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Court of Appeal, Second District, Division 4, California.

Doris ELSWORTH, et al., Plaintiffs and Respondents, v. BEECH AIRCRAFT CORPORATION, Defendant and Appellant.

Jo Ann MIRO et al., Plaintiffs and Respondents, v. BEECH AIRCRAFT CORPORATION, et al., Defendants and Appellants.

Civ. 63299.

Decided: September 26, 1983

Morris, Polich & Purdy, Landon Morris, Robert S. Wolfe, Gerald P. Schneeweis, Gibson, Dunn & Crutcher and Robert Forgnone, Los Angeles, for defendant and appellant. Magana, Cathcart, McCarthy & Pierry, Daniel C. Cathcart and Deborah Mitzenmacher, Los Angeles, for plaintiffs and respondents Elsworth, Best and Dunaway. The Boccardo Law Firm, James F. Boccardo, Edward J. Niland, and Stanley A. Ibler, Sr., San Jose, for plaintiffs and respondents, Jo Ann Miro, et al.

Defendant, Beech Aircraft, appeals from an adverse judgment in an action for wrongful death.

In June 1971, an airplane, Travel Air Model 95, manufactured by Beech, with engines manufactured by Avco-Lycoming, crashed while one Miro was operating it in a demonstration for three prospective buyers—Elsworth, Best and Dunaway.   Miro and his three passengers were killed in the crash.   The heirs of the passengers brought this action for wrongful death against the estate of Miro and his family-owned firm (Miro Aviation, Inc.), Beech and Avco-Lycoming.   Miro's estate cross-complained against Beech and Avco-Lycoming.   After a trial by jury, verdicts were returned against Beech on the complaint and cross-complaint and in favor of Avco-Lycoming.   Beech here appeals from the judgment against it entered on those verdicts.1  For the reasons set forth below, we reverse the judgments.

Investigations of the wreckage disclosed that one engine had not been operating at the time of the accident.   The theory of the case against Avco-Lycoming was that that engine had quit due to a bad valve, causing the stall and spin which resulted in the crash.   The verdict in favor of Avco-Lycoming resolved that theory.   Another theory was that the pilot, Miro, had shut off the engine in order to demonstrate the plane's ability to fly with only one engine operating.   The theory of the case against Beech was that the airplane was so poorly designed as to have an undue tendency to stall and spin, especially with only one engine operating.   The Beech defense was that the plane was properly designed and that the accident was caused by the pilot, Miro's, negligence in demonstrating a one engine operation at too low a speed and too near the ground to correct an unintentional stall and spin.

The case, as against Beech, therefore proceeded on theories of strict liability and negligence for defective design and negligence per se in its construction.   The jury was instructed, and evidence was admitted, on those theories.


Part of the case for plaintiffs was based on the contention that, although the model in question had been certified as safe by the Civil Aeronautics Administration, its certification was flawed by the fact that part of the testing had been conducted by employees of Beech.   We need not discuss the validity of that attack, since the record shows that, after the initial certification of the Travel Air Model 95, in 1957, a plane of that model crashed, killing the son of a United States senator.   After that crash, the FAA itself retested the plane, in 1958, using inspectors who were its own employees.   On the recommendation of those employees, after their independent tests, the certificate was officially declared as being still in force.   The plane here involved was operated under that renewed, 1958, certification.   It follows that, insofar as the case at bench is concerned, it is that later certification that is material and the defects, if any, in the earlier testing, in 1957, by Beech employees is of no significance.


 A second prong of plaintiff's attack was the contention that, although certified, the model in fact failed to meet the certification standards for safety with respect to stall characteristics set forth in regulations promulgated by the FAA and its predecessor, the Civil Aeronautics Board, and that it was defectively designed, in that it had an undue tendency to stall and spin.   In support of that theory, the trial court permitted experts to testify on behalf of the plaintiffs regarding the propriety of the certification.   In so acting, the trial court erred.   The design of aircraft, particularly with respect to the possibility of stalls and spins is an admittedly highly complex art.   Congress has committed the determination of whether a particular design meets legitimate safety standards to an agency, the FAA, with expertise in that area.   That procedure is denominated certification.   The statutes governing the FAA provide a remedy against improper certification by way of a direct challenge in the Court of Appeals of the United States or the United States Court of Appeals for the District of Columbia.   That certification may not be attacked in state courts.   If an airplane is manufactured according to the certificate, a state court may not, as this trial court did, instruct a jury to presume Beech negligent if it found that the certification did not meet the FAA standards relating to this model of plane.   Negligence per se cannot be used to impose liability for the crash herein involved.   In permitting such collateral attack on the certificate of the Travel Air Model 95, the trial court committed reversible error.

That does not mean that any civil trier of fact is foreclosed from considering whether there is a design defect in an airplane model that has been issued an FAA certificate of airworthiness, as had the airplane in the case at bench.   We have been cited no California case directly in point and our research has disclosed none.  Wilson v. Piper Aircraft Corp. (1978) 282 Or. 61, 577 P.2d 1322, involved wrongful death actions based on strict liability against the manufacturer of a Piper aircraft.   That court held that compliance with FAA standards was not a complete defense, but concluded that it was proper to take into consideration, in determining whether the plaintiffs had produced sufficient evidence of defect to go to the jury, the fact that the regulatory agency, after considering the dangers involved had approved the very engine design of which the plaintiffs complained.

More importantly, however, the Wilson court squarely rejected the position of the defendant therein that “the airplane's design could not be dangerously defective since it met the applicable FAA safety standards, and that FAA approval of the design ․ foreclosed any further inquiry into its adequacy from a safety standpoint.  [¶] We have found no support for this position.   Neither the applicable statutes themselves, 49 U.S.C. §§ 1421(a)(1) and 1423(a) and (c), nor the legislative history (see 1958 U.S.Code Cong. & Admin.News, p. 3741) indicates any Congressional intent to provide that FAA approval of either the general model design or the airworthiness of the particular craft is a complete defense to the claim of civil liability for faulty design.   Indeed, 49 U.S.C. § 1421(a)(1) provides that the FAA design standards are minimum standards only.2  [¶] We have, in other contexts, refused to hold compliance with statutory or administrative safety standards to be conclusive on the question of tort liability where there is no evidence of a legislative intent that the standards are to be applied for that purpose.   McMullen v. Volkswagen of America, 274 Or. 83, 88–89, 545 P.2d 117 (1976);  McEwen v. Ortho Pharmaceutical, 270 Or. 375, 397–98, 528 P.2d 522 (1974).   See also Koch v. So. Pac. Transp. Co., 274 Or. 499, 504, 547 P.2d 589 (1976).   Cf. Lewis v. Baker, 243 Or. 317, 413 P.2d 400 (1966).   Other courts have treated compliance with the FAA safety standards as appropriate for consideration by the trier of fact in products liability cases involving aircraft.   See, e.g., Bruce v. Martin-Marietta Corp., 544 F.2d 442, 446 (10th Cir.1976);  Banko v. Continental Motors Corporation, 373 F.2d 314, 315–16 (4th Cir.1966);  Berkebile v. Brantly Helicopter Corporation, 219 Pa.Super. 479, 281 A.2d 707, 710 (1971).   We have found no cases holding that compliance is a complete defense.   We hold that it is not.”  (Wilson v. Piper Aircraft Corp., supra, 282 Or. 61, 577 P.2d 1322 at pp. 1324–1325;  see also 97 A.L.R.3d 606, lending support to the foregoing position.)

 Ferguson v. Cessna Aircraft Co. (1981) 132 Ariz. 47, 643 P.2d 1017, 1019, held:  “The fact that the design of the [airplane involved in the accident therein] was specifically approved by the Federal Aviation Administration (FAA), while admissible evidence, does not provide a complete defense to a charge of design defect.”  (Citing Wilson v. Piper Aircraft Corp., supra.)   Courts have sometimes treated compliance with the FAA safety standards as appropriate for consideration by the trier of fact in product liability cases involving aircraft.  (See, e.g., Bruce v. Martin-Marietta Corp. (10th Cir.1976) 544 F.2d 442, 446;  Banko v. Continental Motors Corporation (4th Cir.1966) 373 F.2d 314, 315–316;  and Berkebile v. Brantly Helicopter Corp. (1971) 219 Pa.Super. 479, 281 A.2d 707, 710.)   We have found no cases holding that compliance is a complete defense.   We hold that it is not.

Moreover, this view is in accord with the general principles of California law, and the weight of authority on the subject.   State triers of fact, including juries, may, and do, determine questions of negligence and strict liability for defective products.   As was stated in Lozano v. Pacific Gas & Elec. Co. (1945) 70 Cal.App.2d 415, 424, 161 P.2d 74:  “ ‘It does not follow that merely because one has complied with the terms of a statute or ordinance that he is thereby absolved from negligence.   One may act in strict conformity with the terms of an enactment and yet not exercise the amount of care which is required under the circumstances.’  (19 Cal.Jur. 634.   See also, Campbell v. Fong Wan, 60 Cal.App.2d 553 [141 P.2d 43];  Sickles v. Mt. Whitney etc. Co. 177 Cal. 278 [170 P. 599];  Monroe v. San Joaquin etc. Co. [42 Cal.App.2d 641, 109 P.2d 720], supra.)   In other words, the question is whether under all of the circumstances negligence has been shown.   [¶] ․  The duty of care exists in the absence of any statute and if care is omitted and injury directly results therefrom liability arises.  [Citations.]”

 “Compliance with a law or administrative regulation relieves the actor of negligence per se, but it does not establish as a matter of law that due care was exercised.  Grand Trunk Ry. Co. of Canada v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485 (1892);  Maize v. Atlantic Refining Co., 352 Pa. 51, 41 A.2d 850 (1945);  Hubbard-Hall Chemical Co. v. Silverman, 340 F.2d 402 (1st Cir.1965).  ‘The care to be exercised in a particular case must always be proportionate to the seriousness of the consequences which are reasonably to be anticipated as a result of the conduct in question.’   Maize, supra, 352 Pa. at 56–57, 41 A.2d at 853.   Compliance with the statute or regulation is admissible as evidence of the actor's exercise of due care, but such compliance ‘does not prevent a finding of negligence where a reasonable man would take additional precautions.’   Restatement (Second) of Torts § 288C (1965)” (Berkebile v. Brantly Helicopter Corp., supra, 219 Pa.Super. 479, 281 A.2d 707, 710;  Bruce v. Martin-Marietta Corp., supra, 544 F.2d 442, 446;  Mittelman v. Seifert (1971) 17 Cal.App.3d 51, 62, 94 Cal.Rptr. 654.)   We think that rule is equally applicable to the certification of the aircraft here involved.

 We observe that California Constitution, article 1, section 16 (formerly art. I, § 7) provides in pertinent part:  “Trial by jury is an inviolate right and shall be secured to all, ․”  See also Code of Civil Procedure section 592, providing in pertinent part that in an action for money claimed for injuries “an issue of fact must be tried by a jury, ․”  This is a matter of right, denial of which is both reversible error and an act in excess of jurisdiction.  (See 4 Witkin, Cal.Procedure (2d ed., 1983 supp.) Trial, § 73, pp. 136–137.)


 Since respondents proceeded on the theory of strict liability as well as negligence, we note that the rule is one of strict liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product.   Thus while the jury was entitled to consider evidence of certification, such evidence was not conclusive on the question of whether there is a design defect in the airplane that contributed as a proximate or legal cause to the plaintiffs' injuries and damages.

 We hold that for the purpose of imposing civil liability on manufacturers, preparers, distributors, wholesalers, sellers or lessors of such defectively designed products, lay juries in personal injury actions may determine complex questions of fact, including questions of whether there are design defects in products, including airplanes, which cause injury or damage.

 California law sets out that a product is defective in design (1) unless the benefits of the design of the product as a whole outweigh the risk of damage inherent in the design, or (2) if the product fails to perform as safely as an ordinary consumer of the product would expect when used in a manner reasonably foreseeable by the defendant.  (See Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443;  see also Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 174 Cal.Rptr. 348 and Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862, 179 Cal.Rptr. 923.)

 That rule of Barker v. Lull Engineering Co. Inc., supra, governs and applies to the jury determination of the design safety of the airplane here involved, notwithstanding the FAA certification of the airplane.

 A product, even though otherwise faultlessly made, is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer fails to give adequate warning of such danger.  (Cavers v. Cushman Motor Sales, Inc. (1979) 95 Cal.App.3d 338, 349, 157 Cal.Rptr. 142.)

No airplane, regardless of how skillfully designed can, however, be totally free of the possibility of stall and spin if operated without regard to its special characteristics.   Recognizing that fact the cases have held that it is the duty of the manufacturer to warn purchasers and potential pilots of the point at which a stall and spin may occur and of the height at which a plane must be flown to permit recovery from an accidental stall and spin.  (See, e.g., Kastner v. Beech Aircraft Corp. (1983 Mo.App.) 650 S.W.2d 312.)

In the case at bench, it is uncontested that, when the airplane herein involved was first sold, it was accompanied by a manual which gave adequate warning.   Miro, who was a licensed pilot, and a person whose business it was to demonstrate this particular airplane, was, by regulation, required to familiarize himself with that manual.   There is no evidence as to whether or not he did so.   Nothing in the record before us would support a finding that Beech had failed in its obligation to warn of the operating precautions required of a pilot in charge of this airplane.


 It follows that the record contains insufficient evidence to support a finding that Beech had designed, manufactured or sold a defective airplane or that Beech had failed to adequately warn prospective pilots of the operating procedure which were required to maintain the safety of the plane and its occupants.


During the period when the jury was deliberating, a television station broadcast a program, known as “60 Minutes,” in which Beech was identified by name and charged with poor manufacturing practices.   Admittedly, some of the jurors saw and heard that broadcast.   After the verdict was returned against it, Beech sought a new trial claiming prejudice by the jury in viewing and hearing the broadcast.   The motion was denied.   Since we reverse, and since we take it that on retrial this will not occur again, we need not, and do not, determine whether Beech waived the matter by waiting until a verdict was returned before raising the issue.

The judgment is reversed.

I concur in part and dissent in part.

I agree with most of the majority opinion;  but I disagree with its holding that, in this case, the FAA certification was not conclusive on the issue of design defect.

The cases cited and relied on by the majority ignore what I regard as a significant distinction between cases where a manufacturer relies only on having followed general safety regulations and cases where the manufacturer relies on an administrative approval of a specific design.

General safety regulations, by their very nature, set forth minimum standards but do not, and cannot, deal with every individual designed product.   It follows that some designs, although complying with minimum safety regulations, may not, in fact, be free of design defects which have caused injury.   But here, the certification was that the particular design model herein involved was “airworthy”—i.e., that it was, in fact, safe to fly!1

As the California cases on design liability cited by the majority hold, it is a defense of a claim of liability based on design defect if:  (1) the design is as safe as the state of the art permits;  (2) the design is as safe as possible that the balance between perfect safety and economic considerations will permit;  and (3) the product meets the reasonable expectations of the purchaser.   The corollary to the rule relating to the expectation of the buyer-user is the rule, cited by the majority, requiring the manufacturer to give notice of a design problem caused by the state of the art and risk-value rules.

As I read the record, the airworthiness certificate constitutes a decision, binding in this case, that the first two rules on design defect had been made—i.e., that this model of airplane not only met the general regulations, but was as safe as the state of the art permitted and that the airplane could not economically be manufactured with any more safe design and be economically saleable.   As the majority admit, it is not possible to design an airplane that will not stall and spin under some conditions.

As I view the record, the third requirement—warning of a possible risk—was here met.   Admittedly, when originally sold, the plane was accompanied by a manual which set out the speed and height the plane must be flown to avoid stall, with resultant spin and crash.   Under the applicable regulations, it was the duty of Miro, both as a licensed pilot and as the demonstrating distributor of the plane, to be familiar with that manual.   It is presumed that official duty is performed.   Plaintiffs made no effort to prove otherwise.   Thus the explanation for this stall, spin and crash can only be that Miro, in his effort to demonstrate the capacity of the plane he wanted to sell, had deliberately “cut” one engine and then, either negligently or intentionally, flown at too low a speed and at too low an altitude.   It follows, in my view, that Beech had no responsibility for the crash but that sole responsibility was that of Miro, whose insurer has compensated the plaintiffs.

I would reverse with directions to grant Beech's motion for judgment NOV.


1.   Prior to trial, Miro's insurance carrier had settled with the estates of the passengers for the policy limits of $100,000 each.   The judgments, as entered by the court, reflected credit to Beech for those settlements.   The briefs assume that the judgment in favor of Miro's heirs was also reduced by some factor reflecting a degree of concurrent negligence on the part of Miro.

2.   Wilson v. Piper Aircraft, supra, 282 Or. 61, 577 P.2d 1322 quoted the pertinent part of that statute which read as follows:“ ‘1. (a) The Administrator is empowered and it shall be his duty to promote safety of flight of civil aircraft in air commerce by prescribing and revising from time to time:  [¶] (1) Such minimum standards governing the design, materials, workmanship, construction and performance of aircraft, aircraft engines, and propellers as may be required in the interest of safety;  [¶] ․’ ”

1.   In the view I take of the effect of the airworthiness certificate, the discussion in the majority opinion of the constitutional right to jury trial is a false issue.   The right to jury trial exists only as to issues of fact.   If, as I view it, the certificate is conclusive on the “design defect” issue, there is no factual issue to be tried.

McCLOSKY, Associate Justice.

AMERIAN, J., concurs.