Rathvon v. Columbia Pac. Airlines

• Citation: 633 P.2d 122,30 Wn.App. 193
• Decision Date: 24 August 1981
• Docket Number: No. 8585-9-I,8585-9-I
• Court: Court of Appeals of Washington
• Parties: Lois Hanson RATHVON, Personal Representative of the Estate of Hal Campbell Rathvon, Deceased, Plaintiff, v. COLUMBIA PACIFIC AIRLINES, a Washington corporation, Appellant, Beech Aircraft Corporation, a corporation; The Talley Corporation, a foreign corporation; Hans Goran Fredrik Wilhelm Coster, Personal Representative of the Estate of Per-Arne Fredrik Wilhelm Coster, Deceased; Gun-Britt Nilsson, Personal Representative of the Estate of Sven Olle Nilsson, Deceased, Respondents.

Page 193

30 Wn.App. 193

633 P.2d 122

Lois Hanson RATHVON, Personal Representative of the Estate of Hal Campbell Rathvon, Deceased, Plaintiff, v. COLUMBIA PACIFIC AIRLINES, a Washington corporation, Appellant Beech Aircraft Corporation, a corporation; The Talley Corporation, a foreign corporation; Hans Goran Fredrik Wilhelm Coster, Personal Representative of the Estate of Per-Arne Fredrik Wilhelm Coster, Deceased; Gun-Britt Nilsson, Personal Representative of the Estate of Sven Olle Nilsson, Deceased, Respondents.

No. 8585-9-I.

Court of Appeals of Washington, Division 1.

Aug. 24, 1981.

Reconsideration Denied Oct. 12, 1981.

Charles Nomellini, Armistead Rood, Seattle, Lawrence De Coster, Fred J. Meier, Los Angeles, Cal., for appellant.

Richard Coyle, Richard F. Krutch, F. Lee Campbell, Christopher Young, Jan Peterson, Clifford C. Benson, Ronald Groshong, Lucas Powe, Leavy & Taber, John G. Schultz, Pasco, Dubuar & Lirhus, Albert Lirhus, Seattle, Dennis LaPorte, Tacoma, W. Wesselhoeft, Seattle, for respondents.

DURHAM-DIVELBISS, Judge.

Columbia Pacific Airlines, Inc. (CPA) appeals a summary judgment of liability and two damage awards in these consolidated actions for damages for wrongful death arising from an aircraft accident.

On February 10, 1978, a commuter airplane crashed shortly after takeoff from Richland, Washington, killing all 15 passengers and 2 crew members aboard. The aircraft was a Beech 99 operated by CPA and manufactured by respondent Beech Aircraft Corporation (Beech). Eyewitnesses observed that the aircraft made a normal takeoff roll followed by a very steep climb to approximately 400 feet above the runway. The aircraft stalled, then crashed approximately 2,000 feet beyond the end of the runway. A severe fire erupted at ground impact.

The National Transportation Safety Board (NTSB) investigated the crash. Its performance group found that "(t)akeoff with extreme noseup trim" was the "most probable" condition which, together with a center of gravity near the aft limit, as was the case with the accident aircraft, would have caused the flight profile. Another possibility, "noseup runaway trim," was considered "improbable," although not impossible. " The NTSB's systems/structures group examined the accident aircraft's "horizontal stabilizer actuator clutch" and found that four out of the six balls were relatively unworn, or "as new," and were outside the clutch assembly. The two remaining balls were "worn badly," and were "more like slugs in that they were no longer round and were more oval in shape. " This condition caused the clutch to slip and become intermittent. Respondent the Talley Corporation (Talley) had manufactured this component.

Sixteen wrongful death actions were brought against CPA and, in some cases, also against Beech, or Beech and Talley. In each action, CPA filed a cross-claim or third-party complaint against both Beech and Talley for property damage to the airplane hull, and for indemnification and/or contribution should CPA be held liable to plaintiffs. The actions were consolidated for the purpose of plaintiffs' motions for summary judgment against CPA, and for the purpose of this appeal. The only plaintiffs remaining in this appeal, however, are the estates of Per-Arne Fredrik Wilhelm Coster and Sven Olle Nilsson, two deceased passengers.

Summary judgment against CPA was entered on November 16, 1979. Thereafter, plaintiffs obtained a voluntary dismissal without prejudice and without costs as to their claims against Beech and Talley. Beech and Talley then obtained a judgment of dismissal as to CPA's cross-claims and third-party claims for indemnification and/or contribution. Individual cases on damages were tried before the court, with judgments entered on February 26, and March 19, 1980. CPA assigns error to the damages awarded to the Coster estate ($95,000 economic loss) and the Nilsson estate ($465,500 economic loss and $620,000 general damages).

The primary issue upon appeal is the propriety of the summary judgment. The trial court certified that it considered the three supporting and five opposing affidavits, as well as certain designated pleadings, discovery documents, and memoranda of points and authorities. In general, the supporting affidavits set forth several possible causes of the crash, asserting that every possible cause was CPA's responsibility. Opposing affidavits asserted that negligence and proximate cause remained genuine issues of material fact.

We apologize in advance for the amount of factual detail recited in this opinion. Unfortunately, the crash of modern day aircraft involves considerably more than a notation that the rubber band snapped. That being said, a review of the affidavits submitted by both sides reflects the following:

1. Problems experienced by prior owners. When CPA bought the accident aircraft from another airline in July 1977, it acquired the prior owners' flight log books and maintenance records. Supporting affidavits alleged that these records revealed 32 "write-ups" pertaining to the trim system, "along with the corrective action taken, if any." Counsel quoted eight of these write-ups entered from 1969 to 1976, but not the corrective action, and alleged that they should have alerted Karl Bergstrom, CPA's director of maintenance, to a need for inspection. Douglas Willrich, the CPA vice-president responsible for inspecting the accident aircraft when it was purchased, testified ¹ that Karl Bergstrom and Bob Johnson had reported to him that they had inspected these records and were satisfied with the condition of the airplane. According to their respective testimony, however, neither Bergstrom nor Johnson actually inspected these records, and Bergstrom denied telling Willrich that he had thoroughly reviewed them. Bergstrom testified that he had "glanced through a few of them," but did not closely inspect the records or the aircraft because no one asked him to.

An opposing memorandum asserted that CPA was not required to undertake any "acceptance" inspection, and that the 8 years of "squawks" ² recorded by prior owners were of historical interest only. Opposing affidavits asserted that CPA had an adequate basis for assuring that the accident aircraft was airworthy when it was purchased, and attached evidence that on May 20, 1977, the aircraft underwent a 100-hour periodic inspection and was issued a Standard Airworthiness Certificate. CPA pilots Rasmussen and Johnson testified that they test flew the accident aircraft at the time of acceptance.

2. Problems experienced by CPA, in general. Supporting affidavits alleged that from July 1977 to February 10, 1978, there were 14 discrepancies concerning the stabilizer trim system entered in the flight logs, 12 of which concerned the trim-in-motion aural system (the out-of-trim warning horn) being either intermittent or inoperative. ³ Bergstrom testified that he knew there had been "several," but not 14, write-ups of the trim-in-motion system.

Opposing affidavits countered that the out-of-trim warning horn is an electrical phenomenon unrelated to the mechanical operation of the trim system, and that most of these discrepancies involved the horn sounding under conditions when it should not be sounding. CPA mechanic Gary Lee testified that the warning horn problem was eventually repaired by installing a new chipboard. The opposing affidavits further alleged that CPA had performed 13 separate "progressive maintenance" inspections, each of which included an inspection of the stabilizer trim system, and attached evidence of all of these inspections as well as of their inspection procedures.

3. Three alleged prior incidents of "intermittent trim." Supporting affidavits alleged that shortly before the accident, CPA pilots experienced three incidents of intermittent trim, only one of which was logged as a "squawk." When Bergstsrom was asked if, after three separate reports of intermittent trim, he would have allowed the aircraft to continue carrying passengers while he was investigating the problem, he testified: "No, I don't think so." The alleged incidents are as follows:

(a) January 29, 1978 (logged as a "squawk"): Supporting affidavits alleged that Captain Gary Larson reported that the main trim on the accident aircraft was functioning intermittently on January 29, 1978. Bergstrom testified that he was unaware of this incident until after the accident. He also testified that the corrective action taken readjustment of the trim stop switch, was inappropriate for inoperative trim.

Opposing affidavits countered with the testimonies of the two CPA mechanics, Fred Eaton and Gary Lee, who worked on the Larson "squawk." Eaton testified that the squawk read: "Note. Main trim is intermittent(.) (I)t will stop functioning on one side at least. Should be looked (at)." Eaton testified that he activated the trim system and could not duplicate the problem:

Now, I did find that the trim-in-motion needle on the pedestal gauge hesitated momentarily when the trim was first activated. I thought possible (sic) that the pilot while he was flying if this happened in the air, the gauge hesitating, that he might mistake this for the trim not working.

Eaton signed off by writing: "Possible gauge problem and trim motor not stopping at end of travel," and apparently also: "Please monitor for today (January 30, 1978)." Eaton testified that he also should have written: "Could not duplicate problem," but that he felt he had solved the intermittency problem by operating the system himself and by requesting the pilot to monitor the situation during the next flight.

Lee testified that he troubleshot the squawk in the normal routine, and signed off that he had "(r)eadjusted trim stop switch." He testified that if he could not find the cause of a squawk concerning intermittent trim and the "ground check" was okay, then he could sign off on the squawk and return the aircraft to service. Lee testified:

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