Newing v. Cheatham

• Decision Date: 03 October 1975
• Citation: 15 Cal.3d 351,540 P.2d 33,124 Cal.Rptr. 193
• Court: California Supreme Court
• Parties: , 540 P.2d 33 Kandie NEWING, a minor, etc., et al., Plaintiffs and Respondents, v. Steven Eugene CHEATHAM, as Administrator, etc., Defendant and Appellant. L.A. 30394

Page 193

124 Cal.Rptr. 193

15 Cal.3d 351, 540 P.2d 33

Kandie NEWING, a minor, etc., et al., Plaintiffs and Respondents, v. Steven Eugene CHEATHAM, as Administrator, etc., Defendant and Appellant.

L.A. 30394.

Supreme Court of California

Oct. 3, 1975.

Luce, Forward, Hamilton & Scripps, C. Douglas Alford, James K. Eckmann, and William M. Schindler, San Diego, for defendant and appellant.

Ned Good, Los Angeles, for plaintiffs and respondents.

SULLIVAN, Justice.

In this action for damages for wrongful death arising out of the crash of a private airplane, defendant Steven Eugene Cheatham as administrator of the estate of Harold Cheatham (hereafter Cheatham) deceased appeals from a judgment entered upon a jury verdict in favor of plaintiffs and against decedent's estate in the sum of $125,000. Plaintiffs are the surviving wife and children of Richard Newing, an occupant of the plane who died in the crash. Defendant's decedent who also died in the crash was the owner and pilot of the plane.

About 1 p.m. on Sunday, October 25, 1970, Richard Newing, Harold Cheatham, and Ronald Bird departed from Brown Field at Chula Vista, California, aboard a single-engine Cessna 172 aircraft owned and piloted by Cheatham. Neither Newing nor Bird was a licensed pilot. At the time of take-off the weather was clear and the visibility unrestricted. There was no evidence that the plane landed at any other field that afternoon, or that it sent any radio messages. When it failed to return, a search was commenced. On the following day the plane's wreckage was located by a search aircraft in mountainous terrain about 13 miles east of Tijuana, Mexico, and an equal distance southeast of Brown Field. A rescue party found all occupants of the airplane dead. The clock on the instrument panel was stopped at 5:18.

Plaintiffs brought this action for wrongful death alleging that the crash had been caused by Cheatham's negligence. ¹ At trial, three theories were advanced in support of plaintiffs' case. The first was that Cheatham had negligently permitted the airplane to run out of fuel while in flight. The second was that he had been negligent as a matter of law in that he had violated applicable federal air regulations. Finally, Cheatham's negligence was said to be established by the doctrine of res ipsa loquitur.

In support of the first of these theories, plaintiffs offered the testimony of Jorge Areizaga Rojo, then Commandante of the Tijuana Airport, and of Jesus Leon an airport mechanic. Rojo, who testified as an expert witness, had been a member of the rescue party that first reached the wreckage of the aircraft. Accompanied by Leon, he returned to the site on the second day after the crash in order to gather information for a report to the Mexican authorities. Rojo testified that he visually inspected the fuel tanks of the aircraft, which were carried on its wings, but saw no fuel. He also attempted, but without success, to drain fuel from the bottom of each tank by removing drain plugs.

Leon testified that he had inspected the aircraft's fuel system, although he had not dismantled it, but had found no trace of fuel. Both men visually inspected the ground beneath the aircraft, but saw no indication of fuel spillage. They also attempted to measure the fuel in one of the wing tanks; Leon estimated the level of the fuel to be 3/16 of an inch. Rojo indicated that whatever fuel remained in the tanks was probably 'unusable,' in the sense that it was not a sufficient quantity to reach the engine. Rojo also testified concerning the general structural condition of the aircraft, the appearance of the propeller and control surfaces, the upright position in which the plane had come to rest, and the general description of the accident site. All of these factors, he said, indicated that the crash had been caused by fuel exhaustion.

On cross-examination, however, Rojo conceded that the appearance and condition of the plane would have been the same if the crash had been caused by engine failure or some similar mechanical malfunction resulting in loss of power. He also indicated that since the aircraft had not been brought to a level position before he had attempted to drain fuel from the tanks, a usable amount of fuel might have remained within. He admitted that there had been no very thorough investigation of other potential causes of the crash. Despite the foregoing, however, he remained of the opinion that the plane had crashed because it had run out of fuel.

Plaintiffs also called as an expert witness Michael Potter, an airline pilot who had logged some 1,200 hours of flight time in small aircraft, including 200 hours in a Cessna 172. Potter testified at length concerning the training received by student pilots with respect to fuel management and emergencies in flight. He stated that a prudent pilot maintains at the minimum a 45-minute reserve of fuel, and ordinarily flies high enough above surrounding terrain to permit his aircraft to glide to a safe landing in the event of a power failure. Potter also testified that, according to the operator's manual, a Cessna 172 has sufficient fuel capacity to fly for 4.3 hours when operated at the usual power settings and with a 'lean' fuel mixture. Thus, he said, the Cheatham plane, if operated in the usual manner with respect to power settings, fuel mixture, and altitude, should have run out of fuel at just the time indicated on its damaged clock. ² However, he indicated on cross-examination that the endurance of a Cessna 172 can be greater or less than 4.3 hours depending upon the manner in which it is operated. Despite this, Potter said that the crash had probably been caused by fuel exhaustion and the pilot's failure to maintain proper terrain clearance. This opinion was based upon his examination of photographs of the wreckage, his observations made during overflights of the crash site, the testimony of Rojo and Leon, and an experiment in which he ran the engine of a stationary Cessna 172 until its fuel supply was exhausted. From such experiment Potter found that 5/16 of an inch of fuel remained in the tanks after the engine had stopped.

Defendant called as an expert witness Robert Rudich, an experienced air traffic controller who had written widely on the subject of air crash investigations and had participated in many such investigations, though chiefly as an analyst of cockpit recording devices and as an editor of final reports. Rudich expressed no opinion as to the cause of the crash, but testified instead about the procedures that must be employed in a sound air crash investigation. According to Rudich, such an inquiry must consist of a progressive 'ruling out' of the whole gamut of potential causes ranging from human error to mechanical or structural failure. Where fuel exhaustion is suspected, the entire fuel system must be dismantled and painstakingly inspected from end to end in order to eliminate the possibility that one of its components has malfunctioned. In addition, the plane's other systems must be checked for signs of similar mechanical failure. The court did not permit Rudich to express an opinion as to the quality of the investigation conducted by Rojo and Leon, although the implication of his testimony was that their investigation had been rudimentary at best. However, Rudich was allowed to testify about an experiment he performed on a detached Cessna 172 wing arranged at an angle approximating that of the wing of the downed plane as shown in photographs of the wreckage. Rudich found that it required 7.5 gallons of gasoline to raise the fuel level in the wing tank to 3/16 of an inch. This was said to constitute a usable amount of fuel.

In addition to this expert testimony, defendant introduced evidence that the three dead men had been drinking beer together on the day of the crash. The owner of a National City tavern testified that Newing, a man named 'Harold,' and another man had drunk draft beer in his establishment for about an hour that morning, although he was unable to say how much beer they had consumed. A member of the rescue party testified that eight or nine empty beer cans had been found in the wreckage of the Cheatham plane. Evidence was also produced that the Mexican physicians who had performed autopsies on the bodies of the three men, had noted a strong odor of alcohol emanating from the remains of Cheatham and Bird, but not from Newing's.

After the close of the evidence, the trial judge advised counsel that he would not instruct the jury on the defenses of assumption of risk and contributory negligence. He then granted plaintiffs' motion for a directed verdict on the issue of liability, concluding that the elements of res ipsa loquitur had been established as a matter of law and that the inference of negligence arising from the doctrine had not been rebutted as required by Evidence Code section 646. The jury returned a verdict in favor of plaintiffs in the amount of $125,000. Judgment was entered accordingly. This appeal followed.

We address ourselves at once to defendant's main contention that the trial court committed prejudicial error by directing a verdict on the issue of liability. Our consideration of this issue requires us to resolve two subordinate questions: First, whether, as the trial court concluded, the doctrine of res ipsa loquitur established Cheatham's negligence as a matter of law; second, whether, as it also determined, the defenses of contributory negligence and assumption of risk as a matter of law were not applicable to the case.

We proceed to discuss these questions in the above order. We do so mindful of the familiar rules governing the granting of a motion for a directed verdict. Adverting to them in the context of a directed verdict in favor of the plaintiff, we had this to say in Walters v. Bank of America (1937) Cal.2d 46, 49, 69 P.2d 839, 840: 'The trial court, in a proper case, may direct a verdict in favor of a party...