De Rienzo v. Morristown Airport Corp., No. A--14

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: WACHENFELD
• Citation: 28 N.J. 231,146 A.2d 127
• Parties: Nicholas D. DE RIENZO, Plaintiff-Appellant, v. MORRISTOWN AIRPORT CORPORATION, a corporation of New Jersey, Defendant-Respondent.
• Docket Number: No. A--14
• Decision Date: 17 November 1958

Page 231

28 N.J. 231 146 A.2d 127 Nicholas D. DE RIENZO, Plaintiff-Appellant,
v.
MORRISTOWN AIRPORT CORPORATION, a corporation of New Jersey,
Defendant-Respondent. No. A--14. Supreme Court of New Jersey. Argued Oct. 7, 1958.
Decided Nov. 17, 1958.

Page 233

[146 A.2d 128] John E. Hughes, Upper Montclair, for appellant (Shaw, Pindar, McElroy & Connell, Newark, attorneys; William T. McElroy, Newark, on the brief).

John F. Ryan, Elizabeth, for respondent (Ryan & Saros, Elizabeth, and Bigham, Englar, Jones & Houston, New York City, attorneys; John J. Martin, New York City, and Bernard L. Davis, Elizabeth, on the brief).

The opinion of the court was delivered by

WACHENFELD, J.

The plaintiff was a student in the defendant's flight instruction school and crashed while taking off on a solo practice flight in an airplane owned by the defendant. Plaintiff brought suit to recover damages for the personal injuries he has sustained.

His case proceeded upon the theory that the crash had occurred because the 'stick' in the rear seat of the plane, a dual trainer, had been tied back with a safety belt. He charged the defendant with negligence in: (1) failing to determine that the assigned aircraft was not reasonably safe for the intended flight; (2) failing to determine that the rear controls of the aircraft were locked in a position rendering a safe take-off improbable; (3) failing to warn the plaintiff of the danger of an attempted take-off in the assigned aircraft; (4) failing to instruct the plaintiff in all of the necessary precautions essential to a safe take-off; and (5) creating the locked condition of the controls without warning to plaintiff.

The defendant denied the existence of negligence and set up the separate defenses of contributory negligence and

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assumption of the risk. During the trial, it attempted to prove that plaintiff had been contributorily negligent in failing to check thoroughly the controls when he was aware that they were not acting normally prior to take-off and in gratuitously assuming, contrary to his instructions, that the elevators of the plane were working properly.

The jury returned a verdict for plaintiff in the sum of $20,000, but the Appellate Division reversed and directed that judgment be entered in defendant's favor, holding that the trial court should have granted defendant's motion for judgment of dismissal at the close of the entire case. We granted certification.

The Appellate Division's decision rested upon the ground that plaintiff's own testimony[146 A.2d 129] was totally incompatible with his theory of causation. As to plaintiff's evidence, it held there was 'just no way of squaring his testimony with his theory of defendant's negligence.'

The crash occurred at the Morristown Airport on November 23, 1954, just after the plaintiff had taken off in one of a fleet of planes maintained by defendant for the purpose of giving flight instruction.

The plaintiff was one of the defendant's students and had completed 18 hours and 45 minutes of dual instruction and 3 hours and 20 minutes of solo flying when the accident occurred. He was in the second stage of his flight training program as prescribed by the Civil Aeronautics Administration, which requires a minimum of 20 hours and 15 minutes dual and 14 hours and 45 minutes solo time before an applicant can qualify for a private pilot's license.

The plane was a dual trainer, a type in which practically all of the plaintiff's 26 flights had been taken. The craft had two sets of controls, which were identical and synchronized. In dual flights the instructor sits in the rear seat, behind the trainee, and can determine the course of the flight through the use of his second set of controls.

One of these controls is the 'stick' which operates the ailerons and elevators of the plane. The ailerons are located in the wing and are controlled by a lateral movement of

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the stick. The elevators are in the tail section and are activated by moving the stick back and forth, i.e., toward and away from the pilot. When the stick is moved forward, the elevators are depressed, which causes the tail of the plane to rise and the nose to go down. When the stick is pulled back, the elevators rise and the opposite result ensues the plane ascends.

The plaintiff contended that the defendant had tied back the rear stick by fastening a seat belt around it and, consequently, when he tried to level out after taking off, the plane kept going straight up, nose high, until at a height of about 50 feet it stalled, keeled over and crashed on its left side.

He testified he pulled the stick back to take off but then could not force it forward after gaining the air. If the rear stick were tied, it would of course prevent the front stick from operating since the two are synchronized. The plane in question, a Piper Super Cruiser, can take off even though its stick is all the way back and its elevators therefore completely raised. When in neutral and untied, the stick is perpendicular to the floor of the plane and has approximately a 16-inch area of movement, 8 inches forward from neutral and 8 inches back from neutral.

Admittedly, the defendant's policy was to tie down the rear stick with a seat belt when a plane was moored. This was done to prevent the control surfaces of the plane, the ailerons and the elevators, from buffeting back and forth in a wind and being damaged. Larger planes have a 'gust' lock which immobilizes the control surfaces but smaller planes lack this equipment.

Shortly after the plaintiff started taking flying lessons, he was instructed in the pre-flight checks he should make before taking off. Each time he flew under supervision, the instructor would 'rehash' the ritual of checks and the plaintiff would perform them under the eye of his instructor. Amongst others, he was to check the elevators for freedom of movement by manually manipulating them before he got into the plane. Once in the plane he was supposed to test

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the stick by moving it as far back and forward as it would go. He was then to move the stick while watching the elevators at the same time in order to ascertain whether the elevators were responding properly to the movement of the stick. The routine of testing the stick was to be repeated after the plaintiff had taxied his plane to the runway and while he was waiting to take off.

[146 A.2d 130] Plaintiff testified that on the day in question he did not test the elevators by hand. One of the defendant's instructors, who was helping him check out the plane, had told him everything was all right. He also admitted he did not watch the elevators while he moved the front stick in order to determine whether they were responding properly. However, he did say that he had manipulated the stick before taking off and had found that it seemed perfectly normal except its forward movement was a little bit 'sluggish'.

He also testified he had brought the stick forward in order to make his plane horizontal with the runway while taking off. Because of the angle of the plane, which sits on three wheels with its nose higher than its tail, a pilot cannot see directly ahead of him during take-off unless he moves the...