Norris v. Bell Helicopter Textron

• Decision Date: 08 October 1986
• Docket Number: No. 85-1087,85-1087
• Citation: Norris v. Bell Helicopter Textron, 495 So.2d 976 (La. App. 1986)
• Parties: Prod.Liab.Rep. (CCH) P 11,281 Sheila NORRIS, et al., Plaintiffs-Appellants, v. BELL HELICOPTER TEXTRON, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana

Page 976

495 So.2d 976

Prod.Liab.Rep. (CCH) P 11,281

Sheila NORRIS, et al., Plaintiffs-Appellants, v. BELL HELICOPTER TEXTRON, et al., Defendants-Appellees.

No. 85-1087.

Court of Appeal of Louisiana Third Circuit.

Oct. 8, 1986.

Rehearing Denied Oct. 30, 1986.

Writ Denied Jan. 9, 1987.

Guglielmo, Lopez & Tuttle, James T. Guglielmo, Opelousas, Gary L. Lewis, Columbia, Mo., Morrow & Morrow, James S. Gates, Opelousas, for plaintiff-appellant.

Christovich & Kearney, A.R. Christovich, Jr., New Orleans, Darrel D. Ryland, Knoll, Roy & Spruill, J. Edward Knoll, Marksville, Mathews, Atkinson, Guglielmo, Marks & Day, Judith R. Atkinson, Baton Rouge, for defendant-appellee.

Before FORET, STOKER and KING, JJ.

STOKER, Judge.

This appeal arises out of the consolidated cases of Betty L. Turner, et al v. Bell Helicopter Textron, Inc., et al and Sheila Norris, et al v. Bell Helicopter Textron, Inc., et al. These suits were consolidated in the trial court and remain consolidated on appeal. The facts of this case arose out of an unfortunate helicopter crash which occurred on September 3, 1980 near Cottonport, Louisiana, which caused the death of the two occupants, Richard Turner and Theodore Norris, Jr. At the time of the crash, Richard Turner was giving an instructional flight to Theodore Norris, Jr. The exact cause of the crash has never been determined by the National Transportation Safety Board (NTSB). The Turner and Norris families filed suit in Avoyelles Parish, Louisiana, and both named Bell Helicopter Textron, Inc. (Bell) as a defendant. ¹ Bell was sued as manufacturer of the helicopter. A separate opinion will be rendered in the consolidated case of Turner v. Bell Helicopter Textron, Inc., et al, at 495 So.2d 986 (La.App. 3d Cir.1986).

In the bifurcated trial, the Turner suit was tried to the judge, while the Norris suit was tried to the jury. Different results were reached in each suit. The jury in Norris found no liability on the part of the defendants, and the judge found in favor of the Turners and against Bell. It is from the judgment awarding damages to Betty Turner in the amount of $463,353 and to Chris Turner, Terri Turner and Jane Turner, each, in the amount of $80,000 for the wrongful death of Richard E. Turner that Bell has appealed. The Norrises have appealed the rejection of their demands. Bell is the only original defendant in this appeal.

Ordinarily this court would be faced with the task of harmonizing the contrary liability findings of the trial judge and jury. Thornton v. Moran, 348 So.2d 79 (La.App. 1st Cir.1977), writ refused, 350 So.2d 897 (La.1977); writ refused, 350 So.2d 898 (La.1977); writ denied, 350 So.2d 900 (La.1977); Bunkie Bank & Trust Co. v. Avoyelles Parish Pol. Jury, 347 So.2d 1305 (La.App. 3d Cir.1977) [Reporter is in error. This case was actually rendered by the Third Circuit Court of Appeal]; Deville v. The Town of Bunkie, 364 So.2d 1378 (La.App. 3d Cir.1978), writ denied, 366 So.2d 564 (La.1979); Whittington v. Sowela Technical Institute, 438 So.2d 236 (La.App. 3d Cir.1983), writ denied, 443 So.2d 591 (La.1983); writ denied, 443 So.2d 592 (La.1983), and Bishop v. Shelter Insurance Company, 461 So.2d 1170 (La.App. 3d Cir.1984) writ denied, 465 So.2d 737 (La.1985). The task of harmonization is more complicated in this instance because the jury's verdict was based on one answer to interrogatories. According to that answer the jury found that the Bell helicopter had been so altered after it left the hands of the manufacturer that it could no longer be considered a Bell product. As a result of the jury's answer to the interrogatory its verdict exonerated Bell from liability to the Norrises. This Court is of the opinion that the special interrogatory upon which the jury relied in rendering its verdict was not a correct legal conclusion upon which to base its decision.

We are of the opinion that while the modifications and repairs made to the aircraft were major ones and would be pertinent to the ultimate determination of a finding of a defect and causation, we do not find that, as a matter of law, an original manufacturer is exculpated from liability once major alterations and repairs have been established. Alterations and repairs alone are not an absolute bar to a finding of liability. Rather, lapse of time, inadequate "accounting" for use between manufacture and accident, and alterations and repairs by persons other than the manufacturer will tend to negate the inference of a defect existing at the time of manufacture. See Scott v. White Trucks, 699 F.2d 714 (5th Cir.1983); Dutschke v. Piper Aircraft Corp., 564 F.Supp. 359 (M.D.La.1983), and Ulmer v. Hartford Accident and Indemnity Company, 380 F.2d 549 (5th Cir.1967).

Though we find that the conclusion upon which the jury found no liability on the part of Bell has no basis in our law and jurisprudence, we nonetheless hold that the jury reached the correct result.

Accordingly, we cannot simply harmonize the conflicting results reached by the judge and jury, but must instead find that the trial judge was manifestly erroneous, rather than find that the jury's verdict was more reasonable. Our findings, based on the "clearly wrong test," require that we affirm judgment in favor of Bell rejecting the demands of the Norrises and that we reverse the judgment in favor of the Turners.

The evidence presented establishes that the helicopter in question had been in use for some 17 years, had been flown for over 12,000 hours, had been used by several intervening owners before it was acquired by the Norrises, had been substantially altered, and was utilized by the Norrises in their crop dusting operations. Additionally, the helicopter log was missing the records of maintenance and repair to the aircraft from 1963 through 1976, so that care and maintenance during those intervening years could not be documented.

The trial court found that the evidence at trial preponderated that the helicopter was defective at the time of manufacture and delivery, that it was unreasonably dangerous in normal use, and that the death of Richard Turner and the Turners' damages were a result of this design defect.

In Winterrowd v. Travelers Indem. Co., 452 So.2d 269, 273 (La.App. 2d Cir.1984), writ denied, 457 So.2d 1195 (La.1984); writ granted, 457 So.2d 1185 (La.1984), affirmed, 462 So.2d 639 (La.1985), the court, in discussing the basis of a manufacturer's liability, stated that:

"A manufacturer is liable for injuries caused by the defective products it manufactures when such injuries are caused by the product's defective qualities and occur in the normal use or application of the product. A product is defective when it is unreasonably dangerous in normal use. In order to prevail in a products liability suit, a plaintiff must establish that the product is defective--unreasonably dangerous in normal use, and that his injuries were caused by the product's defects in the course of the product's normal or intended application. DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Philippe v. Browning Arms Co., 395 So.2d 310 (La.1981); Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (1971); Llewellyn v. Lookout Saddle Company, 315 So.2d 69 (La.App. 2d Cir.1975)."

As to the burden of proving such causation, this Court in Thompson v. Tuggle, 486 So.2d 144 (La.App. 3d Cir.1986), writ denied, 489 So.2d 919 (La.1986), said:

"The burden of proving causation in products liability cases was clearly stated in DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981) as follows:

"[The] plaintiffs' burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, as in this case, by circumstantial evidence. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).

Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation. Weber v. Fidelity & Cas. Ins. Co. of N.Y., 259 La. 599, 608-09, 250 So.2d 754, 757 (1971)."

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for its findings, a reviewing court should not disturb this factual finding in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The cause-in-fact of an injury is a factual question and the trial court's determination will not be disturbed unless it is manifestly erroneous. Prudhomme v. Nationwide Mut. Ins. Co., 465 So.2d 141 (La.App. 3rd Cir.1985), writ denied, 467 So.2d 1132 (La.1985)."

The trial court's findings of fact concerning the cause of the accident, are in pertinent part, as follows:

"Excessive flapping is one of the characteristics of the teetering rotor system of the Bell 47 Helicopter. The Bell Helicopter was designed defective in that the attach bolt on the dynamic flap restrain assembly which sheared was not properly tested and drafted to withstand the load of stress reasonably to be expected while the craft was in normal flight use. The failed attached bolt should have been designed to carry far more stress that it was capable of doing; also the unit could have been designed so that the fork or other heavy framing would have absorbed some of the stress which was transmitted directly to the attached bolt whenever excessive flapping or mast bumping occurred while the helicopter was in flight. The Norris helicopter was manufactured and sold by Bell in 1963. The unit had been transferred to various owners and along the way a No Bar Kit had been installed in place of Bell's original stabilizer bar. In spite of alterations...