United States Aircraft Insurance Group v. Global Tower, LLC D/B/A Global Tower Partners

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

19-844

UNITED STATES AIRCRAFT INSURANCE GROUP

VERSUS

GLOBAL TOWER, LLC D/B/A

GLOBAL TOWER PARTNERS, ET AL

************

APPEAL FROM

THIRTY-FIRST JUDICIAL DISTRICT COURT,

PARISH OF JEFFERSON DAVIS, NO. 93-14

HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

************

SYLVIA R. COOKS

JUDGE

************

Court composed of Sylvia R. Cooks, Phyllis M. Keaty and Van H. Kyzar, Judges.

AFFIRMED.

Isaac H. Ryan

Deutsch Kerrigan L.L.P.

755 Magazine Street

New Orleans, LA 70130

(504) 593-0792

Attorney for Appellants:

GTP Infrastructure I, LLC and

CNA Insurance Company

Kendall J. Krielow

Block Law Firm, APLC

P.O. Box 108

Thibodaux, LA 70302

(985) 446-0418

Attorney for Appellees:

Riceland Aviation, Inc. and

United States Aircraft Insurance Group

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

GTP Infrastructure I, LLC (GTP) is the owner of a certain communication

transmission tower located near Jennings, in Jefferson Davis Parish, Louisiana.

GTP’s tower is insured by CNA Insurance Company (CNA). The tower is located

in an agricultural setting surrounded by open fields used for planting various crops.

On February 15, 2013, an experienced local crop duster pilot, William Precht, Jr.,

was killed when his airplane, owned by Riceland Aviation, Inc. (Riceland) and

insured by United States Aircraft Insurance Group (USAIG), struck an unmarked

guy wire securing GTP’s tower. Precht’s plane was a total loss. The crash also

caused damage to GTP’s tower. At the time of the crash, GTP’s tower was secured

by eight, half-inch guy wires, some of which extended nearly 300 feet out from the

base of the tower into the adjacent agricultural field where Precht was aeronautically

applying herbicide to prepare the field for planting. The guy wires on GTP’s tower

were not marked by TANA aviation marker balls as required by Jefferson Davis

Parish Ordinance 5.5-107(e) which provides that: “Any guy wires used for support

of any tower shall include TANA wire markers that enable aircraft pilots to identify

the location of such guy wires.”

GTP and its insurers sued Riceland and USAIG for property damage to its

tower identified as tower LA-5136 (tower). Riceland and USAIG answered the suit

and reconvened in docket number 83-14, Thirty-first Judicial District Court, Parish

of Jefferson Davis, Louisiana. USAIG sought subrogation for its payment to

Riceland for the total loss of the plane in a separate suit filed against GTP, its parent

companies, and its insurers, in docket number 93-14, Thirty-first Judicial District

Court, Parish of Jefferson Davis, Louisiana. GTP sought to dismiss USAIG’s

subrogation claim against it through a motion for summary judgment. The basis of

GTP’s motion was the assertion that the local ordinance requiring TANA markers

was not enforceable because the ordinance is preempted by federal law. It also

asserted the tower was free of any defects that could have caused the crash and it

further alleged Riceland and USAIG could not show that GTP knew or should have

known about Jefferson Davis Parish Ordinance 5.5-107. The trial court denied the

motion. GTP did not seek appellate review of the denial of its motion for summary

judgment.

The two suits were consolidated for trial purposes. On June 27, 2019, a jury

returned a verdict finding Precht 21% at fault and GTP 79% at fault for the plane

crash. The jury awarded Riceland and USAIG $645,139.58 in damages for the

airplane which was determined to be a total loss. The trial court entered judgment

in favor of USAIG and against “GTP Infrastructure I, LLC, Global Tower, LLC,

GTP Investments, LLC and CNA Insurance Company” in the sum of $509,660.26.

GTP and CNA Insurance Company appeal the judgment alleging four assignments

of error:

The district court erred in denying GTP’s Motion for Summary

Judgment because the tower was free of defects and plaintiff did not

adduce evidence GTP knew or should have known about Jefferson

Davis Ordinance 5.5-107.

The district court erred in instructing the jury regarding Jefferson Davis

Parish Ordinance 5.5-107, because that Ordinance is preempted by the

Federal Aviation Act.

The jury erred in allocating only 21% fault to Mr. Precht.

The jury awarded damages not allowed by law.

ANALYSIS

Although GTP and its insurer did not seek appellate review of the trial court’s

judgment immediately after the denial of their motion they now raise the issue on

appeal after a full trial on the merits. USAIG asserts we cannot address this

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assignment of error because the denial of the motion for summary judgment was an

interlocutory ruling from which no appeal lies. It asserts GTP’s exclusive remedy

was by supervisory writ, which it did not pursue. We reject this argument.

“Generally, pursuant to La.Code Civ.P. art. 968, the denial of

a motion for summary judgment is an interlocutory judgment from which

an appeal may not be taken. However, when there is also an appeal from a final

judgment[,] . . . an appellate court may also review the interlocutory ruling.” Landry

v. Pediatric Servs. of Am., Inc., 15-899 p. 4, (La.App. 3 Cir. 4/6/16), 189 So.3d 540,

543–44, (citations omitted), writ denied, 16-785, 16-845 (La. 6/17/16), 192 So.3d

771, 773. Thus, we may review the trial court’s denial of GTP’s motion for summary

judgment in this appeal. But, under such circumstances, the applicable standard of

review is not de novo as GTP suggests. As we explained in Lemoine v. Augustine,

16-862 pp. 5-6, (La.App. 3 Cir. 2/14/17) 2017 (unpublished opinion), writ

denied, 17-0534 (La. 5/19/17), 221 So.3d 77, the proper standard of review here is

the manifest error-clearly wrong standard of review:

[D]efendants did not apply for supervisory writs concerning

the denial of their motion. Rather, they challenge, as manifest error,

the trial court’s casting them in judgment when all claims against Mary

were prescribed. It is now well established that an appellate court

should not restrict its fact review to affidavits and pleadings in support

of the motion for summary judgment where the denial of

the motion for summary judgment is appealed after the matter has been

fully tried. Hopkins v. Am. Cyanamid Co., 95–1088 (La. 1/16/96), 666

So.2d 615. In so ruling, the supreme court explained:

[O]nce a case is fully tried, the affidavits and other limited

evidence presented with a motion

for summary judgment—later denied by the district

court—are of little or no value. Appellate courts should

not rule on appeal after a full merits trial on the strength

alone of affidavits in support of a motion

for summary judgment that was not sustained in the

district court. In such cases, appellate courts should review

the entire record.

Id. at 624.

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Accordingly, the traditional manifest error-clearly wrong

standard of review of the entire trial record applies to our review of

the trial court’s factual findings on the issue of prescription. Marin v.

Exxon Mobil Corp., 09–2368, 09–2371 (La. 10/19/10), 48 So.3d 234.

Nevertheless, we review the trial court’s legal conclusion “simply to

determine whether or not the trial court was legally correct[.]” Dauzart

v. Fin. Indem. Ins. Co., 10–28, p. 3 (La.App. 3 Cir. 6/2/10), 39 So.3d

802, 805.

In Janise v. Acadian Ambulance Service, Inc., 17-1100, pp. 6-7, (La.App. 3

Cir. 4/25/18), 244 So.3d 541, 546, this court explained the role of appellate review

of a jury’s findings of fact:

Regarding appellate review of factual findings, the supreme court has

explained:

In reviewing the factual findings of a trial court, we

are limited to a determination of manifest error. Hill v.

Morehouse Parish Police Jury, 95-1100, p. 4 (La.

1/16/96), 666 So.2d 612, 615. It is well settled that an

appellate court may not disturb a jury’s finding of fact

unless the record establishes that a factual, reasonable

basis does not exist and the finding is clearly wrong or

manifestly erroneous. Syrie v. Schilhab, 96-1027, p. 4 (La.

5/20/97), 693 So.2d 1173, 1176. An appellate court must

do more than simply review the record for some evidence

which supports or controverts the findings. Stobart v. State

of La., through Dep’t of Transp. & Dev., 617 So.2d 880,

882 (La.1993). It must instead review the record in its

entirety to determine whether the factual findings were

clearly wrong or manifestly erroneous. Id.

Significantly, the issue to be resolved is not whether

the jury was right or wrong, but whether its conclusion was

reasonable. Id. Thus, this Court, after a full review of the

record, may not reverse reasonable findings, even if we

had weighed the evidence differently sitting as the trier of

fact. Siverd v. Permanent General Ins. Co., 05-0973, p. 3

(La. 2/22/06), 922 So.2d 497, 500.

Fontenot v. Patterson Ins., 09-669, pp. 8-9 (La. 10/20/09), 23

So.3d 259, 267.

We have reviewed the entire record and conclude the trial court did not

manifestly nor legally err in denying GTP’s motion for summary judgment and it

did not err in finding GTP liable for damages. Because we review the denial of the

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motion for summary judgment in this case based on the entire record there is

substantial overlap in the treatment of that issue and GTP’s additional issues

presented for review.

We find Jefferson Davis Parish Ordinance 5.5-107 is not preempted by federal

aviation law. Thus, GTP was not entitled to summary judgment as a matter of law

on that basis as they maintain. “The critical question in any pre-emption analysis is

always whether Congress intended that federal regulation supersede state law.” La.

Pub. Serv. Comm. v. F.C.C., 476 U.S. 355, 369, 106 S. Ct. 1890, 1899 (1986).

Additionally, there is a presumption against pre-emption.

The doctrine of preemption is a necessary but precarious

component of our system of federalism under which the states and the

federal government possess concurrent sovereignty, subject to the

limitation that federal law is “the supreme Law of the Land ... any Thing

in the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. Consistent with this

principle, Congress has the power to enact legislation that preempts

state law. See Arizona v. United States, ––– U.S. ––––, 132 S.Ct. 2492,

2500–01, 183 L.Ed.2d 351 (2012). At the same time, with due respect

to our constitutional scheme built upon a “compound republic,” with

power allocated between “two distinct governments,” The Federalist

No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961); see

also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct.

1842, 131 L.Ed.2d 881 (1995) (Kennedy, J., concurring), there is a

strong presumption against preemption in areas of the law that States

have traditionally occupied, see Medtronic, Inc. v. Lohr, 518 U.S. 470,

485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); Bruesewitz v. Wyeth,

Inc., 561 F.3d 233, 240 (3d Cir.2009) (explaining that, “[w]hen faced

with two equally plausible readings of statutory text, [courts] have a

duty to accept the reading that disfavors preemption” (internal

quotation marks omitted)). For that reason, all preemption cases “start

with the assumption that the historic police powers of the States were

not to be superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565,

129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (quoting Medtronic, 518 U.S.

at 485, 116 S.Ct. 2240) (internal quotation marks omitted).

Congressional intent is the “ultimate touchstone” of a preemption

analysis. Id. Thus, when confronted with the question of whether state

claims are preempted, as we are here, we look to the language,

structure, and purpose of the relevant statutory and regulatory scheme

to develop a “reasoned understanding of the way in which Congress

intended the statute and its surrounding regulatory scheme to affect

business, consumers, and the law.” Medtronic, 518 U.S. at 486, 116

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S.Ct. 2240; see also Bruesewitz, 561 F.3d at 243–44 (recognizing that

divining congressional intent regarding preemption requires

considering a law’s “structure and purpose,” underlying “object and

policy,” and, where relevant, legislative history (internal quotation

marks omitted)).

Congress may exert its supremacy by expressly preempting state

law, but it may also do so implicitly, which we have recognized in

limited circumstances in the doctrine of “field” preemption. See Oneok,

Inc. v. Learjet, Inc., ––– U.S. ––––, 135 S.Ct. 1591, 1595, 191 L.Ed.2d

511 (2015). For that doctrine to apply, “we must find that federal law

leaves no room for state regulation and that Congress had a clear and

manifest intent to supersede state law” in that field. Elassaad v. Indep.

Air, Inc., 613 F.3d 119, 127 (3d Cir.2010) (quoting Holk v. Snapple

Beverage Corp., 575 F.3d 329, 336 (3d Cir.2009)) (alteration and

internal quotation marks omitted). Where Congress expresses an intent

to occupy an entire field, States are foreclosed from adopting any

regulation in that area, regardless of whether that action is consistent

with federal standards. Oneok, 135 S.Ct. at 1595.

In addition to field preemption, federal law may supersede state

law through conflict preemption. This occurs when a state law conflicts

with federal law such that compliance with both state and federal

regulations is impossible, PLIVA, Inc. v. Mensing, 564 U.S. 604, 131

S.Ct. 2567, 2577, 180 L.Ed.2d 580 (2011), or when a challenged state

law “stands as an obstacle to the accomplishment and execution of the

full purposes and objectives of a federal law,” Williamson v. Mazda

Motor of Am., Inc., 562 U.S. 323, 330, 131 S.Ct. 1131, 179 L.Ed.2d 75

(2011) (internal quotation marks omitted).

Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 687–88 (3 Cir. 2016), cert.

denied, 137 S.Ct. 495 (U.S. 11/28/16).

GTP asserts that the “Federal Aviation Act of 1958, Pub. L. no. 85-726, 72

Stat. 731, as amended, assigns to the Administrator of the Federal Aviation

Administration (FAA) comprehensive responsibility for ensuring the safety of air

travel,” citing 49 U.S.C. 44701 as authority for its proposition that the field of

aviation is federally preempted. GTP interprets this, along with the language of 49

U.S.C. 40103(b)(1), as indicative of “Congress’ intent to delegate the responsibility

of regulating all obstructions to the Federal Aviation Administration (“FAA”) to

ensure national uniformity in the regulation of navigable air space.” The courts,

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however, have not so interpreted nor applied these statutes to prohibit state and local

laws concerning aviation.

There is no express preemption of air transportation in the

FAA[Federal Aviation Act]. In 1978, Congress enacted the ADA [1978

Airline Deregulation Act] to dismantle federal economic regulation and

to prevent the states from frustrating the goals of deregulation by

establishing or maintaining economic regulations of their own. The

ADA preempts the states from enforcing any law “relating to rates,

routes or services” of any carrier.

On appeal, Perdigao argues his claims are not preempted, citing

two U.S. Supreme Court cases. Delta and Baird urge that the cases

relied on by Perdigao address only the preemptive scope of the 1978

ADA, and that, in the present case, the trial court relied on the

“implicit” or “field” preemption of the 1958 FAA[Federal aviation

Act]. Delta cites several cases in support of its position that “federal

law governs the standards for aviation safety,” which cases were

apparently relied on, at least in part, by the trial court. On review, we

find Delta’s conclusion that the federal government has implicitly

preempted every aspect of the field of aviation is not supported by the

jurisprudence.

Perdigao v. Delta Airlines, Inc., 05-325, pp. 4-5, (La.App. 5 Cir. 11/13/07), 973

So.2d 33, 36 (footnotes omitted) (emphasis added).

Likewise, this court in Stream Aviation, Inc. v. Anders Production, Inc., 517

So.2d 1157, 1159-61 (La.App. 3 Cir. 1987) (emphasis added), writ denied, 521

So.2d 1171 (La. 1988), held that Congress has expressed no intent to completely

pre-empt state law in the field of air transportation:

The Court, in declining to enforce Stream’s alleged contract,

stated that when Congress enacted the Federal Aviation Act, 49 U.S.C.

§ 1301 et seq., Congress expressly preempted the field of air

transportation. The Court cited as authority, 49 U.S.C. § 1305(a)(1)

(1958) (amended 1984) which provides, in part:

No state ... shall enact or enforce any law, rule, regulation,

standard or other provision having the force and effect of

law relating to rates, routes, or services of any air carrier

having [Civil Aeronautics Board] authority ... to provide

air transportation.

The Court concluded that FAA regulations have the effect of laws of

the United States and that to provide Stream with the relief it sought

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would be contrary to the Supremacy Clause of the United States

Constitution. U.S.Const. Art. VI, cl. 2.

....

Our decision in this case rests entirely on the conclusion that the

lower court incorrectly interpreted Section 1305 addressing federal

preemption of the field of civil aviation. Having concluded that Anders

is not entitled to judgment as a matter of law, we need not address the

question of whether there was a genuine issue of material fact. We will

not, in other words, decide whether Stream’s aircraft should have had a

Part 135 ATCO operating certificate or whether Stream was properly

flying its craft in accordance with Part 91.

The Trial Court concluded that when Congress preempted the

field of civil aviation it intended that state judiciaries be prohibited from

enforcing valid contracts. Without considering whether Stream and

Anders had a contract, we do not believe that Congress intended to

prevent the judicial enforcement of legal contracts when an air carrier

is operating a craft in violation of federal regulations. We believe that

if Congress had intended to impose such a penalty it would have done

so in a more explicit manner.

Section 1305, 49 U.S.C. § 1305, supra, as previously stated,

provides:

[N]o State ... shall enact or enforce any law, rule,

regulation, standard or other provision having the force

and effect of law relating to rates, routes, or services of an

air carrier having [Civil Aeronautics Board] authority ... to

provide air transportation.

We believe it was the intention of Congress in enacting Section 1305

to prevent local interference with a matter it deemed to be of national

significance, air commerce. We believe that Congress’ intent was to

prevent the enactment and/or enforcement of laws, ordinances or other

acts which would directly or indirectly inhibit the promotion of

efficient, nationally regulated air transportation. See, City of Burbank

v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36

L.Ed.2d 547 (1973) (invalidating a local ordinance prohibiting jet take-

offs between 11 p.m. and 7 a.m.); United States v. City of New

Haven, 447 F.2d 972 (2nd Cir.1971) (affirming a preliminary

injunction granted by a federal district court restraining a city from

complying with a state court order ordering it to obtain approval from

a neighboring city to use property purchased in that municipality as a

“clear zone” for an airport runway and forcing partial closure of a

runway); County of Cook v. Priester, 22 Ill.App.3d 964, 318 N.E.2d

327, (1st Dist.1974), aff’d, 62 Ill.2d 357, 342 N.E.2d 41 (1974)

(declaring local restrictions on aircraft weight to be, inter alia, in

contravention of federal law); and City of Bensenville v. City of

Chicago, 16 Ill.App.3d 733, 306 N.E.2d 562 (1st Dist.1973) (declaring

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that Congress has preempted state and local aircraft noise and air

pollution regulations). The judicial enforcement of a contract for air

transportation, subsequent to the faithful completion by the carrier,

even when the carrier is not appropriately certified is not the enactment

or enforcement of a law or regulation relating to “rates, routes, or

services of an air carrier.” 49 U.S.C. § 1305, supra.

In the same manner, a local ordinance requiring the placement of TANA

markers on the guy wires of transmission towers so as to enable crop duster pilots to

locate the wires quickly from a greater distance has nothing to do with rates, route

or services of air transportation. The local ordinance is not contrary to or

inconsistent with any federal safety requirements for marking transmission towers,

such as the type of lighting required by federal mandates. It does not impede

minimum federal safety regulations but adds additional protection. It is true, as GTP

asserts, that federal law recognizes the “United States Government has exclusive

sovereignty of airspace,” 49 U.S.C. § 40103(a), but that does not equate to either the

express or implied intent of Congress to preempt the right of local authorities to

impose greater safety requirements on transmission towers which are an obstacle to

all aviation, particularly when considering the added danger posed by unmarked guy

wires to low flying crop dusters.

The Supremacy Clause, among other things, confirms that when

Congress legislates within the scope of its constitutionally granted

powers, that legislation may displace state law, and this Court has

throughout the years employed various verbal formulations in

identifying numerous varieties of pre-emption. See, e.g., Louisiana

Public Service Comm’n v. FCC, 476 U.S. 355, 368–369, 106 S.Ct.

1890, ––––, 90 L.Ed.2d 369 (1986). But we have consistently

emphasized that the first and fundamental inquiry in any pre-emption

analysis is whether Congress intended to displace state law, and where

a congressional statute does not expressly declare that state law is to be

preempted, and where there is no actual conflict between

what federal law and state law prescribe, we have required that there

be evidence of a congressional intent to pre-empt the specific field

covered by the state law. Pacific Gas & Electric Co. v. State Energy

Resources Conservation and Development Comm’n, 461 U.S. 190, 103

S.Ct. 1713, 75 L.Ed.2d 752 (1983); Silkwood v. Kerr-McGee

Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443[1984].

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Wardair Canada, Inc. v. Fla. Dep’t. of Revenue, 477 U.S. 1, 6, 106 S. Ct. 2369, 2372

(1986) (emphasis added).

In Sikkelee, 822 F.3d at 692 (emphasis added), the federal appellate court

found that the Federal Aviation Act, as amended, contains no express provision

concerning preemption of state laws:

As we have explained, although the federal government has

overseen certain aspects of aviation, such as air traffic control and pilot

certification, since the early days of flight, see Air Commerce Act of

1926, ch. 344, 44 Stat. 568, there was little question when the Civil

Aeronautics Act was adopted in 1938 that common law standards

governed tort claims arising from plane crashes, see, e.g., Curtiss–

Wright Flying Serv., 66 F.2d at 711–13 (applying the common law

standard for negligence). It is therefore significant that the Federal

Aviation Act, which succeeded the Civil Aeronautics Act and

remains the foundation of federal aviation law today, contains no

express preemption provision. In fact, it says only that the FAA may

establish “minimum standards” for aviation safety, 49 U.S.C. §

44701—statutory language the Supreme Court has held in other

contexts to be insufficient on its own to support a finding of clear and

manifest congressional intent of preemption, see Fla. Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132, 145, 83 S.Ct. 1210, 10 L.Ed.2d

248 (1963); see also Ray v. Atl. Richfield Co., 435 U.S. 151, 168 n. 19,

98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Abdullah, 181 F.3d at 373–

74; Cleveland, 985 F.2d at 1445.

Louisiana has enacted an entire body of legislation exercising the state’s

authority in the field of aviation. Were we to accept GTP’s argument, the entire

body of such legislation could not be enforced. For example, La.R.S. 2:6 provides:

A. The department [Department of Transportation and Development

(DOTD)] shall foster air commerce within the state of Louisiana

and the department shall have supervision over the aeronautical

activities and facilities, which authority shall include supervision

and control over all airports, landing fields, landing strips, air

instruction, air marking, air beacons, and all other air-navigation

facilities.

B. (1) Accordingly, the department may prescribe such reasonable

rules and regulations as it deems necessary and advisable:

(a) For the public safety and for the promotion of aeronautics

governing the designing, laying out, location, building,

equipping, operation, and use of all airports, landing fields, or

landing strips;

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(b) Governing the curriculum, equipment, personnel, and operation

and management of all air instruction;

(c) For the purpose of protecting the health and safety of students

receiving or to receive such instruction of student aviators;

(d) For the public safety and safety of those engaged in aeronautics;

(e) For the promotion of aeronautics governing the establishment,

location, maintenance, and operation of all air markings, air

beacons, and other air-navigation facilities.

(2) No rule or regulation prescribed by the department under the

authority of this Section shall be inconsistent with the then-current

federal legislation governing aeronautics and the regulations duly

promulgated thereunder.

We note that just as this state legislation recognizes the superiority of federal

legislation in this arena, so, too, does Jefferson Davis Parish Ordinance 5.5-107(c),

which provides: “Federal restrictions shall supersede these requirements as may be

required by law.” The local ordinance addresses “lighting” of towers and speaks to

situations in which there are federal and/or state lighting requirements and where

there are no such requirements. The ordinance also adds to all lighting requirements

the additional requirement of TANA marker balls placed on guy wires securing

towers. We conclude the ordinance is not inconsistent with nor does it conflict with

state and/or federal requirements but only enhances such safety measures.

Louisiana Revised Statutes 2:7 directs the Louisiana Department of

Transportation and Development (DOTD) to “assist in the development of aviation

and aviation facilities for the purpose of safeguarding the interests of those engaged

in all phases of the industry and of the general public and of promoting aeronautics.”

It further directs DOTD to coordinate its efforts with federal, other state departments,

and local political subdivisions, such as the Jefferson Davis Parish Police Jury:

Accordingly, the department may expend any or all the moneys

allocated and deposited for the acquisition or enlargement by purchase,

grant, lease, condemnation, or other means, and for the construction,

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operation, and maintenance of airports, landing fields, or emergency

landing strips, or of other aeronautic facilities or services for the safety

and advancement of aeronautics, which shall include the joint

establishment or provision of such aeronautic facilities or services in

cooperation with other state or federal departments or with other

political subdivisions.

La.R.S. 2:7(emphasis added).

Further, under La.R.S. 2:8, Louisiana law regulates the opening and operating

of “[a]ll proposed airports, landing fields, air schools, flying clubs, air beacons, or

other navigation facilities,” and all such facilities must “first be approved by the

department before they are so used or operated.” Federal and state-owned facilities

are not subject to the department’s authority. Id. And in La.R.S. 2:9, DOTD is

authorized to conduct “investigations, inquiries, and hearings concerning matters

covered by the provisions of this Chapter, and all accidents in aeronautics, except

for aircraft registration, identification, equipment, and enforcement delegated to the

Department of Public Safety and Corrections.”

In Walker Louisiana Properties v. Broussard, 01-711 p.6 (La.App. 3 Cir.

3/6/02), 813 So.2d 487, 491, writ denied, 02-1497, 02-1523 (La. 9/20/02), 825 So.2d

1175, 1180, cert. denied, 538 U.S. 944 (U.S. 3/31/03), while we recognized

Congress’ authority over navigable airspace, we also enforced a landowner’s rights

under La.Civ.Code art. 490 concerning the airspace above his property:

The Louisiana Civil Code Article 490 provides the ownership of

a tract of land carries with it the ownership of everything that is directly

above or under it. Furthermore, the airspace may be freely used by the

public for aerial traffic at reasonable altitudes. Accordingly, Congress

has recognized the need for modification of the notion of private

ownership of air space and declared that the airspace above the

minimum altitude for safe flight is navigable airspace subject to the

public right for free transit. See Federal Aviation Program, 49 U.S.C.A.

§ 1301 et seq. The F.A.A. has fixed the minimum safe altitude at “1000

feet above the highest obstacle” over “congested areas,” and, otherwise,

at “500 feet above the surface, except over open water or sparsely

populated areas.” 14 C.F.R. § 91.79(b), (c). Louisiana Civil Law

Treatise on Property, Vol. 2, Ch. 3 § 47.

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Although the airspace above the appellee’s property is navigable

and subject to regulation, and although helicopters are excepted from

some of those regulations, Federal Aviation Act regulations are not at

issue in the instant matter. In the instant case, the subject property is

located in a rural area of Calcasieu Parish, and is reachable only by

private road owned and maintained by the appellee, Steven Broussard,

otherwise, one can reach the property by air or water. The issue we must

address is whether the appellant operating his helicopter at abusively

low levels, interferes with the appellee’s use and enjoyment of his land.

We find it does. Accordingly, pursuant to Article 490 of

the Louisiana Civil Code the appellee has a right to enjoy his property

and, therefore, is entitled to injunctive relief.

In 49 U.S.C. § 40103, Congress makes no mention of any intent to preempt

state or local authority but directs that in order to further the public’s right to transit

through navigable airspace “[t]he administrator of the Federal Aviation

Administration shall develop plans and policy for the use of the navigable airspace

and assign by regulation or order the use of the airspace necessary to ensure the

safety of aircraft and the efficient use of airspace.” 49 U.S.C. § 40103(b)(1)

(emphasis added). It further provides in 49 U.S.C. §40103(2) and (3):

(2) The Administrator shall prescribe air traffic regulations on the flight

of aircraft (including regulations on safe altitudes) for—

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground;

(C) using the navigable airspace efficiently; and

(D)preventing collision between aircraft, between aircraft and land

or water vehicles, and between aircraft and airborne objects.

(3) To establish security provisions that will encourage and allow

maximum use of the navigable airspace by civil aircraft consistent with

national security, the Administrator, in consultation with the Secretary

of Defense, shall—

(A)establish areas in the airspace the Administrator decides are

necessary in the interest of national defense; and

(B) by regulation or order, restrict or prohibit flight of civil aircraft

that the Administrator cannot identify, locate, and control with

available facilities in those areas.

13

In 49 U.S.C. § 44701, the Administrator of the FAA is directed to prescribe

“minimum” safety standards to “promote safe flight of civil aircraft in air

commerce.”1 In our view, directing the FAA to provide minimum safety standards

1

49 U.S.C. § 44701 provides:

(a) Promoting safety.--The Administrator of the Federal Aviation Administration

shall promote safe flight of civil aircraft in air commerce by prescribing—

(1) minimum standards required in the interest of safety for appliances and for the

design, material, construction, quality of work, and performance of aircraft,

aircraft engines, and propellers;

(2) regulations and minimum standards in the interest of safety for—

(A) inspecting, servicing, and overhauling aircraft, aircraft engines, propellers,

and appliances;

(B) equipment and facilities for, and the timing and manner of, the inspecting,

servicing, and overhauling; and

(C) a qualified private person, instead of an officer or employee of the

Administration, to examine and report on the inspecting, servicing, and

overhauling;

(3) regulations required in the interest of safety for the reserve supply of aircraft,

aircraft engines, propellers, appliances, and aircraft fuel and oil, including the

reserve supply of fuel and oil carried in flight;

(4) regulations in the interest of safety for the maximum hours or periods of service

of airmen and other employees of air carriers; and

(5) regulations and minimum standards for other practices, methods, and procedure

the Administrator finds necessary for safety in air commerce and national

security.

(b) Prescribing minimum safety standards.--The Administrator may prescribe

minimum safety standards for—

(1) an air carrier to whom a certificate is issued under section 44705 of this title;

and

(2) operating an airport serving any passenger operation of air carrier aircraft

designed for at least 31 passenger seats.

(c) Reducing and eliminating accidents.--The Administrator shall carry out this

chapter in a way that best tends to reduce or eliminate the possibility or

recurrence of accidents in air transportation. However, the Administrator is not

required to give preference either to air transportation or to other air commerce

in carrying out this chapter.

(d) Considerations and classification of regulations and standards.--When

prescribing a regulation or standard under subsection (a) or (b) of this section

or any of sections 44702-44716 of this title, the Administrator shall—

14

implies not that Congress has totally preempted the field, but instead, that additional

safety measures may be imposed by state and local authorities as Louisiana and

Jefferson Davis Parish Police Jury have done. The local ordinance is in keeping with

the federal directive to provide the “highest possible degree of safety in the public

interest.” 49 U.S.C. §44701(d)(1)(A). It is also consistent with Louisiana state

aviation law. Further, there is no indication in the state laws of any intent to pre-

empt local authority.

Similar analyses are employed, in both the state and federal spheres,

to resolve preemption issues. Hildebrand v. City of New Orleans, 549

So.2d 1218 (La.1989), cert. denied, 494 U.S. 1028, 110 S.Ct. 1476, 108

L.Ed.2d 613 (1990). Inferior legislative power is not supplanted unless

it is the clear and manifest purpose of the higher legislative body to do

so, or unless the exercise of dual authority is repugnant to an indicated

legislative objective. Id. Absent explicit preemptive language, the

courts will measure legislative intent by examining the pervasiveness

of state or federal regulatory schemes, the need for broad-based

uniformity, and the danger of conflict between the enforcement

of local laws and the administration of state or federal programs.

Palermo Land Co. v. Planning Comm’n of Calcasieu Parish, 561 So.2d

482 (La.1990); Hildebrand, supra; cf. Wis. Pub. Intervenor v.

Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991). In the

present matter, unable to point to any statutes explicitly preempting

zoning authority over the siting of airports, defendants argue that there

exists an implied legislative intent to supersede local control.

Federal law gives the Federal Aviation Administration broad

authority to regulate and control use of the navigable airspace. See 49

U.S.C. §§ 40101, 40103; City of Burbank v. Lockheed Air Terminal,

Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973); Garden State

(1) consider—

(A) the duty of an air carrier to provide service with the highest possible

degree of safety in the public interest; and

(B) differences between air transportation and other air commerce; and

(2) classify a regulation or standard appropriate to the differences between air

transportation and other air commerce.

(f) Exemptions.--The Administrator may grant an exemption from a requirement of

a regulation prescribed under subsection (a) or (b) of this section or any of sections

44702-44716 of this title if the Administrator finds the exemption is in the public

interest.

15

Farms, Inc. v. Bay, 77 N.J. 439, 390 A.2d 1177 (1978). But despite

state and local control being supplanted in connection with the

operation and navigation of aircraft, significant local power remains

viable, especially concerning land use planning and the zoning of

airport facilities. Garden State Farms, supra, and authorities therein.

See also City of Burbank, supra (Rehnquist, J., dissenting); Faux–

Burhans v. County Comm’rs of Frederick County, 674 F.Supp. 1172

(D.Md.1987), aff'd. 859 F.2d 149 (4th Cir.1988), cert. denied, 488 U.S.

1042, 109 S.Ct. 869, 102 L.Ed.2d 992 (1989). Furthermore, as shown

by introduced copies of the Federal Air Regulations, 14 C.F.R. §§

103.1–103.23, the FAA has limited its control of ultralight vehicles to

airspace management. Consequently, we find no federal preemption of

Bossier Parish’s zoning authority to locate airports within its

jurisdiction. Cf. Faux–Burhans, supra; Garden State Farms, supra.

We arrive at a similar conclusion in reference to state

preemption. Louisiana’s aeronautics statutes (LSA–R.S. 2:1, et seq.)

and promulgated regulations governing ultralight vehicles (9 La.Reg.

417 (1983)) reveal no intent to supersede the zoning authority granted

to the Bossier Parish Police jury under Act 189 of 1954, Art. 5 § 1. Our

state enactments primarily focus on aircraft and pilot licensing,

navigational aids maintenance, and airport funding and safety, rather

than upon land use or zoning. See LSA–R.S. 2:1, et

seq. Indeed, local authorities unmistakably retain broad control of

areas immediately surrounding airports. See LSA–R.S. 2:381, et

seq. Consequently, recognizing the special authority

of local governments to exercise zoning controls, we find no conflict

between Louisiana’s aeronautics policy and the parish’s power

to regulate land use. Cf. generally St. Charles Gaming Co., Inc. v. The

Riverboat Gaming Comm’n, 94–2697 (La. 01/17/95), 648 So.2d

1310; Palermo Land Co., supra; Hildebrand, supra. See also

Murchison, Recent Developments in Local Government Law, 1990–

1991, 52 La.Law Rev. 541 (1991).

Guillot v. Brooks, 26,544 pp. 4-5, (La.App. 2 Cir. 3/1/95), 651 So.2d 345, 348–49

(emphasis added), writ denied, 95-0776 (La. 4/6/95), 652 So.2d 1338.

We find neither federal nor Louisiana state law pre-empt Jefferson Davis

Parish’s authority to require TANA marker balls on tower guy wires for the

enhanced safety of pilots, tower owners, and property owners. GTP was required to

comply with this local safety requirement. We note that even its own expert,

Benjamin Doyle, said he believed GTP was required to follow the requirement of

the local ordinance.

16

We also reject GTP’s argument that there was insufficient evidence in the

record for the jury to reasonably conclude that GTP knew or should have known

about the ordinance they were required to implement when they became the owner

of the tower. GTP claims ignorance of the local ordinance, but ignorance of the law

is no excuse. Moreover, the record belies its representation. The FAA notified GTP

in writing on March 10, 2011, in its “Marking and Lighting Recommendation” that

the tower must comply with any local ordinances in addition to the federal

requirements. Paul Bergendahl (Bergendahl), an employee of American Tower

Corporation, a real estate investment company and affiliate of GTP, testified as a

representative of GTP. Bergendahl testified that this letter is a common form-letter

from the FAA to tower owners such as GTP which he has seen many times. The

letter in pertinent part states: “This evaluation concerns the effect of the marking

and/or lighting changes on the safe and efficient use of navigable airspace by aircraft

and does not relieve the sponsor [GTP] of compliance responsibilities relating to

any law, ordinance, or regulation of any Federal, State, or local government body”

(Emphasis added).

Curt Bowers (Bowers), retired director of and pilot for Jefferson Davis Parish

Mosquito Abatement (aerial application to eradicate mosquitos), who acted as

volunteer tower coordinator for the parish, testified at trial. Bowers is also a

commercial aerial applicator, i.e. crop duster pilot, of long experience. He explained

that TANA marker balls are required on guy wires to protect pilots, tower owners,

and the property owners who lease property for placement of towers. Bowers

explained that the placement of TANA markers was made a safety requirement

because: “It’s almost virtually impossible to see the guy wires on these towers

without these TANA wire markers…” He further explained: “[TANA markers]

establish within an instance (sic) a three-point system at a glance that gives you a

17

reference of where the guy wire—the outer guy wire of the tower of the direction it

is going to the anchor.” Bowers also explained the effect of having TANA markers

on towers: “Instead of having to focus solely on trying to determine where that guy

wire is, you’re able to focus on all of the other requirements of—of being a pilot and

maneuvering the aircraft in a safe manner if you’re able to at a glance have a

reference as to where obstructions may be in regards to a tower.” He notified GTP

twice by telephone in 2010, after it became the new owner of the tower, that its tower

was not in compliance with the parish’s TANA marker requirement. It was the

province of the jury to assess his credibility as a witness, and there is no basis in the

record by which we could conclude the jury erred in accepting his testimony as true.

After our thorough review of the record we further find there is sufficient

evidence therein from which the jury could reasonably conclude that the absence of

the TANA marker balls presented an unreasonable risk of harm to pilots such as

Precht.

The underlying claim at issue in this matter arises from

La.Civ.Code art. 2317, as modified by La.Civ.Code art. 2317.1.

Louisiana Civil Code Article 2317 provides responsibility “for the

damage occasioned by our own act,” as well as the damage “caused by

the act of persons for whom we are answerable, or of the things which

we have in our custody.” This responsibility is modified by the articles

that follow, including particularly La.Civ.Code art. 2317.1, which

provides:

The owner or custodian of a thing is answerable for

damage occasioned by its ruin, vice, or defect, only upon

a showing that he knew or, in the exercise of reasonable

care, should have known of the ruin, vice, or defect which

caused the damage, that the damage could have been

prevented by the exercise of reasonable care, and that he

failed to exercise such reasonable care. Nothing in this

Article shall preclude the court from the application of the

doctrine of res ipsa loquitur in an appropriate case.

Thus, in order to prevail in a cause of action based on La.Civ.Code art.

2317.1, a plaintiff must prove: (1) that the defendant had custody of the

thing; (2) that it had a vice or defect that presented an unreasonable risk

of harm; (3) that the defendant knew or should have known of the vice

18

or defect; (4) that the damage could have been prevented by the exercise

of reasonable care; and (5) that the defendant failed to exercise this

reasonable care. Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591

(La.App. 3 Cir. 11/5/08), 997 So.2d 814.

McCoy v. Town of Rosepine, 15-898, p. 4 (La.App. 3 Cir. 3/9/16), 187 So.3d 562,

565, writ denied, 16-664, 860 (La. 6/17/16), 192 So. 3d 765, 768.

We have already referenced Bowers’ testimony in this regard. He is an

experienced crop duster pilot and worked with the police jury to determine the need

for and placement of TANA markers on tower guy wires. As an experienced pilot

Bowers explained that the “number one” harm presented by towers without TANA

marker balls on the guy wires is “death to the [pilot] applicator.” Dwayne Bebee

(Bebee), owner of Riceland Aviation and a general aviation pilot testified. When

asked if he, as an experienced pilot, found TANA marker balls on guy wires helpful,

he said: “Yes. Visibility is everything when you’re flying.” Dr. Robert Post, Phd.

(Dr. Post), testified as an expert witness qualified in “vision visibility, attention, and

visual sciences.” Dr. Post testified that he has been qualified as an expert witness in

over 1,500 cases and estimated he was an expert for the defense in about 60% of the

cases and for plaintiffs in about 40% of those cases. He testified that the half-inch

guy wires used to secure this tower are hard to see because of their size and because

they are often in a pilot’s peripheral vision. Dr. Post explained that unmarked guy

wires require a more time-consuming sequential search to see them and realize

where they are located proximate to the plane, whereas, those marked with TANA

markers “pop out” in one’s vision quicker (Emphasis added).

They’re visible immediately, and they –they don’t immediately affect

the wires’ visibility, but you know darn well that the wire runs from the

center of one ball to the center of the other so you know where the wire

is and more or less on the basis of pop out or parallel search

information. The gist of the story is the balls help the visual search by

changing the nature of the visual search. It’s—it’s now, oh, pop out,

there’s the wire as compared to is the wire here, is the wire here, is the

wire here, it is the wire—oh it is, you know takes more time.

19

Dr. Post also explained that TANA marker balls allow the viewer to “connect

the dots” and quickly infer the location and existence of the wire. Humans, he says,

are very good at “connecting the dots,” and “so we connect the dots in order to see

the wire.” When asked if a “pilot would (be) able to interpret a line down to the

ground in a reasonable degree of certainty to determine the end of the guy wires”

when they are marked with TANA markers Dr. Post responded: “That’s exactly the

relevance of this to this case.” According to his expertise, seeing the marked wires

is “a snap. You—you look. You see the marker balls, and you say, oh, there’s the

wire.” He also explained that when:

you’re flying at high velocity towards an object, time is your enemy.

The—the more time it takes to figure out where a hazard is the more

likely it is that you’re going to encounter the hazard. So, effortful visual

searches increase the likelihood of accidents in this context, which is

why—why the marker balls are sold. (Emphasis added).

Lemuel C. Shattuck (Shattuck), testified as an expert in “aviation, aviation

regulatory compliance and aviation safety.” He has logged over 11,000 total flight

hours, 9,500 of which are in agricultural aviation. He retired as an aerial applicator

after twenty nine years of flying. He noted in his testimony that his flight record is

not as impressive as Precht’s who logged some “19,000 hours” of flight time.

Shattuck opined that the absence of TANA marker balls on the tower guy wires

“were a substantial factor”(our emphasis) in causing the wire strike. When asked

if he thought that the accident would “more likely than not” have been prevented by

the presence of TANA marker balls he responded: “That’s my opinion.” GTP’s

expert, Colonel Jameel Joseph (Colonel Joseph), testified he did not have the

expertise to give an opinion regarding “marking” and thus was unable to say whether

the absence of TANA markers on the guy wires presented an unreasonable risk of

harm.

20

Further, Shattuck explained what Precht was likely going through when he

made his final pass and clipped the tower wire causing him to crash (emphasis

added):

Now, on the second pass, when he comes in, he’s got a lot of stuff going

on. At one point, I think he saw the wires, okay. The thing is that you

have things competing with his attention. I wouldn’t call it a lack of

situational awareness. When you’re coming down, you’re getting

lower to the ground. The ground is coming up. You’re watching that

wire ‘cause it’s like a snake over there. So you’ve got to check other

stuff. You can’t just watch it. You just can’t stare at that wire. The

ground’s coming. You have to round out the airplane so you don’t hit

the ground. Plus, a quarter mile out, you’ve got this thing coming up,

so you kind of have to take a look at that. You have a lot of things

competing for your attention. I think its probable that he got down into

the pass, glanced away from the wire to watch the ground coming up or

whatever—and I’m talking about less than a—much less than a second.

Just glance away from the wire and looked back to find the wire and

was unable to reacquire the wire. He got in, as Dr. Post said, a where

is Waldo moment, but he had only that last half a second. So I think

it’s highly probable he came down, glanced away—which he had to.

He had to glance away. You can’t just stare at the wire and, you know,

fly the airplane. I think he glanced away and went back to find it and

boom it was gone. Plus, when he rounded up—when he rounded out at

the bottom, the nose of that airplane is coming up probably within a

second-and-a-half or two seconds before the wire. He couldn’t even

see the anchor or the wire at that point. It’d be covered—covered up

by the body of the airplane.

Plus, he had a seven-knot north wind. He actually had a three

degree wind correction which would have exacerbated the problem,

but—so I think that’s—I think that’s highly probable if he—in the

absence of the TANA markers—I don’t—I don’t know if he was—it

was more likely in the absence of the TANA markers. The TANA

markers I think would have made it—enabled him to reacquire that wire

right away, and if he—I think that lag in being able to reacquire the

wire was probably the problem. Now, you know, he didn’t fly that

airplane into the wire. He just took—he barely hit the wire. He took

two or three feet of wing off that wing, so he didn’t hit the wire dead

on. He glanced away. You know, it was a miscalculation, and, you

know, there was a miscalculation involved on his part. There’s no

denying that, you know. The thing is it’s my opinion if the wires had

been marked with those TANA markers in accordance with the

Jefferson Davis ordinance as they’re required to be I think it would have

foreclosed the possibility of that accident happened(sic)—or let me say

that better, it would have reduced the likelihood of that accident

happening.

21

Thus, the record shows the jury could reasonably conclude that the absence

of the TANA marker balls presented an unreasonable risk of harm to pilots such as

Precht and was a “substantial” cause of the crash. Contrary to GTP’s assertion, its

tower was not free of defects and it knew of the existence of the defect which caused

damage that it could have prevented in the “exercise of reasonable care”. See

La.Civ.Code art. 2317.1 and 2322. In short, GTP breached the duty it owed Precht

and that failure substantially contributed to the plane crash. Thus, we find no merit

to GTP’s first and second assignments of error.

GTP asserts the jury erred in assessing 21% fault to Precht for striking the guy

wire and thereby damaging the tower and crashing to his death. We disagree.

Indisputably, more than one party may be at fault for the damages

sustained in the vehicular accident giving rise to these proceedings.

This is premised in Louisiana’s comparative negligence scheme

articulated in La. C.C. art. 2323. In deciding which parties are

responsible, this Court has adopted a duty-risk analysis to establish the

existence of delictual liability under La. C.C. art. 2315. Lazard v.

Foti, 02–2888, p. 3 (La.10/21/03), 859 So.2d 656, 659. “In determining

whether liability exists under a duty-risk analysis, a plaintiff must prove

that the conduct in question was the cause-in-fact of the resulting harm,

that [the] defendant owed a duty to [the] plaintiff which [the] defendant

breached and that the risk of harm was within the scope of protection

afforded by the duty breached.” Campbell v. La. Dept. of Transp. &

Dev., 94–1052, p. 5 (La.1/17/95), 648 So.2d 898, 901, citing Mundy v.

Dept. of Health and Human Resources, 620 So.2d 811 (La.1993). The

duty-risk analysis is applicable for our consideration of whether Mr.

Brooks and Mr. Fontenot should be apportioned fault for the accident.

Fontenot, 23 So.3d at 267.

In Darbonne v. Bertrand Investments, Inc., 11-1224, pp.4-5 (La.App. 3 Cir.

3/7/12) (unpublished opinion), we explained the further holding in Fontenot

regarding the deference owed the fact finder in allocating fault:

Regarding the allocation of fault, the court

in Fontenot, 23 So.3d at 274 stated:

The law provides we must give great deference to the

allocation of fault as determined by the trier of

fact. Clement v. Frey, 95–1119, 95–1163, p. 7

22

(La.1/16/96), 666 So.2d 607, 610. We are also aware that

the allocation of fault is not an exact science, or the search

for one precise ratio, but rather an acceptable range, and

that any allocation by the factfinder within that range

cannot be clearly wrong. Foley v. Entergy La., Inc., 06–

0983, p. 32 (La.11/29/06), 946 So.2d 144, 166. Only after

making a determination that the trier of fact’s

apportionment of fault is clearly wrong can an appellate

court disturb the award. Clement, 95–1119 at 7, 666 So.2d

at 611.

As to the allocation of fault, the trier of fact is bound

to consider the nature of each party’s wrongful conduct

and the extent of the causal relationship between that

conduct and the damages claimed. Watson [v. State Farm

Fire and Cas. Ins. Co.], 469 So.2d [967,] 971. We are

guided by the factors articulated in Watson: (1) whether

the conduct resulted from inadvertence or involved an

awareness of the danger, (2) how great a risk was created

by the conduct, (3) the significance of what was sought by

the conduct, (4) the capacities of the actor, whether

superior or inferior, and (5) any extenuating circumstances

which might require the actor to proceed in haste, without

proper thought. Id., 469 So.2d at 974.

As the testimony of Shattuck, and other witnesses referenced above shows,

the jury had a more than reasonable basis to asses less fault to Precht for a

momentary miscalculation than to GTP for failing to place TANA markers on its

tower. Additionally, Shattuck described Precht as:

an outstanding pilot [who] ha[d] an unbelievable amount of experience,

19,000 hours. He was active in the NAAA. He was the president at one

point of the Louisiana Agricultural aviation Association which runs—

they run sponsor programs called PAASS, which are professional aerial

applicator safety programs. So he was active in the—in the

organizations. He—one thing I noticed that was interesting when—

when they decided to quit—we used to—and you’ve probably seen

them around, but we used to have piston air engines on these airplanes

that we were around, and we called them radial engines, and we went

to turbines, which are essentially jets that turn a propeller, fifteen years

ago we started going to them. And when Mr. Precht transitioned from

pistons to turbines, he went to SIMCON in Florida and SIMCON is a

big simulator and safety company. So that is evidence that he did it

right, and I was impressed with that because my turbine transition

consisted of just move this lever here and press this button, and if this

needle goes into the red, you’re fired. So I thought that was very

impressive that he had taken the time to go down and learn to do it

correctly.

23

Shattuck also testified he did not see any evidence to indicate Precht was fatigued as

suggested by GTP, explaining:

He flew—the Satloc records the time, and the—and the—and the flight

in the evening lasted two hours and five minutes, and they logged one

hour and 45 minutes that morning, so that –he flew three hours and fifty

minutes that day, which is not very much at all. It’s not atypical to fly

ten or even 12 hours during a—the busy time of the season.

Shattuck also testified he saw no evidence that Precht had become complacent

about flying repetitively that day as suggested by GTP’s expert as a possible

explanation for the crash:

These big towers with the guys [wires] are scarry (sic). I flew

for 30 years,, and they were scarry(sic). I think they’re scarry(sic) to

every ag pilot in—well, “scarry,”(sic). That’s the wrong word. You’re

not afraid of them, but you approach them with respect. Anytime

you’re working in the vicinity of one of those towers as I think –as

Joseph—Colonel Joseph said—how did he say it? You have to keep

your head in the game and I think is the way he put it. That’s absolutely

true. You don’t get complacent around an obstacle like that. It—it’s—

it’s—as Colonel Joseph said it’s a dynamic environment. You don’t

get complacent any time.

In response to GTP’s expert, Colonel Joseph’s, testimony that Precht was just

flying in repetitive circles all day long and thus might have become complacent from

the monotony, Shattuck further explained why he opined that was not correct.

No two passes are the same in that—in that business. You—you

always have to be aware of what’s coming up, and you have to be

thinking—we call it staying in front of the airplane. If –when a—and

new students are always behind the airplane. The airplane’s out there

and they’re back here doing something. You have to stay in front of

the airplane which is just basically plan ahead.

....

The fact that he was engaged after 19,000 hours of aerial

application bespeaks that he was doing something correctly as—as far

as—as safety—as safety goes. He had—to my knowledge--, he had no

accidents or incidents prior to that day. He had a clean record.

Shattuck also testified that “we will never know exactly what

happened…what he was doing at that point.”

24

Bowers testified that he believed Precht clipped the guy wire because it was

not visible to him:

I would say that the guy wire was not visible. I don’t think that he

intentionally was trying to fly through the guy wires of—of the tower.

What I’m stating is that his distance from the guy wire was within

that—that distance because the guy wire was not visible. I would state

that he was not trying to see how close to the guy wire he could get on

that pass.

Bowers also testified that he “observed [Precht’s] operations, and [he] never

saw any fault of Mr. Precht as an—as an operator, an aerial operator. I would

emphatically say that I—on all of the instances that I was aware of Mr. Precht’s

operation—aerial operations, I never saw any fault in his operation.”

After a thorough review of the record, we cannot say the jury’s allocation of

fault to Precht was outside an acceptable range given the testimony we have

recounted above. We find the jury’s allocation of fault was reasonably based on the

evidence before it and there is no basis for this court to disturb the jury’s finding.

Finally, GTP asserts “[t]he jury awarded damages not allowed by law.” GTP

asserts the monetary amount of the damage award for the total loss of the plane is

not consistent with the supreme court’s directive in State Farm Mutual Automobile

Insurance Co. v. Berthelot, 98-1011 (La. 4/13/99), 732 So.2d 1230. We agree that

Berthelot sets forth the measure of damages for the total loss of a vehicle, or in this

case an airplane, as the “value[] just before the accident, less its salvage value, if

any.” Id. at 1234. But we do not agree with GTP’s assertion that the jury’s award

runs afoul of this standard. GTP’s argument relies on its calculation of the amount

of the loss based on its valuation, but the record contains testimony by experts and

lay witnesses from which the jury could reasonably arrive at its figure properly

applying Berthelot.

Every act of man that causes damage to another obliges him by

whose fault it happened to repair it. La.Civ.Code art. 2315. One injured

25

through the fault of another is entitled to full indemnification for

damages caused thereby. Coleman v. Victor, 326 So.2d 344

(La.1976); Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151

(1971). In such a case, “[t]he obligation of defendant ... is to indemnify

plaintiff—to put him in the position that he would have occupied if the

injury complained of had not been inflicted on him.” Coleman, 326

So.2d at 346, quoting Lambert v. American Box Co., 144 La. 604, 613,

81 So. 95, 98 (1919).

As a general rule, the recovery of damages to a vehicle is limited

to the cost of repair. Giles Lafayette v. State Farm Mut. Auto. Ins.

Co., 467 So.2d 1309 (La.App. 3 Cir.), writ not considered, 472 So.2d

911 (La.1985). However, where a vehicle has been totally destroyed or

so badly damaged that the cost of repair exceeds its value, the measure

of damages is the value of the vehicle just before the accident, less its

salvage value, if any. Holt v. Rapides Parish Police Jury, 574 So.2d

525 (La.App. 3 Cir.1991); Calk v. Grain Dealers Mut. Ins. Co., 508

So.2d 624 (La.App. 2 Cir.1987); Brown v. Morgan, 449 So.2d 606

(La.App. 1 Cir.1984); Sibley v. Insured Lloyds, 442 So.2d 627 (La.App.

1 Cir.1983); Bernard v. Fidelity & Cas. Co. of N.Y., 186 So.2d 904

(La.App. 1 Cir.1966).

Berthelot,732 So.2d at 1234 (emphasis added).

Bebee testified that Riceland did a lot of expensive improvements on the

airplane after buying it. Shattuck testified that just the overhaul of this particular

type of turbine engine on this airplane, as was done by Riceland before the crash, is

between $350,000 and $450,000. Considering all improvements to the plane, Bebee

gave it a “fair market value” of between $700,000 to $750,000. No evidence was

introduced contradicting the reasonableness of his figures. Shaen Phillips (Phillips),

an adjuster for USAIG, testified as an expert witness in the field of insurance

adjustment for aircraft. He testified USAIG paid $7,376.80 to have the airplane

removed after the crash and paid a total of $1,766.25 for storage of the crashed

airplane. He determined the plane was a total loss. GTP does not dispute this

conclusion. Phillips placed a fair market value of $680,000 on the airplane at the

time of the crash. In explaining his methodology for arriving at his valuation he

testified he looked at recent sales of similar aircraft and advertisements of similar

aircrafts for sale. He testified he had “some difficulty” finding comparable sales

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because this airplane is unique. He, too, noted Riceland equipped Precht’s plane

with an expensive turbine engine after acquiring the aircraft and added expensive

avionics. According to Phillips, there are “just under 200 of th[e]se aircraft flying

in the U.S. today, and of those, approximately 200 there’s only a handful that are

turbine equipped” like this airplane. He explained that just the cost to make the

conversion to turbine averages $200,000, which does not include the cost of the

engine or fuselage. After considering all of these costs and factors Phillips arrived

at his valuation. Importantly, when asked his opinion of Bebee’s fair market

valuation of between $700,000 and $750,000, he said “I could not take exception to

that whatsoever… I absolutely couldn’t argue with that.”(emphasis added) Phillips

also stated that when he was able to find an available engine similar to the one in

Precht’s plane it now costs $800,000 with 5,600 hours on it since its last overhaul.

Another such engine priced within sixty days of trial “was just under a million

dollars for the engine, just for the engine.” At the time of the crash Precht’s plane

had only 4,500 hours logged and was largely overhauled just 1,000 hours prior to

the crash. He also stated that the propeller alone costs $40,000 and the one on

Precht’s plane had only eighty-one hours logged since it was overhauled. Evidence

shows USAIG received a total of $62,718 for salvage value including electronics.

The jury awarded $645,139.58 in damages for the plane. The testimony of

Bebee and Phillips is uncontradicted and each is corroborated by the other. It was

for the jury to reasonably determine the fair market value based on the testimony

presented establishing fair market value and the amount of salvage value as reflected

by the bill of sale introduced as evidence. Simple mathematics demonstrates that

the figure awarded by the jury is not in derogation of the directive in Berthelot.

Based on the figures presented to the jury the award could reasonably have ranged

from a high of at least $687,282 to a low of $617,282. Thus, while the award might

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be lower than the evidence suggests, we cannot say the jury manifestly erred in

arriving at its figure. USAIG has not appealed the award as being too low. We

therefore find no merit in GTP’s contention that the jury’s damage award runs afoul

of Bertholet simply because GTP insists the jury had to use $680,000 as its highest

value.

For the reasons stated, we affirm the trial court judgment in all respects. All

costs of this appeal are assessed against Appellants GTP Infrastructure I, LLC and

CNA Insurance Company.

AFFIRMED.

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