APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 72-382).
Aldisert, Gibbons, and Garth, Circuit Judges.
These appeals arise from the wrongful death and survival action commenced by the plaintiff Renate Hunziker, wife of Paul J. Hunziker. On the morning of October 8, 1971, Paul J. Hunziker (Hunziker) was killed when the single engine aircraft in which he was a passenger crashed after takeoff from the Zelienople Municipal Airport in Zelienople, Pennsylvania. Plaintiff brought this action against Wayne Scheidemantle, individually and doing business as Wayne's Bus Lines, the owner of the aircraft that crashed; Kenneth E. Fox, Jr., Administrator of the Estate of Harold Bennett, the pilot of the plane, who was also killed in the accident; the Zelienople Municipal Authority (Authority), the owner and lessor of the Zelienople Municipal Airport; and Halstead Industries, Inc. (Halstead), the lessee and operator of the Zelienople Municipal Airport.*fn1 At the end of the plaintiff's case the district court granted the Authority's and Halstead's motions for a directed verdict. Thereafter, the jury returned a verdict in favor of the plaintiff and against the defendants Scheidemantle and Fox in the amount of $482,600.50.*fn2
Plaintiff appealed at No. 74-2236 from the entry of the directed verdicts in favor of the Authority and Halstead and from the amount of the jury verdict.*fn3 Defendants Scheidemantle and Fox appealed at Nos. 75-2152, 2153 from the judgment entered upon the jury verdict. Since the district court erred in granting a directed verdict in favor of Halstead and failed to adequately charge the jury with respect to liability we reverse and remand for a new trial.
The plaintiff tried her case principally on the theory that each of the defendants was negligent in permitting the aircraft to take off under the existing weather conditions. Plaintiff's evidence suggested that Hunziker's employer Berry Metals, Inc. had contracted with Scheidemantle for the round-trip air transportation of Hunziker and another Berry employee. Under this contract Scheidemantle allegedly arranged for Bennett to fly the plane.
Numerous witnesses testified that a dense fog blanketed the Zelienople Municipal Airport and the surrounding area immediately before and after the take off of Hunziker's flight. The aircraft lifted off the runway heading over various homes northwest of the airport and not over the lake as was the usual flight pattern. Within a few thousand feet of the runway, the aircraft struck a number of trees and crashed. The pilot Bennett, Hunziker, and the other Berry employee were all killed in the accident.
Plaintiff asserted liability as to Fox and Scheidemantle claiming negligence in the take off of the aircraft under conditions of limited visibility caused by the fog and in the flight of the plane. If, as plaintiff contended, Scheidemantle was acting as a "carrier for hire" and Bennett was his agent on this flight, then these defendants Scheidemantle and Fox would be liable for conduct by Bennett which violated their duty of exercising the highest degree of care with respect to the plaintiff's decedent. Gatenby v. Altoona Aviation Corporation, 407 F.2d 443, 446 (3d Cir. 1968).
Plaintiff's theory of negligence as to Halstead and the Authority was predicated on their failure to take any action to prevent the take off of Hunziker's flight. The evidence indicated that Bennett, the pilot, was also an employee of Halstead, serving as the airport manager of the Zelienople Municipal Airport. In the latter capacity Bennett allegedly was empowered to ground flights and had previously exercised that power. Thus, plaintiff contended that Bennett, as airport manager, and his employer Halstead under the doctrine of respondeat superior, were negligent in failing to close the airport under the poor weather conditions that existed on the morning of October 8, 1971.
Plaintiff's evidence with respect to the Authority indicated that the lessor Authority exercised no supervision or control over the Zelienople Municipal Airport. Based on the theory that the Authority could not abdicate its powers with respect to the airport, the plaintiff asserted that the Authority was negligent in failing to prevent the take off of Hunziker's flight in the fog.
Plaintiff urges on appeal that the district court erred in granting directed verdicts in favor of the Authority and Halstead and that the damage award was inadequate.
With respect to the Authority the plaintiff argues that a political subdivision cannot by signing a lease abdicate its public responsibility. She relies on two lines of authority: (1) Pennsylvania cases which hold that a municipality cannot delegate duties to a private party, and (2) the Restatement (Second) of Torts § 359 which imposes liability upon the lessor of land for harm caused to persons who enter the land. However, neither of these sources impose any duty upon the Authority under the circumstances presented here.
The Pennsylvania case law relied upon by the plaintiff imposes a duty upon a municipality to maintain its streets in a safe condition. See Green v. Borough of Freeport, 218 Pa. Super. 334, 280 A.2d 412 (1971). Under Pennsylvania law this duty may not be delegated to private parties. Id. However, the instant case does not involve public streets. Rather, it involves the lease of airport facilities for a term of thirty years by a public authority pursuant to state law. A lease, such as the one involved here, is recognized under Pennsylvania law as tantamount to the sale of the premises for a term. See Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974). Thus, the cases cited by the plaintiff provide no guidance in the factual context with which we are presented.
The plaintiff also relies upon the Restatement (Second) of Torts § 359.*fn4 That section imposes liability upon the lessor of land for physical harm caused to persons entering the land "by a condition of the land existing when the lessee takes possession" under three particular circumstances. However, § 359 is by its very terms inapplicable to our factual situation. The Restatement creates an exception to the general rule of non-liability of the lessor "where he has reason to expect that the lessee will admit the public before the land is put in reasonably safe condition for their reception." Restatement (Second) of Torts § 359, comment a. Here, the death of Hunziker did not result from any "condition of the land" which the lessee Halstead had not made safe. Rather, the crash allegedly resulted from the foggy conditions that limited visibility. Thus, plaintiff's reliance upon § 359 is misplaced.
We conclude that the plaintiff has failed to point to any precedent which imposes a duty upon a lessor municipal authority for the lessee's operation of an airport with respect to weather conditions. Nor do we know of any. In the absence of any Pennsylvania law establishing such a duty,*fn5 the Authority was entitled as a matter of law to the withdrawal of the case from the jury and the entry of a verdict in its favor.*fn6 See 5A J. Moore, Federal Practice P 50.02 (2d ed. 1975). Therefore, the district court properly granted the Authority's motion for a directed verdict.
The plaintiff also argues that the district court erred in granting Halstead's motion for a directed verdict based on the absence of any duty with respect to the take off of aircraft at the Zelienople Municipal Airport. Plaintiff urges two separate grounds in support of her position: (1) even assuming that Halstead complied with all applicable state or federal regulations concerning the management of the airport, Halstead could still be found liable for unreasonable conduct under the facts presented here; and (2) that the prior conduct of Halstead's alleged airport manager Bennett established a duty of care with respect to departing flights.
It appears from the record that the Zelienople Municipal Airport was within uncontrolled airspace as that term is defined in the Federal Aviation Administration (FAA) regulations.*fn7 Therefore aircraft could take off and land at the airport without clearance or permission since the airport did not have a control tower. Although Zelienople Municipal Airport was uncontrolled, plaintiff adduced evidence from which a jury could find that Halstead possessed and exercised the power to prevent aircraft from taking off. The Rules and Regulations of the Zelienople Municipal Airport empowered the airport manager to ground any pilot who handled an aircraft in a "careless, reckless or incompetent manner." Plaintiff's Exhibit No. 40. Even more importantly, plaintiff presented testimony that on three earlier occasions Bennett, as airport manager for Halstead, closed down the Zelienople Municipal Airport because of weather conditions.
Based upon the evidence presented we need not decide plaintiff's first contention respecting the duty of an operator of an uncontrolled airport as to the take off of flights. For construing plaintiff's testimony in a light most favorable to her, Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969), it appears that Halstead through its airport manager had on occasion prevented aircraft from taking off from Zelienople Airport when weather conditions were hazardous. Such evidence was admissible to establish the proper standard of conduct under the circumstances. 2 F. Harper and F. James, Jr., The Law of Torts, § 17.3 (1956); W. Prosser, Handbook of The Law of Torts, § 33 (3d ed. 1964). With this evidence before the jury the district court erred in determining as a matter of law that Halstead owed no duty to Hunziker with respect to the grounding of flights. The evidence of Bennett's prior actions as airport manager created a jury question as to whether the failure to close the airport on the morning of October 8, 1971 constituted negligence. Thus, Halstead's motion for a directed verdict should have been denied,*fn8 and plaintiff must be afforded an opportunity to establish liability as to Halstead.*fn9
Plaintiff finally contends that the damage award as against Scheidemantle and Fox was inadequate in that it failed to take into account the loss of decedent's services to the household and it failed to properly take into consideration Hunziker's future earnings. Since we conclude infra that the jury verdict against Scheidemantle and Fox must be reversed and a new trial held, we do not address plaintiff's arguments with respect to damages.
Scheidemantle and Fox, against whom the plaintiff obtained her judgment, urge that the district court erred in denying their motions for judgment n.o.v. or in the alternative, for a new trial. Both defendants contend: (1) that there was a total absence of proof that Bennett was negligent; and (2) that the plaintiff failed to establish that Bennett's negligence, if any, was a proximate cause of the accident. Scheidemantle and Fox also assert numerous errors in the admission of evidence and in the district court's charge to the jury.*fn10
The plaintiff counters these assertions by arguing that there was ample evidence that Bennett's take off in the foggy conditions on October 8, 1971 represented a breach of his duty of care to plaintiff's decedent, as well as conduct in violation of the FAA regulations. Referring to the issue of proximate cause, the plaintiff takes two positions. First, she urges that there was an adequate basis to conclude that the take off in foggy weather constituted negligence and was the proximate cause of the crash. Second, plaintiff argues that the district court erred in denying her requested charge to the jury on the theory of res ipsa loquitur.*fn11 Thus, she contends that even if her evidence did not establish proximate cause, the jury should have been instructed that it could infer that the take off in the fog constituted negligence and was the proximate cause of the crash.
It is clear that "the liability of a defendant for injury or damages to another is predicated upon a connection between his negligent acts or omissions and the injuries sustained." Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889, 892 (1970). This requisite "connection is most commonly called 'proximate cause.'" Id. at 893. Pennsylvania courts have adopted as the definition of "proximate cause" the Restatement (First and Second) of Torts § 431 formulation:
The actor's negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, . . . .
Thus, the burden was upon the plaintiff to not only establish negligence as to the defendants, but also to prove that this negligence was a substantial ...