Ray v. Ditmore

• Decision Date: 07 February 2022
• Docket Number: 81494-0-I
• Parties: THOMAS D. RAY, Respondent, v. VINCENT DAVIS DITMORE, Appellant.
• Court: Washington Court of Appeals

THOMAS D. RAY, Respondent,
v.
VINCENT DAVIS DITMORE, Appellant.

No. 81494-0-I

Court of Appeals of Washington, Division 1

February 7, 2022

UNPUBLISHED OPINION

CHUN, J.

Thomas Ray brought a negligence suit against Vincent Ditmore, claiming damages arising from a ground collision between their airplanes. After a bench trial, the trial court determined that Ditmore was solely responsible for the collision. Ditmore appeals, claiming Ray's negligence was the sole cause of, or at least contributed to, the collision. For the reasons below, we affirm.

I. BACKGROUND

A. Facts

The Arlington Municipal Airport is an "uncontrolled" airport because it does not have an air traffic control tower. Federal Aviation Administration Advisory Circular (AC) 90-66A § 4(a). Pilots communicate with each other using a Common Traffic Advisory Frequency (CTAF), which is a radio "frequency designated for the purpose of carrying out airport advisory practices while operating to or from an airport without an operational control tower." Aeronautical Information Manual (AIM) §4-1-9(b)(1).

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Ellie's at the Airport is a restaurant just east of Taxiway A. It has large windows from which diners can watch airplane traffic. Many pilots fly to the airport, park their planes on the East Ramp-which is just east of Taxiway A and directly south of Ellie's-and dine at the restaurant.

September 15, 2017 was a clear day with excellent visibility. Ray flew his Piper PA-18 Super Cub (Cub) to the airport. The Cub is a fixed-wing plane from which the pilot has full visibility from the front and the sides. Once Ray landed, he turned off his radio and anti-collision lights. He taxied towards Arlington Flight Services' (AFS) self-service fuel station at the north end of the airport, and planned to have lunch at Ellie's.

Ditmore was also at the airport where his Boeing Stearman biplane was undergoing repairs. The body of the Stearman rests at an angle with the nose of the plane higher than the tail. The cockpit angles upward facing the nose of the plane. As a result, when taxiing in a straight line, the pilot cannot see over the nose, in front of the plane. Like driving "a car with the hood up," the nose obscures the pilot's vision. To avoid taxiing "blindly," Stearman pilots taxi in an S pattern, known as "s-turns" or "s-turning." As the pilot steers the plane to the left, they look to the right side of the plane to see oncoming traffic. As the pilot steers to the right, they look to the left side.

Ray refueled his Cub, maneuvered it onto Taxiway A, and began traveling south towards Ellie's. Simultaneously, Ditmore travelled north on Taxiway A. Ditmore turned off Taxiway A and onto the East Ramp as Ray continued taxiing south on Taxiway A. Then, Ditmore reentered Taxiway A directly in front of Ray.

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Ray slowed down and tried to swerve to avoid Ditmore, but the planes collided. The "left wing tip of the Super Cub caught on the end strut" of the Stearman. Because the "Stearman weighs twice as much" as the Cub, the force of the collision lifted the Cub and spun it 180 degrees. It sustained extensive damage and was no longer airworthy.

B. Procedural History

Ray sued Ditmore for negligence. Ditmore countersued for negligence. The matter proceeded to a bench trial.

Mark Hilsen witnessed the collision and testified to the following: He was having lunch at Ellie's and watching the airport traffic through the windows. He saw the Cub taxiing south and the Stearman taxiing north on Taxiway A. The Stearman was taxiing straight, not s-turning. The trial court found Hilsen credible and afforded his testimony "great weight."

Ray testified to the following: While taxiing south on Taxiway A from AFS, he did not have his anti-collision lights or radio on. He saw the Stearman taxiing north and Ditmore was not s-turning. He saw Ditmore "straddling the line" between Taxiway A and the East Ramp. When Ditmore got to the north end of the East Ramp, he navigated back onto Taxiway A going north in Ray's direction. Ray did not know what Ditmore was doing, so he "slowed down way before he got close" and "started moving to the right... as far as I could." "[A]s [Ditmore] got closer to the end of the ramp, there was enough of an angle that it became obvious that if I didn't take drastic action to avoid him, that he was going to

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collide with my airplane." Ray tried to avoid the collision by swerving. After the collision, Ditmore walked over to Ray and said that he did not see the Cub.

Ditmore's testimony contradicted Hilsen's and Ray's versions of the incident. He testified to the following: "When I came up initially, I did not [see the Cub]. I was not looking that far ahead." Before he entered Taxiway A, he saw the Cub at AFS. He planned to refuel where Ray had refueled. Ditmore used his radio to announce his intentions to taxi north on Taxiway A to other pilots and AFS. He assumed the Cub was parked because its "rotating beacon" or "anti[-]collision" lights were off and he did not get a radio response. Ditmore entered Taxiway A and s-turned as he taxied north on Taxiway A. He was halfway through his fifth s-turn, and he could not see the Cub, when the planes collided.

The trial court found that Ditmore failed to explain why he did not see the Cub on the taxiway while he s-turned "a distance of over [two] football fields." The court wrote that it "looked carefully at Mr. Ditmore's explanation for how the accident happened, assessed it against other evidence, and concludes that much of Mr. Ditmore's explanation is unsupported by the evidence and is therefore unreliable." The trial court concluded that Ditmore was solely responsible for the collision because he failed to s-turn and thereby failed to "use ordinary care to see what was in front of him and his speed and [sic] are the sole proximate causes of the collision." It entered judgment against Ditmore and awarded Ray $84, 047.65 in damages plus statutory costs and attorney fees. Ditmore appeals.

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II. ANALYSIS

A. Negligence Per Se

Ditmore suggests that Ray's non-compliance with Federal Aviation Regulations (FARs), and certain provisions of the AIM and certain ACs, constitutes negligence per se.^[1] He says the court should have found "negligence as a matter of law" because Ray failed to: (1) illuminate his anti-collision lights; (2) monitor his radio while taxiing; (3) see and avoid the collision; (4) keep proper distance; (5) follow taxi procedures; and (6) maintain a current medical certification.

Under traditional negligence per se doctrine, "the violation of a statute or administrative regulation establishes the elements of duty and breach." Williams v. Leone & Keeble, Inc., 170Wn. App. 696, 718, 285 P.3d 906 (2012). But with few exceptions not at issue here, in 1986, our legislature abolished the doctrine. RCW 5.40.050 ("a breach of a duty imposed by statute, ordinance or

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administrative rule shall not be considered negligence per se but may be considered by the trier of fact as evidence of negligence"); Pettit v. Dwoskin, 116 Wn.App. 466, 472, 68 P.3d 1088 (2003) (under the doctrine, "the duty imposed was absolute, and the question of actual negligence was irrelevant. But the doctrine of negligence per se is no longer viable in Washington. Rather, violation of a legal requirement is evidence of negligence."). In suggesting that the doctrine applies, Ditmore relies on cases that predate the doctrine's abolition and do not apply.^[2]

Given the foregoing, negligence per se does not apply.

B. Negligence & Contributory Negligence

Ditmore contends that the FARs and certain federal guidelines set forth the standards of care in this matter. He asserts that the trial court misunderstood these standards. Ditmore also contends the court erred in failing to attribute sole, or at least some, responsibility for the collision to Ray. He says that but for Ray's failure to illuminate his anti-collision lights, monitor his radio while taxiing, see and avoid the collision, keep proper distance, follow taxi procedures, and maintain a current medical certification, the collision would not have occurred. Because the trial court did not commit legal error, substantial evidence supports

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the trial court's findings, and those findings support its conclusion that Ditmore solely caused the collision, we affirm.

In Crosby v. Cox Aircraft Company of Washington, our Supreme Court held that general principles of negligence control questions of aircraft owner and operator liability for ground damage. 109 Wn.2d 581, 583, 589-90, 746 P.2d 1198 (1987) ("[0]wners and operators of flying aircraft are liable for ground damage caused by such aircraft only upon a showing of negligence."). The court explained, "The causes of aircraft accidents are legion and can come from a myriad of sources. ... In such circumstances the imposition of liability should be upon the blameworthy party who can be shown to be at fault." ki at 588.

To recover on a claim of negligence, an injured party must show (1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) the breach as the proximate cause of that injury. Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 611, 486 P.3d 125 (2021). The existence of a legal duty in a negligence case is a legal question we review de novo. C.L. v. Dep't of Soc. & Health Servs., 200 Wn.App. 189, 196, 402 P.3d 346 (2017).

Proximate cause has two elements: cause in fact and legal causation. M.E. through McKasy v. City of Tacoma, 15 Wn.App. 2d 21, 33, 471 P.3d 950 (2020). "Cause in fact, or 'but for' causation, refers to the 'physical connection between an act and an injury.' The plaintiff 'must establish that the harm suffered would not have occurred but for an act or omission of the defendant.'" Martini v. Post, 178 Wn.App. 154, 164, 313 P.3d 473 (2013) (citation omitted) (quoting Hartley v. State, 103 Wn.2d 768, 779, 698...