Lee v. Flight Safety, Inc.
| Decision Date | 19 June 1978 |
| Docket Number | No. 1,No. 3,1,3 |
| Citation | 406 N.Y.S.2d 133,63 A.D.2d 994 |
| Parties | Lore M. LEE, as surviving executrix, etc., Respondent, v. FLIGHT SAFETY, INC. et al., Appellants-Respondents (two cases). (Action) Joseph N. MAZZA, as administrator, etc., Appellant, v. Lore M. LEE, as surviving executrix, etc., et al., Respondents. (Action)(and five other actions) |
| Court | New York Supreme Court — Appellate Division |
Passin & Williams, P. C., New York City, N. Y. (John W. Williams, New York City, of counsel), for plaintiff-appellant Mazza.
Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr. and Ernest F. W. Wildermuth, Jr., Mineola, of counsel), for defendants-appellants-respondents Flight Safety, Inc. and Fairchild-Hiller Republic Corp.
Clarence W. Williamson, Jr., Hempstead, for defendant-appellant Mazza in Actions Nos. 1, 2 and 4 through 8.
Mendes & Mount, New York City (Joseph J. Asselta and Frank J. Chiarchiaro, New York City, of counsel), for defendant-respondent Lee.
Before GULOTTA, J. P., and MARGETT, HAWKINS and COHALAN, JJ.
MEMORANDUM BY THE COURT.
In actions for wrongful death and property damage, the appeals are from stated portions of an order of the Supreme Court, Nassau County, entered November 3, 1976, which, inter alia, (1) granted the motions of the adversely affected parties to set aside so much of the jury's verdict as was in favor of the appellants and (2) ordered a new trial.
Order reversed insofar as appealed from, without costs or disbursements, verdict reinstated, and case remanded to Trial Term for the entry of an appropriate judgment in accordance herewith.
On the evening of July 28, 1968, two private airplanes collided in midair near Republic Airport in Farmingdale, Long Island. One airplane was operated by Walter Rerat (Rerat). Katherine Rerat, his wife, and their grandchildren, Erica and Monica Lee, were passengers in the airplane. The other airplane was piloted by Francis Mazza. Robert LaSpina, and two others who are not parties in any of these actions, were Mazza's passengers. All persons in both airplanes were killed.
Eight separate actions were commenced on behalf of the six above-named decedents. Other actions were commenced for the property damage to Rerat's airplane and for the loss of other of Rerat's personal property. Flight Safety, Inc., the owner of the airplane piloted by Mazza, interposed a counterclaim for property damage.
Just prior to the collision, Rerat was preparing to land at runway No. 32 at Republic, when he was instructed by the control tower not to land, but to execute a "go around", since a plane which was landing just ahead of him had not fully cleared the runway. The "go around" entailed regaining altitude, flying in a generally rectangular pattern and then coming in for a landing from the same direction from which he had previously attempted to land.
Mazza was also preparing to land and had called into the landing tower for clearance. He was instructed to report back to the tower when he reached the area of "downwind leg" of the airport traffic pattern. The downwind leg was the area roughly parallel to the runway, where air traffic would be moving in the opposite direction to traffic which was closer to landing. The airplanes collided at approximately the midway point of the downwind leg.
Rerat's administratrix claimed, in all of the actions, that Rerat was properly executing the "go around", having made the two right turns, and was proceeding along the downwind leg when the Mazza airplane improperly entered the flight pattern and struck the Rerat airplane.
The administrator for Mazza claimed, in all of the actions, that Rerat had executed an improper go around and, rather than making two right turns, had crossed over the airfield, while gaining altitude, and had collided with the Mazza airplane after coming up from behind and under it. The evidence showed that Mazza had failed, or was unable, to make contact with the control tower when he reached the downwind leg.
Eyewitnesses and experts testified for both sides in support of their respective versions. The evidence was closely disputed and the versions of the crash which developed at the trial were diametrically opposed.
The jury was instructed to return special verdicts on the questions of negligence and proximate cause as to each of the parties cast as defendants. With respect to contributory negligence, the court charged the jury that each pilot was required to exercise the appropriate degree of care, under all the circumstances. It further charged that a failure to exercise such care would not constitute contributory negligence unless it was the proximate cause of the...
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