Monger v. Cessna Aircraft Co.

Decision Date26 May 1987
Docket NumberNo. 86-1555,86-1555
Citation812 F.2d 402
Parties22 Fed. R. Evid. Serv. 835 Kevin Brent MONGER, II, Amanda Keann Monger, Minors By and Through their Next Friend and Guardian, Appellants, United Missouri Bank of Kansas City, National Association, Ashby Monger, Huberta Monger and Evelyn Register, Appellants, v. The CESSNA AIRCRAFT COMPANY, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Glenn E. Bradford, Kansas City, Mo., for appellants.

John W. Cowden, Kansas City, Mo., for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

Kevin Brent Monger II and Amanda Keann Monger ("Monger") 1, brought this diversity action under Missouri's wrongful death statute, Mo.Rev.Stat. Sec. 537.020, against the Cessna Aircraft Company ("Cessna"), seeking damages for the death of their parents in the crash of a Cessna 210-J aircraft. They alleged negligence in the design of the aircraft, as well as strict liability. After a three-week trial, the jury returned a verdict for Cessna. The district court 2 denied Monger's motion for a new trial and entered judgment accordingly. For reversal, Monger asserts prejudicial error in the district court's rulings on the presumption of due care and various evidentiary issues. We affirm.

I. FACTUAL BACKGROUND.

The fatal crash occurred on August 12, 1982, while the deceased Kevin Monger was flying from Johnson County Executive Airport in Johnson County, Kansas to McComas Airport in Lee's Summit, Missouri, accompanied by his wife, the deceased Anita Monger. Earlier that day, Kevin had flown his plane to Johnson County from Billard Airport in Topeka, Kansas, where it had been repainted at R & B Aircraft.

Monger's theory at trial was that undetectable water in the fuel system caused the crash, due to the defective design of the plane. Cessna asserted that the crash resulted from exhaustion of the plane's fuel supply. The relevant evidence was as follows.

Kevin Monger's flight instructors, Phil LePage and Charles Nichols, testified that they had taught him to conduct a proper pre-flight inspection of his airplane, which included a physical check of the fuel supply, rather than relying on the cockpit fuel gauges. Pre-flight inspection of the fuel level required that Kevin climb on a ladder to reach the opening of the fuel tanks. The uncontradicted evidence clearly shows that Kevin did not conduct a physical inspection of the fuel supply before leaving R & B Aircraft on August 12, 1982, despite the availability of a ladder. Nor did he purchase fuel.

After leaving R & B Aircraft, Kevin taxied the plane to a nearby airport restaurant, where he parked and went in for dinner with his wife and Phil LePage. Kevin left the restaurant approximately ten or fifteen minutes before his wife and Phil LePage left, but there was no ladder near the plane or outside the restaurant, or any other evidence that Kevin had checked the fuel at that time. By the time his wife and Phil LePage had exited the restaurant, Kevin had started the plane, and he took off soon thereafter, with his wife and Phil LePage following in a separate aircraft.

Kevin landed at Johnson County, where fuel was available, but he did not purchase any. His wife got in his plane, and both planes left for Lee's Summit. Shortly after entering his landing pattern at Lee's Summit, Kevin radioed to Phil LePage that he had lost his engine. Thereafter, the plane crashed, resulting in the deaths of Kevin and Anita Monger.

Monger presented testimony that both fuel tanks had been three-quarters full, according to the two fuel gauges, when the plane was brought to Topeka, and that there was no evidence that any fuel had been used or removed while the plane was in Topeka. Monger also presented evidence that the crash was caused by water in the fuel and that with Cessna's design and following Cessna's recommended pre-flight instructions in its owner's manual, water in the fuel could not be adequately detected and eliminated.

Cessna presented testimony that there was only one-half gallon of fuel in the right fuel tank after the crash, and that the fuel tank selector valve was switched to the left tank position. There was also substantial testimony that, although both fuel tanks had been breached as a result of the crash, there was no evidence of fuel spillage at the site of the crash. Nor was there any water in the fuel system or engine after the crash. Cessna also presented three expert witnesses who testified that the crash occurred because the plane ran out of fuel.

II. PRESUMPTION OF DUE CARE.
A. Jury Instruction.

Monger argues that the district court erred in refusing to instruct the jury on a presumption of due care. Monger reasons that to prove his case, he had to show that the plane was used in the manner reasonably anticipated by Cessna, that is that Kevin Monger performed a pre-flight inspection in accordance with the owner's manual, checking both the fuel supply and for the presence of water in the fuel. Monger contends that he was entitled to an instruction directing the jury that Kevin was presumed to have exercised due care, in the absence of direct or persuasive circumstantial evidence that a proper pre-flight inspection was not performed.

In a diversity case, the effect of presumptions is a substantive question, requiring application of state law. Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 3 L.Ed.2d 935 (1958); see also Gulf, Mobile and Ohio R.R. v. Larkin, 307 F.2d 225, 228 (8th Cir.1962) (applying Illinois law to issue of burden of proving whether plaintiff exercised due care); Fed.R.Evid. 302.

In one of the seminal cases on the presumption of due care in a jury trial, the Missouri Supreme Court stated:

[T]he law presumes that the plaintiff, in an action to recover damages for injuries sustained at the hands of another, was at the time of the injury in the exercise of ordinary care. Slight circumstances, however, may overthrow this presumption.

Cahill v. Chicago & Alton Ry., 205 Mo. 393, 103 S.W. 532, 535 (1907) (citations omitted) (emphasis supplied). The appellate court thus upheld the trial court's instruction to the jury, "that under the law, in the absence of proof to the contrary, you will presume that, at the time the plaintiff's husband was struck and killed, he was in the exercise of ordinary care on his part for his own safety." Id. 103 S.W. at 534, 535 (emphasis supplied). Applying this law, the Missouri Court of Appeals subsequently held there was no error in "advising the jury that there is a presumption, in the absence of proof to the contrary, that * * * the deceased * * * was in the exercise of ordinary care for his own safety." Hasenjaeger v. Missouri-Kansas-Texas R.R., 227 Mo.App. 413, 53 S.W.2d 1083, 1087 (1932) (emphasis supplied).

In contrast, in a bench trial, where there is no direct or eye-witness evidence that the decedent was negligent, Missouri law requires the court to presume he or she exercised due care. E.g., Foley v. Hudson, 432 S.W.2d 205, 209 (Mo.1968); Keeney v. Callow, 349 S.W.2d 75, 80 (Mo.1961); Lyon v. Southard, 323 S.W.2d 785, 788 (Mo.1959). These cases did not purport to overturn the precedent that a trial judge may find it inappropriate to instruct the jury on the plaintiff's presumption of due care because of "[s]light circumstances" or "proof to the contrary," however. Indeed, under well-settled Missouri law, "it is reversible error to instruct the jury as to the existence of a presumption when there is evidence to rebut it." Kansas City v. Cone, 433 S.W.2d 88, 93 (Mo.Ct.App.1968) (citations omitted). 3 Furthermore, the Missouri Supreme Court has recognized that "the existence of only circumstantial evidence on a material issue is no bar to recovery of and by itself [citation omitted]" so long as the evidence establishes the desired inference "with such certainty as to cause it to be the more reasonable and probable of the conclusions to be drawn [citation omitted]." Vaughn v. Taft Broadcasting Co., 708 S.W.2d 656, 661 (Mo.1986) (en banc) (affirming judgment on jury verdict).

In the present case, the district court concluded that the applicable law did not support a presumption of due care instruction because there was circumstantial evidence that Kevin Monger did not conduct a proper pre-flight inspection of the aircraft's fuel supply or for water in the fuel. We agree with the district court that circumstantial evidence of the decedent's negligence may be enough to deprive the plaintiff of an instruction on the presumption of due care. Hasenjaeger, 53 S.W.2d at 1087; see generally Vaughn, 708 S.W.2d at 661. The testimony that Kevin Monger did not conduct a proper pre-flight inspection before leaving R & B Aircraft, and that he did not have a ladder with which to conduct a pre-flight inspection outside of the airport restaurant, support the inference that no such inspection occurred. This was direct and circumstantial evidence of Kevin's negligence in operating the plane. We thus hold that the district court did not err in refusing to instruct the jury on the presumption of due care, because there was sufficient "contrary proof" to rebut any such presumption.

B. Closing Argument.

Monger contends that the district court erred in refusing to allow him to assert the presumption of due care in closing argument. Noting that Monger did in fact argue the presumption of due care despite the district court's direction not to, 4 we hold that the district court did not err, based on the above analysis.

III. EVIDENTIARY ISSUES.
A. Exclusion of Plaintiffs' Exhibit 40.

Monger contends that the district court erred in excluding plaintiffs' Exhibit 40. Cessna operated under a Designated Option Authority ("DOA"), whereby it was permitted to certify to the FAA its compliance with federal regulations relating to the design of...

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