Saloomey v. Jeppesen & Co.

• Decision Date: 10 May 1983
• Docket Number: D,No. 712,712
• Citation: 707 F.2d 671
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Katherine H. SALOOMEY, Administratrix, Estate of Willard Vernon Wahlund, Deceased, Plaintiff-Appellee, v. JEPPESEN & CO., Defendant-Appellant. Peter C. HALSTEAD, Administrator, Estate of Erik F. Wahlund, Deceased, Plaintiff-Appellee, v. JEPPESEN & CO., Defendant-Appellant. ocket 82-6178.

Page 671

707 F.2d 671

Katherine H. SALOOMEY, Administratrix, Estate of Willard

Vernon Wahlund, Deceased, Plaintiff-Appellee, v. JEPPESEN & CO., Defendant-Appellant.

Peter C. HALSTEAD, Administrator, Estate of Erik F. Wahlund, Deceased, Plaintiff-Appellee, v. JEPPESEN & CO., Defendant-Appellant.

No. 712, Docket 82-6178.

United States Court of Appeals Second Circuit.

Argued Jan. 12, 1983.

Decided May 10, 1983.

Ralph S. LaMontagne, Jr. and Floyd C. Dodson, Los Angeles, Cal. (Kern, Wooley & Maloney, Los Angeles, Cal., Marsh, Day & Calhoun, Raymond W. Beckwith, and Suzanne E. Baldasare, Bridgeport, Conn., of counsel), for defendant-appellant.

James E. Kearns, Bridgeport, Conn., and Robert K. Marzik, Stratford, Conn., for plaintiffs-appellees.

Before FEINBERG, Chief Judge, CARDAMONE and DAVIS, ^* Circuit Judges.

DAVIS, Circuit Judge:

These are wrongful death actions, brought under diversity jurisdiction, in which defendant Jeppesen & Company (Jeppesen) appeals from jury verdicts and judgments rendered against it in the United States District Court for the District of Connecticut, including challenges to the trial court's denial of its motions for a new trial and for judgment notwithstanding the verdict. We affirm.

I

On August 31, 1975, Captain Willard Vernon Wahlund, a Braniff International pilot with approximately seven thousand hours of flight experience, departed from an airport at Charleston, West Virginia, on a flight to Danbury, Connecticut. Wahlund was off-duty and was piloting his own Beechcraft Sierra; the plane was equipped with a King 214 receiver for instrument flight purposes and carried ample fuel. The flight was one leg of a trip which originated in Dallas and which was slated to end in Danbury. Wahlund's father and Erik, Wahlund's six-year-old son, accompanied him.

Wahlund carried navigational charts, produced by Jeppesen, on board the Beechcraft Sierra. Braniff purchased those charts from Jeppesen in Colorado for Wahlund's use (as well as comparable charts for Braniff's other pilots). Jeppesen furnishes its customers generally with three types of charts. Enroute charts display large geographic areas--several states or so in size--and flight paths or airways. Area charts portray geographic areas around major metropolitan areas and their correlative airways. Approach charts (or plates) depict runways as well as the vertical and horizontal coefficients of the approach paths to those runways.

While enroute from Charleston to Danbury, Wahlund decided--for a now unknown reason--to land at the Martinsburg, West Virginia airport. ¹ Wahlund had the area chart for the Washington area, but he did not have an approach plate for the Martinsburg airport (as Braniff did not service that facility). The Martinsburg airport did not then possess a full instrument landing system; it was equipped with a localizer beam, but not a glidescope beam. ² The Jeppesen chart for the Washington area, however, portrayed Martinsburg airport as containing a full instrument landing system; this was done through use of the designation "ILS" on the chart, adjacent to the designation of the Martinsburg airport.

There was substantial evidence from which the jury could also conclude the following: At 3:25 p.m. (EST) on the afternoon of August 31, Wahlund informed air traffic control that he wished to land at the Martinsburg airport and asked for vectors. Wahlund received them and was transferred to Dulles Arrival Radar. At 3:34, Dulles Arrival requested Wahlund to advise them as to what type of landing he desired. Wahlund replied, "[W]e'd like a uh ILS if ...." At this point, unknown to Wahlund, his transmission was cut off by another pilot's transmission. Nonetheless, Dulles Arrival responded, "Roger [i.e., "we have received your full message"] ... expect the uh localizer back course runway two six approach ...," and transferred control of Wahlund's plane to Dulles Departure Radar. Dulles Departure advised the pilot that visibility at Martinsburg was three miles, with light rain, fog and wind--adequate ILS conditions for a pilot of Wahlund's experience. At 3:36, Wahlund asked for a "front course ILS" instead of a "localizer back course" approach. Dulles Departure responded affirmatively and gave Wahlund appropriate vectors; shortly thereafter, Dulles Departure gave Wahlund the option of landing on "runway zero eight," which he accepted.

At 3:40 p.m., Dulles Departure told Wahlund that he was "cleared for the front course localizer" and not to "descend below two thousand nine hundred feet until crossing Gerrard inbound." Gerrard is a point in the sky--fixed by the intersection of the localizer beam and a cross beam--which served as the final approach fix for a localizer landing at Martinsburg. Gerrard appears on approach plates for Martinsburg, but not on the Washington area chart.

Wahlund's immediate response to Dulles Departure's altitude instructions is now unintelligible. Shortly thereafter, Wahlund reported that he was "established," or fixed, on the localizer. At 3:42, Dulles Departure advised, "[R]adar service terminated five miles from Gerrard you can contact Martinsburg radio ...." Four minutes later, Wahlund contacted Martinsburg and reported that he was located at Gerrard. Martinsburg gave Wahlund the weather and runway advisory. This was the last contact with the aircraft. Shortly thereafter the plane crashed, killing the three occupants.

The National Transportation Safety Board report on the crash noted that the plane wreckage was located at 1400' on the west side of a 1600' ridge near Gerrard. The plane apparently struck the ridge at a normal descent angle in virtually exact alignment with the runway and the localizer beam. All instruments on board were destroyed by a fire which apparently occurred on impact. No evidence of aircraft malfunction or pilot infirmity was discovered.

Following the tragedy, appellee Saloomey, as administratrix of Wahlund's estate, and appellee Halstead, as administrator of Erik's, filed separate actions in the district court. Saloomey's complaint named Jeppesen and the United States as defendants; Halstead's complaint named Jeppesen, the United States and Wahlund as defendants. ³ Both actions, insofar as they named Jeppesen as a defendant, were consolidated for jury trial. The counts against Jeppesen included negligence, breach of warranty, and strict products liability.

After a lengthy trial and two days of deliberation, the jury returned verdicts against Jeppesen on behalf of both plaintiffs. The jury also answered 18 separate interrogatories; those responses showed that the jury believed Jeppesen to be liable on all theories of liability urged by the plaintiffs--negligence, breach of implied and express warranties, and strict products liability. In a separate damages trial, the jury awarded Wahlund's estate $1,500,000 and Erik's estate $5,000. The court then denied Jeppesen's motions for a new trial and for judgment notwithstanding the verdict. This appeal followed.

II

Jeppesen's first argument is that the district court erred in applying the substantive law of Colorado. See Halstead v. United States, 535 F.Supp. 782 (D.Conn.1982) (Halstead II ). Although we consider the question close, we cannot agree with appellant that the substantive law of West Virginia should govern.

Federal jurisdiction is based here on diversity of citizenship. See 28 U.S.C. Sec. 1332(a)(1) (1976). We must therefore employ the choice-of-law rule of the forum state, Connecticut, to ascertain the controlling substantive law. Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4, 96 S.Ct. 167, 168, 46 L.Ed.2d 3 (1975); Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Connecticut courts traditionally have held--in automobile tort cases--that the rule of lex loci delicti applies. See, e.g., Gibson v. Fullin, 172 Conn. 407, 411, 374 A.2d 1061, 1064 (1977); Menczer v. Menczer, 160 Conn. 563, 564, 280 A.2d 875, 876 (1971) (per curiam); Landers v. Landers, 153 Conn. 303, 304, 216 A.2d 183, 184 (1966); Chasse v. Albert, 147 Conn. 680, 683, 166 A.2d 148, 150 (1960). Jeppesen relies on that rule.

However, the Supreme Court of Connecticut has never had occasion to apply the rule of lex loci delicti to a wrongful death action arising from an aviation accident. We think that, in the absence of a direct ruling by the Connecticut courts on aviation accidents, the choice-of-law rule a Connecticut court would use in these circumstances is uncertain, and a federal diversity court has the duty to ascertain what rule the Connecticut court would establish. See West v. American Telephone & Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940); Bailey Employment System, Inc. v. Hahn, 655 F.2d 473, 477 (2d Cir.1981); ⁴ see also Meredith v. Winter Haven, 320 U.S. 228, 237, 64 S.Ct. 7, 12, 88 L.Ed. 9 (1943).

In our view, the district court should not be faulted in predicting, on the facts here, that a Connecticut court would choose to follow the "most significant relationship" test embodied in Restatement (Second) of Conflict of Laws Sec. 145 (1971). In Gibson v. Fullin, supra, the Connecticut Supreme Court indicated that its endorsement of the lex loci delicti rule was made in "motor vehicle cases." 172 Conn. at 411, 374 A.2d at 1064. The court recognized the judicial trend toward adoption of the "most significant relationship" test for selecting substantive law, but noted that Gibson presented "no compelling reason to abandon the traditional role." Id.

The current case presents very good reasons to replace the rule of lex loci delicti by the Restatement (Second) approach, ⁵ for aviation accidents. ⁶ In contrast to automotive travel, aviation accidents--especially those occurring in interstate air travel--more frequently pose situations in which the place of actual injury is wholly fortuitous and unimportant. See In re Air Crash Disaster...