Vasina v. Grumman Corp.

• Decision Date: 17 March 1981
• Docket Number: No. 417,D,417
• Citation: 644 F.2d 112
• Parties: Rita Jean VASINA, as Executrix of the Estate of William Arthur Vasina, deceased, Plaintiff-Appellee, v. GRUMMAN CORP. and Grumman Aerospace Corp., Defendants-Appellants. ocket 80-7638.
• Court: U.S. Court of Appeals — Second Circuit

Page 112

644 F.2d 112

Rita Jean VASINA, as Executrix of the Estate of William Arthur Vasina, deceased, Plaintiff-Appellee, v. GRUMMAN CORP. and Grumman Aerospace Corp., Defendants-Appellants.

No. 417, Docket 80-7638.

United States Court of Appeals Second Circuit.

Argued Dec. 15, 1980.

Decided March 17, 1981.

Marc S. Moller, New York City (Kreindler & Kreindler, Steven Earl Anderson, Robert E. Greshes, New York City, of counsel), for plaintiff-appellee.

Thomas R. Newman, New York City (Siff & Newman, P.C., Maurice L. Noyer, J. K. Weir, Haight, Gardner, Poor & Havens, New York City, of counsel), for defendants-appellants.

Before FEINBERG, Chief Judge, KEARSE, Circuit Judge, and METZNER, District Judge. ^*

FEINBERG, Chief Judge:

Defendants Grumman Corporation and Grumman Aerospace Corporation (Grumman) appeal from a judgment entered in favor of plaintiff Rita Jean Vasina, in the amount of $1,184,270 plus six per cent interest from the date of death, in the United States District Court for the Eastern District of New York, after a jury trial before Eugene H. Nickerson, J. Plaintiff's suit followed the death of her husband, Navy Lieutenant William Arthur Vasina, in the crash in March 1973 of a Navy airplane designed and manufactured by Grumman. A later Navy investigation concluded that the crash was caused by an in-flight separation of the port wing of the airplane. This wing had been damaged in action in Vietnam in 1967, and had been repaired by Navy field personnel at that time. Plaintiff alleged that Grumman was liable for Lieutenant Vasina's wrongful death, and for survival damages, based on theories of negligence, strict liability, and breach of warranty. Grumman asserted that the wing separation was actually due to the Navy's failure to properly repair the 1967 damage. For reasons indicated below, we affirm the judgment of the district court.

I

Grumman's first group of arguments on appeal centers around its claim that the Navy's negligence relieved Grumman of any liability for its own negligence. We note in passing that Grumman does make a desultory claim to us that it was not negligent at all. But that argument deserves little discussion. The trial judge found, 492 F.Supp. 943, 944 (E.D.N.Y.1980), that there was ample evidence indicating that Grumman's negligence contributed substantially to the crash. Our review of the record confirms this finding.

Grumman's weightier argument rests on its assertion that the Navy's faulty repair and maintenance of Lieutenant Vasina's airplane amounted to "unforeseeable intervening and superseding negligence" that served to "cut off" "any possible liability on the part of Grumman." See W. Prosser, The Law of Torts 270-89 (4th ed. 1971). Grumman first argues that the Navy's alleged negligence relieved Grumman of liability as a matter of law. This argument is not persuasive. The case before us is not one where Grumman's liability could be relieved by a showing of any intervening Navy negligence, however slight or irrelevant. Rather, the Navy's negligence would have to be substantial, and decisive in the causal chain of events leading to the crash, in order to eliminate Grumman's liability. In other words, the question presented below was one of proximate cause, and that question is within the province of the jury. See W. Prosser, supra, at 289-90.

Grumman cites Restatement (2d) of Torts § 452(2), Illustration 9, as support for its position. ¹ We have found no New York case that adopts that specific portion of the Restatement, see 1 New York Pattern Jury Instructions 2:72 at 212-15 (1974 & Cum.Supp.1980) (instruction on intervening causes). Moreover, since results such as that in Illustration 9 have been criticized as "difficult to explain" by Prosser, see W. Prosser, supra, at 289, we feel no compulsion to suppose that the New York Court of Appeals would adopt § 452(2) if the issue were presented to it today. Finally, § 452(2) "covers the exceptional cases in which ... the duty, and hence the entire responsibility for the situation, has been shifted to a third person." See § 452, Comment d. But the jury in the present case was instructed respecting Grumman's "duty" to Lieutenant Vasina, and by its verdict found that that duty still existed at the time of the crash and had not been fully discharged by Grumman.

Grumman also argues that the trial judge committed reversible error in refusing to give to the jury an instruction requested by the defense on the subject of "intervening" and "superseding" negligence. This argument does possess a surface appeal. There was clearly enough evidence adduced at trial to warrant a jury decision on Grumman's defense theory. But ultimately, Grumman's argument that the judge committed reversible error on this issue is unpersuasive. In evaluating the judge's instructions to the jury, it is helpful to refer to the summations presented by counsel for both litigants immediately before the charge. Those summations identify as the central issue in the case whether the Navy's conduct or Grumman's conduct was the proximate cause of the crash. For example, Vasina's counsel asserted that "if Grumman is partially responsible, it is liable.... (I)f the Navy was exclusively responsible, then Grumman can walk." In turn, Grumman's counsel contended at the start of his argument that "the sole reason why this accident happened is that it was the fault of the Navy and Navy personnel." Vasina had argued that Grumman's negligence in designing the airplane, in overseeing its maintenance and use by the Navy, and in failing to warn the Navy properly of dangers in the airplane once they were discovered, each made Grumman liable for the crash. Grumman replied that the Navy's negligence in repairing and maintaining the airplane poorly and in flying the airplane too long, despite Grumman's cautionary instructions and recommendations, relieved Grumman of all liability.

In the context of these summations, the trial judge's instructions, though brief, were adequate to present to the jury the legal criteria relevant to Grumman's defense of superseding negligence. In describing the burden of proof on plaintiff, the judge defined "proximate cause" as follows: "An act or failure to act is the proximate cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect on producing the injury that reasonable people would regard it as a cause of the injury." He then presented the litigants' conflicting contentions and explained the jury's duty in simple, concise language:

There may be more than one proximate cause of an accident. Grumman has contended that the negligence of the Navy was the sole proximate cause of the crash.

If you find that the Navy's negligence was the sole proximate cause, then plaintiff may not recover. However, if you find that both Grumman and the Navy, by separate and independent acts of negligence proximately caused or were substantial factors in proximately causing the death of Lieutenant Vasina, then Grumman is responsible for the whole injury even though Grumman alone might not have been solely responsible for the death of Lieutenant Vasina and even though its acts are not equal in degree to the negligence of the Navy.

In other words, from the standpoint of proximate cause, it is no defense to Grumman merely that the negligence of the Navy contributed to the death of Lieutenant Vasina.

These instructions were correct, because if the Navy's asserted intervening negligence had been "superseding," relieving Grumman of responsibility, then the Navy's negligence would indeed have been the "sole proximate cause" of the crash. In other words, the issue of "intervening" and "superseding" negligence was contained in the issue of proximate cause, and was adequately presented to the jury in the latter form.

Grumman argues that the trial judge should have given its requested instructions instead of those actually given. We are unpersuaded. Grumman's requested instructions were much longer and more complex, and might well have been unintelligible or needlessly confusing to the jury. ² The trial judge endeavored, we think successfully, to instruct the jury in ordinary, easily understandable language. In pursuit of this goal, he acted within his discretion in rejecting Grumman's formulations in favor of his own, which we believe gave the jury sufficient guidance on the applicable law.

II

Grumman also claims that the trial judge erred in submitting to the jury a claim for strict tort liability, premised upon a defect in the design of Lieutenant Vasina's airplane. The crash occurred within a federal enclave, the Boardman Bombing Range in Oregon. Grumman argues that the law applicable to this case is therefore determined by reference to 16 U.S.C. § 457, which provides that

In the case of the death of any person by the neglect or wrongful act of another within a national park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State, such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be; and in any action brought to recover on account of injuries sustained in any such place the rights of the parties shall be governed by the laws of the State within the exterior boundaries of which it may be.

Grumman interprets this statute to mean that the law applicable to the present case is the law in force in Oregon at the time that the enclave was ceded to the United States. The trial judge found that this cession occurred in 1846. 492 F.Supp. at 945. Grumman argues that since Oregon did not permit tort recoveries based on strict liability until 1967, the law in force within the federal enclave in 1973, the year of the crash, did not permit strict-liability tort recoveries. Therefore, Grumman concludes, the trial judge committed reversible error when he...