Shinabarger v. United Aircraft Corporation

• Citation: 262 F. Supp. 52
• Decision Date: 20 June 1966
• Docket Number: Civ. No. 10239.
• Court: U.S. District Court — District of Connecticut
• Parties: George W. SHINABARGER, Plaintiff, v. UNITED AIRCRAFT CORPORATION and Liberty Mutual Insurance Company, Defendants.

262 F. Supp. 52

George W. SHINABARGER, Plaintiff, v. UNITED AIRCRAFT CORPORATION and Liberty Mutual Insurance Company, Defendants.

Civ. No. 10239.

United States District Court D. Connecticut.

June 20, 1966.

COPYRIGHT MATERIAL OMITTED

Herbert Watstein, of Watstein & Watstein, Bristol, Conn., for plaintiff.

John D. Fassett and Frank E. Callahan, of Wiggin & Dana, New Haven, Conn., for defendants.

TIMBERS, Chief Judge.

Defendant United Aircraft Corporation (United Aircraft) has moved, pursuant to Rule 56, Fed.R.Civ.P., for summary judgment in its favor on each of the six counts of the complaint in this action commenced January 16, 1964 by plaintiff, a truck driver, to recover damages for personal injuries claimed to have been sustained October 9, 1961 while he was participating in the unloading of a truck load of helicopter blades which he had delivered to United Aircraft's Sikorsky Division at Bridgeport, Connecticut. Having delayed two years and three months in bringing suit to recover damages for personal injuries in a state with a one year statute of limitations governing such actions, plaintiff's multi-count complaint obviously is cast in an effort to circumvent the bar of the statute.

United Aircraft's summary judgment motion is based on the pleadings, depositions, answers to interrogatories, admissions on file, an affidavit of plaintiff's attorney and documentary exhibits. Viewing the inferences to be drawn from the underlying facts contained in these materials in the light most favorable to plaintiff as the party opposing the instant motion, United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), the Court nevertheless holds that there is no genuine issue as to any material fact and that United Aircraft is entitled to judgment in its favor as a matter of law on each count of the complaint. Dressler v. MV Sandpiper, 331 F.2d 130 (2 Cir. 1964).

United Aircraft's motion for summary judgment accordingly is granted.

FACTS

There is no dispute with respect to the material facts necessary to a determination of this motion for summary judgment.

Jurisdiction

Jurisdiction is founded on diversity of citizenship and the requisite jurisdictional amount.¹

Plaintiff is a citizen of Michigan. Defendant United Aircraft, being a Delaware corporation and having its principal place of business in Connecticut, is a citizen of both states.² Defendant Liberty Mutual Insurance Company (Liberty Mutual), United Aircraft's liability insurer, being a Massachusetts corporation and having its principal place of business in Massachusetts, is a citizen of that state.

The amount in controversy exceeds $10,000, exclusive of interest and costs.

The Accident

On October 9, 1961 plaintiff delivered to United Aircraft's Sikorsky Division at Bridgeport a shipment of 13 helicopter blades in a trailer truck. The blades, originally manufactured by United Aircraft, were being returned via common carrier, U.S.A.C. Transport Company (plaintiff's employer), to United Aircraft by the federal government's Air Material Command, Marietta, Pennsylvania, for periodic overhaul and repair.

In delivering the blades, plaintiff first reported to United Aircraft's receiving department at Sikorsky where he gave bills of lading to Sabetta, a United Aircraft employee. Sabetta, as a receiver, inspected incoming freight to see that it was in proper condition and supervised the subsequent unloading. After initially checking the shipment, Sabetta directed plaintiff to the end of the flight field where helicopter blades customarily were unloaded and stored.

The trailer truck was a closed van type. The van was approximately 40 feet long, 8 feet wide and 8 feet high. The load consisted of three stacks of blades. Two stacks had four blades each; the other stack had five blades. Each blade was packed in a box approximately 26 feet long, 2 feet wide and 18 inches high. The boxes containing the blades in each of the three stacks were strapped together. Each stack rested on a skid which raised the stack 5 inches above the floor of the trailer, thereby facilitating unloading. The stacks were positioned in the trailer so that the blade ends nearest the rear of the trailer lay 10 feet in from the rear door. The single stack of five blades was nearest the wall of the trailer on the driver's left.

The two stacks of four blades each were unloaded first; the procedure followed was the same for both stacks. Plaintiff entered the trailer where he secured one end of a tow chain to the bottom of the stack. He then left the trailer for the remainder of the unloading process. Stevens, a United Aircraft employee, secured the other end of the chain to a tow motor, also referred to as a fork lift, which was operated by Sagliano, another United Aircraft employee. The tow motor pulled the near end of the stack 2 or 3 feet straight out from the end of the trailer to a point where the forks of the tow motor could be maneuvered under the stack. After Stevens detached the chain from the stack, Sagliano then approached the stack from the side in such a way that the forks of the tow motor were maneuvered under the end of the stack overhanging the rear of the trailer. After Stevens chained that part of the stack to the tow motor, Sagliano lifted the end of the stack and pulled it almost entirely out of the trailer to a point where the near end of the stack was lowered on a horse while the far end still rested on the trailer. Sagliano then drove the tow motor around to the middle of the stack where the center of balance was marked, picked up the stack with a tow motor forks and deposited the stack at the hold area which was approximately 20 feet from the trailer. There Sabetta checked the serial numbers on the blade containers.

To unload the third stack of five blades, plaintiff again entered the trailer to secure one end of the tow chain to the stack. Departing from his procedure in unloading the first two stacks, however, plaintiff did not leave the trailer prior to the initial pulling of the stack. Since the third stack was positioned against the left wall of the trailer from which there extended laterally a 4 or 5 inch metal ridge, it was necessary, before pulling the stack straight out of the trailer, to pull it laterally several feet to the right in order to avoid catching the stack on the metal ridge. Sagliano, following the same procedure as he had with the first two stacks, then pulled the third stack straight out from the trailer to the point where the forks of the tow motor could be maneuvered under the stack. Plaintiff, at that time, was standing in the part of the trailer nearest the cab of the truck. Stevens picked up from the ground the tow chain after it had been detached from the stack. Sagliano was approximately 6 or 7 feet from the stack, maneuvering the tow motor into position where the forks could be directed under the near end of the stack. The stack started to tip over toward the right wall of the trailer. Stevens shouted. Plaintiff, observing the stack starting to tip, attempted to escape through the rear of the trailer. The stack fell on plaintiff, pinning him against the right wall of the trailer. Sagliano with the tow motor immediately lifted the blades off plaintiff. Sabetta, who at the time of the accident was inspecting the first two stacks in the hold area and therefore did not see the third stack fall on plaintiff, together with Stevens, extricated plaintiff and helped him off the trailer to the ground.

Sabetta, Sagliano and Stevens testified that it was customary for truck drivers delivering shipments of helicopter blades to attach tow chains to stacks of blades loaded on the trucks (Sabetta Deposition, p. 19; Sagliano Deposition, pp. 24, 49; Stevens Deposition, p. 6). In order initially to pull helicopter blades out from a truck trailer it was necessary to "gun" the engine of the tow motor; this could cause a stack of blades to lurch forward (Sabetta Deposition, pp. 14-16). Sagliano testified, however, that the third stack responded smoothly to the initial pull and did not lurch forward (Sagliano Deposition, pp. 60-61). Sagliano, Sabetta and Stevens were aware that blades stacked in the same manner as those in plaintiff's truck could tip over (Sagliano Deposition, p. 28; Sabetta Deposition, p. 8; Stevens Deposition, pp. 20-21). Stevens had seen similar stacks fall before (Stevens Deposition, p. 21); Sagliano had not (Sagliano Deposition, p. 28). This type of load, due to the construction of the closed trailer and the length of the blades, was difficult to tow (Stevens Deposition, p. 7; signed statement of Sagliano dated October 10, 1961, p. 2³). Removing the third and last stack from the trailer, according to Stevens, was the most dangerous stage of the unloading operation because if that stack tipped there were no other stacks in the trailer to prevent it from completely tipping over (Stevens Deposition, pp. 19-20).

In view of the danger inherent in remaining in the trailer once pulling began, Sabetta made it a practice to warn truck drivers either to leave the trailer or to remain in that part of the trailer nearest the cab—in the space between the front wall of the trailer and the forward end of the stacks (Sabetta Deposition, p. 8). Sabetta could not recall whether he told plaintiff to get off the trailer before the third stack was pulled, although he believed that he warned plaintiff "to get clear of the load" (Sabetta Deposition, p. 8). Sagliano testified that Sabetta, in warning plaintiff to get down from the rear of the trailer, told plaintiff, "You know, if you are going to stay on the truck, you know, just keep a clear distance away from the side of the truck. In other words, stay in front of the truck to be out of the way of the blades." (Sagliano Deposition, p. 30). Many truck drivers, according to Sagliano, remained in the front of the trailer during unloading in order to stay out of reach of the blades (Sagliano Deposition, p....