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MCELROY v. CESSNA AIRCRAFT CO.

January 20, 1981

Kathryn H. McELROY, Admx. of the Estate of Thomas R. McElroy, Deceased, Plaintiff,
v.
CESSNA AIRCRAFT COMPANY, a corporation, and Teledyne Corporation, a corporation, Defendants and Third-Party Plaintiffs, v. SKYLINE MOTORS AVIATION SERVICE, INC., a corporation, Skyline Motors Aircargo, Inc., a corporation, Gilbert L. Dailey and Sheldon L. Kling, Third-Party Defendants. Roberta VOGAN, Admx. of the Estate of Robert Vogan, Deceased, Plaintiff, v. CESSNA AIRCRAFT COMPANY, a corporation and Teledyne Corporation, a corporation, Defendants and Third-Party Plaintiffs, v. SKYLINE MOTORS AVIATION SERVICE, INC., a corporation, Skyline Motors Aircargo, Inc., a corporation, Gilbert L. Dailey and Sheldon L. Kling, Third-Party Defendants



The opinion of the court was delivered by: ZIEGLER

I. History of Case

This is a diversity action for damages arising out of the crash of an airplane in Mercer County, Pennsylvania, on September 29, 1977. Jurisdiction is based on 28 U.S.C. § 1332(a) and the substantive law of Pennsylvania is controlling. Robert Vogan, the pilot, and Thomas R. McElroy died in the crash. Plaintiffs instituted these wrongful death and survival actions against Cessna Aircraft Company, pursuant to Section 402A of the Restatement (Second) of Torts, contending that Cessna manufactured a defective product which was the legal cause of the crash. *fn1" Cessna impleaded the owners of the airplane, Sheldon L. Kling and Gilbert L. Dailey, for contribution contending that the third parties were negligent in failing to inspect and discover the alleged defect prior to the mishap. Kling and Dailey filed a counterclaim against Cessna for damage to the airplane. *fn2"

 Following a lengthy trial, the court submitted special verdict interrogatories to the jury. The jury found that Cessna manufactured and supplied a product that was defective and which defect was the legal cause, i. e., a substantial factor, in producing the deaths of decedents. The jury also found that Kling and Dailey were not negligent as alleged by Cessna. The jury awarded damages to Kathryn H. McElroy, Administratrix, against Cessna in the amount of $ 15,840 under the Survival Act *fn3" and $ 350,000 under the Wrongful Death Act. *fn4" The jury awarded damages to Roberta Vogan, Administratrix, in the amount of $ 0.00 under the Survival Act and $ 400,000 under the Wrongful Death Act. Finally, Kling and Dailey were awarded the sum of $ 130,000 against Cessna for property damage to the airplane.

 Cessna now moves for judgment notwithstanding the verdict or for a new trial. For the reasons set forth herein, the court will deny the motions for judgment or new trial on the issue of Cessna's liability for damages. The court will also deny the motions with respect to the damage award to the Estate of Thomas R. McElroy. Finally, the court will deny the motion for judgment notwithstanding the verdict with respect to the damages award on behalf of the Estate of Robert Vogan, but the court will grant the motion of Cessna for a new trial limited to the question of damages to the Estate of Robert Vogan under the Survival and Wrongful Death Acts.

 II. Discussion

 A. The Motions of Cessna for Judgment or for New Trial on the Issue of Liability.

 Viewing all the evidence, and the inferences therefrom, in a light most favorable to plaintiffs, *fn5" the jury could have found that Cessna Aircraft Company manufactured a defective product which was a substantial factor in the death of decedents. Plaintiffs presented evidence and the jury found that two experienced pilots were killed while returning from Buffalo, New York to Beaver Falls, Pennsylvania, in a twin engine Cessna airplane, model 402B, on September 29, 1977.

 Eyewitnesses testified that the plane was flying at an unusually low altitude in an area adjacent to Interstate 79, Mercer County, Pennsylvania. The weather was clear as the airplane suddenly banked to the right and disappeared below the treeline. The pilot accelerated the engines and the plane climbed slightly but struck the top of a large tree, burst into flames and disintegrated in a cornfield.

 Cessna did not seriously contest at trial the presence of the crack in the left manifold header. However, the Company strenuously disputed the existence of an in-flight fire. Its defense was predicated on pilot error and the question of causation. Cessna contended that the pilots were practicing contour flying and this explained the low altitude rather than fire in flight. *fn6" In this altitude, they became distracted and inadvertently collided with a tree. In sum, Cessna argued that the crack in the header was not a substantial factor in the death of decedents.

 Cessna also argued that the third-party defendants, Kling and Dailey, were negligent in failing to discover the defect during regular inspections of the airplane and such negligence either constituted a superseding cause, or entitled Cessna to contribution.

 The questions of defect, *fn7" causation, *fn8" superseding cause *fn9" and negligence *fn10" were submitted to the jury under Pennsylvania law. *fn11" The issues were hotly contested and ably presented by prominent counsel. The jury resolved all questions of fact against Cessna and there is substantial evidence to support the verdict. Cessna's motion for judgment N.O.V. must be denied. See, Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir. 1970).

 Cessna next contends that a new trial is warranted for several reasons. We will discuss these contentions in sequence but its first contention, namely, the verdict is against the weight of the evidence, requires little discussion. As we have noted, there is credible evidence concerning the defect in the manifold header, the in-flight fire in the left wing and the resulting effort of the pilots to combat the emergency. Voluminous evidence was produced to support plaintiffs' theory of the case and we cannot say that the verdict of the jury is against the weight of the evidence.

 Cessna now contends that the court failed to instruct the jury concerning superseding or intervening cause. We disagree. The court instructed the jury concerning this issue under Pennsylvania law *fn12" and defendant did not object to the charge of the court. *fn13"

 Cessna next argues that the verdict is tainted because the trial judge refused to instruct the jury regarding substantial change. The court's refusal was justified, however, since the record is devoid of evidence that the manifold header was changed following the sale of the airplane. Cessna's reliance on the testimony of Leo Talbot is misplaced.

 Cessna finally asserts that a new trial is warranted for alleged trial errors as follows:

 (1) improperly admitting the rebuttal testimony of George Foster and William J. O'Donnell;

 (2) permitting the testimony of George Dorn without compliance with Rule ...


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