Zaninovich v. American Airlines, Inc.

• Decision Date: 30 June 1966
• Citation: 26 A.D.2d 155,271 N.Y.S.2d 866
• Parties: Kathryn ZANINOVICH and Vincent Zaninovich, as executors of and under the last wills and testaments of Lois Storey, deceased and Richard Storey, deceased, Plaintiffs-Respondents, v. AMERICAN AIRLINES, INC., Defendant-Appellant, and The Boeing Company and The Bendix Corporation, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 866

271 N.Y.S.2d 866

26 A.D.2d 155

Kathryn ZANINOVICH and Vincent Zaninovich, as executors of and under the last wills and testaments of Lois Storey, deceased and Richard Storey deceased, Plaintiffs-Respondents, v. AMERICAN AIRLINES, INC., Defendant-Appellant, and The Boeing Company and The Bendix Corporation, Defendants.

Supreme Court, Appellate Division, First Department.

June 30, 1966.

John G. Reilly, New York City, of counsel (Robert F. Ewald, New York City, on the brief; Bigham, Englar, Jones & Houston, New York City, attorneys), for appellant.

Charles F. Krause, New York City, of counsel (Eugene M. Parter and Stuart M. Speiser, New York City, on the brief; Bernstein, Weiss, Hammer & Parter and Speiser, Shumate, Geoghan & Krause, New York City, attorneys), for respondents.

Before BREITEL, J.P., and McNALLY, STEUER, and CAPOZZOLI, JJ.

BREITEL, Justice Presiding.

In a wrongful death action arising from an airplane crash, plaintiffs, as executors, of the deceased, recovered a jury verdict against the operating airline of $550,000 for the loss of the father, $200,000 for the loss of the mother, and $5,000 for funeral expenses. With costs, and interest allowable in death actions, the judgment, as of July 28, 1965, aggregated $909,859.

There were separate jury trials before different trial justices on the issues of liability and damages. The liability trial was a joint one of seven cases, the remainder of sixteen arising out of the same accident and originally directed for joint liability trial. The others had been settled. Defendant settled three of the damage cases prior to trial. Of the four damage cases that went to trial three verdicts were returned and eventually paid in full or by settlement. The present case is the last that remains in litigation.

Defendant assigns errors in both the liability and damage trials and contends that the verdict was excessive. It is concluded that there were no prejudicial errors, in the sense that, but for the alleged errors, the result would have been different. On the other hand the verdict is grossly excessive and a new trial should be ordered unless plaintiffs stipulate to accept the lesser amounts discussed below. It is only necessary to discuss some of the errors assigned and to consider the amounts included in the verdict.

Defendant's airplane crashed into Jamaica Bay two minutes after takeoff from New York International Airport on March 1, 1962. All on board were killed, passengers and crew. This action involves two passengers, husband and wife, 29 and 28 years of age respectively, who were the parents of four daughters, aged 7, 5 and 2 1/2 years and the youngest 7 months old. The two-and-a-half-year old is mongoloid. The young man had gone into his father-in-law's business, and on the latter's death had acquired a forty percent interest against the young man's unpaid promissory note for $30,000 in favor of his mother-in-law. At his death this decedent was earning just under $15,000 per year. The business was a fruit and produce business with offices in New York City and California. The wife was a housewife. Except for a mortgaged home they had no substantial accumulated assets.

On the liability trial defendant assigns as error the court's tolerance of plaintiffs' contention and theory that the action was based on the doctrine of Res ipsa loquitur against the operating airline at the same time that plaintiffs were permitted to prove and argue a specific cause of the accident. Plaintiffs have always contended and argued to court and jury that the action was based upon Res ipsa loquitur. They also offered, however, the testimony of an eyewitness, skilled in aircraft, that defendant's jet plane banked to an excessive degree as it turned, also to an excessive degree, before the plane had attained altitude and speed to support such a maneuver. Another witness testified that the wing flaps were not down or extended, thus increasing the risk of stalling the plane as a result of the stall-inducing bank and turn at that altitude and speed. The stalling of a plane was defined as the incapacity of the lift on the wings to sustain the plane in flight. Throughout the case and in summation plaintiffs argued that this evidence was available to explain the accident but was not sufficiently explanatory or complete to account for the accident, and therefore did not require an election to rely either on Res ipsa loquitur or proof of specific cause of accident. Moreover, the court's charge reflected and commingled both the doctrine and the proof of specific cause of the accident, although it purported to separate such proof and limit its application.

The New York rule appears to be quite clear and settled that a plaintiff must elect whether he relies on Res ipsa loquitur or proof of specific cause of accident (Bressler v. New York Rapid Transit Corp., 270 N.Y. 409, 413, 1 N.E.2d 828, 829; Cunningham v. Lence Lanes, Inc., 25 A.D.2d 238, 268 N.Y.S.2d 609; Goodheart v. American Airlines, Inc., 252 App.Div. 660, 662--663, 1 N.Y.S.2d 288, 290--291; 41 N.Y.Jur., Negligence, § 93). Because the doctrine is simply a formulation of a species of circumstantial evidence it has involved grave logical difficulties in trying to separate the type of case where plaintiff offers less circumstances to establish defendant's liability from that where he offers more but, still being uncertain of his ground, declines to elect reliance between the doctrine and his specific proof (see, e.g., Anno.--Aviation Accidents--Res Ipsa Loquitur, 6 A.L.R.2d 528, 536--537). For this reason, among others, the requirements of election has been criticized (Prosser on Torts (3rd ed.) p. 236; 2 Harper and James, Law of Torts § 19.10). The requirement to elect has been blunted by a corollary rule which permits the plaintiff to rely on the doctrine despite evidence of specific cause of accident so long as the evidence does not fully account for the accident (Bressler v. New York Rapid Transit Corp., supra; Citrola v. Eastern Air Lines, Inc., 2 Cir., 264 F.2d 815, applying New York law and discussing the relevant New York cases; McKenna v. Allied Chem. & Dye Corp., 8 A.D.2d 463, 466--467, 188 N.Y.S.2d 919, 922--923; cf. De Roire v. Lehigh Valley Railroad Co., 205 App.Div. 549, 551, 199 N.Y.S. 652, 654, decided before the Bressler case, supra).

Of course, it is rare, if ever, that a plaintiff proves a defendant's misconduct by direct evidence which would satisfy the most absolute of tests, namely, immediate perception of the offending and operative conduct. One makes inferences from immediately observed conduct of machines even as with the automobile that even as which the automobile that is speeding, jumps to the sidewalk, or careens off the highway. In the case of the airplane the inferences are more difficult for most because the technology is not as familiar. The banking, turn, and flap retraction would certainly explain this accident, if the testimony were accepted. And a jury would of course be entitled to infer that the pilot had so manipulated the plane, in the same way that it could infer that a speeding automobile was intentionally driven at that speed or that it jumped to the sidewalk or careened off the highway because the driver made too sharp a turn.

In the light of the authorities it appears, therefore, and it is certainly arguable, that plaintiffs proceeded far enough in the proof of specific cause of accident for the New York rule of election to be invoked. But the error, if there was such, in allowing plaintiffs to continue to stand on Res ipsa loquitur, was not productive of prejudicial error. So long as defendant did not, as evidently it could not, offer any different proof that would displace the circumstances which gave rise to the inference under the doctrine of Res ipsa loquitur or would contradict the plaintiffs' proof of specific cause, the jury would have, as the trial court commented after the verdict it must have, found in favor of plaintiffs, either on a theory of Res ipsa loquitur or on the proof of specific cause. Another liability trial would be a futility in this kind of airplane accident without survivors.

With respect to the damages trial, the court was correct in allowing business expert testimony as to the husband's future prospects in the fruit and produce business. These are not matters in the general knowledge of the jurors, or for that matter, the Court (Clark v. Iceland S.S. Co., 6 A.D.2d 544, 547--548, 179 N.Y.S.2d 708, 712--713; Richardson on Evidence (9th ed.) § 387). So long as one is entitled to recover for loss of future potentialities, such evidence is permissible (Faulk v. Aware, Inc., 35 Misc.2d 302, 306, 231 N.Y.S.2d 270, 275, mod. 19 A.D.2d 464, 470--471, 244 N.Y.S.2d 259, 264--265, affd. 14 N.Y.2d 899, 252 N.Y.S.2d 95, 200 N.E.2d 778; Grayson v. Irvmar Realty Corp., 7 A.D.2d 436, 439, 184 N.Y.S.2d 33, 36, and authorities cited). On the other hand, it was error to allow proof as to the costs in providing a substitute for the wife. These are matters within the common ken, and subject to so many variables and choices that no objective standard can be supplied by an expert, if one there be (Clark v. Iceland S.S. Co., supra; Richardson, op. cit.). However, this error too was not productive of the large verdict here. It is all too apparent from the verdict that the awful tragedy in this case with its poignant sympathy-inducing factors was one with which the jury could not cope in assessing the damages. The hugeness of the awards goes well beyond any influence possibly contributed by this 'expert proof.'

On the admission of evidence, the wills of the parents should have been admitted to help assess, to some degree, the pecuniary burden that would have been assumed by the parents with respect to the mongoloid child (see Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 52 N.E.2d 448). It is obvious that a maximum, or even extravagant provision,...