Bolick v. Sunbird Airlines, Inc. ( 1989 )

Judge Phillips

dissenting.

I agree that under the circumstances it was not reversible error to refuse to admit into evidence the National Transportation Board Factual Report and that basis existed for charging on the sudden emergency doctrine. But in my opinion it was reversible error not to apply the theory of negligence per se to the pilot’s violation of 49 C.F.R. Sec. 91.116 of the federal aviation regulations. Obeying the regulation, the purpose of which is to protect the lives of those who travel the airways, was not discretionary with the pilot and that no criminal penalty is authorized for its breach is immaterial.