Kohler v. Aspen Airways, Inc.

• Decision Date: 04 June 1985
• Citation: 214 Cal.Rptr. 720,171 Cal.App.3d 1193
• Court: California Court of Appeals Court of Appeals
• Parties: Lois KOHLER, Plaintiff and Appellant, v. ASPEN AIRWAYS, INC., Defendant and Respondent. Civ. 23651.

Page 720

214 Cal.Rptr. 720

171 Cal.App.3d 1193

Lois KOHLER, Plaintiff and Appellant, v. ASPEN AIRWAYS, INC., Defendant and Respondent.

Civ. 23651.

Court of Appeal, Third District, California.

June 4, 1985.

[171 Cal.App.3d 1195] Cyril R. Ash, San Jose, for plaintiff and appellant.

Engstrom, Lipscomb & Lack, William L. Schanz and Deborah J. Olsen, Los Angeles, for defendant and respondent.

CARR, Associate Justice.

On a flight from San Jose to South Lake Tahoe, defendant's airplane encountered clear air turbulence, causing the plane to plummet 500 feet in two to three seconds. Plaintiff, a fare-paying passenger on the flight, sustained neck injuries. She filed suit against Aspen Airways alleging negligence generally of the defendant in causing the airplane to precipitously drop and further specific acts of negligence in (1) failing to fly or direct the aircraft on a flight plan that would minimize or avoid the effect on the aircraft and its passengers of the turbulence, which was known or should have been known to defendant, and (2) failing to warn plaintiff of such air turbulence and its possible effect on the aircraft. The jury returned a unanimous defense verdict.

On appeal, plaintiff contends (1) there was insufficient evidence to support the jury's verdict and (2) the court erred in refusing plaintiff's proposed instructions on (a) res ipsa loquitur and (b) an airline's duty to warn its passengers before take-off of possible turbulence in the flight path. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in a light most favorable to the jury's verdict, the evidence discloses the following:

Shortly before 9:00 a.m. on January 26, 1980, plaintiff boarded Aspen Airway's flight No. 309 for the 45-minute trip from San Jose to South Lake Tahoe. The flight crew performed its usual preflight check and obtained teletyped weather information for their route. ¹ The weather forecast at flight time indicated clear weather with occasional moderate turbulence within 5000 feet of ground level throughout the entire state. Turbulence is classified as slight, moderate, severe or extreme. The flight's pilot testified "moderate" turbulence causes the aircraft to "move around," although the plane is controllable. Passengers feel some restraint against their seats and walking is difficult. The pilot also stated "occasional" turbulence meant the turbulence occurs less than one-third of the time. According to pilots and meterologists, such an area forecast was very common, as the weather service in the area in question tries to predict the worst a pilot can encounter that day. However, such turbulence was not usually experienced when the forecast was this generalized. Because it was the first flight of the day to Tahoe, the pilot kept the seat belt sign on for the entire flight as a precautionary measure.

The pilot received permission to deviate from the programmed flight pattern ² and came into the Tahoe area over Fallen Leaf Lake. The weather was clear and the flight had been smooth. While over the lake at 10,000 feet, the plane unexpectedly hit a pocket of severe clear air turbulence and in "a moment of sheer terror" fell 500 feet in a matter of seconds. When the plane hit the bottom of the air pocket, the passengers were jarred ³ and plaintiff, who At trial, plaintiff's witnesses testified wind shears and turbulence in the Lake Tahoe area were common occurrences. Plaintiff further presented weather forecasts for a three-state region, ⁵ National Weather Service SIGMETS (defined as a "significant meteorological event") and pilot reports of occasional severe turbulence in the Tahoe area, made after flight No. 309 landed. ⁶ An expert witness, a pilot for a private corporation, testified that he did not consider the route taken by Flight No. 309 to be a safe one. This witness based his analysis on plaintiff's contention that the plane approached Tahoe via Desolation Valley. The flight's pilot testified he did not fly over that area.

                was wearing her seat belt, injured her neck. 4  The plane landed safely at South Lake Tahoe Airport without further problems
                

The testimony of defense witnesses conflicted with that of plaintiff's witness. This evidence was that the plane's route was completely safe. ⁷ Meteorologists and pilots testified no weather reports available at flight time indicated any severe turbulence around Lake Tahoe. ⁸ Moreover, given the subsequent SIGMETS and pilot reports, which showed turbulence in an extensive area around the lake, it was unlikely a better route into the airport existed.

The trial consumed five days. The jury deliberated for one hour before returning a verdict for defendant. Plaintiff's motion for a new trial was denied, and this appeal followed.

I

Plaintiff initially contends the jury's verdict was not supported by substantial evidence.

"In reviewing the evidence on ... appeal all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]" (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183; see also Leff v. Gunter (1983) 33 Cal.3d 508, 518, 189 Cal.Rptr. 377, 658 P.2d 740; Chodos v. Insurance Co. of North America (1981) 126 Cal.App.3d 86, 97, 178 Cal.Rptr. 831; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 245, pp. 4236-4238, and cases therein.)

Defendant presented overwhelming evidence the turbulence was unforeseeable and that the flight's crew exercised the requisite degree of care. ⁹ There was no indication of severe turbulence anywhere in the Tahoe area at the time the flight departed San Jose. The flight crew took an Conflicting testimony was presented, and the jury believed defendant's witnesses. Substantial evidence exists to support that decision.

approved, safe route to the airport and handled all aspects of the flight properly throughout the trip.

II

Plaintiff's primary contention is the trial court erred in refusing two of plaintiff's proposed instructions, on res ipsa loquitur as applicable to this accident and on the duty of defendant to warn plaintiff of possible air turbulence.

Res Ipsa Loquitur Instruction

The two instructions submitted by plaintiff on res ipsa loquitur were the conditional res ipsa loquitur instruction found in BAJI 4.00 and the follow-up instruction of BAJI 4.02. The proposed instructions are as follows: "On the issue of negligence, one of the questions for you to decide in this case is whether the injury involved occurred under the following conditions:

"First, that it is the kind of injury which ordinarily does not occur in the absence of someone's negligence;

"Second, that it was caused by an agency or instrumentality in the exclusive control of the defendant; and

"Third, that the injury was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of his injury.

"If, and only in the event that you should find all of these conditions to exist, you are instructed as follows:

"From the happening of the injury involved in this case, you may draw an inference that a legal cause of the occurrence was some negligent conduct on the part of the defendant.

"However, you shall not find that a legal cause of the occurrence was some negligent conduct on the part of the defendant unless you believe, after weighing all the evidence in the case and drawing such inferences therefrom as you believe are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant."

It is settled law in this state that "[t]he doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible." (Di Mare v. Cresci (1962) 58 Cal.2d 292, 293, 298-299, 23 Cal.Rptr. 772, 373 P.2d 860.) Three conditions are required for the application of the doctrine: " '(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' [Citation.]" (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489, 154 P.2d 687.) Although this determination is usually made by the jury, the applicability of res ipsa loquitur may be established as a matter of law where no question of fact exists. (Fuller v. Sears, Roebuck & Co. (1982) 136 Cal.App.3d supp. 1, 7, 186 Cal.Rptr. 26; Hansen v. Matich Corp. (1965) 234 Cal.App.2d 129, 135, 44 Cal.Rptr. 149.)

We observe the term res ipsa loquitur originated in a case involving a falling object. A critical distinction between our case and Bryne v. Boadle (1863) 2 H. & C. 722, 725, 159 Eng.Rept. 299, 300, however, was the location of the victim in relation to the falling object. Here the victim was inside it; in Bryne v. Boadle, supra, he was under it. ¹⁰

California courts have found appropriate application of the doctrine, either as a factual issue or a matter of law, in a variety of factual situations. Accidents on common carriers such as trains, streetcars and buses provide many examples. (Hardin v. San Jose City Lines, Inc. (1953) 41 Cal.2d 432, 436, 260 P.2d 63 and Freitas v. Peerless Stages (1952) 108 Cal.App.2d...