Mullan v. Quickie Aircraft Corp.

• Decision Date: 21 July 1986
• Docket Number: No. 85-1107,85-1107
• Citation: 797 F.2d 845
• Parties: 1 UCC Rep.Serv.2d 1540 Joseph A. MULLAN, an individual, Plaintiff-Appellee, v. QUICKIE AIRCRAFT CORPORATION, a California corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 845

797 F.2d 845

1 UCC Rep.Serv.2d 1540

Joseph A. MULLAN, an individual, Plaintiff-Appellee, v. QUICKIE AIRCRAFT CORPORATION, a California corporation Defendant-Appellant.

No. 85-1107.

United States Court of Appeals Tenth Circuit.

July 21, 1986.

Bruce A. Lampert, of Schaden & Heldman, Denver, Colo., for plaintiff-appellee.

Franklin D. Patterson (Glenn T. Kray with him on briefs), of DeMoulin, Anderson, Campbell & Laugesen, Denver, Colo., for defendant-appellant.

Before BARRETT, ANDERSON, and TACHA, Circuit Judges.

BARRETT, Circuit Judge.

Appellant, defendant below, Quickie Aircraft Corporation (Quickie), appeals from the denial of its motion for Judgment Notwithstanding the Verdict or in the Alternative for Remittitur or New Trial by the District Court for the District of Colorado. Quickie's motion was filed after the entry of judgment in favor of plaintiff-appellee, Joseph A. Mullan (Mullan), based on a jury verdict in the amount of $155,000. Quickie raises four issues on appeal: (1) whether the district court erred in refusing to instruct the jury on negligence per se; (2) whether the district court erred in denying Quickie's motion for directed verdict on Mullan's breach of warranty claim; (3) whether the district court erred in allowing Mullan's expert witness to testify based on National Transportation Safety Board reports; and (4) whether the district court erred in striking as unconscionable the disclaimer provision contained in the sales contract between the parties?

On August 31, 1980, Mullan, a Colorado resident, was injured when his home-built aircraft crashed on take-off from the Loveland-Fort Collins, Colorado, airport. Quickie, a California corporation, was the manufacturer and distributor of the kit from which Mullan constructed the aircraft. Mullan filed this diversity action for personal injuries sustained in the airplane crash on March 20, 1981. Judgment was entered in favor of Mullan on November 1, 1984, and Quickie's post-trial motions were denied on December 18, 1984. A notice of appeal was filed on January 17, 1985, invoking this court's jurisdiction pursuant to 28 U.S.C. Sec. 1291.

I.

Quickie contends that the district court erred as a matter of law in refusing to instruct the jury on negligence per se. One of Quickie's defenses was that Mullan was negligent as a matter of law because he violated certain aviation regulations (FARs). Quickie advances several arguments to support its contention that the district court erred in refusing its tendered negligence per se instruction.

Assuming, without deciding, that the district court did err in refusing Quickie's proposed negligence per se instruction, we hold that this error is not reversible. Quickie concedes the district court permitted it to argue during trial that Mullan had violated the FARs in flying his aircraft. (Appellant's Brief, p. 13.) The jury did in fact find Mullan 10% at fault under Colorado's comparative negligence statute. (R.Vol. I, p. 138.) While a negligence per se instruction establishes that a party is negligent as a matter of law, Reed v. Barlow, 153 Colo. 451, 386 P.2d 979 (1963), under Colorado's comparative negligence statute, C.R.S. 13-21-111, the finder of fact must nonetheless apportion the parties' relative fault. McCormick v. United States, 539 F.Supp. 1179, 1182 (D.Colo.1982).

We do not believe Quickie was harmed in any material way by the district court's refusal to instruct the jury on negligence per se. Quickie had an opportunity to argue before the jury Mullan's alleged violation of FARs. The jury found that Mullan was negligent. Under these circumstances, we hold that no reversible error was committed even assuming that the district court erred in refusing to tender the negligence per se instruction.

II.

Quickie contends that the district court erred as a matter of law in denying its motion for directed verdict on Mullan's breach of express warranty claim. Quickie contends that it was entitled to a directed verdict as a matter of law because Mullan failed to introduce evidence at trial that he notified Quickie pursuant to C.R.S. 4-2-607(3)(a) ¹ regarding Quickie's breach of warranty.

In reviewing the denial of a motion for directed verdict, we view the evidence and the inferences from it in "the light most favorable to the parties for whom the jury found. A directed verdict ... may not be granted unless the evidence points but one way and is susceptible to no reasonable inferences which may sustain the position of the party against whom the motion is made." Miller v. City of Mission, Kan., 705 F.2d 368, 373 (10th Cir.1983) (citations omitted). After entertaining Quickie's argument on the motion for directed verdict, the district court ruled that Mullan's testimony was sufficient to permit the issue of notice to go to the jury. (R.Vol. IX, p. 97.) The jury was instructed that as an element of Mullan's breach of warranty claim, the jury had to find by preponderance of the evidence that Mullan notified Quickie of the accident within a reasonable time after it occurred. (R.Vol. I, p. 116, para. 6.) The jury found Quickie liable on the breach of warranty claim. (R.Vol. I, p. 138.) Under these circumstances, we hold that the district court did not err in denying Quickie's motion for directed verdict on Mullan's breach of warranty claim.

III.

Quickie contends that the district court erred as a matter of law in allowing Mullan's expert witness, Donald Sommer, to testify based in part on his review of National Transportation Safety Board (NTSB) reports. Quickie relies on 49 U.S.C. Sec. 1441(e) ² as a bar to the use of the NTSB reports in this case.

Mullan contends that section 1441(e) has been construed to permit the use of factual portions of NTSB reports, and only the use of those portions of the reports regarding proximate cause of the crash is prohibited. In Keen v. Detroit Diesel Allison, 569 F.2d 547, 549-51 (10th Cir.1978), we cited with approval the opinions of those courts which have construed section 1441(e) to exclude only the parts of NTSB reports which contain agency conclusions on the probable cause of accidents. The Colorado Court of Appeals has also adopted this construction of section 1441(e). Murphy v. Colorado Aviation, Inc., 41 Colo.App. 237, 588 P.2d 877 (1978).

Our review of the record reveals that Mullan's expert witness properly relied on the factual portions of the NTSB report. To hold, as Quickie's argument suggests, that Sommer impermissibly relied on the NTSB report because his conclusions were the same as or similar to those of the NTSB investigators, is an inference which we shall not make. Therefore, we hold that the district court did not err in permitting Sommer's testimony.

IV.

Quickie contends that the district court erred in striking the disclaimer language from the sales contract and other documents as unconscionable pursuant to C.R.S. 4-2-719(3). ³ Quickie argues that C.R.S. 4-2-719(3) makes contract provisions which waive consequential damages for personal injuries prima facie unconscionable, and the district court erred as a matter of law by improperly evaluating the evidence presented to rebut the presumption.

In its answer to Mullan's amended complaint, Quickie raised an affirmative defense that Mullan had contractually waived his rights to assert any claim against Quickie arising from structural integrity, performance, flight characteristics, mechanical failure, and safety. (R.Vol. I, p. 20 para. 22.) Quickie based its affirmative defense on language contained in the sales contract and in other exhibits such as the owner's manual which provided as follows:

QUICKIE AIRCRAFT CORPORATION is not responsible, and makes no warranties, express or implied whatsoever, regarding the structural integrity, performance, flight characteristics, or safety of the buyer's completed aircraft and its component parts. QUICKIE AIRCRAFT CORPORATION has no control and assumes no control of the buyer's ability to successfully construct and test the QUICKIE AIRCRAFT. Buyer expressly waives any and all claims arising from structural integrity, performance, flight characteristics, mechanical failures, and safety against QUICKIE AIRCRAFT CORPORATION. Buyer acknowledges awareness of the risks of flying a home built aircraft. Buyer acknowledges that the FAA must inspect the aircraft at construction intervals, as well as the completed project, prior to flight and should work with his local FAA representative regarding the construction and licensing of the aircraft.

(R. Defendant's Exhibit H (emphasis added).)

During the presentation of plaintiff's case, the court made a preliminary ruling that only the emphasized sentence of the above-quoted paragraph need be deleted from the exhibits as unconscionable. On October 23, 1984, during the presentation of defendant's case, the court held a hearing out of the presence of the jury, on, among other things, Quickie's disclaimer provision. Relying on evidence admitted at trial, including Mullan's testimony, defense counsel summarized his argument on the conscionability of the disclaimer provision as follows:

I don't feel that Mr. Mullan was in an unequal bargaining position to negotiate through this great and unconscionable type of contract. He certainly had previous discussion with the defendant, he read all of the literature. In addition to the sales literature, he read the articles in sports magazines written by expert fliers and by engineers. He entered into the sales agreement with the defendant. He apparently had some discussion with the defendant. At least if he didn't he made enough changes to the contract. It's only a one-page contract and yet he made, oh, I think four to six changes on the one page; and then he and his partner added a whole paragraph on a second page, so they certainly read the contract and felt that they could vary the terms of the contract if they needed to. So I don't see any one-sidedness, any...