Wood v. United Air Lines, Inc.

• Decision Date: 14 December 1961
• Parties: Larmicia and Solomon WOOD v. UNITED AIR LINES, INC., Trans World Airlines, Inc.
• Court: New York Supreme Court

Page 692

223 N.Y.S.2d 692

32 Misc.2d 955

Larmicia and Solomon WOOD v. UNITED AIR LINES, INC., Trans World Airlines, Inc.

Supreme Court, Special Term, Kings County, Part I.

Dec. 14, 1961.

Morris Hirschhorn, New York City, for plaintiff.

Haight, Gardner, Poor & Havens, New York City, for defendant United Air Lines.

Bigham, Englar, Jones & Houston, New York City, for defendant Trans World Airlines.

JOHN E. CONE, Justice.

Plaintiffs move for summary judgment in their favor against defendant United Air Lines, on the issue of liability in trespass.

This is an action in which plaintiff Larmicia Wood (hereinafter referred to as plaintiff) seeks to recover for personal injuries which she claims to have sustained in her apartment when a jet aircraft belonging to the defendant United Airlines (hereinafter referred to as defendant) crashed in the immediate vicinity of Sterling Place and Seventh Avenue, in the Borough of Brooklyn, as the result of a mid-air collision with an airplane owned by co-defendant Trans World Airlines. The crash allegedly caused damage to the building at premises No. 26 Seventh Avenue and to plaintiffs' apartment located in said building. The plaintiff, Solomon Wood, as husband of the injured plaintiff, sues for loss of services, etc. Both plaintiffs, in addition, seek recovery for personal property damage allegedly resulting from the crash.

The 'amended' complaint, in addition to alleging negligence, charges that the crash and the resultant damage and injury to plaintiff constituted a wrongful invasion of person and property which was in the nature of a trespass. It is plaintiffs' claim, as set forth in the memorandum in support of the instant motion, that the crash occurred in the immediate vicinity of No. 26 Seventh Avenue, and that 'the ensuing explosions, concussions and fires brought about by the great impact of the crash with the spillage of jet fuel, almost completely burned out several buildings in the vicinity, including the premises of plaintiff Larmicia Wood, who was a tenant occupying her apartment at the time of the accident.'

The instant motion for summary judgment is predicated not upon the claim of negligence but upon the trespass theory of liability, plaintiffs contending that the 'invasion' resulting from the crash constituted a trespass as a matter of law. The plaintiffs, in effect, invoke a doctrine of strict or absolute liability which would impose liability upon an airplane owner for injuries or damage, sustained as a result of the crash of the plane, to person and property located on the ground, irrespective of the absence of any negligence or of any intent to invade the rights of those on the ground.

To establish that there was a physical invasion of the premises here involved, plaintiffs submit a report of the New York City Fire Department which, it is claimed, shows that there was extensive damage to the building in which plaintiff's apartment was located and to the apartment itself. Also submitted in support of the motion, presumably to show the injuries here complained of were sustained in plaintiff's apartment, is a medical abstract of the Coney Island Hospital, to which plaintiff was removed following the crash, containing a history stating in effect that plaintiff was at home when the crash occurred.

Defendant argues in opposition to the motion that there can be no trespass as a matter of law under the facts here sought to be shown by plaintiffs on this motion. Defendant contends further that the plaintiffs' moving papers are insufficient in that there is no competent proof offered to support the claim that plaintiff's apartment, or any part of the building for that matter, was physically invaded by defendant's aircraft, or that the plaintiff sustained her injuries in the apartment and not elsewhere, or that the plaintiff or her husband had the necessary possessory interest in the damaged premises to maintain an action in trespass. Defendant contends that in any event there are triable issues as to the foregoing, particularly since the facts relative to certain aspects thereof are exclusively within the knowledge of the plaintiff or, at any rate, are clearly not within defendant's knowledge.

For the reasons and consideration herein below set forth, I am of the opinion that the facts which plaintiffs have sought to show on this motion are insufficient to support a recovery in trespass as a matter of law. It may safely be stated as a general rule that to constitute an actionable trespass there must be an intent to do the very act which results in the immediate damage (Socony-Vacuum Oil Co. v. Bailey, 202 Misc. 364, 109 N.Y.S.2d 799). The determinative factor is stated as follows in Phillips v. Sun Oil Co., 307 N.Y. 328, 331, 121 N.E.2d 249, 250 'Trespass is an intentional harm at least to this extent: while the trespasser, to be liable, need not intend or expect the damaging consequence of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfullness (citing cases, among them Guille v. Swan, 19 Johns, 381).' [Emphasis supplied.]

In the instant case it would seem to be apparent that there was no intent to crash. Neither is there any indication that the collision which led to the crash occurred during the course of attempting to make a landing. No evidentiary facts are adduced on the instant motion to show that the plane was in any wise under the pilot's control when, as alleged in the amended complaint, it 'plunged down' onto the street; indeed, the plaintiffs do not profess to argue that any control or management of the plane was possible, following the mid-air collision.

Upon this motion, plaintiffs rely basically on the view expressed in 1822 in Guille v. Swan (cited in the Phillips case supra), that 'the intent with which an act is done is by no means a test of the liability of a party to an action of trespass.' But it cannot be gainsaid that the somewhat absolute and unqualified language of the foregoing judicial pronouncement, and its application generally, must be construed and understood in the light of the explicatory language contained in the Phillips case, hereinbefore quoted. Moreover, an analysis of the cases, cited by plaintiffs, in which the element of intent was ignored or in which it did not loom as an essential element of the trespass cause of action, discloses that the imposition of liability in those cases involving, as they did, aviation mishaps, was predicated upon the assumption that flying was an extrahazardous activity (see also the Restatement of the Law of Torts, § 519, applying the doctrine of strict liability to cases involving ultra-hazardous activity, and section 520 which defines ultra-hazardous activity and includes aviation as an example thereof).

Thus, turning to the cases cited by plaintiffs we find that in the Guille case, the defendant, a balloonist, descended into plaintiff's garden, which was a short distance from the place of defendant's ascent. The court, in holding the balloonist liable for damage done to plaintiff's garden by a crowd which rushed to the balloonist's aid, wrote in part as follows (Guille v. Swan, 19 Johns . 381, at p. 382);

'I will not say that ascending in a balloon is an unlawful act, for it is not so; but, it is certain, that the Aeronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can; his reaching the earth is a matter of hazard.'

The case of Rochester Gas & Electric Corp. v. Dunlop (Monroe County Court), 1933, 148 Misc. 849, 266 N.Y.S. 469, also cited by plaintiffs, was an action both in negligence and trespass for damage caused to a tower when the airplane piloted by the defendant in that case crashed against it. The defendant's evidence was to the effect that in attempting to make a landing at night, following an engine failure, he failed to see the tower so as to avoid the collision. The court, in reversing a judgment rendered in favor of defendant and ordering a new trial, considered the application of either the res ipsa loquitur doctrine or the theory of trespass to the facts in the case....