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HERBERT HALSBAND v. UNION NATIONAL BANK PITTSBURGH (08/05/83)

filed: August 5, 1983.

HERBERT HALSBAND, EXECUTOR OF THE ESTATE OF BONNIE L. COOPERMAN, DECEASED
v.
THE UNION NATIONAL BANK OF PITTSBURGH, EXECUTOR OF THE ESTATE OF JACK S. COOPERMAN, DECEASED, APPELLANT. EILEEN BERGER, ADMINISTRATRIX OF THE ESTATE OF AVERY MICHAEL COOPERMAN, DECEASED; EILEEN BERGER, ADMINISTRATRIX OF THE ESTATE OF CARLA DIANE COOPERMAN, DECEASED; AND B & C PLAYLANDS, INC., A CORPORATION V. THE UNION NATIONAL BANK OF PITTSBURGH, EXECUTOR OF THE ESTATE OF JACK S. COOPERMAN, DECEASED, APPELLANT



No. 891 Pittsburgh 1980, No. 892 Pittsburgh 1980, Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 76-26765 and No. GD 76-26764.

COUNSEL

James P. McKenna, Jr., Pittsburgh, for appellant.

John E. Evans, Jr., Pittsburgh, for appellees.

Price,*fn* Brosky and Montemuro, JJ. Price, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 318 Pa. Super. Page 599]

These consolidated appeals arise from an airplane accident which resulted in the deaths of the pilot, Jack S. Cooperman, his wife Bonnie L. Cooperman and their children, Avery Michael and Carla Diane. Suits were brought against appellant, the estate of Mr. Cooperman, by the following appellees: the representatives of the estates of Mrs. Cooperman and the two children, and B & C Playlands, Inc., the company which owned the airplane involved. The jury rendered verdicts in favor of appellant, and appellees moved for a new trial. A new trial was granted on the basis that the trial court erred in refusing to charge the jury on the doctrine of res ipsa loquitur. This appeal followed. We agree with the court below that appellees are entitled to such an instruction and affirm.

On December 8, 1975 at about 3:00 p.m. the twin engine Beechcraft Bonanza took off from Meigs Field in Chicago. The plane was piloted by Mr. Cooperman and carried his wife and children as passengers. Their intended destination was Pittsburgh. It was snowing and the runway was slushy. Shortly after takeoff, two "May Day" calls came by radio from the pilot, followed by the statement that he was "ditching". The plane came down into Lake Michigan, and although the occupants were apparently uninjured in the descent and managed to get out of the plane, the entire family was drowned.

The National Transportation Safety Broad investigated the accident in an attempt to determine its cause. Although the final conclusion of the Board was not disclosed to the jury, counsel for all parties stipulated that any portion of the report could be offered in evidence, without the necessity of calling witnesses.

Appellees presented two expert witnesses, both professional pilots, who offered detailed opinion testimony in

[ 318 Pa. Super. Page 600]

    support of their view that the accident was caused by pilot error which constituted negligence on the part of Mr. Cooperman. While both experts stated that they did not know the exact cause of the accident (N.T. 91, 172), each indicated that he had formulated an opinion based upon the information available (N.T. 63, 172).

Appellees' first witness, Joseph Sabol, had been Mr. Cooperman's flight instructor. He testified, inter alia, that

The takeoff under the existing conditions would have been challenging for a pilot of far greater experience than Cooperman (N.T. 74) and even Mr. Sabol himself, with great experience, would not have done so (N.T. 77).

Before takeoff, Cooperman had to remove snow from the plane and there was slush on the ground which would get on the plane and freeze into ice when it became airborne and the takeoff should not have been attempted (N.T. 64).

Because it was snowing the pilot had little visual contact at takeoff, and Cooperman did not have the requisite experience to shift readily from visual to instrument control immediately after takeoff, a thing which is always precarious in conditions such as existed (N.T. 65).

Cooperman failed to turn on manually a heating device to prevent icing of the instrument which gives speed and vertical ascent information, air speed being important to a pilot in lifting off the ground (N.T. 86, 87).

The propellers of this twin engine plane sounded grossly out of synchronization going down a slushy runway into a snowstorm and Cooperman should have aborted the flight in these circumstances (N.T. 77, 90).

Instead of taking the plane into a turn when only 75 to 100 feet from the ground, Cooperman should have waited until 400 to 500 feet from the ground in accordance ...


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