rejecting defendant’s argument that approval by the Civil Aeronautics Administration of an airplane’s propeller system was conclusive of compliance with the standard of care
How later courts described this case
- rejecting defendant’s argument that approval by the Civil Aeronautics Administration of an airplane’s propeller system was conclusive of compliance with the standard of care
- survival provisions of state death statute
- duty of care owed by the manufacturer of an airplane propeller system, “an instrumentality likely to endanger the public”
- implied warranty of fitness
Written by the judges who cited it.
The opinion
BIGGS, Chief Judge
(dissenting).
I concur in the views expressed in Judge Freedman’s dissenting opinion. But I wish to make it clear that point “(3)” of the opinion of this court fol *244 lowing the filing of the petition for rehearing is one of unique and unusual importance.
The trial court and this court both have treated June 20, 1956, the date of the accident’ as critical. Liability is said to be bottomed on a “continuing duty” of a kind with which the writer is unfamiliar and which seems to be an extension of existing law. In such cases as MacPherson v. Buick Motor Co., 217 N.Y. 382 , 111 N.E. 1050 , L.R.A.1916F, 696 (1916); North American Aviation, Inc. v. Hughes, 247 F.2d 517 (9 Cir. 1957), cert. denied, 355 U.S. 914 , 78 S.Ct. 341 , 2 L.Ed.2d 273 (1958), and Sieracki v. Seas Shipping Co., Inc., 149 F.2d 98 (3 Cir. 1945), aff’d., 328 U.S. 85 , 66 S.Ct. 872 , 90 L.Ed. 1099 (1946), the negligence was found in the manufacture or design of the dangerous machine or instrumentality prior to or at the time of its delivery to the user. But the extension of the MacPherson v. Buick doctrine, applicable to maritime torts, via Sieracki, in the case at bar consists of the injection of the concept that the manufacturer of a dangerous device or instrumentality, when sold, is liable to the user, if at any time prior to the accident, by the further development of the science or the art of which it is a part, the machine or device may be so developed or perfected that the accident could have been avoided. The obligation imposed by the court below and by this court under point “(3)” 1 begins with the delivery of the chattel and seemingly persists until it is no longer in use.
Such an extension of the law of liability requires, in my opinion, prior to its adoption, a full review and discussion and a hearing before this court en banc.
For these reasons I dissent from the denial of the petition for rehearing.
I am authorized to state that Judge Freedman joins in the views expressed in this opinion.
. Point “(2)” also requires full argument. Is there a legal duty, as well as a moral one, for the manufacturer of a dangerous article to supply the user of the article after its sale with a protective device which would render it safer?