Lisa-Jet, Inc. v. Duncan Aviation, Inc.

Decision Date27 February 1978
Docket NumberLISA-JE,No. 77-1371,INC,77-1371
Citation569 F.2d 1044
Parties, Appellant, v. DUNCAN AVIATION, INC., Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Fredric H. Kauffman, Cline, Williams, Wright, Johnson & Oldfather, Lincoln, Neb., for appellant.

Norman Krivosha, Ginsburg, Rosenberg, Ginsburg & Krivosha, Lincoln, Neb., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Plaintiff Lisa-Jet, Inc. below sought recovery from defendant Duncan Aviation, Inc. for destruction of its Learjet 25, which crashed shortly after take-off from the Lincoln, Nebraska, municipal airport. This diversity action was tried to a jury; however the district court 1 sustained defendant's motion for a directed verdict at the close of plaintiff's case and thereafter denied plaintiff's motion for new trial. This appeal followed. We affirm the district court.

We, of course, review the record under the well established principles that "(a) (motion for a) directed verdict should be granted 'only when all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party.' Decker-Ruhl Ford Sales, Inc. v. Ford Motor Credit Co., 523 F.2d 833, 836 (8th Cir. 1975)." Barclay v. Burlington Northern, Inc., 536 F.2d 263, 267 (8th Cir. 1976). "In making this determination, the evidence, together with all reasonable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party." Decker-Ruhl Ford Sales, Inc. v. Ford Motor Credit Co., supra, 523 F.2d at 836. A directed verdict should not be granted unless the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion. Hernon v. Revere Copper & Brass, Inc., 494 F.2d 705, 709 (8th Cir.), cert. denied, 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974).

In August 1973 Lisa-Jet purchased the subject Learjet 25 with the intention to lease it to Planes, Inc. for use in charter operations as it had frequently done in the past with other aircraft. Lawrence J. Block was president of both Lisa-Jet and Planes. Planes made arrangements with Duncan Aviation to have Horn, an employee of Planes, and Burke, a prospective employee, instructed in the operation of a Learjet 25 2 so that they might obtain type ratings in the operation of this aircraft. Planes agreed to pay for the instruction and expenses; Lisa-Jet supplied the aircraft. Duncan selected one of its instructors, David Williams, to provide the instruction. Williams flew to Memphis, picked up the Learjet 25 together with Horn and Burke, and returned to Lincoln.

Instructor Williams, with the approval of Block, made the necessary arrangements for Burke alone 3 to take the test and check ride in Denver, Colorado, on September 24. Burke was issued his type rating and thereafter Burke and Williams flew back to Lincoln. That evening Block contacted Burke, who indicated he had received his type rating, but stated that he was "not really comfortable in that airplane yet" and requested permission to use the plane for a couple of hours more training the following day. Block agreed, expecting Burke to return to Atlanta the next day with the plane after the additional flight training.

The following morning at 7:07 a. m. Instructor Williams contacted Lincoln Flight Service Center by commercial telephone and requested a weather briefing to Omaha, Nebraska. He received a local weather briefing from air traffic controller Sharp indicating a 100-foot ceiling and visibility of 3/8 of a mile. Williams also filed an instrument flight rules (IFR) flight plan for Omaha. Williams told Sharp that he was the pilot and Sharp entered the name Williams as pilot on the flight plan record. Four minutes later plaintiff's Learjet contacted "ground control" on its radio and received taxi instructions. At 7:17 a. m., ten minutes after the weather briefing, plaintiff's Learjet initiated its take-off roll, at which time radar departure picked up the Learjet on its scope. Radio contact with the Learjet was established near the end of the runway, as the plane reported "climbin' to nine." Within a few seconds radar contact was lost. Shortly thereafter the aircraft was found lying in a field approximately 3/4 mile from the end of the runway. Both Burke and Williams were killed in the crash. Subsequent investigation showed that Burke occupied the left-hand seat and Instructor Williams was in the right-hand seat. This was in accord with the normal practice of the trainee pilot occupying the left seat and the instructor pilot the right seat.

Lisa-Jet below and on this appeal asserts evidence was offered sufficient to create submissible issues for the jury on two distinct theories of recovery. Initially Lisa-Jet asserts that Duncan converted its aircraft to Duncan's own use when it commenced the flight from Lincoln to Omaha for the purpose of carrying out a charter flight from Omaha to Montreal. Alternatively, Lisa-Jet urges that Duncan is responsible for any negligent operation of the aircraft, regardless of who the active tortfeasor might be, due to the fact that the plane was under the command of Duncan's instructor pilot, Williams, and further that Duncan's instructor pilot was guilty of specific acts of negligence as instructor pilot.

Lisa-Jet's claim that there was a conversion of the aircraft by Duncan at the time of the accident is devoid of merit. The record disclosed that after its arrival in Omaha the Learjet was to pick up passengers for a charter flight to Montreal. Duncan's chief executive officer, Donald Duncan, testified that the charter flight had been arranged with the express permission of Mr. Block. The latter denied any knowledge concerning the same. Assuming arguendo that the charter was not authorized, it was not to begin until the plane arrived in Omaha, which it never did. At the time of the crash the plane was commencing a training flight approved by Mr. Block, Lisa-Jet's president. This claim was properly dismissed.

Lisa-Jet contends that even in the absence of proof of specific acts of negligence on the part of Williams, negligence concepts impose liability on Duncan, his employer, by virtue of the instructor relationship which existed at the time of the flight in question. In effect appellant asserts that Instructor Williams was the pilot-in-command of the aircraft at the time of the accident and is vicariously liable for any negligence which was a proximate cause of the accident...

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    ...granted directed verdicts at the close of plaintiffs' case when the only evidence presented was speculative. Lisa-Jet, Inc. v. Duncan Aviation, Inc., 569 F.2d 1044, 1048 (8th Cir.), cert. denied, 439 U.S. 828, 99 S.Ct. 100, 58 L.Ed.2d 121 (1978); Shunk v. Bosworth, 334 F.2d 309, 311-12 (6th......
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