Crosby v. Cox Aircraft Company , 109 Wash. 2d 581 ( 1987 )

Callow, J. —

Quaere: Should owners and operators of flying aircraft be held strictly liable for ground damage caused by operation of the aircraft, or should their liability depend on a finding of negligence?

The trial court determined that strict liability was applicable and awarded judgment in favor of the plaintiff landowners. We find that the general principles of negligence should control. We reverse and remand for trial.

I

The case involves a claim for property damage caused when a plane owned by Cox Aircraft Co. and piloted by Hal Joines (the pilot) crash-landed onto Douglas Crosby's property. The plane was a DeHavilland DHC-3 Otter aircraft. Its engine had recently been converted from piston-driven to turbine and the conversion had been undertaken in strict conformity with Federal Aviation Administration (FAA) requirements. FAA certification of the plane's fuel system was still pending at the time of the accident.

On December 19, 1984, the pilot flew the airplane over the Olympic Peninsula and then turned back to Seattle, intending to land at Boeing Field. However, the engine ran out of fuel in mid-flight, and the pilot was forced to crash-land the plane at Alki Point in West Seattle. The plane landed on the roof of Crosby's garage, causing $3,199.89 in damages.

Crosby sued both the pilot and Cox Aircraft. His complaint raised the following alternative allegations: (1) that the pilot was negligent in his operation of the plane; (2) that Cox Aircraft was negligent in its maintenance of the plane; (3) that Cox Aircraft, the alleged employer of the pilot, should be held vicariously liable for all negligence of the pilot under the doctrine of respondeat superior; and (4) that both the pilot and Cox Aircraft should be held strictly liable for all damages caused by the crash landing. The pilot and Cox Aircraft denied liability and filed a third party complaint against Parker Hannifin Corporation alleging that Parker had equipped the plane with a defective fuel system control valve which failed to operate properly, thus causing the plane's engine to run out of fuel and forcing the pilot to make the crash landing.

The trial court granted partial summary judgment for Crosby, holding that both the pilot and Cox Aircraft were strictly liable for all damage done to Crosby's property. The court did not address Crosby's negligence claims, nor the third party complaint against Parker. The pilot and Cox Aircraft appealed. We accepted certification.

The Boeing Company and the Washington State Trial Lawyer's Association (WSTLA) have both filed amicus curiae briefs regarding the appropriate standard of liability to be imposed. Boeing argues that the liability of aircraft owners and operators for ground damage should be governed by a negligence standard. WSTLA contends (as does plaintiff Crosby), on the other hand, that strict liability should be applied. The defendants argue for yet a third standard — a "rebuttable presumption" of negligence on the part of the aircraft owner and operator. We hold that the general principles of negligence control.

II

This is the first case in this State to directly deal with the standard of liability governing ground damage caused by aircraft. Mills v. Orcas Power & Light Co., 56 Wn.2d 807, 821 n.6, 355 P.2d 781 (1960) alluded to this issue, but only in dicta. No subsequent cases have considered the question, and the Legislature has enacted no statute on the matter.

Plaintiff Crosby and amicus party WSTLA urge us to adopt Restatement (Second) of Torts § 520A (1977):

§ 520A. Ground Damage From Aircraft

If physical harm to land or to persons or chattels on the ground is caused by the ascent, descent or flight of aircraft, or by the dropping or falling of an object from the aircraft,

(a) the operator of the aircraft is subject to liability for the harm, even though he has exercised the utmost care to prevent it, and

(b) the owner of the aircraft is subject to similar liability if he has authorized or permitted the operation.

This provision establishing strict liability is said to be a "special application" of §§ 519-520, the Restatement sections governing liability for "abnormally dangerous" activities. (See § 520A, comment a). Sections 519-520 provide:

§ 519. General Principle

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

§ 520. Abnormally Dangerous Activities

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

The defendants urge us to reject Restatement § 520A. They contend that aviation can no longer be designated an "abnormally dangerous activity" requiring special rules of liability. We agree.

In the early days of aviation, the cases and treatises were replete with references to the hazards of "aeroplanes". The following assessment is typical:

[E]ven the best constructed and maintained aeroplane is so incapable of complete control that flying creates a risk that the plane even though carefully constructed, maintained and operated, may crash to the injury of persons, structures and chattels on the land over which the flight is made.

Restatement of Torts § 520, comment b (1938). As colorfully stated in W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 78, at 556 (5th ed. 1984):

Flying was of course regarded at first as a questionable and highly dangerous enterprise, the province exclusively of venturesome fools . . .

See also Rochester Gas & Elec. Corp. v. Dunlop, 148 Misc. 849, 851-52, 266 N.Y.S. 469 (1933); Baldwin, Liability for Accidents in Aerial Navigation, 9 Mich. L. Rev. 20 (1910); Newman, Damage Liability in Aircraft Cases, 29 Colum. L. Rev. 1039 (1929). In 1922 the Commission on Uniform State Laws proposed a new Uniform Aeronautics Act which, inter alia, made owners of aircraft strictly liable for all ground damage caused by the "ascent, descent or flight of the aircraft." Twenty-three states originally adopted this act by statute. By 1943, however, the Commissioners recognized that the act had become "obsolete", and it was removed from the list of uniform laws. 1 L. Kreindler, Aviation Accident Law § 6.01 [1], at 6-1 to 6-2 (1986).

The number of states imposing strict liability has diminished significantly. At present, only six states retain the rule, and even these states apply it only to the owner of the aircraft. The aircraft operator remains liable only for damages caused by his own negligence. See Del. Code Ann. tit. 2, § 305 (1985); Hawaii Rev. Stat. § 263-5 (1985); Minn. Stat. § 360.012(4) (1986); N.J. Stat. Ann. § 6:2-7 (West 1973); S.C. Code § 55-3-60 (1977); Vt. Stat. Ann. tit. 5, §§ 224-225 (1972).

The modern trend followed by a majority of states is to impose liability only upon a showing of negligence by either the aircraft owner or operator. 1 L. Kreindler § 6.01 [5], at 6-9. Several states have legislated this rule by providing that ordinary tort law (or the law applicable to torts on land) applies to aviation accidents. See, e.g., Ark. Stat. Ann. § 74-110 (1979); Idaho Code §§ 21-205 (1977); N.D. Cent. Code § 2-03-05 (1975); Pa. Cons. Stat. Ann. tit. 74, § 5502 (Purdom Supp. 1987); Tenn. Code Ann. § 42-1-105 (1980). Other jurisdictions have case law to this effect. See, e.g., Daly v. United States, 792 F.2d 1081, 1085 (11th Cir. 1986) (applying Florida law); Brooks v. United States, 695 F.2d 984, 987 (5th Cir. 1983) (applying Texas law); Mackey v. Miller, 221 Va. 715, 718, 273 S.E.2d 550 (1981). Moreover, a number of courts have expressly disavowed the notion that aviation is an "ultrahazardous activity" requiring special rules of liability. Boyd v. White, 128 Cal. App. 2d 641, 655, 276 P.2d 92 (1954); Wood v. United Air Lines, 32 Misc. 2d 955, 960, 223 N.Y.S.2d 692 (1961), aff'd, 16 A.D.2d 659, 226 N.Y.S.2d 1022, appeal dismissed, 11 N.Y.2d 1053, 184 N.E.2d 180, 230 N.Y.S.2d 207 (1962); Little v. McGraw, 250 Ark. 766, 769, 467 S.W.2d 163 (1971). As observed in Boyd, at 651:

"The courts and the law formerly looked upon aviation with the viewpoint still expressed in the American Law Institute, Restatement, Torts, Vol. 3, § 520, holding that aviation is an ultra-hazardous activity, similar to the operation of automobiles in the early days of the horseless carriage, and requiring those who take part in it to observe the highest degree of care. The Uniform Aeronautic Act, adopted in time by twenty-three states, imposed absolute liability on the owner, as well as the operator or lessee, of every aircraft for any damage to person or property caused by its operation provided there was no contributory negligence on the part of him who was thus harmed. With the passage of time, however, this view came to be modified, and the trend of decisions established it to be the general rule that, properly handled by a competent pilot exercising reasonable care, an airplane is not an inherently dangerous instrument, so that in the absence of statute the ordinary rules of negligence control, and the owner (or operator) of an airship is only liable for injury inflicted upon another when such damage is caused by a defect in the plane or its negligent operation. By 1945, coincident with the opening of the postwar civilian aviation period, the number of states retaining the portions of the Uniform Aeronautic Act dealing with an owner's liability had dropped to eighteen." (See also 6 Am. Jur. (Rev.), § 60, p. 36.)

(Quoting an annotation in 4 A.L.R.2d 1306 (1949).)

We have discovered no cases relying on Restatement (Second) of Torts § 520A. That section is said to be a "special application" of § 519 and § 520(a) — (f), which impose strict liability on persons engaging in abnormally dangerous activities. An analysis of the individual factors listed in § 520 further persuades us that strict liability is inappropriate here.

Factor (a) of § 520 requires that the activity in question contain a "high degree of risk of some harm to the person, land or chattels of others". No such showing has been made. Indeed, statistics indicate that air transportation is far safer than automobile transportation. See, e.g., 3 F. Harper, F. James & O. Gray, Torts § 14.13, at 309 n.64 (1986); Comment, Aviation Law: Owner-Lessor Liability— The Need for Uniformity, 36 Me. L. Rev. 93, 98-99 (1984). Factor (b) speaks to the gravity of the harm — that is, in the unlikely event that an airplane accident occurs, whether there is a "likelihood that the [resulting harm] will be great" it is apparent that this possibility is present. However, this must be further evaluated in light of factor (c), which speaks of the "inability to eliminate the risk by the exercise of reasonable care". Given the extensive governmental regulation of aviation, see generally 14 C.F.R. ch. 1 (1978) (Federal Aviation Administration regulations), and the continuing technological improvements in aircraft manufacture, maintenance and operation, we conclude that the overall risk of serious injury from ground damage can be sufficiently reduced by the exercise of due care. Finally, factors (d), (e), and (f) do not favor the imposition of strict liability. Aviation is an activity of "common usage", it is appropriately conducted over populated areas, and its value to the community outweighs its dangerous attributes. Indeed, aviation is an integral part of modern society.

The causes of aircraft accidents are legion and can come from a myriad of sources. Every aircraft that flies is at risk from every bird, projectile and other aircraft. Accidents may be caused by improper placement of wires or buildings or from failure to properly mark and light such obstructions. The injury to the ground dweller may have been caused by faulty engineering, construction, repair, maintenance, metal fatigue, operation or ground control. Lightning, wind shear and other acts of God may have brought about a crash. Any listing of the causes of such accidents undoubtedly would fall short of the possibilities. In such circumstances the imposition of liability should be upon the blameworthy party who can be shown to be at fault. In King v. United States, 178 F.2d 320 (5th Cir. 1949), a United States Army Air Force student pilot got drunk and took off in a training plane at midnight. Shortly thereafter he crashed into the plaintiff's home causing damages. The plaintiff brought suit under the Federal Tort Claims Act against the United States. The court found that the act of the student pilot was without the knowledge or consent of the Air Force, was unauthorized and that the pilot was acting outside of the scope of his duties. The court held that there should be no recovery against the government, stating succinctly:

In a case of this nature, the United States cannot escape liability if a private person under similar circumstances should be held liable.

There are no special statutory provisions that regulate or govern the responsibility of persons owning and operating airplanes. In the absence of such statutes, the rules of law applicable generally to torts govern. The ordinary rules of negligence and due care are invoked.

King, at 321. See also Dahlstrom v. United States, 228 F.2d 819 (8th Cir. 1956); Maitland v. Twin City Aviation Corp., 254 Wis. 541, 37 N.W.2d 74 (1949).

We are not persuaded that we should create a special rule of liability governing only ground damage caused by aircraft accidents. We note, for example, that passengers of airplanes involved in accidents must prove negligence to recover damages. Rathvon v. Columbia Pac. Airlines, 30 Wn. App. 193, 202-05, 633 P.2d 122 (1981); Baker v. United States, 417 F. Supp. 471, 486-88 (W.D. Wash. 1975); 1 L. Kreindler § 6.01[1], at 6-3. As stated in Rath-von, at 210-11:

A carrier's failure to discover a latent defect is not negligence if it exercised the highest degree of care reasonably consistent with the practical operation of its business, and used the best precautions that were in common, practical use in the same business and had proved to be effective in discovering defects. Heggen v. Seattle, 47 Wn.2d 576, 288 P.2d 830 (1955).

We conclude that whether or not CPA failed to exercise the highest degree of care according to the standards expressed above remains a genuine issue of material fact.

This is true even though the likelihood of serious injury to a passenger is at least as great as is the case with persons or property on the ground.

We also emphasize that, although the plaintiff's recovery will depend on a showing of negligence, the plaintiff may of course employ the doctrine of res ipsa loquitur, if appropriate, to establish his negligence claim. Res ipsa is now frequently used in aviation crash cases and is widely recognized as an acceptable means of proving negligence. 1 L. Kreindler § 3.09[2], at 3-31. See generally Annot., Res Ipsa Loquitur in Aviation Accidents, 25 A.L.R.4th 1237 (1983).

Finally, the plaintiff raises an alternative argument that we apply the rule of strict liability to ground damages arising out of "test flights" of aircraft. We decline to do so. Plaintiff has cited no authority to support his claim that test flights of aircraft qualify as "abnormally dangerous" under Restatement (Second) of Torts §§ 519-520. The question is not whether test flights are more dangerous than routine aviation flights, but rather, whether they are so inherently dangerous that a "high degree of risk of harm" cannot be eliminated by the exercise of reasonable care. § 520(a), (c). In light of the extensive government regulation regarding the design, development, and testing of new and modified aircraft, see generally 14 C.F.R. ch. 1, subchapter C (1978) (Federal Aviation Administration certification procedures and airworthiness standards), we conclude that test flights are not abnormally dangerous.

We hold that owners and operators of flying aircraft are liable for ground damage caused by such aircraft only upon a showing of negligence.

The partial summary judgment entered in favor of the plaintiff is reversed and the cause is remanded for trial.

Utter, Dolliver, Andersen, and Durham, JJ., concur.