In re Air Crash at Detroit Metro. Airport

• Decision Date: 04 February 1991
• Docket Number: MDL No. 742.
• Citation: In re Air Crash at Detroit Metro. Airport, 756 F.Supp. 321 (W.D. Mich. 1991)
• Parties: In re AIR CRASH AT DETROIT METROPOLITAN AIRPORT, DETROIT, MICHIGAN ON AUGUST 16, 1987.
• Court: U.S. District Court — Western District of Michigan

756 F. Supp. 321

In re AIR CRASH AT DETROIT METROPOLITAN AIRPORT, DETROIT, MICHIGAN ON AUGUST 16, 1987.

MDL No. 742.

United States District Court, E.D. Michigan, S.D.

February 4, 1991.

Carroll E. Dubuc, Washington, D.C., third partyplaintiff, Northwest Airlines.

John J. Hennelly, Los Angeles, Cal., Donald E. Shely, Detroit, Mich., for defendant, McDonnell Douglas.

ORDER

JULIAN ABELE COOK, Jr., Chief Judge.

On November 21, 1990, the Defendant, McDonnell Douglas Corporation(MDC), filed a motion for reconsideration of Section III within the November 6, 1990 Order¹ that denied the motion of the Third-PartyPlaintiff, Northwest Airlines, Inc.(Northwest), for a directed verdict.The reconsideration motion by MDC addresses only the level of conduct that will supervene the exculpatory provisions of Northwest's employee travel passes:² willful and wanton misconduct or gross negligence.For the following reasons, the Court will deny the motion.³

I.

In its directed verdict motion, Northwest asserted that the legal standard that must be shown for it to be liable in the employee pass cases was "gross negligence."According to this argument, and under this legal standard, MDC must show that Northwest "(i) knew of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (ii) was able, by ordinary care and diligence in the use of the means at hand, to avoid the resulting harm; and (iii) omitted to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another, so that there is an indifference to the harm equivalent to a willingness that it occur."Northwest's Brief in Support of Motion for Directed Verdict, at 13(citingThayer v. Thayer,286 Mich. 273, 282 N.W. 145(1938)andBurnett v. City of Adrian,414 Mich. 448, 455-56, 326 N.W.2d 810(1982)).

In its response to the directed verdict motion, MDC argued that the alleged exculpatory defense was governed by federal common law.⁴It noted that "while federal common law controls the validity of the travel passes, state law determines the standards of gross negligence and willful or wanton misconduct."MDC's Response Brief, at 14(citingBraughton v. United Air Lines, Inc.,189 F.Supp. 137(W.D.Mo.1960)).However, its definition of "gross negligence" differed from Northwest's version: "(1) a person knows of a situation that requires the exercise of ordinary care in order to avoid injury, (2) the person has the ability to avoid the injury by using ordinary care, (3) the person fails to use ordinary care to avoid the injury, and (4) it would have been apparent to a reasonable person that the result of a failure to use ordinary care would likely prove disastrous."Id.(citingMagerowski v. Standard Oil Co.,274 F.Supp. 246(W.D.Mich.1967)andPapajesk v. Chesapeake & Ohio R. Co.,14 Mich.App. 550, 166 N.W.2d 46(1968)(leave to appeal denied)).

Referring to Northwest's admission that the Michigan definition of gross negligence applied, MDC argued that Northwest misinterpreted Michigan law to require MDC to show that "there is an indifference to the harm equivalent to a willingness that it occur."Id. at 15(citingNorthwest's Brief, at 13).This standard, in MDC's view, was not gross negligence but the common law definition of willful and wanton misconduct.Northwest, in turn, countered that it was MDC who misinterpreted Michigan law, emphasizing that MDC must show evidence evincing an intention or willingness on the part of the Northwest Flight 255 crew to cause the resulting harm.

Although Northwest and MDC appeared to agree on the applicability of the gross negligence standard, they did not.Thus, the Court was required to resolve the dispute.In its November 6th Order, this Court determined that the Michigan standard of willful and wanton misconduct would apply to the contribution claims of MDC against Northwest:

The final category of cases in which Northwest moves for a directed verdict is the so-called employee flight pass cases.In the four cases in which the deceased passenger was an off-duty Northwest employee, Northwest seeks an exemption from liability because of exculpatory language in its travel passes.This defense is governed by federal common law, Order, October 13, 1989, at 9-11, which provides that exculpatory clauses in travel passes do not protect interstate carriers from liability for gross negligence or willful or wanton misconduct.SeeBraughton v. United Airlines,189 F.Supp. 137, 141, 143(W.D. Mo.1960);see alsoSims v. Northwest Airlines,269 F.Supp. 272, 273(S.D.Fla.1967). footnote omitted.The parties agree that Michigan law determines the standards for gross negligence or willful and wanton misconduct.Braughton,189 F.Supp. 137(federal law determines validity of travel passes; state law determines standard of conduct).

Primarily in response to the uncertain law in Michigan on the concepts of (1) gross negligence and (2) willful and wanton misconduct, the parties differ over what the relevant cases mean and what is the standard to which Northwest will be held in these cases.

This Court will apply the standard for willful and wanton misconduct, not for gross negligence.In Malcolm v. City of East Detroit,180 Mich.App. 633447 N.W.2d 860(1989) , app. granted,435 Mich. 861(1990), the Michigan Court of Appeals addressed the disagreements upon which the parties have expounded in their respective briefs:

The test for willful and wanton misconduct, set forth in Gibbard v. Cursan,225 Mich. 311, 322, 196 N.W. 398(1923), requires:

(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.

Although this test was criticized as "poorly phrased" by the Supreme Court in Burnett v. City of Adrian,414 Mich. 448, 455-56; 326 N.W.2d 810(1982), the Court declined to reformulate it, and the Gibbard test continues to be applied by this Court.SeeWright v. Dudley,158 Mich.App. 154, 158; 404 N.W.2d 217(1986), vacated on other grounds429 Mich. 887416 N.W.2d 314(1987);Williams v. City of Cadillac,148 Mich.App. 786, 793; 384 N.W.2d 792(1985).However, the Burnett Court did note that

willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.Willful and wanton misconduct is not, as the Gibbard Court observed, a high degree of carelessness....

....

... Though plaintiffs argue that the concept of gross negligence can also be defined as an extreme departure from ordinary care, or a severe degree of negligence, ... we note that this theory was considered and rejected by Justice Moody in his concurring opinion in Burnett, supra at 476, n. 23326 N.W.2d 810, joined by Justices Williams and Levin, as essentially unworkable, confusing, and in conflict with proper negligence analysis.The Burnett majority simply stated that it was "bound" by the Gibbard definition of gross negligence, which requires the existence of precedent negligence on the part of the plaintiff....

Id.180 Mich.App. at 640-41, 643447 N.W.2d 860. footnote: There is no claim of "precedent negligence" such that the concept of gross negligence under Michigan law should apply..⁵

In its reconsideration motion, MDC contends that the holding of this Court which determined that the willful and wanton misconduct standard will apply is erroneous⁶ because (1) Michigan does have a workable definition of gross negligence or (2) the federal common law equivalent of gross negligence should apply.

II.

Courts have long recognized that public policy prohibits a carrier from releasing itself from liability for conduct more egregious than ordinary negligence.For example, in Northern Pacific Railway Co. v. Adams,192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513(1904), the United States Supreme Court noted:

The question is distinctly presented whether a railroad company is liable in damages to a person injured, through the negligence of its employes, who at the time is riding on a pass given as a gratuity, and upon the condition known to and accepted by him that it should not be responsible for such injuries.It will be perceived that the question excludes injuries resulting from wilful or wanton acts, but applies only to cases of ordinary negligence.

Id. at 451, 24 S.Ct. at 410(emphasis added).Sixteen years later, the Supreme Court reiterated that a "carrier by rail is liable to a trespasser or to a mere licensee wilfully or wantonly injured by its servants in charge of its trains ... and a sound public policy forbids that a less onerous rule should be applied to a passenger injured by like negligence when lawfully upon one of its trains."New York Central Railroad Co. v. Mohney,252 U.S. 152, 157-58, 40 S.Ct. 287, 289, 64 L.Ed. 502(1920)(emphasis added);id. at 158, 40 S.Ct. at 289(Day and Van Devanter, JJ., concurring)(releasing clause on pass did not cover his injury because it resulted from willful or wanton negligence, as to which such a clause is of no force or effect);⁷accordSabol v. Chicago & N.W. Ry. Co.,255 Mich. 548, 238 N.W. 281(1931), cert. denied,284 U.S. 688, 52 S.Ct. 265, 76 L.Ed. 581(1932);Shelby Mutual Insurance Co. v. Grand Rapids,6 Mich.App. 95, 98, 148 N.W.2d 260(1967).

After studying a host of cases in which similar issues have arisen, this Court believes that this nettlesome dispute has resulted more from semantics or careless usage of language than anything else.This much is clear and undisputed by the parties: an interstate carrier...