Weber v. Southwestern Bell Tel. Co.

• Decision Date: 06 May 1972
• Docket Number: No. 46279,46279
• Citation: 209 Kan. 273,497 P.2d 118
• Parties: Charles F. WEBER, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, et al., Appellees.
• Court: Kansas Supreme Court

Page 118

497 P.2d 118

209 Kan. 273

Charles F. WEBER, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, et al., Appellees.

No. 46279.

Supreme Court of Kansas.

May 6, 1972.

Rehearing Denied June 22, 1972.

Syllabus by the Court

The record in an action to recover damages, against the landowners on which a private airstrip was located and a public utility, for personal injury sustained when the airplane in which the plaintiff was a passenger came in contact with the telephone lines of the public utility located on private property across a public highway from the airstrip where the airplane was attempting to land, is examined, and, as more fully set forth in the opinion, it is held: The district court did not err in rendering summary judgment in favor of the defendant landowners. It is further held there remained genuine issues of material facts with respect to the public utility, and the district court erred in rendering summary judgment in its favor.

Gerald L. Michaud, of Michaud, Cranmer, Syrios & Post, Wichita, argued the cause, and Orval L. Fisher and Bradley Post, Wichita, were with him on the brief for appellant.

Charles W. Harris, of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, argued the cause, and Windell G. Snow, Wichita, and T. Larry Barnes, Topeka, were with him on the brief for appellee Southwestern Bell Telephone Co.

Alvin D. Herrington, of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, argued the cause, and Norman I. Cooley, Wichita, was with him on the brief for appellees Lowell and Dixie Strickler.

FATZER, Chief Justice:

This was an action for personal injury arising out of the crash of a private airplane in which the plaintiff, Charles E. Weber (Weber), was riding as a passenger. He has appealed from the entry of summary judgment in favor of each of the defendants, Southwestern Bell Telephone Company (Bell), and Lowell Strickler and Dixie Strickler his mother (individually or as the Stricklers).

The following is a summary of facts disclosed by deposition testimony, answers to interrogatories by Bell and the Stricklers, and statements and affidavits of the parties and witnesses, at the time the district court sustained the motions for summary judgment:

The accident occurred on Sunday afternoon, July 23, 1967, when the airplane in which Weber was riding was in the process of landing at the Strickler Airstrip three and one-quarter miles east of Nickerson. The weather was clear and warm and there was a slight wind from the south. The crash occurred when the landing gear of the airplane came in contact with certain telephone lines owned by Bell. When the airplane struck the telephone lines, it nosed down, turned over, and crashed near the north end of the airstrip.

To orient the reader, it may be said the telephone lines in question are located in the southeast quarter of Section 7, Township 22, Range 6, in Reno County, which was owned by the Fred Strickler estate at the time of the accident. The telephone lines run in an east-west direction, and are fourteen and one-half feet north of the right-of-way of Old K-96 Highway. The highway is both a section line road and a paved highway. The Strickler airstrip is located south of, and across the highway, in a 50 or 60 acre prairie grass pasture in the northeast corner of the northeast quarter of Section 18, Township 22, Range 6, in Reno County, which was also owned by the Fred Strickler estate and rented by Lowell Strickler from his mother Dixie Strickler, executrix of the estate of her deceased husband Fred D. Strickler. K-96 highway turns south at the northeast corner of Section 18, and the area is known as 'Stricklers' Corner,' but it is also referred to as 'Stricklers' Airstrip.'

The airplane involved was an experimental aircraft known as the 'Bluey Sport.' It was piloted by Roscoe V. Huey, one of the owners and builders of the plane. The aircraft was an open cockpit, single engine, tricycle gear, high wing airplane, with dual controls and could be flown from either of its two seats, except that pedals to brake the plane were on the left or pilot's side of the aircraft. The airplane was in excellent mechanical condition at the time of the crash, having been approved by the Federal Aviation Authority, and was currently certified by the FAA. Huey was a private pilot, having been licensed since about 1949, and he was certified to operate the aircraft. Huey was killed in the crash, and Weber, a licensed student pilot with some forty hours of flying time, was permanently and severely injured.

The Strickler Airstrip has been in existence since about 1930, and has been continually used for the landing and taking off of private airplanes. The airstrip has a runway 2200 feet in length which runs in a north-south direction, and is referred to as a 'sod strip,' meaning prairie grass which is kept mowed. It is 72 feet wide, the north end of which is about 90 feet south of the north boundary of the pasture. Over the years Fred Strickler, deceased, permitted his son Lowell and some of their friends to keep private aircraft at the airstrip, and several of them had built hangars for their airplanes. Lowell and his friends who kept their planes at the field, kept the grass mowed on the airstrip and leveled the strip by filling badger and gopher holes, and so forth. At the time of the accident, eight people were permitted to keep their planes at the airstrip. Only one of the hangars was enclosed on all sides. This was owned by James Foster who housed his plane in the hangar. Foster had a written agreement with Fred Strickler permitting him to build his own hangar but to pay no rent, and Lowell Strickler was permitted to use part of the hangar to house his own airplane. When the crash occurred, there were four other 'T' hangars on the airstrip, and another was incomplete. All of the buildings were privately owned by Strickler's friends and erected at their own expense. None of the hangars were available for rent or used by the public in general. Strickler received a nominal remuneration from some of his friends to offset the loss of any pasture area resulting from building hangars at the field. The total payments Strickler received were usually less than $50 in any one year, and never exceeded $125 in any given year.

Shortly after Foster was permitted to keep his plane at the airstrip, he and other persons who owned planes smoothed up the field and placed old tires Foster had painted white at the ends and sides of the airstrip to outline the runway. There is a windsock to show wind direction, but there has never been a control tower or traffic control of any kind. There were no radio facilities for air-to-ground or ground-to-air communications, except Foster had a personal citizen's band radio between his home, car, and his hangar. The airstrip had no tiedowns, hangar facilities, repair facilities or gasoline or oil, or any other maintenance or service facilities available for use by the public or transient aircraft. No landing fees were ever charged, nor were any flying instructions given for a charge. No product or service was offered or available for sale to the public. The airstrip had never been advertised by signs or otherwise, as open to the public or transient aircraft. It was not listed or shown on any aeronautical or other maps, charts or directories as even an emergency landing area. No governmental agency had indicated that the airstrip was in any way subject to, or regulated by, any governmental agency. Lowell Strickler did not attempt to, nor did he make any profit from the airstrip. The only profit which he made, or attempted to make, was in connection with the use of the pasture to graze his dairy cattle. The only persons who were invited to the airstrip were friends who were invited for social purposes.

Numerous aircraft have landed at the airstrip over the years, and, with the exception of Foster, Strickler placed limited restrictions upon those persons he permitted to house aircraft at the field concerning their invitations to other pilots to land. However, there was an open invitation to members of the Experimental Aircraft Association (EAA), of which Lowell Strickler, James Foster, Tommy George, Colonel Marion Unruh, Huey and Weber were members, to fly to the airstrip at their pleasure and convenience, and unannounced. Similar invitations had been issued by other EAA members who owned private airstrips in that part of the state. The EAA is a voluntary national association having state and local chapters. Strickler had been a pilot since 1949, and was active in organizing EAA in Kansas; he was a charter member, had served on various committees, and had undertaken, as most of its members had, to build his own airplane. The primary purpose of EAA is to permit members to meet and discuss the construction and performance of experimental airplanes, and Strickler's invitation to members of the association took on some of the characteristics of invitations issued by Mae West to, 'come up and see me sometime,' that is, 'if you are in my area on a Sunday afternoon, drop in and see me.'

Over a period of four or five years, Strickler had expressly invited George and Huey to visit him at the airstrip, and George had flown to the airstrip on several occasions. Huey had driven his automobile to Strickler's home to attend EAA meetings, but he had not previously landed a plane at the airstrip. The evidence showed that when Strickler invited members of EAA to drop in and see him, he had a practice of always warning them of the obstruction of the telephone lines at the north end of the runway. The record shows that on several occasions Huey had been expressly warned about the telephone lines and to watch out for them.

The evidence also showed that occasionally Weber attended chapter meetings of EAA. Strickler testified he did not know Weber but had seen him at meetings-he could not place his name with anyone...