Mills v. Orcas Power & Light Co.

• Decision Date: 29 September 1960
• Docket Number: No. 35070,35070
• Citation: 355 P.2d 781,56 Wn.2d 807
• Court: Washington Supreme Court
• Parties: Helen Hilyard MILLS as Executrix of the Estate of William George Mills, Deceased, Appellant, v. ORCAS POWER & LIGHT COMPANY and Inter Island Telephone Company, Inc., Respondents.

Page 807

56 Wn.2d 807

355 P.2d 781

Helen Hilyard MILLS as Executrix of the Estate of William

George Mills, Deceased, Appellant, v. ORCAS POWER & LIGHT COMPANY and Inter Island Telephone

Company, Inc., Respondents.

No. 35070.

Supreme Court of Washington, Department 2.

Sept. 29, 1960.

Rehearing Denied Dec. 15, 1960.

Graves, Kizer & Gaiser, Spokane, Warren W. Russell, Pros. Atty., Friday Harbor, for appellant.

Abrams, McCush & Rinker, Bellingham, Walsh & Margolis, Seattle, Elmon A. Geneste, Friday Harbor, Livesey, Kingsbury & Livesey, Bellingham, for respondents.

FOSTER, Judge.

Appellant, plaintiff below, appeals from a judgment of dismissal following the sustaining of a demurrer to her second amended complaint in an action for wrongful death. Appellant, the executrix of the estate of William George Mills, deceased, sued the Orcas Power and Light Company and the Inter Island Telephone Company for the death of Mills whose plane became entangled in power and telephone lines adjacent to the Orcas island airport. The airport is jointly maintained by San Juan county and the owner of the land. The county and the land owner were not joined as defendants.

The allegations of the second amended complaint may be summarized as follows:

At midday in May, 1956, William George Mills and one other were occupants in a small airplane which was approaching the Orcas island airport for a landing from the south end of the air strip.

The angle of the approach was normal and customary. The landing gear caught in the wires of the respondents' power and telephone lines along the highway immediately adjoining the air strip. The plane turned upside down and crashed, killing both occupants.

The airport, the only one on Orcas island, was constructed and maintained jointly by San Juan county and the owner of the land, and is open and available to the general flying public in interstate and intrastate flights, commercial and private, indiscriminately. Both respondents, Orcas Power and Light Company and Inter Island Telephone Company, under county franchises, maintained the poles and lines along the public highway. The telephone franchise was conditioned upon the company's conformity with any subsequent requirements by the county commissioners for public protection and safety. The power company's franchise required that the line of poles '* * * shall be located * * * in such manner as to cause the least inconvenience possible to the public * * *' Both lines were erected before the airport was constructed.

The air strip extends north and south; the south end is approximately one hundred feet from the north shoulder of the public highway. Respondents' lines are strung along the road which runs east and west. The lines and poles of the power company were on the south side of the road and approximately thirty feet high; the telephone lines and poles were about twenty feet in height and on the north side of the road. Respondents' alleged negligence is that neither the poles nor the wires had been painted or marked in any manner, and, by the weather process of many years, had faded into a neutral color. They were invisible, or, at least, were difficult to observe from a plane approaching from the south. As a result of the absence of clear markings on the lines to warn approaching aircraft, the Mills' plane, although in a proper course of descent, collided with the lines and crashed.

The respondents' demurrer admits the truth of the allegations in the complaint. The trial court's decision that the complaint failed to state facts constituting a cause of action ¹ can be based only upon the hypothesis that the respondents owed no duty to mark their lines and poles for the protection of planes using the airport. The complaint alleged that respondents knew the conditions of the lines endangered planes approaching the field from the south and that respondents failed in their duty to mark the lines. This, however, does not confront the issue, which is: Did the respondents, after receiving notice of the hazard, have a duty to correct it? Clearly, if such a duty existed, the complaint alleged a breach thereof and such was the proximate cause of the disaster. A cause of action was then stated. On the other hand, absent that duty, the complaint failed to state facts sufficient to constitute a cause of action, and the demurrer was properly sustained.

Whether there was a duty owing from the respondents to the plane's occupants is a question of law to be decided by the court. In that decision, the allegation, that it was the custom and practice of utility companies to lower or remove their lines or adequately to mark them, may be disregarded as surplusage. The existence or nonexistence of such a custom is not a pleading consideration, but, on the other hand, is a question of admissibility of evidence and the weighing thereof as to whether or not a defendant has conformed his conduct to the standard of care required by the substantive law. 2 Wigmore on Evidence (3d ed.) 488, § 461.

That the primary duty of marking the poles and lines to caution landing aircraft was upon the owners and operators of the airport itself, there can be little doubt. A public airfield extends an implied invitation to aircraft, and the duty owed, therefore, is one of reasonable care to see that the premises are safe. Back v. Wings Field, Inc., D.C., 35 F.Supp. 953, reversed on other grounds, 3 Cir., 122 F.2d 114; Ross v. Air Farms, Inc., 13 Misc.2d 250, 175 N.Y.S.2d 319; Grossman & Sun v. The King, 1 (1952) Can.L.Rep. 571, 2 (1952) Dominion L.Rep. 241, reversing 1 (1951) Dominion L.Rep. 168. The law thus places upon proprietors of airfields the obligation to see that the airport is safe for such aircraft as are entitled to use it, and to give proper warning of any danger of which they knew or should have known. Peavey v. City of Miami, 146 Fla. 629, 1 So.2d 614, 1941 U.S. Av. 28; Imperial Airways v. Nat. Flying Services, 1933 U.S.Av. 50; Grossman & Sun v. The King, supra.

The rule was well stated in Peavey v. City of Miami, supra [146 Fla. 629, 1 So.2d 617], as follows:

'* * * the city [which operated the airport] * * * was required to exercise the same degree of care in the maintenance of its property as is imposed upon others who undertake to render services or furnish accommodations to the public. That is, 'the law imposes a duty to use proper care, precaution, and diligence in providing and maintaining the accommodations in a reasonably safe condition for the purposes to which they are adapted, and are apparently designed to be used. If the accommodations for any reason are not reasonably suitable and safe for the purposes for which they may ordinarily and apparently be used in a customary way, the public should be excluded from their use, or appropriate notice of their unsuitable or unsafe condition should be so given as to warn persons of dangers in using them. A failure to perform these duties or any of them may be negligence that, if it proximately results in injury to another without his fault, will constitute a cause of action for compensatory damages. See Woodbury v Tampa Waterworks Co., 57 Fla. 249, 49 So. 556, 21 L.R.A.,N.S., 1034.' Turlington v. Tampa Elec. Co., 62 Fla. 398, 56 So. 696, 698, 38 L.R.A.,N.S., 72. Therefore, it was the duty of the defendant to see that the airport was safe for aircraft and to give proper warning of any danger of which it knew or ought to have known; and the defendant had the 'duty to keep the runways free from obstructions, so far as possible, or to place markers warning pilots of danger.' 6 Am.Jr. 11, Aviation, Sec. 14.'

Accord: Hesketh v. Liverpool Corp., 4 (1940) All Eng.Rep. 429; Plewes v. City of Lancaster, 171 Pa.Super. 312, 90 A.2d 279; Beck v. Wings Field, supra; Ross v. Air Farms, supra; Read v. New York City Airport, 145 Misc. 294, 259 N.Y.S. 245; Miller v. Contra Costa County, 106 Cal. App.2d 304, 235 P.2d 76; Behnke v. City of Moberly, Mo.App., 243 S.W.2d 549, C.C.H. 3 Av.Cas. 17, 740, 1951 U.S.Av. 509; Shawcross and Beaumont on Air Law (2d ed.), 523, § 580; Fixel on the Law of aviation (3d ed.), 202 § 200; 6 Am.Jur. 19, § 28.

The airport proprietor's duty to maintain safe conditions for craft using the field extends not only to the runway itself, but to the take-off and landing flight ways. These are as much a part of the airport, and thus as much a part of the proprietor's responsibility, as the runway itself. ² It is the airport operator's duty to warn landing or departing planes as to any structures, manmade or natural, which obstruct the proper general take-off or landing flight way. Hesketh v. Liverpool Corp., supra; Shaw-cross and Beaumont on Air Law, supra.

RCW 14.08.030(3) recognizes that duty, and provides a means whereby the airport operator may comply therewith when the obstruction exists outside the physical boundaries of the airport on property owned by another. The pertinent provision is 'Where necessary, in order to provide unobstructed air space for the landing and taking off of aircraft utilizing airports * * * acquired or operated under the provisions of this chapter, every municipality is authorized to acquire * * * easements through or other interests in air spaces over land or water, interests in airport hazards outside the boundaries of the airports * * * and such other airport protection privilges as are necessary to insure safe approaches to the landing areas of said airports * * * and the safe and efficient operation thereof. It is also hereby authorized to acquire * * * the right or easement, for a term of years or perpetually, to place or maintain suitable marks for the daytime marking and suitable lights for the nighttime marking of airport hazards, including the right of ingress and egress to or from such airport hazards, for the purpose of maintaining and repairing such lights and marks. * * *' (Italics ours.)

For the purposes of the statute, 'Municipality' is defined in...