Administration and held airframe and power plant mechanic's licenses from that agency. The licenses authorized them to perform work on aircraft and to verify the quality of work of other mechanics and 'sign-off' log books for small aircraft. Following the repairs, inspection and testing, Gasparotti, in the absence of Hoffman, left a note commenting on certain of the repairs that had been made and also wrote 'one take off one landing' on the note. Gasparotti indicated that the meaning of that term was that on the basis of his field inspection he thought a ferry permit was in order for the transportation of the aircraft by air to the Simplot facility at Boise Airfield.

Upon the return of Hoffman to the landing strip he discovered Gasparotti's note and verified it by a telephone call to Gasparotti. Shortly thereafter Hoffman flew the airplane off the farm landing strip intending to fly the plane to the Simplot facility at the Boise Airfield.

The left wing of the aircraft was supported by a strut extending from the under side of the left wing diagonally and downward to a point on the fuselage of the aircraft near the left landing gear. A clevis bolt held the wing strut braced into the aircraft fuselage. Shortly before Hoffman's intended landing at the Boise Airfield it appears that the clevis bolt failed and broke. The failure of the clevis bolt permitted the strut to break free from the fuselage of the aircraft causing a portion of the left wing to loosen and rip upwards. These occurrences took place while Hoffman was preparing to enter the traffic pattern at the Boise Airfield at an altitude of between 900 and 1,000 feet. The structural failure of the aircraft resulted in a spin and subsequent crash just short of the Boise Airfield.

It is apparently conceded by all that none of the repair work performed by the Simplot employees was a causative factor in the crash of the aircraft. Similarly no part or product placed upon the aircraft by the Simplot employees was a causative factor. While the Simplot employees were repairing the damage to the left landing gear which was occasioned by the first accident, they were working in close proximity to the clevis bolt which attached the left wing strut to the fuselage.

The principal factual dispute relates to the condition of the clevis bolt at the time that the Simplot employees had completed the repairs and made the visual inspection of the aircraft. There was testimony to the effect that the bolt showed signs of rust and therefore failure could have been anticipated. However, the Simplot employees denied that the rust was visible to them as they worked on and inspected the aircraft and that because of the age and condition of the aircraft rust had no significance.

Hoffman, his wife, and his partner in the ownership of the aircraft brought suit for damages against Simplot, Gasparotti and Larson. Plaintiffs alleged liability on four theories. One, negligence, 2) breach of express warranty, 3) breach of implied warranty, and 4) strict liability. At the conclusion of trial, lengthy jury instructions were given by the trial judge, including instructions on all four of the theories of liability.

The jury returned two forms of special verdict. On the first, the jury found both parties equally negligent, thus holding against Hoffman in accordance with Idaho's comparative negligence statute. I.C. § 6-801. On the second special verdict the jury found against Hoffman on the theory of strict liability and also against Hoffman on the theory of express warranty. However, on the theory of breach of implied warranty and only on that theory the jury returned a verdict in favor of Hoffman. Damages were assessed at $11,600 and judgment entered for that amount.

Appellants argue that the trial court erred in accepting special verdicts from the jury which were inherently contradictory in themselves and also in giving jury instructions setting forth plaintiffs' theories of strict liability and implied warranty.

In Shields v. Morton Chemical Company, 95 Idaho 674, 518 P.2d 857 (1974) this court adopted the rule of strict liability in tort as set forth in the Restatement of the Law, Torts 2nd, § 402(A) (1965). The Restatement deals specifically and only with the sale of a product. Neither this court nor, with one exception, any other court has adopted strict liability in tort absent fault in the context of personal services. We decline to extend the rule of Shields to cases involving personal services. We find no consideration of such extension of the rule of strict liability in either the Uniform Commercial Code or the Restatement of Torts, 2nd. Almost uniformly any such extension of the rule has been consistently and expressly rejected. See Gagne v. Bertran, 43 Cal.2d 481, 275 P.2d 15 (1954); Shepard v. Alexian Bros. Hospital, 33 Cal.App.3d 606, 109 Cal.Rptr. 132 (1973); Hoover v. Montgomery Ward & Co., Inc., 528 P.2d 76 (Or.1974); Pepsi Cola Bottling Co. v. Superior Burner Service Co., 427 P.2d 833 Alaska 1967). We find Broyles v. Brown Engineering Co., 275 Ala. 35, 151 So.2d 767 (1963) to be unpersuasive. See also Prosser, Law of Torts, 679 (4th ed. 1971), 2 R. Hursh & H. Bailey, American Law Products Liability, 2nd § 6-15, 6-18 (1974).

It would serve no purpose herein to extensively review the policy considerations which militate against the extension of the strict liability rule to cases involving personal service. The rationale has been thoroughly explored in the authorities and commentators set forth above and reiteration herein would serve no purpose. It is sufficient to say that as contrasted with the sales of products, personal services do not involve mass production with the difficulty, if not inability, of the obtention of proof of negligence. The consumer in the personal service context usually comes into direct contact with the one offering service and is aware or can determine what work was performed and who performed it.

We therefore hold the instructions of the trial court dealing with the...