Opposition Brief — Beech Aircraft Corp. v. Elsworth

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

- Supreme VOUrt, ¥.o |

FILED

~ APR 18 1985

TEVAS

No. 84-1471 any

IN THE

Supreme Court

OF THE

United States

Ooroser Term, 1984

Beecs Armcrart Corporation,

Petitioner,

vB.

Dozis Ersworts, et al., Mrprep Best, et al.,

Sawpra Dunaway, et al., and Jo Ann Mimo, et al,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

Danret C. Catucarr*®

Desoran MirzENMACHER

Macawna, Catucart, McCarruy &

Prerry

1801 Avenue of the Stars

Suite 810

Los Angeles, California 90067

(213) 553-6630

Attorneys for Respondents

Elsworth, Best and Dunaway

* Attorney of Record

Bowne of Los Angeles, Inc., Law Printers. (213) 742-6600.

QUESTION PRESENTED FOR REVIEW

Can the petitioning aircraft manufacturer assert “the

preemption doctrine” to avoid paying the responding pilot’s

and passengers’ heirs’ judgment for wrongful death dam-

ages unanimously affirmed en banc by the California Su-

preme Court where the judgment was entered on a general

jury verdict based on five different theories of products

liability including a negligent design theory using a negli-

gence per se jury instruction authorized by a state statute

and supported by five federal air safety regulations simply

because sixteen years prior to the fatal aircrash the Civil

Aeronautics Administration spot-checked compliance with

just one of the five regulations under conditions dissimilar

from those encountered by the accident aircraft?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ....... i

TABLE OF AUTHORITIES............... oe

SUMMARY ....... oa cha eae kek gual hat al 1

CONSTITUTIONAL PROVISIONS APPLICABLE 2

yy wtp s i ngs # °°: ERR Renae at ere iF 2

COUNTERSTATEMENT OF THE CASE ......... 2

I Ts ee ike od span sss 2

The Reasons Underlying the General Verdict in

Favor of the Heirs Misstated by Beech... 3

Jurisdictional Defects: Beech’s Failure to Preserve

EES Oe | ae eae 4

Essential Facts About the Travel Air Certification

Misstated by Beech Which Change the Nature of

NRE EE aceasta aa 5

The Unanimous En Banc California Supreme Court

Opinion Reaching A Right and Fair Result... 7

REASONS FOR DENYING THE WRIT: _.......... 8

L |

THE CALIFORNIA SUPREME COURT’S UNAN-

IMOUS EN BANC OPINION ALLOWING

USE OF FEDERAL AIRSAFETY REGULA-

TIONS TO SUPPORT A NEGLIGENCE PER SE

JURY INSTRUCTION MANDATED BY STATE

STATUTE DID NOT WRONGLY DECIDE ANY

Ps SE nn ee he cece vccwseee 8

THE ALLEGED CONFLICTS ARE ILLUSORY . 11

SII 6.0502 G nd co eee teow vege

Pe NS on he —

ili

TABLE OF AUTHORITIES

Cases

Brunwasser v. Trans World Airlines, Inc., 541 F. Supp.

Ss Beet Pees es BOO) 2s... wow eee.

Campos v. Puerto Rico Sun Oil Co., Inc., 536 F. 2d 970

I ee ee. OS. -

Chicago & N.W. Transportation Co. v. Kalo Brick &

po eS | SS ne

City of Burbank v. Lockheed Air Terminal, 411 U.S.

eons an cs hy xh nn wk? a ace

Diamond v. Grow, 243 Cal. App. 2d 396, 399, 52 Cal.

ees he al een:

Eastern Airlines, Inc. v. Union Trust Co., 221 F. 2d 62

(D.C. Cir. 1955), rev’d on other grounds, 350 U.S.

a Ste Pay gt ch hath ca ene. «

Erie Railroad Co. v. Purdy, 185 U.S. 148, 153-4 (1902)

Fischer v. Bell Helicopter Co., 403 F. Supp. 1165, 1174

I Brie oie esses vere cee.

Gatenby v. Altoona Aviation Corp., 407 F. 2d 443 (3d

MI tes ohare, 2. es See cee cc cv loss nce:

Gaunce v. deVincentis, 708 F. 2d 1290 (7th Cir. 1983) _.

Hathorn vy. Lovorn, 457 U.S. 255, 266 (1982) ......_..

Heckel v. Beech Aircraft Corp., 467 F. Supp. 278, 281

ES Se a, ae eee

Interstate Natural Gas Co. v. Southern California Gas

Co., 209 F’. 2d 380 (9th Cir. 1953) ..................

Johnson v. Steam-Gauge Lantern Co., 25 N.Y.S. 689,

eS ag

Krouse v. Nimocks, 8 Cal. 2d 482, 483, 66 P. 2d 438

(1937)

TaBLeE or AUTHORITIES

CasEs

Page

Lightenburger v. United States, 298 F. Supp. 813, 838,

rev'd on other grounds, 460 F. 2d 391 (9th Cir.),

cert. denied, 409 U.S. 983 (1969) .................. 13

Local 533, Transport Workers Union v. Eastern Air

Lines, Inc., 544 F. Supp. 1315, 1333 (S.D.N.Y. 1982),

modified on other grounds, 695 F. 2d 668 (2nd Cir.

rs i era re oh aly on seas Ak ge wey ape 13

McGee v. Cessna Aircraft Co., 1389 Cal. App. 3d 179,

185-7, 188 Cal. Bptr. 542 (1963) ................... 13

O’Brien v. Skinner, 414 U.S. 524, 531 (1974) .......... 8

O’Donnell v. Bond, 510 F. Supp. 925 (D.D.C. 1981) ... 12

Ravreby v. United Airlines, Inc., 293 N.W. 2d 260 (Iowa

aie tt eat Ni te pe are em ics pa ag 9

Rice v. Sioux City Memorial Park Sidiahatie. Inc., 349

i a pe ey eau 8

Roshenhan v. United States, 131 F. 2d 932 (10th Cir.

1942), cert. denied, 318 U.S. 790 (1943) ............ 12

Rudelson v. United States, 431 F. Supp. 1101, 1107

(C.D. Cal. 1977), aff’d, 602 F. 2d 1326 (9th Cir. 1979) 13

Silkwood v. Kerr-McGee, _.__. U.S. ___.,, 104 S.. Ct.

RG i ee ne 11

Todd v. United States, 384 F. Supp. 1284, 1294 (M.D.

Fla. 1975), aff’d, 553 F. 2d 384 (5th Cir. 1977) .... 13

United States v. S.A. Empressa de Viaco Aerea Rio

Grandense, U.S. —_, 104 S. Ct. 2755, 81 L. Ed.

PSS SRT le nen Cane 9, 10

Warner Construction Co. v. City of Los Angeles, 2 Cal.

3d 285, 302-3, 85 Cal. Rptr. 444 (1970) . a 5

Whitney National Bank v. Bank of cae Skene &

Trust Co., 379 U.S. 411 (1965)

Constitutional, Statutory and Regulatory Provisions

We I I ED es soon ck cle e heen 2

U.S. CONST. Tenth Amendment (1791) ............. 2

CAs Gee es hs ee ee 5

49 U.S.C. §1486(a) (Dec. 31,1958) ............... 6, 7,12

49 U.S.C. §1506 (1958) .................... 2, 5, 8, 10

CIVIL AERONAUTICS ACT OF 1938 ............. 8

FEDERAL AVIATION ACT OF 1958 .............. 8

CAL. EVID. CODE §669 (1967) .................. 2, 5, 8

a se wpe a pba 4

SRD Fick os ks Hh eek Cin pee tdeks Seeks: 3

so o5 5S oS Ge SbNt ee Ry chk es eee eek’ 4

Reiss FW aut Ketwes oS 8 BE ReRs Oe 4

CN ive ss, ee ee 6

ee ee, Cac Fel pak Ceca fans. 3

14 Cilla Sete oe an 6

Uae es ee Ce oS eee 1, 14

Textbooks, Legislative Histories and Other Authorities

A.F. Lowenfeld, AVIATION LAW (2d ed. 1981) .... 9

S. REP. NO. 2635, 75th Cong., 3d Sess. 78 (1938). ... 9

S. REP, NO. 1161, 75th Cong., 3d Sess.2 (1938). . ... 9

H.R. Rep. No. 2254, 75th Cong., 3d Sess. 11 (1938) .... 9

California Jury Instruction — Civil, BAJI 3.45 (6th

Sire a ha i ew Ss SO i ee es wee 5

i‘

ales

No. 84-1471

IN THE

Supreme Court

OF THE

United States

OctosBER TERM, 1984

Brecu ArrcraFrt CoRPoRaTION,

Petitioner,

vs.

Doris ELswortH, et al., Mruprep Best, et al.,

Sanpka Dunaway, et al., and Jo Ann Mimo, et al.,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

SUMMARY

Respondents and passengers’ heirs DORIS ELSWORTH,

et al, MILDRED BEST, et al., and SANDRA DUNAWAY,

et al., (“passengers’ heirs”) believe that the unanimous

en banc decision of the California Supreme Court affirm-

ing their judgment for wrongful death damages should not

be altered and no writ of certiorari should issue because

petitioner and aircraft manufacturer BEECH AIRCRAFT

CORPORATION (“Beech”), has not demonstrated “spe-

cial and important reasons therefor.” U.S.S. CT. Rule 17.1.

Because Beech has obtained a stay of enforcement of judg-

ment from the trial court, passengers’ heirs pray that this

Court end their eleven years of financial hardship by deny-

ing the unfounded petition as fast as possible.

CONSTITUTIONAL PROVISIONS APPLICABLE

In addition to U.S. CONST. Art. VI cl. 2, this case in-

volves:

U.S. CONST. Tenth Amendment (1791)

“The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the State respectively, or to the people.”

STATUTES INVOLVED

This case involves 49 U.S.C. §1506 (1958) which provides:

“Nothing coutained in this chapter shall in any way

abridge or alter the remedies now existing at common

law or by statute, but the provisions of this chapter

are in addition to such remedies.”

It also involves CAL. EVID. CODE §669 (1967) which

codifies the common law doctrine of negligence per se. See,

footnote 1 at la-2a of the petition appendix.

COUNTERSTATEMENT OF THE CASE

The Fatal Airctush

Eleven years ago on Father’s Day, June 16, 1974, pilot

Edward Miro of Miro Aviation flew passengers Richard

Elsworth, Robert Best and Neldon Dunaway in a Travel

Air twin-engine aircraft designed and manufactured by

petitioner Beech. At some point Mr. Miro turned off the

left fuel selector, shut down the left engine and feathered

the left propeller blades. This procedure was proper in the

event of engine malfunction. Whatever his reason, feather-

ing the propeller and shutting off the left engine did not

affect the stall/spin characteristics of the aircraft under

foreseeable single-engine flight. The passengers’ first and

only contact with the Beech Travel Air lasted just seven

minutes. All four men died when the Beech Travel Air

stalled and spun to the ground in a flat spin.

The Reasons Underlying the General Verdict in Favor

of the Heirs Misstated by Beech

The petition understates respondents’ contentions at

trial. The wives and children of the four decedents filed

wrongful death actions against Beech based on five dif-

ferent theories of liability, v.e., negligent testing, negligent

design, defective design, negligent failure to warn and de-

fective failure to warn. Respondents contended that:

a. BEECH negligently tested its Travel Air aircraft

prior to manufacture of the one which crashed;

b. The Travel Air landing configuration stall speed

is 71.7 mph not under 70 mph as reported by BEECH ;

c. The single-engine rate of climb is minus 50 feet per

minute not at least plus 102.8 feet per minute as required

by Civil Air Regulation (CAR) 3.85(b) for aircraft with

landing configuration stall speeds in excess of 70 mph;

d. The BEECH Owners Handbook contains no in-

formation on single-engine airspeeds at stall;

e. The BEECH Owners Handbook fails to inform

the pilot at which altitudes the single-engine stall speed

will be encountered before the single-engine minimum

contro! speed ;

f. BEECH Owners Handbook contains no informa-

tion on single-engine minimum control speeds;

g. The stall warning light and horn do not give the

pilot at least 5 and not more than 10 mph warning prior

to stall as requircd by CAR 3.120(f) ;

——————————E=-”-~—-—-—-———

h. The sound of the gear warning horn, which goes

on when the propeller is feathered, masks the sound of

the stall warning horn;

i. The BEECH Owners Handbook incorrectly states

that the stall warning gives the pilot ample time to cor-

rect his attitude at all flight altitudes, weights and air-

speeds ;

j. The BEECH Owners Handbook incorrectly de-

scribes the single-engine flight and handling characteris-

tics as “excellent ;”

k. Once the Travel Air stalls during single-engine

flight, the aircraft suddenly and abruptly rolls and yaws

into a classic spin entry before the surprised pilot can

avoid the spin, which undue spinning tendency violates

CARs 3.123 and 3.124;

l. The BEECH Owners Handbook contains no warn-

ing concerning the single-engine stall/spin characteris-

tics of the aircraft;

m The exceptional degree of skill and alertness re-

quired to avoid a fully developed spin and to effectuate

spin recovery violates CAR 3.106; and

n. The spin recovery technique in the BEECH Owners

Handbook is dangerously inaccurate, as BEECH later

acknowledged.

The trial lasted four months. The jury deliberated two

weeks before returning a general verdict awarding dam-

ages to all of the heirs.

Jurisdictional Defects: Beech’s Failure to Preserve

Issues for Review

The petition quotes misleading excerpts of respondents’

counsel’s closing trial argument taken out of context. At

trial Beech did not object to this argument and request that

the jury be admonished. Beech thus waived any objection

to those remarks. Warner Construction Co. v. City of Los

Angeles, 2 Cal.3d 285, 302-3, 85 Cal. Rptr. 444 (1970). See

13a.

Beech never claimed that any of the heirs’ five theories

of liability were improper. Confronted with abundani evi-

dence supporting the verdict, Beech never claimed that the

verdict was not supported by substantial evidence. Beech

also did not claim that the jury awarded excessive damages.

On appeal, Beech challenged only the “violation” element

of BAJI 3.45, the standard negligence per se jury instruc-

tion mandated by CAL. EVID. CODE 4669, originally

claiming that federal “primary jurisdiction” barred its use.

Because Beech did not offer an accurate alternate instruc-

tion at trial, its appeal was limited to whether giving BAJI

3.45 as applied only to the heirs’ neglect design theory con-

stituted a miscarriage of justice. CAL. CONST. ART. V1

§13. In a brief before the California Supreme Court, how-

ever, Beech correctly conceded that federal regulation does

not occupy the field of air safety. See, e.g., 49 U.S.C. §1506.

Contrary to its present petition, Beech cannot resurrect

that argument before this Court. Erie Railroad Co. v.

Purdy, 185 U.S. 148, 153-4 (1902).

Essential Facts About the Travel Air Certification

Misstated by Beech Which Change the Nature of the

Legal Issues

The petition presents an inaccurate and misleading his-

tory of the Travel Air certification. The evideuce adduced

at trial established that Beech employees tested, inspected

and kept all records regarding the Travel Air under the

“Delegation Option.” The Civil Aeronautics Administra-

tion (“CAA”) only issued the certificate. It is uncontested

that Beech manufactured and certified the accident aircraft

on July 24, 1958, without proper flight tests. The CAA later

told Beech :

“(In the request for issuance of a type certificate for

the airplane, it was certified that the airplane co aplied

with the applicable airworthiness requirements when

in fact, you had not determined that it complied with

this particular regulation [CAR 3.124(a)]. Under these

circumstances, in so certifying, you failed to discharge

the responsibility placed upon you by Part 410 of the

Regulations ... Your performance, in this case, is less

than we believe reasonable to expect from a manu-

facturer to whom the privileges of the Delegated Op-

tion Las been granted.”

Absent the required testing the CAA had no authority to

issue a type certificate. 14 C.F.R. §§21.231-21.293.

On August 8, 1958, after another fatal aircrash, Beech

flight-tested the Travel Air for compliance with CAR

3.124(a) only, not the other 4 CARs at issue. The CAA

representative flew in a chase plane where he could not

observe how Beech’s test pilot manipulated the aircraft

controls. As the test conditions indicate, he only “spot

checked” compliance with CAR 3.124(a). None of the flights

tested the aircraft’s ability to recover from fully developed

spins (i.¢., two or more turns). Performed at 12,000 feet

pressure altitude, none of the flights demonstrated the air-

craft’s performance under foreseeable true asymetric power

conditions. A Beech Safety Communique later admitted:

“If ... the airplane is allowed to become fully stalled

while one engine is providing lift-producing thrust, a

rapid rolling and yawing motion may develop even

against full aileron and rudder, resulting in the air-

plane becoming inverted during the onset of a spinning

motion.”

Contrary to the petition, no means existed to challenge

the certification on July 24, 1958, or when Beech flight-tested

the Travel Air on August 8, 1958, because 49 U.S.C.

§1486(a) did not become effective until December 31, 1958.

In July of 1958, one of the passengers’ heirs had not yet

been conceived and another was only eight years old. Their

decedents would have no contact with the aircraft until their

fatal seven minute flight almost sixteen years later. Con-

trary to the petition, the heirs sought compensatory dam-

ages for the deaths of their decedents, not the decertification

or grounding of the aircraft wreckage. Contrary to the

petition, the heirs sought to complement the CAA/FAA air

safety efforts not to supplant or “second-guess” them.

The Unanimous En Banc California Supreme

Court Opinion Reaching A Right and Fair Result

The three judge panel of the California Court of Appeal

which decided this case included one judge who admitted

during oral argument that he had previously worked for the

FAA. Its opinion mischaracterized the heirs’ objections to

the aircraft’s stall/spin characteristics, ignored their fail-

ure to warn claims and misstated the laws. Its flawed opin-

ion became a nullity once the California Supreme Court

granted the heirs’ petition for hearing. Krouse v. Nimocks,

U Cal. 2d 482, 483, 66 P. 2d 438 (1937).

The main issue presented by the petition for hearing was:

“Can a federal airsafety regulation support a negligence

per se jury instruction in a California products liability

action?” Sitting en bane the California Supreme Court

unanimously affirmed the heirs’ judgment for compensatory

damages in a well-reasoned opision authored by Justice

Stanley Mosk. That opinion reached a right and fair result.

REASONS FOR DENYING THE WRIT

THE CALIFORNIA SUPREME COURT’S UNANIMOUS

EN BANC OPINION ALLOWING USE OF FEDERAL

AIR SAFETY REGULATIONS TO SUPPORT A NEG.

LIGENCE PER SE JURY INSTRUCTION MANDATED

BY STATE STATUTE DID NOT WRONGLY DECIDE

ANY FEDERAL QUESTION.

Essentially, the California Supreme Court’s unanimous

en banc opinion held that a negligence per se jury instruc-

tion mandated by CAL. EVID. CODE 4669 could be sup-

ported by federal air safety regulations. It is not the func-

tion cf this Court to construe a state statute contrary to the

construction given to it by the highest Court of the State.

O’Brien v. Skinner, 414 U.S. 524, 531 (1974). Moreover, it is

not the practice of this Court to reach out to decide con-

stitutional issues where none exist. Rice v. Sioux City

Memorial Park Cemetery, Inc., 349 U.S. 70, 74 (1955).

In the area of preemption “each case turns on the pecu-

liarities and special features of the federal regulatory

scheme in question.” City of Burbank v. Lockheed Air Ter-

minal, 411 U.S. 624, 638 (1973). The Civil Aeronautics

Act of 1938 and its successor, the Federal Aviation Act of

1958, explicitly provide that the administrative remedies

provided by the federal scheme are not exclusive. 49 U.S.C.

§1506. The 1958 Act adopts the 1938 Act verbatim. The

legislative history of the 1938 Act does little to elucidate

this provision. The Conference Report merely states:

“$1010 REMEDIES NOT EXCLUSIVE. This section,

Section 1104 of the Senate bill, and Section 1106 of the

Conference agreement are identical.”

S. REP. NO. 2635, 75th Cong., 3d Sess. 78 (1938). The

House Report does not mention 41010. H.R. Rep. No. 2254,

75th Cong., 3d Sess. 11 (1938). The Senate Report does not

discuss §1104. 8. REP. No. 1161, 75th Cong., 3d Sess. 2

(1938). “The suggestion was made in 1938 that Federal

regulation of civil aviation be exclusive. Senator McCarran,

one of the authors of the Civil Aeronautics Act, said he had

this in mind himself, but ‘he did not want to become a revolu-

tionary with one stroke.’ Hearings on S. 3659 before Sub-

committee of Senate Committee on Commerce, 75th Cong.,

3d Sess., at 100 (1938).” A. F. Lowenfeld, AVIATION LAW

(2d ed. 1981) $3.31 at 3-162n.a. Thus, state law has always

governed aviation accidents. Jd. §1.31. “None of this was

inevitable. Compensation for aviation accidents could, for

instance, have been governed by federal law, as are virtually

all other aspects of commercial aviation in the United

States.” Id. at 6-7. Federal regulation does not occupy the

field. Brunmwasser v. Trans World Airlines, Inc., 541 F.

Supp. 1338, 1345 (W.D. Pa. 1982); Ravreby v. United Air.

lines, Inc., 293 N.W. 2d 260 (Iowa 1980).

Concurrent jurisdiction is always presumed absent clear

incompatibility and even if exclusive jurisdiction exists a

state court will usually be allowed to decide a federal

question collaterally. Hathorn v. Lovorn, 457 U.S. 255, 266

(1982). Beech concedes that at best the determination at

issue was collateral. The CAA/FAA can only “spot check”

the manufacturer’s work. United States v. S.A. Empressa

de Viaco Aerea Rio Grandense, U.S. __., 104 S. Ct.

2755, 81 L. Ed. 2d 660, 676 (1984). “(T]he duty to ensure

that an aircraft conforms to FAA safety regulations lies

with the manufacturer... .” Id.

“Tt is essential that [those who build aircraft and com-

ponent parts for general aviation] as well as aircraft

operators, be ever conscious that a plane is an inher-

ently dangerous and sensitive instrumentality which

can cause harm if high standards of care are relaxed.

The compiex and exacting scheme of regulation devel-

oped by the FAA to this end must be reinforced and

strengthened by courts called on to develop rules of

liability and damages in situations like the instant

case where it is apparent that high standards consis-

tent with the regulatory scheme have not been main-

tained with resulting injury to persons and property.”

Fischer v. Bell Helicopter Co., 403 F. Supp. 1165, 1174

(D.D.C. 1975).

Because Beech certified its Travel Air aircraft under the

“Delegation Option” with Beech employees performing all

regulatory functions except signing the certificate, no in-

dependent agency expertise is present in this case. On the

facts, Beech did not even test the aircraft before requesting

certification. As the court stated in Johnson v. Steam-

Gauge Lantern Co., 25 N.Y.S. 689, 692 (Sup. Ct. 1893) : “[a]

certificate could not operate to convert an obviously unsafe

landing into a safe one.”

Because Beech concedes that the heirs have valid negli-

gence and strict liability causes of action and because the

heirs do not seek a mandatory injunction requiring changes

in the aircraft, uniformity is not at issue. Beech admits

that a state court can allow damages where an aircraft

manufacturer requires more than the minimum required by

the CARs. Here, the heirs’ use of the CARs with their

negligence per se jury instruction did not interfere with the

federal regulatory scheme. 49 U.S.C. §1506 specifically

allows such use.

In contrast, the rule now urged by Beech hands aircraft

manufacturers a complete defense to all products liability

litigation. This result is particularly inappropriate because

the high degree of regulatory agency control and delegated

regulatory authcrity effectuated by these manufacturers al-

ready gives them undue insulation from responsibility for

their actions. Certainly, Congress never intended such a

perverse result. The unanimous en banc opinion of the

California Supreme Court prevents aircraft manufacturers

from using federal air safety regulations as a shield from

liability rather than as a guide to safety.

IL.

THE ALLEGED CONFLICTS ARE ILLUSORY

Beech concedes that no comparable decisions have been

made by any state court of last resort. The alleged conflicts

with decisions of this Court and federal courts of appeals

are illusory.

In Silkwood v. Kerr-McGee, U.S. ——, 104 S. Ct.

615, 78 L. Ed. 2d 443 (1984) the Nuclear Regulatory Com-

mission investigated twice and found no violation of Atomic

Energy Commission safety regulations before or after the

contamination of Karen Silkwood. 104 S. Ct. 470n. 4. Yet,

the Silkwood plaintiffs provided convincing contrary expert

testimony at trial and received a jury verdict in their favor.

This Court let the Silkwood plaintiffs recover damages

based on the defendant’s violation of federal standards

despite extensive regulation of the nuclear power industry,

finding no conflict. 104 S. Ct. 626. All nine justices agreed

that the extensive federal safety regulations did not bar

plaintiffs’ compensatory damages. “There is no element of

regulations when compensatory damages are awarded....”

104 8. Ct. 469n. 3, Powell, Burger & Blackman dissent.

“Whatever compensation standard a state imposes, whether

it be negligence or strict liability, a licensee remains free to

continue operating under federal standards and to pay for

the injury that results. ... Compensatory damages there-

fore complement the federal regulatory standards, and are

an implicit part of the federal regulatory scheme.” 104 8. Ct.

462, Blackman & Marshall dissent. The parallels to this

case are obvious and the California Supreme Court’s analy-

sis of Silkwood is accurate. 7a-10a. No conflict exists.

Chicago & N.W. Transportation Co. v. Kuic Brick & Tile

Co., 450 U.S. 311 (1981) is clearly distinguishabie as the

California Supreme Court opinion explains in footnote 6.

8a. The same reasoning distinguishes Interstate Natural

Gas Co. v. Southern California Gas Co., 209 F. 2d 380 (9th

Cir. 1953). The heirs sought compensatory damages for

the four wrongful deaths, not sanctions against Beech

based on subsequent Travel Air flight hours.

Roshenhan v. United States, 131 F. 2d 932 (10th Cir.

1942), cert. denied, 318 U.S. 790 (1943) provides no con-

trary authority. In Roshenhan the aircraft had only a state

airworthiness certificate and the court held: “The [Civil

Aeronautics] Act does not textually recognize a state cer-

tificate with its requirements, and we cannot presume a Con-

gressional intent to do so.” Id. at 935. No state certificate

is at issue here.

Further, no federal certificate is at issue here either. The

heirs seek only compensatory damages for the four wrong-

ful deaths. The heirs do not seek to declare any federal

regulations invalid or to decertify or ground any aircraft

or to enjoin any certification or to mandate any aircraft

equipment. Beech’s references to such cases are inappro-

priate. See, Gaunce v. deVincentis, 708 F. 2d 1290 (7th Cir.

1983) (airman’s certificate at issue) ; O’Donnel! v. Bond, 510

F. Supp. 925 (D.D.C. 1981) (adequacy of regulations chal-

lenged and aircraft grounding sought); Whitney National

Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411

(1965) (action to enjoin issuance of banking certificate).

Even if 49 U.S.C. § 1486(a) (Dec. 31, 1958) had been effec-

tive on July 24, 1958, when Beech certified the accident air-

craft, it would have posed no bar because the heirs did not

seek to void the CAA order itself. See, Local 533, Transport

Workers Union v. Eastern Air Lines, Inc., 544 F. Supp.

1315, 1333 (S.D.N.Y. 1982), modified on other grounds, 695

F. 2d 668 (2d Cir. 1982).

As for Campos v, Puerto Rico Sun Oil Co., Inc., 536 F.

2d 970 (1st Cir. 1976), in that case the agency order had to

be declared illegal for the plaintiff to recover damages. In

contrast, here the heirs only sought to have Beech’s conduct

characterized as negligent per se, not illegal. The sole issue

was the performance of the aircraft, not the validity of the

type certificate.

The heirs’ position is not novel. Other cases hold that

federal regulations may supply a state standard of care.

See, e.g., Heckel v. Beech Aircraft Corp., 467 F. Supp. 278,

281 (W.D. Pa. 1979); Diamond v. Grow, 243 Cal. App. 2d

396, 399, 52 Cal. Rptr. 265 (1966). Other cases hold that

the federal air safety regulations can support negligence

per se instructions. See, e.g., McGee v. Cessna Aircraft Co.,

139 Cal. App. 3d 179, 185-7, 188 Cal. Rptr. 542 (1983) ; Light-

enburger v. United States, 298 F. Supp. 813, 838, rev’d on

other grounds, 460 F. 2d 391 (9th Cir.), cert. denied, 409

U.S. 983 (1969); Rudelson v. United States, 431 F. Supp.

1101, 1107 (C.D. Cal. 1977), aff’d, 602 F. 2d 1326 (9th Cir.

1979) ; Todd v. United States, 384 F. Supp. 1284, 1294 (M.D.

Fla. 1975), aff’d, 553 F. 2d 384 (5th Cir. 1977) ; Eastern Air-

lines, Inc. v. Union Trust Co., 221 F. 2d 62 (D.C. Cir. 1955),

rev'd on other grounds, 350 U.S. 907 (1955). Gatenby v.

Altoona Aviation Corp., 407 F. 2d 443 (3d Cir. 1968). Ad-

mittedly, only McGee addresses aircraft manufacturers, but

to allow negligence per se instructions only as against pilots

and air traffic controllers in an age of comparative fault

and crashworthiness cases would create an unfair imbal-

ance. Allowing federal air safety regulations to support a

negligence per se jury instruction in a California products

liability action creates no conflict with opinions of this

‘14

Court, federal courts of appeals or state courts of last re-

sort. Having been properly decided by the California Su-

preme Court the issue requires no further action by this

Court.

CONCLUSION

For the reasons stated above and those stated in the op-

position of the pilot’s heirs respondent passengers’ heirs

respectfully submit that petitioner has failed to sustain its

burden of establishing the “special and important reasons”

for granting the writ of certiorari as required by

U.S.S. CT. Rule 17.1 (1984). No question of law at issue

justifies granting the writ. No conflict of law exists to

resolve by granting the writ. To alleviate their financial

hardship respondent passengers’ heirs pray that this Court

deny the unfounded petition quickly so that their judgment

for compensatory damages for the wrongful deaths of their

families’ sole breadwinners may be enforced.

Respectfully submitted,

Dantet C, Catucart*®

DesoraH MitzENMACHER

Macana, CaTucart, McCarty

& Prerry