Meil v. Piper Aircraft Corp., 80-1477

• Decision Date: 11 September 1981
• Docket Number: No. 80-1477,80-1477
• Citation: 658 F.2d 787
• Parties: Jessie E. MEIL, Plaintiff-Appellee, v. PIPER AIRCRAFT CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 787

658 F.2d 787

Jessie E. MEIL, Plaintiff-Appellee, v. PIPER AIRCRAFT CORPORATION, Defendant-Appellant.

No. 80-1477.

United States Court of Appeals, Tenth Circuit.

Argued July 16, 1981.

Decided Sept. 11, 1981.

Gerald Anderson (Ira Watrous of Watrous, Joyce & Ryan, Houston, Tex., and Elizabeth E. Whitefield, Albuquerque, N. M., with him on the brief), for plaintiff-appellee.

W. R. Logan, Albuquerque, N. M. (C. LeRoy Hansen, Civerolo, Hansen & Wolf, P. A., Albuquerque, N. M., with him on the briefs), for defendant-appellant.

Before LOGAN and BREITENSTEIN, Circuit Judges, and BROWN, ^* United States District Judge for the District of Kansas.

BREITENSTEIN, Circuit Judge.

This is a product liability case with jurisdiction based on diversity. The plaintiff was injured when the Piper plane, which he was piloting to spray crops, crashed in New Mexico after striking a steel cable static line. The case was tried on theories of both strict liability and negligence. Judgment of $840,000 was entered on a general jury verdict. The appeal is based on insufficiency of the evidence and alleged improper instructions. We affirm.

Crop spraying, or dusting, is the dissemination of chemicals from an airplane flying over fields at low altitudes. It is a dangerous occupation requiring routine precautions. Plaintiff-appellee alleged that defendant-appellant, Piper Aircraft Corp., negligently designed, manufactured, and assembled the aircraft which was unsafe to operate and was not crashworthy. On this appeal Piper does not challenge either the absence of a finding that plaintiff was contributorily negligent or that the proof of damage was insufficient.

The crash occurred on July 7, 1976, while plaintiff, an experienced agricultural pilot, was spraying parathion, a liquid insecticide, on cropland. The plane hit and broke a steel static cable which connected poles supporting electrical transmission lines. The contact point between the plane and the cable was a cutter blade attached to a landing gear strut of the plane. The purpose of the cutter blade was to cut wires which might be struck in flight. The cable was broken rather than cut.

The plane landed upside down and the plaintiff was suspended by the seat belt. The rescuers were unable to unfasten the seat belt and had to cut it to release the pilot. The engine of the plane caught on fire and the flames went along the fuel lines to the fuel header tank located under the cockpit. The insecticide was released from the fiberglass hopper in which it was carried. The fire extinguisher, which was attached to the frame of the plane, broke loose and could not be operated. The plaintiff was burned and covered with insecticide. He received both orthopedic and burn injuries with respiratory complications.

Applicable New Mexico law is controlling. The plaintiff claimed both strict liability and negligence in design, manufacture, assembly, and failure to provide a restraint system which would release the pilot after the crash. On strict liability New Mexico had adopted and applied Restatement, Second, Torts, § 402 A. Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732, 734. See also Moomey v. Massey Ferguson, Inc., 10 Cir., 429 F.2d 1184, 1186. Section 402 A imposes liability on the seller of a product "in a defective condition unreasonably dangerous to the user." We have held that both "defective condition" and "unreasonably dangerous" must be established. Bruce v. Martin-Marietta Corp., 10 Cir., 544 F.2d 442, 447. Piper sold the plane about a year before the crash. No showing is made on non-compliance with federal air safety regulations. Proof of injuries in an airplane crash does not prove, or raise a presumption of, defective design. Id. at 448. The negligence claim is based on the failure to use ordinary care in the design, manufacture and sale of the product.

A distinction must be made between the crash and the crashworthiness of the plane to prevent enhancement of the injuries. Plaintiff says that the plane crashed because of the failure of the cutter to sever the static cable. He also says that his injuries were enhanced by the defective seat belt which would not unfasten, the fuel system which permitted the fire to spread, the bursting of the hopper which contained the insecticide, and failure of the support to the fire extinguisher which caused it to be inoperable.

Without objection by either party to the form of verdict, the jury returned a general verdict in favor of the plaintiff. We do not know whether the jury was so persuaded by one or all of the plaintiff's claims. The court denied the defendant's motion to dismiss on the ground of evidence insufficiency. In the circumstances, we must consider each claim.

Piper argues that it was entitled to a directed verdict on the issue of whether defective cutter blades proximately caused the crash. It says that plaintiff was required to, and did not, prove that an alternative safer design was available and should have been used. See Wilson v. Piper Aircraft Corp., 282 Or. 61, 577 P.2d 1322, 1327. Plaintiff counters with the argument that a prima facie case is made by showing a safety defect which failed to meet the reasonable expectations of an ordinary customer. See Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, 451. New Mexico has not defined the elements for proof of strict liability for design defect and it is uncertain whether New Mexico would require proof that an alternative safer design was available in order to impose liability. Even if it be assumed that New Mexico would require a showing the cutter blades should have been capable of cutting the static cable and permitting the plane to keep on flying, the record satisfies that requirement.

An expert metallurgist testified for the plaintiff that cutter blades should have a hardness of 55-65 on the Rockwell scale of C and the blades on the crashed Piper had a hardness of only 20 on that scale. He said that the metal used by Piper was unacceptable as a cutter blade and could not cut the cable which had a hardness of 43 on the C scale. Upon contact the cutter blade would act as an impacting rather than cutting device. This testimony was...