Marlys J. Udseth, As Administratrix of The Estate of Peter D. Udseth, Deceased v. United States, 530 F.2d 860, 10th Cir. (1976)
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Scribd Government DocsMarlys J. Udseth, As Administratrix of The Estate of Peter D. Udseth, Deceased v. United States, 530 F.2d 860, 10th Cir. (1976)
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Scribd Government Docs530 F.
2d 860
Marlys J. UDSETH, as Administratrix of the Estate of Peter
D. Udseth, Deceased, Appellant,
v.
UNITED STATES of America, Appellee.
No. 75--1200.
United States Court of Appeals,
Tenth Circuit.
Argued Nov. 11, 1975.
Decided March 1, 1976.
Zenon F. Myszkowski, Marchiondo & Berry, P.A., Albuquerque, N.M.,
for appellant.
Barbara L. Herwig, Atty., Appellate Section, Civ. Div., Dept. of Justice,
Washington, D.C. (Rex E. Lee, Asst. Atty. Gen., Washington, D.C.,
Victor R. Ortega, U.S. Atty., Albuquerque, N.M., and Stephen F. Eilperin,
Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D.C.,
with her on the brief), for appellee.
Before SETH, HOLLOWAY and DOYLE, Circuit Judges.
SETH, Circuit Judge.
This is a wrongful death action brought under the Federal Tort Claims Act by
the administratrix of the estate of Peter D. Udseth. The decedent was a student
pilot killed in an airplane crash in New Mexico. The complaint alleged that the
crash and subsequent death of Udseth were due to the negligence of a flight
instructor, Joe Ellis Turner, who also died in the crash. It was alleged that
Turner was in the course and scope of his employment as an employee and
agent of the Fort Bliss Flying Club, and that the club was an instrumentality of
the federal government. The decedent was in the Service and taking lessons as a
member of the Flying Club.
Facts of the case were established by stipulation of the parties. The crash was
not caused by mechanical or structural failure of the airplane or by
meteorological conditions. The aircraft was a Cessna 150 'N' equipped with
dual controls. At the time of the crash, Udseth was a student pilot who had
logged twenty-three hours of flight time and had demonstrated a capability to
fly the plane by himself. Turner was a civilian flight instructor for the Fort
Bliss Flying Club, and was listed as 'pilot in command' on the day of the crash.
3
The trial court held that the instructor was an employee of the federal
government, and that the Flying Club was an instrumentality of the federal
government.
Little additional evidence was introduced at trial and the trial judge entered
judgment for defendant on the ground that appellant had failed to prove the
cause of the accident. He said:
'.5 . . I find as a fact that the two were flying in the airplane, it spun into the ground . .
.; and those are the only facts--material facts established by the record, other than
those in the Stipulation; that is, the weather was not a factor; no evidence of the
mechanical condition of the plane being a factor; but as to what caused the accident,
I--there is no evidence, and I cannot and will not speculate as to who, if either or
both of the occupants of the plane; if either or both were negligent or caused the
accident.'
6
Appellant argues that the above quoted holding is contrary to law and contends
that in order to meet her burden of proof, she only had to prove that the crash
resulted from human error and that the Government's employee Turner was the
pilot in command of the aircraft.
Appellant relies heavily, and almost exclusively, on the case of Lange v.
Nelson-Ryan Flight Service, Inc., 259 Minn. 460, 108 N.W.2d 428, wherein
the Minnesota Supreme Court held that upon proof of negligence in the
operation of a dual-control aircraft, the pilot in command is liable regardless of
whether he is in control at the time of the disastrous maneuver. The Lange
court states a distinctly minority view on the issue of imposition of liability in
the crash of a dual-control airplane in the absence of evidence as to who was
flying the plane, and probably is the only case directly so holding. The majority
rule is noted in Mitchell v. Eyre, 190 Neb. 182, 206 N.W.2d 839:
8 recover herein the plaintiff was required to prove who was piloting the plane at
'To
the time of the crash. Until she has done so she has not met her burden of proof. The
finding of negligence is immaterial until we can determine the identity of the person
to be charged with responsibility for the negligence. An issue depending entirely
upon speculation, surmise, or conjecture is never sufficient to sustain a judgment. . .
.'
9
See also In re Rivers' Estate, 175 Kan. 809, 267 P.2d 506: Towle v. Phillips,
180 Tenn. 121, 172 S.W.2d 806.
10
There is no New Mexico case law on the question of liability in the crash of a
dual-control airplane in the absence of any evidence as to who was flying the
plane at the time of the mishap or who was negligent. This court has said that in
the absence of controlling state precedent or on an unsettled peripheral question
of state law, the views of the resident district judge are persuasive and
ordinarily accepted. Stevens v. Barnard, 512 F.2d 876 (10th Cir.); Hardy Salt
Co. v. Southern Pacific Transp. Co., 501 F.2d 1156 (10th Cir.). The state of the
authorities generally is noted above.
11
The plaintiff advanced the doctrine of res ipsa loquitur in her third cause of
action. The trial judge held that the doctrine did not apply. This issue is related
to the problem as to who was flying the plane, and its application is prevented
by the same lack of proof. The doctrine is applied by the New Mexico courts
where there is a lack of evidence as to the cause of the accident and the manner
in which it occurred. Ciesielski v. Waterman, 86 N.M. 184, 521 P.2d 649. The
elements of the doctrine were noted in Hisey v. Cashway Supermarkets, Inc.,
77 N.M. 638, 426 P.2d 784:
12 factual basis necessary as a premise for application of res ipsa loquitur requires
'The
proof that (1) plaintiff's injury was proximately caused by an agent or
instrumentality under the exclusive control of the defendant; and (2) the incident
causing the injury is of the kind which ordinarily does not occur in the absence of
negligence by the person having control of the instrumentality.'
13
It is the first element of the doctrine which concerns us here. In the crash of a
dual-control aircraft the argument advanced by appellant presumes that the
'pilot in command' is in exclusive control of the airplane regardless of whether
he is flying it. The trial court held that New Mexico law does not allow such a
presumption, and we agree.
14
In Hisey, supra, the Supreme Court of New Mexico noted:
15 absence of any evidence, or reasonable inference to be drawn from evidence
'The
that this accident is the kind which ordinarily does not occur in the absence of the
negligence of someone alone defeats the application of the doctrine . . ..' (Emphasis
added).
16
And as New Mexico courts have often held, '. . . evidence equally consistent
with two hypotheses tends to prove neither.' Tapia v. McKenzie, 85 N.M. 567,
514 P.2d 618; Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640. See also
Campbell v. First National Bank in Albuquerque, 370 F.Supp. 1096 (D.N.M.),
and 6 A.L.R.2d 535.
17
Here, both occupants of the aircraft were capable of flying it alone. There is no
evidence to establish which of them was flying the plane at the time of the
accident, nor who was negligent. Imposition of liability on the pilot in
command in such circumstances seems purely speculative and conjectural.
18
Affirmed.
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