Lightenburger v. Gordon
| Decision Date | 10 November 1965 |
| Docket Number | No. 4850,4850 |
| Citation | 407 P.2d 728,81 Nev. 553 |
| Parties | Geraldine L. LIGHTENBURGER, Individually, Gregory Dale Lightenburger, a minor, Denise Sue Lightenburger, a minor, Madylon Leslie Lightenburger, a minor, by and through their Guardian ad Litem, Geraldine L. Lightenburger, Appellants, v. Joan K. GORDON and Bank of Nevada, Coexecutors of the Estate of James L. Gordon, a/k/a J. L. Gordon, Respondents. |
| Court | Nevada Supreme Court |
Morton Galane, Las Vegas, Robert F. List, Carson City, for appellants.
Singleton & DeLanoy and Rex A. Jemison, Robert L. Gifford, Las Vegas, for respondents.
This is a wrongful death action brought by a window for herself and on behalf of three minor children. The decedent, Dale D. Lightenburger, was killed when the Cessna 310 in which he was riding, crashed and burned at the Los Angeles International Airport on December 6, 1962.
The Complaint pleads alternative claims, namely; that Lightenburger was a passenger for a consideration within the purview of the California Guest Statute, and the proximate cause of his death was the negligence of James L. Gordon, pilot of the Cessna. In the alternative that Lightenburger was a guest and the proximate cause of his death was the willful misconduct of J. Gordon.
The Appellants, the widow and three children, appeal from a judgment on a verdict returned for the defendants in the trial court, James L. Gordon's executor and his surviving wife. The Appellants cite as error the giving of six instructions, the refusal to give an instruction offered by the Appellants, the exclusion of competent and relevant testimony, and permitting the jurors to have the instructions while deliberating.
We chronicle the events which brought the decedent to this pass, as we deem this necessary to an understanding of the errors assigned and our rulings.
James L. Gordon and Robert L. Bigelow were associated during the year 1962 in a business venture organized for the purpose of building, furnishing, and renting apartments in Las Vegas, Nevada. Gordon had a brother-in-law named Bervial C. Carrington, who was the owner and manager of the Carrington Carpet Company at Las Vegas, Nevada. Gordon had verbally assured Carrington that if his merchandise was suitable and the price competitive Carrington Carpet Company would be favored in an award of a cost plus contract to furnish the apartments. In November of 1962 Carrington had employed Dale Lightenburger as the manager of his enterprise under his supervision.
Lightenburger's efforts to obtain that contract included having furniture sketches drafted for Gordon and Carrington had arranged to have Gordon and Bigelow visit the Los Angeles Furniture Mart to view and inspect furniture and furnishings. Carrington intended that he and Lightenburger accompany Gordon and Bigelow to the Mart on December 6th, 1962. On December 5th, 1962, using Carrington Carpet Company funds, reservations were made with a commercial airline and tickets purchased for a flight to Los Angeles on December the 6th. The cost of these tickets was charged by the bookkeeper to the general operating fund and not to the cost of this endeavor.
When, on December 6th, 1962, Carrington and Lightenburger carried the sketches to Gordon's office, the meeting resulted in a change of plans. This change came after Gordon had been informed that Carrington and Lightenburger were flying by commercial airline to Los Angeles and a rendezvous in Los Angeles was being discussed. The commercial airline reservations were cancelled and Carrington and Lightenburger boarded Gordon's private aircraft to fly with Gordon and Bigelow to Los Angeles.
Gordon's aircraft was a Cessna 310-G. The airpline was owned by Gordon Supply Company, a corporation. The entire stock issue of the Corporation was owned by Gordon. It was a twin engine aircraft equipped for navigation by instruments, with an approach coupler and an automatic pilot. There was also a low frequency radio capable of receiving and transmitting. It had a retractable landing gear and had been inspected in November of 1962 and certified as airworthy.
None of the persons who went aboard that aircraft that afternoon was certified as an airman except J. Gordon. At the time of this flight Gordon had logged 668.07 hours of flying time as a pilot and of these hours 182.11 were on instrument flight. Gordon had been certified as an instrument pilot in 1962 and in the 60 days prior to this flight had logged some 90 hours on instruments.
After filing a flight plan with the Air Traffic Control in Las Vegas, Nevada, reporting 6 hours of fuel aboard and four persons, that his destination was the Los Angeles International Airport, Lockheed Burbank the alternate airport, J. Gordon took off at about 2:15 P.M. The flight to Los Angeles was uneventful and on schedule. The Cessna pilot at about 3:15 P.M., by radio, reported to the Los Angeles Control Tower that the Cessna's location was some 12 miles east of the Los Angeles International Airport. The Cessna pilot asked for clearance to land and the Cessna was cleared to land. 'Cleared to Land' means the Tower has no known traffic to conflict with the landing. The Approach Controller then began giving instructions for the approach and in the course of these, as the weather was not favorable at the Los Angeles Airport, he suggested that the Cessna be guided to the Santa Monica Airport for a landing. The Cessna pilot agreed and in a few moments was off the Santa Monica Airport. When he called the Approach Controller at that airport on radio and asked for permission to land this was refused. The Controller reported that the airport was closed and gave the Cessna pilot the radio frequency of the Los Angeles Approach Controller. The word 'closed' as used here means that the weather is below landing minimums.
The Los Angeles Approach Controller guided the Cessna pilot and in a few minutes he was again off the Los Angeles International Airport. The Cessna pilot asked for and received clearance to land. In the next few moments the Cessna pilot terminated the flight to the Los Angeles Airport and commenced an approach to Runway 25-Left at the Airport. An approach is a descent from flying altitude to a point over the threshold of the runway. At this point the pilot determines whether he has the minimums of vision vertically and horizontally which will permit landing.
It is pertinent to note here that when on approach the aircraft has reached that point over the runway at which the pilot must ascertain if he has the minimums of vision for landing, he does so visually. That is to say he must govern movement of the aircraft by what he perceives visually and not by the information given by the instruments on the ground or in the aircraft. A single pilot is at a disadvantage in executing such a maneuver. If he has a co-pilot he may rely on the co-pilot to fly the aircraft while he observes, or to observe as he flies.
The prudence of this approach is the critical issue of this action. Not because J. Gordon was inept in the execution of this maneuver and if he failed in his duty to those persons aboard the wrong was in his discount of the hazards created by the weather at the Airport. With one exception not material to the issue the components of and the equipment in the Cessna aircraft functioned efficiently throughout the approach. It appears too that the equipment at the Airport involved in guiding this maneuver was in good order and operated efficiently.
The Los Angeles International Airport is off the ocean at Los Angeles and its runways extend from east to west some 12,000 feet. The prevailing winds are off the ocean from the west and aircraft ordinarily take off and approach into the wind from east to west.
During the month of December the Airport is beset by ground fog from time to time. This occurs when on otherwise clear days, in the late afternoon, the cool moist winds off the ocean collide with the warm air rising from the runways and other airport areas. The water in the moist winds condenses into a dense fog. This fog hugs the ground and billows upwards to heights of between 100 and 300 feet.
At approximately 3:00 P.M. on December the 6th, 1962, the winds off the ocean, blowing at a recalled 5 knots from the southwest, began forming a ground fog on the Los Angeles Airport. The fog was observed and reported covering the Airport areas from the west to the east at a rate described as that of a 'fast walk.'
When the Cessna first arrived at the Airport at about 3:15 P.M. visibility horizontally from east to west along the 12,000 feet runways had been decreased by fog and smoke to 3,600 feet. The ceiling was not reported.
The weather at the Airport was reported to the Cessna pilot by the Controller at the Airport and we have the report of several bystanders. Since the observations of the bystanders were not reported to the Cessna pilot they are not particularly relevant. While the Cessna pilot was yet off the Airport on his return from Santa Monica he received a radio transmission to the effect that the runway visual range was then 1,400 feet. A pilot needs at the Los Angeles Airport 2,600 feet of runway visual range at 200 feet altitude in order to land. Runway visual range is the distance the pilot can see ahead or horizontally from a position over the threshold of the runway. The 200 feet altitude is also that altitude over the threshold of the runway.
The Cessna pilot, about 2 minutes later, asked for a radar approach, an approach during which the glide path in scanned continuously by radar at the airport and the pilot is constantly advised of his position relative to the glide path by the Controller by radio. At that time the pilot was advised that the runway visual range was 1,200 feet and asked if he still wanted the radar approach. He answered in the affirmative and was then informed that he was on course for Runway...
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