# Opposition Brief — Beech Aircraft Corp. v. Elsworth

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2549%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1110

## Text

- Supreme VOUrt, ¥.o |
FILED
~ APR 18 1985
2)
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.

i
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?

ii
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)

me

12

10

iv

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)

Vv

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

Ay
&

oa
ee

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.

2

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

3

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=-”-~—-—-—-———

4

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

5

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.

7

§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
L

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.

10

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-

11

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.

12

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

13

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
1801 Avenue of the Stars
Suite 810
Los Angeles, California 90067
(213) 553-6630
Attorneys for Respondents

Elsworth, Best and Dunaway
*Attorney of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2549%3A3. Public record. Not legal advice.