Rosdail v. Western Aviation, Inc.

• Decision Date: 13 January 1969
• Citation: 297 F. Supp. 681
• Parties: Malinda J. ROSDAIL, James Maucker, and Le Roy H. Redfern, Administrator of the Estate of Vernon O. Dishman, Deceased, Plaintiffs, v. WESTERN AVIATION, INC., a Colorado corporation; Richard J. Kezlan; and John Doe, Administrator of the Estate of Chad Allan Arnold, Deceased, Defendants.
• Court: U.S. District Court — District of Colorado

297 F. Supp. 681

Malinda J. ROSDAIL, James Maucker, and Le Roy H. Redfern, Administrator of the Estate of Vernon O. Dishman, Deceased, Plaintiffs, v. WESTERN AVIATION, INC., a Colorado corporation; Richard J. Kezlan; and John Doe, Administrator of the Estate of Chad Allan Arnold, Deceased, Defendants.

Civ. A. C-928.

United States District Court D. Colorado.

January 13, 1969.

William H. Erickson and James J. Morrato, Denver, Colo., for plaintiffs.

W. Robert Ward and Michael E. Oldham, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

This matter is before the Court on defendants' motion to strike plaintiffs' amended allegation, H-1, which states that the negligence and carelessness of the pilot in violation of statute and regulation are to be imputed to defendants Richard J. Kezlan and Western Aviation, Inc., the respective owner and lessor of the aircraft, as a matter of law pursuant to the Federal Aviation Program, 49 U.S.C. § 1301(26).¹ Defendants contend that the allegation is immaterial, impertinent and scandalous. The parties have filed briefs and the Court has heard oral argument. We conclude that the allegation should be stricken from this action as having no application to the facts and claims therein.

The facts are briefly as follows. On November 23, 1966 a Cessna 172 aircraft crashed near Elk Horn, Shelba County, Iowa, killing the pilot Chad Allan Arnold who was a resident of Colorado, one passenger Vernon O. Dishman who was a resident of Colorado, and seriously injuring two other passengers, Malinda J. Rosdail and James Maucker respective residents of Illinois and Iowa. The aircraft was on flight from Loveland, Colorado, to destinations in Iowa and Illinois. At the time of the crash, the aircraft was registered to and owned by Richard J. Kezlan; it was under lease by him to Western Aviation, Inc.; and it was under lease by Western Aviation, Inc., to the pilot Arnold, whose negligence plaintiffs seek to impute to defendants Kezlan and Western Aviation, Inc., as owner and lessor respectively. Kezlan is a Colorado resident and Western Aviation, Inc., is incorporated and has its principal place of business in Colorado. The leases herein were with the knowledge and intent that the aircraft be used to carry persons for hire. And at the time of the crash, Rosdail, Maucker and Dishman, for consideration, had hired Arnold in Colorado to carry them to their Iowa and Illinois destinations.

No allegation of an employment or principal-agent relationship between the pilot and either the owner or the lessor of the aircraft is made; the pleadings indeed present a bailment relationship. We note for purposes of the discussion which follows that two plaintiffs, Rosdail and Maucker, bring personal injury suits, while one of the plaintiffs, Le Roy H. Redfern, is the administrator of the Iowa estate of Dishman and sues in wrongful death under Iowa law. With respect to these claims the pleadings are replete with various legal theories for recovery running from simple negligence claims against the pilot, owner, and lessor to liability lodged against the owner and lessor based upon the ultrahazardous activity of leasing aircraft. There is a pending question before this Court whether Iowa law, which imputes a bailee's negligence to his bailor with respect to aircraft injuries, or Colorado law which does not, is to be applied to the facts of the case. We concern ourselves here, however, only with the allegation that the pilot's negligence in violation of the federal statute and regulations is to be imputed to Western Aviation, Inc., and Kezlan, pursuant to the Federal Aviation Program, § 1301 (26).

We note at the outset that plaintiffs have characterized their allegation in such vague terms—the negligence is to be imputed "as a matter of law" pursuant to the federal statute—that it presents two possible approaches for the desired result. One, Congress through the Supremacy Clause of the United States Constitution has defined the legal relationship between owners and lessors of aircraft and their bailees not only for purposes of the Federal Aviation Program, but for purposes of tort liability suits entertained by the state courts. As a consequence, state courts would have to recognize owner and lessor liability for bailee negligence even were state law to the contrary. The second approach is that a private right of action has been created by the Federal Aviation Program § 1301(26). Accordingly, plaintiffs could sue on the federal cause of action even though no state common or statutory law would allow such a recovery. We take up this latter approach first.

1. Not only does plaintiffs' allegation charge a violation of federal statute and regulations promulgated thereunder, but it seeks to hold liable persons who would not be subject to liability in tort damages under much state common and statutory law. Consequently, the allegation is broader than one which would simply claim a violation of statute to be negligence per se or prima facie evidence of negligence. In essence, plaintiffs' allegation is an attempt to state a claim for damages against the owner and lessor of the aircraft as arising from the federal statute. Since the statute does not expressly create a private cause of action for civil damages, such can arise only by implication. Absent any compelling national interest, a need for national uniformity, or the availability and adequacy of state forums, however, we would not imply a private cause of action from the Federal Aviation Program. See, Yelinek v. Worley, 284 F.Supp. 679 (D.Va.1968); Moungey v. Brandt, 250 F.Supp. 445 (D.Wis.1966).

We are aware that there has been an increasing tendency by federal courts to infer private rights of action from federal regulatory statutes where manifest Congressional intent and purpose would not be defeated. See, Wheeldin v. Wheeler, 373 U.S. 647, 662, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (Brennan, J., dissenting). However, we find no compelling reason to create a civil remedy for damages from the definitional section of the Federal Aviation Program, § 1301 (26). National uniformity with respect to the licensing, inspection and registration of aircraft and airmen is clearly accomplished within the structure of the Program and regulations promulgated thereunder. The Program's efficacy requires no apparent reliance on an implication of a civil remedy from § 1301 (26). Moungey v. Brandt, supra. Furthermore, the states traditionally and satisfactorily have provided the forums for suits in tort. State law has predominated the law of torts; established the legal relationships between those who may recover and those who are liable; created the standards of care; provided for defenses; and resolved procedural difficulties. Were we to imply a private cause of action from the Federal Aviation Program, the federal courts would be obliged to fashion a body of federal tort common law. In the absence of compelling reasons such a course is unwise. It would only open the federal courts for litigation which was never intended by Congress to be handled by federal courts absent diversity jurisdiction. It should be noted that the cases which have implied a civil remedy from the Federal Aviation Program and its predecessor are to be distinguished from the instant case largely because the courts therein found compelling reasons to support the implication. See, Fitzgerald v. Pan American World Airways, 229 F.2d 499 (2d Cir. 1956) (national uniformity sought, no adequate administrative redress within the statute); Town of East Haven v. Eastern Airlines, Inc., 282 F.Supp. 507 (D.Conn.1968) (lack of administrative remedy); Wills v. Trans World Airlines, Inc., 200 F.Supp. 360 (D.Cal.1961) (inadequate state remedy and administrative relief, compelling national interest).

The conclusion not to imply a civil remedy also makes eminent sense when considered in the context of a wrongful death action. At common law there existed no right of action for wrongful death; such an action is a pure creature of statute. By statute it is determined in whom accrues the right of action, by when it must be instituted, what limitations exist on the amount of recovery, etc. In Moody v. McDaniel, 190 F.Supp. 24 (D.Miss.1960), the court in discussing whether a suit for wrongful death could be implied from the Federal Aviation Act posed the hypothetical question whether the suit could be maintained without the state wrongful death statute. Its answer is dispositive of our problem. The court stated:

* * * Could plaintiffs pursue their stated claims in this court in the absence of a wrongful death statute in the State of Mississippi? Neither the statutes nor the regulations relied on by plaintiffs the Federal Aviation Act and regulations expressly create such a cause of action nor name the beneficiaries thereof, nor prescribe how, if at all, contributory negligence, comparative negligence, assumption of risk, measure of damages, limit of recovery or any other yardstick are to be applied on trial. Nor do these statutes or regulations fix any period of limitation within which suit must be filed. Thus, it is obvious that any trial court, under these circumstances, that attempted to proceed as if the cause were a "case arising" under the Constitution or laws of the United States would be hopelessly lost in a no man's land of undeveloped law. 190 F.Supp. at 28.

Consonant with the court's ruling, the majority of courts have held that a suit for wrongful death should not be implied from the Federal Aviation Act or its predecessors. Porter v. Southeastern Aviation, Inc., 191 F.Supp. 42 (D.Tenn. 1961); Dennis v. Southeastern Aviation, Inc., 176 F.Supp. 542 (D.Tenn.1959); Mozingo v. Consolidated Constr. Co., 171 F.Supp. 396 (D.Va.1959). We agree with the statement of Judge James E. Doyle of the Wisconsin Federal District Court in Moungey v. Brandt that it would be difficult not only to infer a...