Opinion
Case No. A00-0121 CV (JKS), Consolidated with Case Nos. J0-0014 CV, A00-0194 CV and A00-0381 CV (Previously Filed 10/11/01)
September 10, 2003
Morgan B. Christen, Preston Gates Ellis, Anchorage, Alaska, for Plaintiffs Shirley Larson and the Estate of Daniel Truesdell
Kenneth S. Roosa, Hedland Brennan Heideman Cooke, Anchorage, Alaska, for Plaintiff the United States of America
Stephen R. Cerutti, U.S. Department of Justice, Washington, DC, for Plaintiff the United States of America
W. Michael Moody, Atkinson Conway Gagnon, Anchorage, Alaska, for Plaintiff Clarence Lee Dougherty and the Estate of Caren Dougherty
Anthony M. Sholty, Faulkner Banfield, PC, Anchorage, Alaska, for Plaintiffs George Maryniak and Barbara Maryniak
Michael J. Harrington, Davis, California, for Plaintiff Avemco Insurance Co.
Robert L. Richmond, Richmond Quinn, Anchorage, Alaska, for Defendants Era Aviation, Inc. and Ole-Ronny Reierstadt
Debra D. Fowler, Washington, DC, for Defendant the Federal Aviation Administration
Michael C. Geraghty, DeLisio Moran Geraghty Zobel, Anchorage, Alaska, for Intervenor Lockheed-Martin, Inc.
AMENDED ORDER
INTRODUCTION
There are currently two motions for summary judgment before the Court. First, a motion for partial summary judgment by Plaintiff Clarence Dougherty (representative for the estate of Caren Dougherty) to dismiss all counterclaims of liability against the Dougherty Estate. See Docket Nos. 72A (Mot.); 75 (Opp'n); 99 (Reply). Second, a summary judgment motion by Intervenor Lockheed-Martin, Inc. ("Lockheed"), to declare its non-liability. See Docket Nos. 68 (Mot.); 81 (Opp'n); 94 (Opp'n);97(Opp'n);98(Reply).
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 1998, a mid-air collision between a Federal Aviation Administration ("FAA") chartered plane and a sightseeing helicopter owned and operated by Era Aviation, Inc., ("Era"), resulted in the death of the two occupants of the plane, Caren Dougherty and Daniel Truesdell. This litigation ensued. The issue central to both motions for summary judgment currently before the Court is whether any legal duty was owed by Dougherty to Truesdell or the occupants of the helicopter. The resolution of this issue is dependent on the status of Dougherty as either passenger or flight crew ( i.e., pilot-in-command or flight instructor) at the time of the accident.
Shirley Larson as representative of the Daniel Truesdell Estate brought this action against Era. See Larson v. Era Aviation, Inc., A00-0121 CV (JKS). The estate of Caren Dougherty also brought suit against Era. See Dougherty v. Era Aviation, Inc., A00-0198 CV (JKS). George Maryniak, a passenger of the helicopter likewise brought suit and the Government joined the suit as third-party defendant. See Maryniak v. Era Aviation, Inc., J00-0014 CV (JKS). These actions were consolidated and Lockheed, as Dougherty's employer, was allowed to intervene. See Docket No. 34.
The National Transportation Safety Board ("NTSB") report states that FAA employee Truesdell was found in the left pilot seat station of the plane and that Dougherty, an employee of Lockheed, was found in the right-front passenger seat. See Docket No. 72A, Ex. V. The airplane had dual controls and Dougherty was a certified pilot and flight instructor. See id. (Mem.) at 4. The purpose of the flight was for the FAA and Lockheed — through Truesdell and Dougherty — to gather data on locations in Southeast Alaska as part of a contract for support the FAA has with Lockheed. See id. Defendant Era, Plaintiff Shirley Larson (as representative of the Truesdell Estate), and the Government as Third-Party Defendant, have claimed that Plaintiff Dougherty was either acting as a flight instructor or pilot-in-command at the time of the accident. See id., Exs. B, C, D; see also Docket No. 75 at 2-3. Alternatively, it is alleged that Dougherty had a duty as a passenger in the right-front seat to scan the sky for other air traffic. See id. The Dougherty Estate is seeking a partial summary judgment dismissing these claims of liability against Dougherty. See Docket No. 72 A (Mem.) at 2.
Similarly, Lockheed as Dougherty's employer seeks to have the Court declare that Lockheed is not vicariously liable for the actions of Dougherty regarding the events surrounding the collision. See Docket No. 68 at 3. Lockheed asserts that if Dougherty acted as a flight instructor at the time of the accident, she was acting outside the scope of her employment, and thus Lockheed is not vicariously liable for Dougherty. See id. Lockheed further asserts that, as a matter of law, there is no common law duty on a passenger of a plane to others involved in a collision and thus there can be no vicarious liability based on Dougherty's status as a passenger in the right-front seat. See Docket No. 98 at 11. Lockheed's motion for summary judgment is a preemptive motion as there are no claims filed against Lockheed at this time.
DISCUSSION
A. The Dougherty Estate's Motion for Partial Summary Judgment
The question of Dougherty's liability has arisen because the plane chartered by the FAA had dual controls and Dougherty — who sat in the right-front passenger seat — was a certified pilot and flight instructor. See Docket No. 72A (Mem. at 2). Era has alleged that Dougherty was acting as either a flight instructor or pilot at the time of the accident and thus was obligated under the FAA's regulations to see and avoid other aircraft. See Docket No. 75. Alternatively, even if Dougherty was not acting as an instructor or pilot, Era has claimed that, as a passenger in the right-front seat, Dougherty owed a common law duty of care to Truesdell and the occupants of the helicopter. See id. The Dougherty Estate, in its motion for partial summary judgment, seeks to have these claims dismissed arguing that there is no evidence to support a finding that a duty was owed by Dougherty. See Docket No. 72A.
1. Standard for Summary Judgment
Pursuant Federal Rule of Civil Procedure 56, "[a] party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may . . . move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof." See Fed.R.Civ.P. 56(a); see also Fed.R.Civ.P. 56(b) (providing the same opportunity for parties defending against such claims). Summary judgment is appropriate if the Court finds that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c). Courts will construe all evidence and draw all evidentiary inferences in favor of the non-moving party. See 10A Charles Alan Wright et al, Federal Practice and Procedure § 2727, at 459, 459 n. 5 (3d ed. 1998) (citing Adickes v. S. H. Kress Co., 398 U.S. 144 (1970)).
A dispute over a material fact exists if the evidence would allow a reasonable fact-finder to return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48. The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, mere allegations of factual dispute, without more, will not defeat an otherwise proper motion. See Provenz v. Miller, 102 F.3d 1478, 1489-90 (9th Cir. 1996); Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th Cir. 1981) ("A motion for summary judgment cannot be defeated by mere conclusory allegations unsupported by factual data.").
2. Dispute over Dougherty's Role as Flight Instructor or Pilot
The FAA's regulations impose a duty on a pilot-in-command to avoid operating an aircraft in a careless or reckless manner; to be familiar with all available information of a flight; and to maintain vigilance and to "see and avoid" other aircraft. See 14 C.F.R. § 91 pts. 13, 103, 113(b) (2001). Thus, if Dougherty were acting as a pilot-in-command, these regulations would establish the legal duty she owed to the other parties. Conversely, if Dougherty was merely a passenger at the time of the crash, the FAA regulations are not applicable. Determining what duty is owed by Dougherty as either a pilot or flight instructor under FAA regulations is thus irrelevant if the available evidence does not raise a genuine issue of material fact regarding Dougherty's role as anything other than that of a passenger.
Whether these regulations also apply to flight instructors is not clear on their face. Era argues that, because 14 C.F.R. § 61.51 (2001) allows a flight instructor to log their instruction time as pilot-in-command, an instructor is bound to all the regulations applicable to a pilot-in-command. See Docket 75 at 34.
The FAA regulations at issue apply to a "pilot-in-command," or to the "operation" of an aircraft, not to passengers of aircraft. See 14 C.F.R. § 91 pts. 13, 103, 113(b) (2001). The duty to "see and avoid" mandated by the Aeronautical Information Manual ("A.I.M.") is also directed only at the pilot of a plane. See A.I.M. § 5-5-8. The A.LM. also states that the "pilot and copilot (or right seat passenger)," should scan the sky for other aircraft, but this recommendation does not amount to a legal duty. See id. § 8-l-6(c)(1).
Dougherty's Estate argues that there is no material dispute of fact that Dougherty was merely a passenger. See Docket No. 72A (Mem.) at 2. Specifically, Dougherty's Estate provides the following evidence that Dougherty was not acting as a pilot-in-command, or as flight instructor at the time of the accident. See id. at 7-17. First, the location of the bodies indicates that Truesdell was in the left-front pilot station and Dougherty was in the right-front passenger station. See id., Ex. V. Second, it was Truesdell who lodged the flight plan and listed himself as pilot-in-command. See id., Ex. H. Third, it was Truesdell who radioed in a change of his flight plan in preparation for landing just minutes prior to the accident. See id., Ex. M.
Era counters with case law from other courts that have held that none of these facts alone is dispositive evidence of who was piloting a plane. See Docket No. 75 at 33. However, while alone none of these facts are dispositive, taken together — even in the light most favorable to the non-moving party — the inference is that Truesdell was the pilot-in-command at the time of the collision. In particular, the radio communication by Truesdell minutes before the accident to change "his" flight plan shows that Truesdell considered himself to be the pilot-in-command, and more importantly, that he was in control just prior to the accident. Moreover, the purpose of the flight was to transport Truesdell, an FAA employee, and Dougherty, a Lockheed employee, throughout Southeast Alaska in furtherance of a contract between their respective employers regarding aviation facilities in Alaska. See Docket No. 72A (Mem.) at 6. The contract between Lockheed and the FAA required data collecting activities in remote parts of Southeast Alaska necessitating travel by plane. See id. at 7. The purpose of the flight was not to provide Truesdell with flight instruction from Dougherty. See id. at 6-7. Taken together with the location of the bodies, the flight plan listing Truesdell as pilot-in-command, and the radio communications just prior to the crash, the purpose of the flight reinforces that Dougherty was not acting as anything other than a passenger at the time of the accident.
The Dougherty Estate's motion for summary judgment offers Lockheed's unwritten "policy" prohibiting Dougherty to act as flight crew as proof that Dougherty was not acting as pilot-in-command or instructor at the time of the crash. See Docket No. 72A at 9-10. The existence of the policy is disputed but not necessary to the resolution of these motions.
Era's strongest argument is based on previous logbook entries that show Truesdell and Dougherty had logged simultaneous time as pilot — in-command on previous flights together. The suggestion is that because of this past conduct they may also have been sharing the role of pilot-or Dougherty may have been acting as a flight instructor — at the time of the accident. See Docket No. 75 at 28-9. The Dougherty Estate responds that, although both Truesdell's and Dougherty's logbooks show that on flights made in the days leading up to the accident they had logged simultaneous time as pilot-in-command, on the day of the accident there were no entries by Dougherty as pilot-in-command. See id., Ex. A at 1. By contrast, Truesdell has entries in his logbook for earlier legs of the flight on the same day of the accident listing himself as the pilot-in-command. See id., Ex. A at 2.
The Dougherty Estate also points to a similar case where the role of the right-front seat passenger was disputed. In In Re Greenwood Air Crash, 924 F. Supp. 1511 (S.D. Ind. 1995), the district court granted summary judgment to establish the non-liability of a passenger in the right-front seat. See 924 F. Supp. at 1517. Like the case at hand, the plane in Greenwood had dual controls and previous logbook entries that showed both pilot and passenger had logged simultaneous time as pilot-in-command. See id. at 1516. The court concluded, however, that previous logbook entries alone were not enough evidence for a jury to find that the passenger could have been a pilot for the relevant time period of the accident. See id. at 1517. Consequently, there was no basis for imposing a duty on the passenger of the airplane. See id.
Although not controlling precedent, the Greenwood case provides a sensible resolution to facts similar to the ones in the present case. The logical inference from the seating locations and the radio communications just prior to the crash is that Truesdell was the pilot-in-command at the time of the crash. These facts, together with the purpose of the flight — even in the light most favorable to the non-moving party — is not rebutted by entries in Truesdell's and Dougherty's logbooks on previous days for prior flights.
3. Dougherty's Duty as a Pilot in the Passenger Seat
The second basis Era proposes for imposing a duty on Dougherty is to find a common law duty of ordinary care for a passenger seated in the right-front seat to scan the sky for other aircraft. See Docket No. 75 at 37. The Dougherty Estate and Lockheed both disagree, stating that as a matter of law there is no such common law duty on a passenger. See Docket Nos. 68; 72A. The Dougherty Estate cites to the district court opinion in Greenwood that addressed this same argument and concluded that although it is "an excellent idea to have as many eyes as possible scanning the skies for other aircraft," there was no legal basis to impose a duty on a passenger. See 924 F. Supp. at 1517.
In contrast, in the cases cited by Era, the courts have found a common law duty of ordinary care for a passenger in a plane in the face of a known danger. See Long v. Clinton Aviation, Co., 180 F.2d 665, 669 (10th Cir. 1950) (stating that while "it was the duty of [the passenger] to exercise ordinary care for her own safety . . . it was not part of her duty in the exercise of ordinary care to keep a vigilant lookout for other planes"); see also Wade v. Polytech Indus., Inc., 413 S.E.2d 468, 474 (Ga.Ct.App. 1991) (stating that "when negligence on the part of the driver or others in the plane appears, [a passenger] must act as an ordinarily prudent person would act, under the same or similar circumstances") (internal quotations omitted). These cases, however, do not impose a duty of vigilance to scan the sky for other aircraft similar to the duty imposed on a pilot-in-command as Era has alleged. Rather, they impose a duty of ordinary care for the passenger's own safety in the face of a known danger on a passenger of a plane, and are thus not applicable to the present case.
The finding that Dougherty does not owe a legal duty to Truesdell or the occupants of the helicopter does not preclude the possibility that Dougherty may have been contributorily negligent in ensuring her own safety. The issue has not been briefed by the parties and is not affected by this Order.
In sum, because there is no genuine issue of material fact regarding Dougherty's status as passenger at the time of the crash on May 30, 1998, summary judgment dismissing the claims against the Dougherty Estate is appropriate.
B. Lockheed's Motion for Summary Judgment
Lockheed has moved for summary judgment to have the Court declare its non-liability for the acts of its employee Caren Dougherty. See Docket No. 68. The issue of vicarious liability, however, is moot in light of the dismissal of claims against the Dougherty Estate. Summary judgment is therefore denied.
IT IS THEREFORE ORDERED:
The motion for partial summary judgment dismissing all claims of liability against the Dougherty Estate at Docket No. 72 A is GRANTED. The motion for summary judgment declaring Lockheed's non-liability at Docket No. 68 is DENIED as moot.