Raritan Trucking Corporation v. Aero Commander, Inc.

• Decision Date: 14 April 1972
• Docket Number: No. 71-1027.,71-1027.
• Citation: 458 F.2d 1106
• Parties: RARITAN TRUCKING CORPORATION, a corporation of the State of New Jersey, Appellant, v. AERO COMMANDER, INC., et al.
• Court: U.S. Court of Appeals — Third Circuit

458 F.2d 1106 (1972)

RARITAN TRUCKING CORPORATION, a corporation of the State of New Jersey, Appellant, v. AERO COMMANDER, INC., et al.

No. 71-1027.

United States Court of Appeals, Third Circuit.

Argued December 13, 1971.

Decided April 14, 1972.

John W. Taylor, East Orange, N. J., for appellant.

Thomas F. Daly, McCarter & English, Newark, N. J. (Nicholas Conover English, Newark, N. J., on the brief), for appellee Continental Can.

Before VAN DUSEN and HUNTER, Circuit Judges, and LAYTON, Senior District Judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

Appellant Raritan Trucking Corporation ("Raritan") brought this action to recover property damages resulting from a plane crash, for which damages the appellee Continental Can Corporation ("Continental") is allegedly responsible. The action was commenced in the Superior Court of New Jersey, Law Division, Middlesex County, against three defendants and from there it was removed by the defendants to the United States District Court.¹ At trial at the close of the plaintiff's case, the District Court directed verdicts² and entered judgment in favor of all defendants. Raritan appeals only from the entry of judgment in favor of Continental.

The ill-fated airplane was an Aero Commander Model 680 FP, owned by Raritan at the time of the crash. Prior to the crash the airplane was garaged in Continental's hangar at Morristown, New Jersey, and was serviced there by Continental. The airplane crashed on October 27, 1963, near White Sulphur Springs, West Virginia, at the end of a flight from the Morristown Municipal Airport. There was strong evidence from which the jury might have concluded that the cause of the crash was a wing separation that occurred as the pilot engaged in aerobatic maneuvers in an effort to lower a malfunctioning landing gear.

Raritan's complaint against Continental was based on two alternative theories: (1) negligence in inspecting, maintaining, and servicing the airplane, and (2) breach of warranty or strict liability in tort.³ Since this appeal arises from a directed verdict for the defendant, "the evidence, including the inferences of which it is reasonably susceptible, must be viewed in the light most favorable to the plaintiff." Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285, 288 (3d Cir. 1963), aff'd by an equally divided court, 378 U.S. 123, 84 S.Ct. 1657, 12 L.Ed.2d 743 (1964). See 5A Moore's Federal Practice ¶ 50.02 1, at 2326-9 (2d ed. rev. 1970). And since this is a diversity case, we are required to apply the law of New Jersey in determining whether the evidence, thus viewed, constituted an actionable claim against Continental on either of the two grounds upon which relief was sought. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Waldron v. Aetna Casualty & Surety Co., 141 F.2d 230 (3d Cir. 1944); Moran v. Pittsburgh-Des Moines Steel Co., 166 F.2d 908 (3d Cir.), cert. denied, 334 U.S. 846, 68 S.Ct. 1516, 92 L.Ed. 1770 (1948); Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960); see 5A Moore's Federal Practice ¶ 50.06 (2d ed. 1966). We conclude that the evidence presented by Raritan established a prima facie case against Continental, and thus we reverse and remand for a new trial.

I. EVIDENCE OF NEGLIGENCE

Recovery may be had in New Jersey for damages caused by a defendant's negligence—"conduct which falls below a standard recognized by the law as essential to the protection of others from unreasonable risks of harm." Sanzari v. Rosenfeld, 34 N.J. 128, 134, 167 A.2d 625, 628 (1961). "The standard of care is the conduct of the reasonable man of ordinary prudence under the circumstances.... The greater the risk, the greater is the care required— the reasonable man would so behave" Ambrose v. Cyphers, 29 N.J. 138, 144, 148 A.2d 465, 468 (1959). It is virtually beyond dispute that under the circumstances of this case Continental was required to exercise an increased amount of care in its maintenance of Raritan's plane, since any malfunction might well have disastrous consequences.

It is also clear, however, that

"recovery cannot be had merely upon proof of the happening of an accident.

Negligence is never presumed; it, or the circumstantial basis for the inference of it, must be established by competent proof...."

Murphy v. Terzako, 14 N.J.Super. 254, 259, 82 A.2d 1, 3 (App.Div.1951); see also Mockler v. Russman, 102 N.J.Super. 582, 588, 246 A.2d 478, 480 (App.Div. 1968), certif. denied, 53 N.J. 270, 250 A.2d 135 (1969).

"The existence of a possibility of a defendant\'s responsibility for a plaintiff\'s injuries is insufficient to impose liability. `... The evidence must be such as to justify an inference of probability as distinguished from the mere possibility of negligence on the part of the defendant.\'"

Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 141, 84 A.2d 281, 285 (1951). Whether the evidence produced by Raritan was sufficient to justify such an inference is the question we face now.

Raritan was able to produce no evidence of specific acts or omissions by Continental that might have caused the landing gear to malfunction. Nevertheless, there was circumstantial evidence that might have convinced the jury that Continental had been negligent in servicing the landing gear.

Evidence produced at trial showed that Raritan had taken possession of the plane in October 1962 at which time the plane had been flown ten and one-half hours, and that at the time of the crash one year later, total flight time was about 275 hours. It would be reasonable to suppose that during the year the plane had landed many times and that the landing gear had operated successfully each time.

Service Bulletin No. 83 was issued by Aero Commander, Inc., the manufacturer of the plane, on September 13, 1963. The purpose of the Service Bulletin was to correct a possible landing gear strut overextension that would "prevent the gear from locking when placed in the up position." Part I of the bulletin called for inspection of the strut within the next 25 hours' flight time, while Part II of the bulletin specified modifications to prevent future strut overextension. Compliance with Part II was to be immediate in cases where strut overextension was found during the Part I inspection, but could be deferred in cases where no overextension was found during the Part I inspection.

The Aircraft Flight Log shows that on October 16, 1963, Continental performed Part I of the Service Bulletin and found no strut overextension. After this inspection the plane was flown about 16 hours and made 15 landings with no noted difficulty. On October 25 Continental undertook the modifications required by Part II of the Service Bulletin, and on the very next flight two days later the crash occurred.

Although Raritan presented evidence of circumstances that might have some slight relevance to Continental's negligence,⁴ we believe that the inference of negligence arising from the malfunction alone was sufficient to justify submitting the case to the jury.

The law in New Jersey as to res ipsa loquitur has not changed insofar as relevant here since it was applied in Joseph T. Ryerson & Sons v. H. A. Crane & Bro., 417 F.2d 1263 (3d Cir. 1969). There we stated:

"The law of New Jersey which controls this lawsuit generally requires the plaintiff to satisfy three elements for a res ipsa loquitur charge:

"(1) The accident which produced the injury was one which ordinarily does not happen unless someone was negligent;

"(2) The instrumentality or agency which caused the accident was under the exclusive control of the defendant; and

"(3) The circumstances indicated that the untoward event was not caused or contributed to by an act or neglect on the part of the injured person." 417 F.2d at 1265.

Here, although the question is close, we believe that the requisite elements were satisfied. An airplane's landing gear does not ordinarily stick in the up position unless there has been some breach of care on the part of someone. The circumstances here indicate that the landing gear failure was not caused or contributed to by any of Raritan's employees.⁵

As to the "exclusive control" requirement, New Jersey has liberalized greatly the literal meaning of that term. In Lorenc v. Chemirad Corp., supra n. 4, the Supreme Court of New Jersey stated:

"Modern manufacturing, packing, shipping and marketing conditions ... brought the realization that to hold strictly to the view that inferences of negligence became permissible only on proof of exclusive control of the injuring agency at the time of the mishap would largely destroy the efficacy of the principle of res ipsa loquitur. The result was a sensible and logical broadening so as to permit the inference where the total circumstances showed a probability that defendant\'s lack of due care while the agency was in his possession and control was responsible for the casualty, and eliminated the probability of efficient participation by some other cause. Citations omitted. Harper & James suggest that as generally applied the requirement for exclusive control `is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably "such that the defendant would be responsible for any negligence connected with it."\' 2 The Laws of Torts (1956) p. 1086. The present contours of the principle represent no more than an effort on the part of the law to adapt itself to the current environment." 37 N.J. at 70-71, 179 A.2d at 408.

As we stated in the Ryerson case, supra.

"Both the Restatement and the law of New Jersey contemplate that the plaintiff eliminate all other possible causes by a preponderance of the evidence." 417 F.2d at 1266.

Raritan produced two expert witnesses, both of whom testified, in essence, that the failure of the landing gear to operate properly...