# Motichek v. Starr Indemnity & Liability Company

> District Court, E.D. Louisiana · August 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10188136

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** August 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10188136

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JEFFREY SCOTT MOTICHEK, CIVIL ACTION
Plaintiff

VERSUS NO. 21-988

STARR INDEMNITY & LIABILITY SECTION: “E” (4)
COMPANY, ET AL.,
Defendants

ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Starr Indemnity &
Liability Company, the Estate of Omar El-Aazami through its Administrator Adam Ziad
El-Aazami (referred to as “the Estate of the Pilot” or “Estate”), and Prop Flying, LLC
(“Prop Flying”) (collectively, “Defendants”).1 Jeffrey Scott Motichek, as the natural tutor
of his minor children K.E.M. and M.C.M., (“Plaintiff”) opposes Defendants’ motion.2
Defendants filed a reply in support.3
BACKGROUND
This case arises from the October 16, 2020, crash of a Cessna T182T airplane
(“aircraft”) piloted by Omar El-Aazami (“pilot”) and owned by Defendant Prop Flying.
The pilot and passenger, Jan Villemarette, were fatally injured.4 Plaintiff is the father of
Jan Villemarette’s two minor children, K.E.M. and M.C.M.5 As such, Plaintiff, as the
natural tutor of his minor children, brings the instant negligence action under Louisiana

1 R. Doc. 23.
2 R. Doc. 29.
3 R. Doc. 32.
4 R. Doc. 28 at ¶¶ 1-2; R. Doc. 29-1 at ¶¶ 1-2.
5 R. Doc. 28 at ¶ 8; R. Doc. 29-1 at ¶ 8.
law against the Estate of the Pilot, Prop Flying as the owner of the aircraft, and Starr
Indemnity & Liability Company as the insurer.6
A review of Plaintiff’s state court petition reveals he brings specific claims of
negligence against the pilot, through his Estate, for (1) failing to properly maintain the
plane, (2) failing to undergo proper training, (3) failing to ensure he was medically fit to

pilot the plane, (4) failing to ensure the safety of his passenger, and (5) any other acts of
negligence.7
Plaintiff brings claims of negligence against Defendant Prop Flying for (1) failing
to properly maintain the plane and (2) any other acts of negligence.8 Plaintiff also asserts
a claim against Starr Indemnity & Liability Company based on allegations that it insured
Prop Flying and the pilot.9
Plaintiff originally filed suit in Terrebonne Parish’s 32nd Judicial District Court on
April 21, 2021.10 Defendants timely removed the case from state court on May 21, 2021,11
the basis being this Court’s diversity jurisdiction under 18 U.S.C. § 1332(a).12 On May 27,
2021, Defendants filed an answer.13 The instant motion for summary judgment was filed

6 R. Doc. 28 at ¶¶ 8-11; R. Doc. 29-1 at ¶¶ 8-11.
7 R. Doc. 1-2 at p. 7, ¶ 12.
8 Id.
9 “At all material times herein, the aircraft owned by Defendant, Prop Flying, LLC and operated by Omar El
Aazami, was insured by a policy of insurance by Defendant, Starr Indemnity & Liability Company, said
policy including a Pilot Warranty Endorsement specifically naming Omar . . . thus rendering the said
defendant, liable unto Plaintiff for all damages prayed for herein.” R. Doc. 1-2 at p. 7, ¶ 13. Defendants deny
the policy included coverage for the pilot. R. Doc. 4 at p. 3, ¶ 13. Defendant Starr Indemnity has no liability
unless one of its insureds has legal liability. See Crown Zellerbach Corp. v. Ingram Indus., Inc., 783 F.2d
1296, 1301 (5th Cir. 1986); see also Zeno v. ADM Mill. Co., No. CIV.A. 06-4326, 2008 WL 4974876, at *2
(E.D. La. Nov. 20, 2008) (Duval, J.).
10 R. Doc. 1-2; see also R. Doc. 28 at ¶ 8; R. Doc. 29-1 at ¶ 8.
11 R. Doc. 1; see also R. Doc. 28 at ¶ 8; R. Doc. 29-1 at ¶ 8.
12 R. Doc. 1.
13 R. Doc. 4.
by all Defendants on June 7, 2022.14 Plaintiff filed an opposition on June 23, 2022.15
Defendants filed a reply on July 1, 2022.16
LEGAL STANDARDS
I. Motion for Summary Judgment Standard
Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”17 “An issue is material if its resolution could affect the outcome of the action.”18
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.”19 All reasonable inferences are drawn in favor of the non-moving party.20
While all reasonable inferences must be drawn in favor of the non-moving party, the non-
moving party cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions or “only a scintilla of evidence.”21 There is no genuine issue of
material fact if, even viewing the evidence in the light most favorable to the non-moving
party, no reasonable trier of fact could find for the non-moving party, thus entitling the
moving party to judgment as a matter of law.22

14 R. Doc. 23.
15 R. Doc. 29.
16 R. Doc. 32.
17 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
18 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
19 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
20 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
21 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
22 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell
Energy, Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
“Although the substance or content of the evidence submitted to support or dispute
a fact on summary judgment must be admissible . . . the material fact may be presented
in a form that would not, in itself, be admissible at trial.”23
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of

[the record] which it believes demonstrate the absence of a genuine issue of material
fact.”24 To satisfy Rule 56’s burden of production, the moving party must do one of two
things: “the moving party may submit affirmative evidence that negates an essential
element of the nonmoving party’s claim” or “the moving party may demonstrate to the
Court that the nonmoving party’s evidence is insufficient to establish an essential element
of the nonmoving party’s claim.”25 If the moving party fails to carry this burden, the
motion must be denied. If the moving party successfully carries this burden, the burden
of production then shifts to the non-moving party to direct the Court’s attention to
something in the pleadings or other evidence in the record setting forth specific facts
sufficient to establish that a genuine issue of material fact does indeed exist.26
If the dispositive issue is one on which the non-moving party will bear the burden

of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to
establish an essential element of the non-movant’s claim.27 If the movant fails to

23 Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).
24 Celotex, 477 U.S. at 323.
25 Id. at 331.
26 Id. at 322–24.
27 Id. at 331–32 (Brennan, J., dissenting).
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied.28 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.”29 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary

judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”30
II. Res Ipsa Loquitur Standard
The Defendants’ motion for summary judgment argues Plaintiff—after a year of
discovery—is unable to establish the elements of negligence against Defendants, and that
the evidentiary doctrine of res ipsa loquitur31 does not apply to this case.32 Plaintiff seeks
to defeat summary judgment by relying on the doctrine of res ipsa loquitur.33 Res ipsa
loquitur is a rule of circumstantial evidence that allows a jury to infer negligence on the

28 See id. at 332.
29 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
30 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
31 For ease, the Court may refer to the doctrine of res ipsa loquitur as res ipsa.
32 R. Doc. 23.
33 R. Doc. 29 at p. 1.
part of a defendant because the facts of the case indicate the negligence of the defendant
is the probable cause of the accident.34
At the outset, because the parties invoke this Court’s subject matter jurisdiction on
the basis of the existence of diversity of citizenship between the parties,35 the Court must
determine whether to apply state or federal law. “Where federal jurisdiction, as here, is

based on diversity, [the Court] applies the substantive law of the forum state—
[Louisiana].”36 “While state substantive law of res ipsa loquitur applies in a diversity case,
[the Fifth Circuit] has indicated that [courts should] apply federal law to test the
sufficiency of the evidence to justify the res ipsa loquitur charge.” 37
Under federal law, “a trial judge can appropriately give the res ipsa loquitur charge
if the evidence affords a rational basis upon which the jury can conclude that the elements
of the doctrine under state substantive law are present.”38 Under Louisiana law, a plaintiff
must prove the existence of the res ipsa elements by a preponderance of the evidence.39
“Since this state rule conflicts with the federal test, this Court will no longer rely solely on
state law to determine the applicability of res ipsa loquitur. . . . The [test used under
Louisiana law] in deciding whether the doctrine applies is still relevant; the only thing

that has changed is the quantum of proof necessary.”40
The Louisiana Supreme Court’s decision in Linnear v. CenterPoint Energy/Entex
Reliant Energy provides “a complete dissertation on the [res ipsa] doctrine as it currently

34 Linnear v. Centerpoint Energy Entex/Reliant Energy, 966 So. 2d 36, 41 (La. 2007). Defendants point
out in their reply that Plaintiff did not plead the doctrine of res ipsa in his petition. Because res ipsa is
regarded as a rule of evidence, it need not be pleaded as a separate cause of action.
35 R. Doc. 1.
36 Pearson v. BP Products North America, Inc., 449 Fed. Appx. 389, 390 (5th Cir. 2011).
37 Kicklighter v. Nails by Janee, Inc., et al., 616 F.2d 734, 740 (5th Cir. 1980).
38 Id.
39 Linnear, 966 So. 2d at 42.
40 Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 854 (5th Cir. 1968).
stands in” Louisiana.41 According to Linnear, there are four elements that must exist for
res ipsa to apply.42 First, there must be no direct—as opposed to circumstantial—evidence
available to explain the accident.43 Second, the accident must be the kind that does not
ordinarily occur in the absence of negligence.44 This requirement is meant to weed out
cases involving run-of-the-mill accidents or injuries that often occur in the absence of

negligence.45 The Louisiana Supreme Court has explained “the event must be such that in
light of ordinary experience it gives rise to an inference that someone must have been
negligent.”46 It is said, then, that the second element is a common sense inquiry.47 Third,
the evidence must “sufficiently exclude” an inference of the plaintiff’s own responsibility
or the responsibility of others, besides the defendant, in causing the accident.48 Every
possible alternative cause of the injury need not be totally excluded for res ipsa to apply;
instead, the likelihood of other causes must be sufficiently reduced so the factfinder may
reasonably conclude that the fault, if any, is attributable to the party against whom the
doctrine is employed.49 Moreover, before they need be excluded, the other possible
cause(s) of the accident must be equally or more plausibly the cause of the accident as
compared to the defendant’s negligence.50 As to this element, the Louisiana Supreme

Court has determined that unless “the facts and inferences point so strongly and

41 12 LA. CIV. L. TREATISE, Tort Law § 6.4 n.5 (2d ed.).
42 As such, the doctrine is applied sparingly. Robertson v. Chevron USA, Inc., 2017 WL 679406 *9 (E.D. La.
2/21/2017) (citing Spott v. Otis Elevator Co., 601 So. 2d 1355, 1362 (La. 1992).
43 Linnear, 966 So.2d at 42.
44 Id.
45 Cangelosi v. Our Lady of the Lake Regional Medical Center, et al., 564 So.2d at 654, 666 (La. 1989).
46 Id.
47 Id.
48 Linnear, 966 So.2d at 42; see also Cangelosi, 564 So.2d at 666.
49 Cangelosi, 564 So.2d at 666.
50 Spott, 590 So.2d 580 (plaintiffs were injured by the jerkiness of an elevator while loading pallets of paper;
the court held plaintiffs’ own negligence was equally or more plausibly the cause of the accident).
overwhelmingly” in the defendant’s favor, the finder of fact should determine whether the
res ipsa inference is proper.51 Fourth, the negligence of the defendant must fall within the
scope of his duty to the plaintiff.52 If reasonable minds could differ as to the outcome of
elements two through four, the element is deemed satisfied under Louisiana law, “and it
is the function of the jury to decide whether to draw the inference or not.”53 “[I]f the trial

judge finds that reasonable minds could only find that a particular requirement has been
met, which is stronger than finding that reasonable minds could differ, then of course that
requirement is met and the trial judge moves on to analyze the next requirement.”54
When a court finds the elements of res ipsa are satisfied, the result is a jury
instruction allowing for a permissive inference55—as opposed to a presumption56—of the
defendant’s negligence, meaning that the jury may or may not infer a breach of the
defendant’s duty based on the evidence presented at trial.57 “[A]pplication of res ipsa
loquitur simply permits, but does not ordinarily compel, the inference of negligence on
the part of the defendant.”58 Summary judgment is an appropriate method to dispose of
a res ipsa loquitur claim only if the moving party clearly establishes that there is no
genuine dispute as to any material fact controlling the application of the doctrine.59 This

is because “[t]he doctrine is not a substitute for factual evidence; it is applied after the

51 Cangelosi, 564 So.2d at 666-67; see also Linnear, 966 So.2d at 44 n.5 (explaining that if the facts and
inferences point so strongly and overwhelmingly in favor of the defendant on the elements of res ipsa, the
instruction should not be given).
52 Linnear, 966 So.2d at 42.
53 Id.; see also Cangelosi, 564 So.2d at 666-67.
54 Linnear, 966 So.2d at 44 n.5.
55 “An ‘inference’ is a conclusion that an evidentiary fact exists based on the establishment of a predicate
act.” La. Code Evid. Ann. Art 302(4).
56 “A ‘presumption’ is an inferenced created by legislation that the trier of fact must draw if it finds the
existence of the predicate fact unless the trier of fact is persuaded by evidence of the nonexistence of the
fact to be inferred.” La. Code Evid. Ann. 302(3).
57 Cangelosi, 564 So.2d at 668.
58 Fruge v. Penrod Drilling Co., 918 F.2d 1163, 1167 (5th Cir. 1990).
59 Sanders v. Nehi Bottling Co., 30 F.Supp. 332 (N.D.Tex.1939).
factual evidence has been submitted, and then only if there is sufficient circumstantial
evidence to suggest that the only reasonable cause of the plaintiff’s injury is the
defendant’s breach of the standard of care.”60
FACTS
I. Undisputed Facts

The following facts are undisputed. On October 16, 2020, Omar El-Aazami piloted
a Cessna T182T airplane owned by Defendant Prop Flying.61 Jan Villemarette was a
passenger. The aircraft departed from the Houma-Terrebonne Airport at approximately
11:09 a.m.62
Shortly after reaching cruising altitude, personnel at the Houma-Terrebonne
Airport reported hearing an “open mic” with heavy, rapid breathing on the tower
frequency for approximately 60 seconds before the mic stopped transmitting.63 The
wreckage of the aircraft was eventually located southwest of the Houma-Terrebonne
Airport in marshy terrain,64 with the pilot and Jan Villemarette sustaining fatal injuries.65
Plaintiff’s opposition to the instant motion66 objects to Defendants’ reliance on the
National Transportation Safety Board Aviation Accident Preliminary Report (“NTSB

Report”) as summary judgment evidence, but otherwise admits to all facts listed by
Defendants.67 The Court need not decide whether the NTSB Report is summary judgment
evidence to resolve the instant motion because Defendants also accept as true certain

60 Gisclair v. Bonneval, 2004-2474 (La. App. 1 Cir. 12/22/05), 928 So.2d 39, 45.
61 R. Doc. 28 at ¶¶ 1-2; R. Doc. 29-1 at ¶¶ 1-2.
62 R. Doc. 28 at ¶ 3; R. Doc. 29-1 at ¶ 3.
63 R. Doc. 28 at ¶ 4; R. Doc. 29-1 at ¶ 4.
64 R. Doc. 28 at ¶ 6; R. Doc. 29-1 at ¶ 6.
65 R. Doc. 28 at ¶ 7; R. Doc. 29-1 at ¶ 7.
66 R. Doc. 29.
67 R. Doc. 29-1.
allegations of Plaintiff’s state court petition to establish certain uncontested material
facts. Allegations in Plaintiff’s petition that are uncontested by Defendants are deemed
“admissions.” Rule 56(c)(1)(A) specifies that other parts of the record may be considered
on summary judgment—such as admissions. The materials still must be admissible,
which admissions generally are.68

LAW AND ANALYSIS
I. Summary judgment is granted as to the claims against Prop Flying.

Defendant Prop Flying moves for summary judgment as to Plaintiff’s claims of
negligence against it for (1) failing to properly maintain the plane and (2) any other acts
of negligence69 because, it argues, Plaintiff is “unable to offer evidence to establish . . . his
claims of negligence” against Defendant Prop Flying.70
In terms of the first claim of negligence for failing to properly maintain the plane,
in his opposition to the instant motion Plaintiff concedes that “[m]ore than twenty
months have passed since this tragic crash occurred, and the parties have yet to discover
any evidence that this crash occurred for reasons other than Mr. El-Aazami’s [own]
negligen[ce] and fail[ure] to maintain control of the aircraft after takeoff . . . . Additionally,
there has been no evidence that some mechanical failure [whether due to design or
maintenance] of a component of the airplane caused the crash.”71 Instead, Plaintiff
contends pilot error is the last-standing cause of the accident.72 By Plaintiff’s own
admission, then, there is no basis for a claim of negligence against Defendant Prop Flying

68 FED. R. CIV. P. 56(c)(1)(A).
69 R. Doc. 1-2 at p. 7, ¶ 12.
70 R. Doc. 23-1 at p. 3.
71 R. Doc. 29 at p. 3.
72 Id.
for failing to properly maintain the plane. Prop Flying is entitled to summary judgment
on this claim of negligence.
In terms of the second claim of negligence—a catch-all claim for “any other acts of
negligence”—again, Plaintiff admits in his opposition to the instant motion that the only
evidence of negligence is pilot error on the part of Omar El-Aazami.73 As such, the same

outcome reached as to Plaintiff’s first claim of negligence must be reached on his catch-
all claim of negligence, as well. There is no basis, by Plaintiff’s own admission, for a claim
of negligence against Defendant Prop Flying because all the evidence, or the lack thereof,
points to pilot error being the sole cause of the accident.
Plaintiff argues in his opposition to the instant motion “[i]f [the pilot’s]
relationship with Prop Flying, LLC is such that he could be considered an employee or
agent thereof, the[n] Prop Flying, LLC would be [additionally] liable for the actions of the
pilot.”74 “As a preliminary matter, the Court must determine whether a vicarious liability
claim is sufficiently pleaded to be properly before the Court”75 because the United States
Court of Appeals for the Fifth Circuit in Cutrera v. Board of Supervisors of Louisiana
State University held “[a] claim which is not raised in the complaint but, rather, is only

in response to a motion for summary judgment is not properly before the court.”76
Cutrera involved a wrongful termination action instituted by a university
employee who suffered from macular degeneration.77 On summary judgment, the district
court summarily entered final judgment as to the plaintiff’s First Amendment retaliation

73 Id.
74 R. Doc. 29 at p. 13 (contending “Defendants have not provided any evidence as to the relationship between
these parties.”).
75 Sashington v. Georgia-Pacific, LLC, 2018 WL 4489294 *9 n.4 (E.D. La. 9/19/2018).
76 Cutrera v. Bd of Sup’rs of Louisiana State U., 429 F.3d 108, 113 (5th Cir. 2005) (citing Fisher v.
Metropolitan Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990)).
77 Id. at 113.
claim under 18 U.S.C. § 1983 because the claim was made in opposition to summary
judgment—not in the plaintiff’s complaint.78 On appeal, the Fifth Circuit affirmed the
district court’s grant of summary judgment because a plaintiff may not rely on new claims
raised for the first time in an opposition to defeat a motion for summary judgment.79 This
is “well-settled law in the Fifth Circuit.”80

Applying that well-settled rule to the case at bar, a careful review of Plaintiff’s state
court petition reveals he did not allege Prop Flying is liable based on vicarious liability or
respondeat superior.81 Only in Plaintiff’s opposition to summary judgment does he allude
to these bases of liability, while also acknowledging he lacks evidence to establish the
nature of the relationship between Prop Flying and the pilot.82 During the pendency of
the instant litigation (well over a year), Plaintiff did not once seek leave to amend his
complaint to assert this argument. To allow Plaintiff to amend his complaint now—less
than a month from trial and in response to a motion for summary judgment—or otherwise
expand his pleadings, would result in undue delay of this action and significant prejudice
to Defendants.83 As such, Plaintiff will not be allowed to assert liability against Prop Flying
based on vicarious liability or respondeat superior.84

In sum, based on the allegations in Plaintiff’s petition and his own admission in his
opposition to the instant motion, there is no evidence whatsoever of negligence on the

78 Id.
79 Id.
80 Adams v. Columbia/HCA of New Orleans, 2022 WL 1909409 *7 n.1 (E.D. La. 6/3/2022).
81 See generally R. Doc. 1-2; see in particular R. Doc. 1-2 at p. 7, ¶ 12.
82 R. Doc. 29 at p. 13.
83 Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir. 2005) (one factor to consider under Rule
15(a) is “undue delay . . . by virtue of allowance of the amendment.” Another is prejudice to the other side.).
84 Cutrera, 429 F.3d at 113.
part of Defendant Prop Flying. As a result, Prop Flying is entitled to summary judgment
on all claims of negligence brought against it.
II. Summary judgment is granted in part and denied in part as to the
claims of negligence lodged against the Estate of the Pilot.

The Estate of the Pilot moves for summary judgment as to Plaintiff’s claims of
negligence against it for the pilot’s (1) failure to properly maintain the plane; (2) failure
to undergo proper training, (3) failure to ensure that he was medically fit to pilot the
plane, (4) failure to ensure the safety of his passenger, and (5) for any other acts of
negligence.85
A. Plaintiff concedes there is no basis for his claims of negligence
against the pilot for failing to properly maintain the plane,
undergo proper training, or ensure that he was medically fit to
pilot the plane.

As to Plaintiff’s first three claims based on negligence of the pilot—failing to
properly maintain the plane, undergo proper training, and ensure he was medically fit—
Plaintiff has acknowledged there is no evidence of these alleged acts of negligence.
Specifically, Plaintiff admits in his statement of uncontested facts “[t]here is no evidence
that Omar El-Aazami had any medical emergency or was in any way medically
incapacitated prior to the Cessna striking the ground.”86 Further, Plaintiff’s opposition to
the instant motion states “[t]here has been no evidence suggesting that a mechanical
failure, whether due to design, maintenance or prior repair of the Cessna played any role
in the crash. . . . The flight history, and lack of evidence to the contrary, strongly infers
pilot error as the cause of the crash.”87 Likewise, according to the Plaintiff, there is no

85 R. Doc. 1-2 at p. 7, ¶ 12.
86 R. Doc. 29-1 at p. 3, ¶ 10.
87 R. Doc. 29 at p. 10.
evidence of a failure to undergo proper training by the pilot.88 Accordingly, Defendant
Omar El-Aazami is entitled to summary judgment on these three claims of negligence
brought against him.
B. As to the last two claims of negligence against the pilot through
his Estate, Plaintiff is entitled to a res ipsa jury instruction.

Plaintiff’s last two claims of negligence of the pilot—failing to ensure the safety of
his passenger and for any other acts of negligence89—effectively boil down to a claim of
pilot error. Under Louisiana law, a plaintiff must prove the following to recover on a claim
of negligence: (1) the defendant had a duty to conform his conduct to a specific standard
of care, (2) the defendant failed to conform his conduct to the appropriate standard of
care, (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s
injuries, (4) the defendant’s substandard conduct was the legal cause of the plaintiff’s
injuries, and (5) actual damages.90 Defendant argues Plaintiff is unable to establish the
second element of negligence on his claims against the pilot for failure to ensure the safety
of his passenger and any other claims of negligence (i.e., pilot error) because there is no
direct evidence of a breach of the duty of care owed by the pilot to his passenger, Jan
Villemarette.91 The parties agree Plaintiff has only circumstantial evidence to prove the
pilot failed to conform his conduct to the appropriate standard of care.92 However, the

88 Id. at p. 13.
89 R. Doc. 1-2 at p. 7, ¶ 12.
90 In re W. Feliciana Acquisition, LLC, 744 F.3d 352, 359-60 (5th Cir. 2014); Lemann v. Essen Lane
Daiquiris, Inc., 2005-1095 (La. 3/10/06), 923 So.2d 627, 633.
91 R. Doc. 23-1 at pp. 5-6 (“there is simply no evidence to support the existence of the second element of
Plaintiff’s negligence claim”).
92 R. Doc. 23-1 at p. 6 (“Given the absence of any such [direct] evidence, Defendants anticipate that Plaintiff
will rely on the doctrine of res ipsa loquitur . . .”); see also R. Doc. 29 at p. 1 (Plaintiff acknowledging that
Defendant’s motion for summary judgment argues Plaintiff is unable to establish the second element of
negligence, instead asserting res ipsa should apply).
parties disagree as to whether the Plaintiff is entitled to have the jury instructed as to the
doctrine of res ipsa loquitur.
“Negligence on the part of the defendant may be proved by circumstantial evidence
alone when” the doctrine of res ipsa loquitur applies.93 Under Louisiana law, four
conditions must exist before a res ipsa jury instruction will given: (1) there is an absence

of direct evidence; (2) the accident is of a kind that does not ordinarily occur in the
absence of negligence; (3) the circumstantial evidence sufficiently excludes other causes
of negligence, except the defendant’s; and (4) the negligence of the defendant falls within
the scope of his duty to the plaintiff.94 On the instant motion for summary judgment,
Defendant argues Plaintiff is unable to establish the second and third elements of res ipsa
loquitur.95
In terms of the second element of res ipsa, Defendant argues “Plaintiff cannot offer
evidence that the circumstances of this case are such that the accident would not have
occurred without negligence. It is not enough for Plaintiff to point to the fact that an
aircraft accident occurred. While res ipsa loquitur may be applied to aviation accidents
under the appropriate circumstances, the burden remains on the plaintiff to establish that

the circumstances of the case justify the application of the doctrine.”96
In Higginbotham v. Mobil Oil Corporation, et al.,97 the Fifth Circuit, applying
Louisiana law to a wrongful death suit involving a helicopter crash, held that, in terms of
the requirement that “the mishap is of the type that ordinarily does not occur in the

93 Cangelosi, 564 So.2d at 665 (emphasis in original).
94 Linnear, 966 So.2d at 42.
95 See R. Doc. 23-1 at pp. 6-8.
96 R. Doc. 23-1 at p. 7.
97 545 F.2d 422 (5th Cir. 1977). While Higginbotham was decided before Cangelosi and Linnear, the
discussion of the requirements of res ipsa, in substance, tracks the requirements as outlined in Cangelosi
and Linnear. Accordingly, the Court finds Higginbotham relevant to its analysis.
absence of negligence,”98 “[r]es ipsa loquitur is a rule based on human experience and its
application to a particular situation must necessarily vary with human experience. A
situation to which the doctrine was not applicable a half century ago because of
insufficient experience or lack of technical knowledge, might today fall within the scope
of the rule, depending upon what experience has shown.”99 The court went on to explain

that, historically, “air travel perhaps still seemed so inherently risky that people generally
believed that aviation accidents could and did occur without human or mechanical
failure.”100 However, the Fifth Circuit concluded “experience now teaches otherwise”
because “[m]ajor improvements in design and manufacturing technology, in pilot
training, and in ground control, communications, and navigations aids, among other
things, have combined to give air travel an estimable safety record.”101 As a result, the
Fifth Circuit held that, while there was no blanket rule that all aircraft crash cases satisfied
the second res ipsa requirement, aircraft cases certainly could fit the bill depending on
the circumstances.102 As a result, the applicability of the doctrine of res ipsa loquitur must
be decided in light of the facts of each case.103
Applied to the case at bar, Plaintiff attaches as exhibits to his opposition to the

instant motion evidence that establishes the aircraft took off on an October day in Houma,
Louisiana, where the temperature was around 70 degrees, winds were at gusting at 13
knots, and visibility was seven miles ahead.104 Soon after taking off, though, the plane

98 Id. at 429.
99 Id. (internal quotations omitted).
100 Id.
101 Id.
102 Id. at 430.
103 Id.
104 R. Doc. 29-4.
began a steady descent, still while increasing its speed.105 Unidentified air traffic
controllers at the Houma-Terrebonne Airport report having heard heavy breathing for
approximately 60 seconds over the radio around the time the plane began to descend.106
The aircraft’s last reported position was at an altitude of 725 feet traveling at a speed of
219 miles per hour, just southwest of Houma.107

Ordinary experience and common sense—the standard employed by the Louisiana
Supreme Court108—tells us that an aircraft does not ordinarily fall out of the sky while
increasing its speed in the absence of negligence. Who was negligent must be sufficiently
narrowed by Plaintiff, but that narrowing process is the subject of the third element of res
ipsa, not the second.109 The second element of res ipsa is meant to weed out ordinary
accident cases.110 Given the surrounding facts of the aircraft accident, the Court concludes
this is no “ordinary accident” case. Reasonable minds could not differ that “in light of
ordinary experience . . . an inference [may be drawn] that someone must have been
negligent.”111 Accordingly, the second element of res ipsa is met, and the Court “moves on
to analyze the next requirement.”112
In terms of the third element of res ipsa, the Defendant acknowledges that Plaintiff

has excluded weather as the cause of the accident113 and that, discovery being closed, there
is no evidence of mechanical failure.114 Plaintiff contends there is no evidence of any

105 R. Doc. 29-2.
106 R. Doc. 28 at ¶ 4; R. Doc. 29-1 at ¶ 4.
107 R. Doc. 29-2 (190 knots at groundspeed is equivalent to approximately 219 miles per hour).
108 Cangelosi, 564 So.2d at 666.
109 Linnear , 966 So.2d at 45.
110 Cangelosi, 564 So.2d at 666.
111 Id.
112 Linnear, 966 So.2d at 44 n.5.
113 R. Doc. 32 at p. 7.
114 Id. at p. 6.
medical issue suffered by the pilot, so the only cause of the accident left is non-medically
related pilot error.115 Defendant, in turn, argues Plaintiff has not sufficiently excluded the
medical condition of the pilot as the cause of the accident, because “the evidence shows
that prior to the accident, personnel at the airport reported hearing an ‘open mic’ with
heavy, rapid breathing on the tower frequency for approximately 60 seconds before the

aircraft’s microphone stopped transmitting, and the tower personnel were thereafter
unable to contact the pilot over the radio.”116 According to Defendant, “this evidence
suggests the possibility that the pilot, El-Aazami, may have experienced a medical issue
that led to the crash.”117 In support of these contentions, Defendant relies on Sievers v.
Beechcraft Mfg. Co.118 and Kramer v. Petroleum Helicopters, Inc.119
In Sievers, the surviving spouse of a pilot brought a suit against an aircraft
manufacturer after her husband was killed while piloting an aircraft.120 The surviving
spouse alleged the last-standing cause of the accident after discovery was a manufacturing
defect with the aircraft.121 The aircraft manufacturer disagreed, pointing to the
“reasonable and plausible” possibility that the pilot himself could have “been negligent in
the operation of the aircraft or could have been negligent in permitting one of his

passengers to operate the aircraft.”122 In an effort to “sufficiently exclude” pilot error as
the cause of the accident, the surviving spouse argued “[p]ilot error can be eliminated
because [the pilot] was an experienced pilot.”123 This was the extent of the plaintiff’s

115 R. Doc. 29-1 at p. 3, ¶ 10.
116 R. Doc. 23-1 at pp. 7-8.
117 Id. at p. 8.
118 497 F. Supp. 197 (E.D. La. 7/18/1980).
119 999 So.2d 101 (La. App. 3rd Cir. 2008).
120 497 F. Supp. at 198.
121 Id. at 203.
122 Id. at 202.
123 Id. at 203.
evidence excluding pilot error. On summary judgment brought by the aircraft
manufacturer, the court determined this alone did not “sufficiently exclude” pilot error as
the cause of the accident because even experienced pilots can make errors.124 On that
basis, the court concluded “[t]he likelihood of other causes, specifically pilot error, has
not been sufficiently reduced so that the fact finder may reasonably conclude . . . that the

fault is attributable to [the aircraft manufacturer].”125 The court granted summary
judgment.
Similarly, in Kramer, the surviving spouse of a pilot brought suit against a
helicopter manufacturer after her husband was killed when the helicopter he was piloting
crashed.126 The plaintiff alleged the crash occurred when the pendulum weight mounted
to one of the helicopter’s four rotor blades detached due to internal material fatigue.127
The plaintiff had no direct evidence that this was the cause of the accident, only
circumstantial, thus she relied on the doctrine of res ipsa loquitur.128 At the close of trial,
the defendant moved for involuntary dismissal because, inter alia, the plaintiff had not
sufficiently excluded all other causes of the accident, except the defendant’s negligence.
Accordingly, the helicopter manufacturer argued an instruction to the jury that it was

allowed to infer negligence was not permitted.129 In terms of what that “other cause”
might have been, trial witnesses testified that “[t]he flight was at night, was conducted at
an altitude that may have been as low as the tree tops, and in an area with rolling
terrain.”130 Given that altitude, rolling terrain, and testimony from an expert at trial that

124 Id.
125 Id.
126 999 So.2d at 103.
127 Id.
128 Id. at 104.
129 Id. at 109-10.
130 Id. at 110.
“spatial disorientation . . . can prevent a pilot from recognizing that the craft is descending
rather than ascending,”131 the court concluded pilot error was just as plausibly the cause
of the accident, and that the plaintiff had not sufficiently excluded it.132 Accordingly,
involuntary dismissal was granted, and, on appeal, the trial court was affirmed.133
Certainly, the Court agrees with the holdings in Sievers and Kramer that a plaintiff

must sufficiently exclude all other equally plausible causes of the accident, other than the
Defendant’s negligence, to satisfy the third element of res ipsa loquitur. Still, under
Louisiana law, Plaintiff is not required to totally exclude all other causes of the accident.134
Instead, the circumstantial evidence must “sufficiently” exclude an inference of Plaintiff’s
own negligence or the negligence of others, such that the factfinder may reasonably
conclude that the fault of the accident, if any, is attributable to the pilot.135 Faced with
Defendant’s argument that heavy breathing is indicative of a medical condition of the pilot
that could have caused the accident, Plaintiff points to the coroner’s autopsy report,136
which, by Defendant’s own admission, lends itself to a conclusion that the coroner “found
no evidence of recent medical or surgical treatment or physical injury, that the coroner
did not make note of any conditions that he cited as being a possible cause of the accident,

and that the cause of [the pilot’s] death was blunt chest trauma and other traumatic
injuries.”137 Accordingly, Sievers and Kramer are both factually inapposite to the case at
bar. Unlike in Sievers, where the only evidence excluding pilot error as the cause of the
accident was an “illogical assumption” that experienced pilots do not make errors, in this

131 Id.
132 Id.
133 Id. at 111.
134 Linnear, 966 So.2d at 42; see also Cangelosi, 564 So.2d at 666.
135 Linnear, 966 So.2d at 42; see also Cangelosi, 564 So.2d at 666.
136 See R. Doc. 29-1.
137 R. Doc. 32 at p. 8.
case, Plaintiff has an autopsy report from the coroner to support exclusion of the pilot’s
medical issue as a cause of the accident. Moreover, not only was Kramer decided after the
conclusion of trial when the court was able to hear all evidence and testimony, but the
plaintiff in Kramer had no evidence to sufficiently exclude the manufacturer’s evidence—
which was more concrete than 60 seconds of heavy breathing—that suggested pilot error

was likely the cause of the accident.
Reasonable minds could differ as to whether Plaintiff has sufficiently excluded all
other as likely or more likely causes of the accident besides pilot error. On the basis of the
evidence presented, a jury could find that the autopsy report sufficiently assuages
concerns that something other than pilot error was the true cause of the accident. On the
other hand, a jury could reasonably find that heavy breathing is indicative of the pilot
having a medical issue. Where reasonable minds could differ as to the outcome of an
element of res ipsa, the element is deemed satisfied under Louisiana law, “and it is the
function of the jury to decide whether to draw the inference or not.”138
In sum, Defendant only attacks Plaintiff’s ability to establish the second and third
elements of res ipsa loquitur.139 As to the second element of res ipsa, this accident is of a

kind that does not ordinarily occur in the absence of negligence. As to the third element,
reasonable minds could differ as to whether Plaintiff has sufficiently excluded likely
causes of the accident other than pilot error. Thus, under Louisiana law, the jury will be
allowed to, though it may decide not to, infer a breach of the duty of care. Accordingly, as
to Plaintiff’s claims of negligence against the Estate of Omar El-Aazami through its
Administrator Adam Ziad El-Aazami for pilot error, summary judgment is DENIED.

138 Linnear, 966 So.2d at 42; see also Cangelosi, 564 So.2d at 666-67.
139 See R. Doc. 23-1 at pp. 6-8.
CONCLUSION
IT IS ORDERED that the motion for summary judgment is GRANTED as to all
claims against Prop Flying.
IT IS FURTHER ORDERED that the motion for summary judgment is
GRANTED IN PART AND DENIED IN PART as to claims against the Estate of the
Pilot. Summary judgment as to Plaintiffs claims against the Estate of the Pilot based on
failure to properly maintain the aircraft, failure to undergo proper training, and failure to
ensure medical fitness before piloting the aircraft are GRANTED. Summary judgment
as to Plaintiffs claim against the Estate of the Pilot based on other pilot error is DENIED.
IT IS FURTHER ORDERED that the motion for summary judgment is
GRANTED IN PART AND DENIED IN PART as to Starr Indemnity & Liability
Company. Summary judgment is GRANTED to the extent it insured Prop Flying, but
DENIED to the extent it insured the pilot for pilot error.
New Orleans, Louisiana, this 9th day of August, 2022.
Ste nae
UNITED STATES DISTRICT JUDGE

22

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10188136. Public record. Not legal advice.