Horton, Walter Lee, Jr.

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Torts -- Res Ipsa Loquitur -- Mid-Air Explosion of Aircraft

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NORTH CAROLINA LAW REVIEWVolume 33 | Number 4 Article 166-1-1955Torts -- Res Ipsa Loquitur -- Mid-Air Explosion ofAircraftWalter Lee Horton Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationWalter L. Horton Jr., Torts -- Res Ipsa Loquitur -- Mid-Air Explosion of Aircraft, 33 N.C. L. Rev. 670 (1955).Available at: http://scholarship.law.unc.edu/nclr/vol33/iss4/16NORTH CAROLINA LAW REVIEWTorts-Res Ipsa Loquitur-Mid-Air Explosion of AircraftPlaintiffs' homes were showered with burning fuel and debris follow-ing the mid-air explosion of a B-47 Stratojet operated by the UnitedStates Air Force. The aircraft was totally destroyed and there were nosurvivors. The wives of both plaintiffs and plaintiff Williams' two chil-dren were burned, the latter fatally, and the homes of both plaintiffs weredestroyed.' At trial plaintiffs were unable to show any specific "negli-gent or wrongful act or omission ' 2 and rested their case on the rule ofres ipsa loquitur. At the close of the plaintiffs' evidence, counsel forthe defendant moved for judgment in its favor, stating that as nationalsecurity would be imperiled the government would not call any witnessesto testify.3 Judgment was entered for the United States on the groundsthat the court lacked jurisdiction, the activity being of the sort fallingwithin the section of the Federal Tort Claims Act related to discretionaryactivities of the United States government.4 The United States Courtof Appeals for the Fifth Circuit held these grounds untenable but refusedto disturb the decision; affirming the ruling on the ground that the doc-trine of res ipsa loquitur was inapplicable to the facts.5Under Florida law, the rule of res ipsa loquitur is one of circumstan-tial evidence, by which allegations and proof of the circumstances sur-rounding the occurrence may raise a presumption of negligence, basedon the probability that negligence on the part of some person was thelegal cause of the plaintiff's injury. To rebut this presumption the de-fendant must show that proper care was in fact exercised.6 The rule hasvarious effects in different jurisdictions,7 but in Florida the effect of therule is to afford a sufficient basis for a finding that the accident arosefrom want of care in the absence of a satisfactory showing to the con-'Williams v. United States, 115 F. Supp. 386 (N. D. Fla. 1952).2 Suits against the government for torts of its employees are brought under theFederal Tort Claims Act, 60 STAT. 843 (1946), 28 U. S. C. §§ 1346(b), 2671 et seq.(1952). This act in substance provides that the United States shall be liable forthe negligence of its employees, acting within the scope of their employment, if aprivate person, in accordance with the law of the place where the act or omissionoccurred, would be liable. Cf. United States v. Harris, 205 F. 2d 765 (11th Cir.1953). It is procedural and bare of any substantive tort law implications.' See United States v. Reynolds et al., 345 U. S. 1 (1953). See Note, 32A. L. R. 2d 393 (1953).'Under 28 U. S. C. § 2680 (a) (1950), jurisdiction is withheld as to discre-tionary acts of the United States Government. See Dalehite v. United States, 346U. S. 15 (1953), and Note, 32 N. C. L. REv. 118 (1954).'Williams v. United States, 218 F. 2d 473 (5th Cir. 1955).'Orme v. Burr, 157 Fla. 378, 25 So. 2d 870 (1946).'The majority rule is that the effect of the doctrine is to raise an inference ofnegligence. See Williams v. United States, 218 F. 2d 473, 475 (5th Cir. 1955).See PROSSER, TORTS § 43 (1941). It is also said to raise an inference of fact.Parcell v. United States, 104 F. Supp. 110 (S. D. W. Va. 1951) and cases citedtherein. See Notes, 53 A. L. R. 1494 (1928) and 167 A. L. R. 658 (1947). Thedifference in the statements of the effect of the rule may be semantic. See Seavey,Res Ipsa Loquitur, Tabula in Naufragio, 63 HARv. L. REv. 643 (1950).[Vol. 33NOTES AND COMMENTStrary by the defendant.8 The rationale for the rule is that as betweenthe plaintiff and the defendant, the defendant is more likely to know orhave access to knowledge as to whether proper care was exercised. Tojustify this reasoning, there must be a showing that the defendant hadexclusive control of the instrumentality causing injury to the plaintiff,and that the occurrence was one which does not happen in the ordinarycourse of events if those having the management of the instrumentalityuse proper care.9The instant case refers to the rule as one of human experience andnotes that although inapplicable at one time, in that it cannot be shownthat the occurrence was extraordinary in the absence of negligence, itmay later become applicable, "when experience ... in the situation is souniform and well established that it is not necessary to prove this byextrinsic evidence."' 1  Speaking of the requirement that plaintiff showextraordinariness, the court said further:"We have no knowledge, judicial or otherwise as to what wouldcause a jet airplane to explode while in mid-air." '"The court points, as do many legal writers, to a split of authority asto the applicability of the doctrine to aircraft accidents. 12  Both the"exclusive control" and "extraordinary event" requirements have givendifficulty in this application of the res ipsa loquitur doctrine. The formeris more often involved in litigation involving private aircraft, where thereis the problem of dual control, and the latter in the commercial carriercases, although the first requirement is troublesome even in these caseswhere the problem is one of negligence in the repair or maintenance ofthe aircraft by an independent contractor. The applicability of the doc-trine has been tested predominantly in suits by passengers or guestsagainst the owners or operators of private or commercial aircraft. 13The problems involved where negligence in the operation or mainte-nance of the aircraft causes personal injury or property damage to per-sons on the ground is totally removed from occurrences in which thereis injury to the person or property of the passenger or guest. In theformer situation the injured party is removed from questions of assump-tion of risk or contributory negligence, i.e., there is no question as to the8 Orme v. Burr, supra note 6.' PROSSER, TORTS § 43 (1941).10 Williams v. United States, 218 F. 2d 473, 476 (5th Cir. 1955).11Ibid.12 See United States v. Kesinger, 190 F. 2d 529 (10th Cir. 1951), where authori-ties on both sides are listed. See also Note, 6 A. L. R. 2d 528 (1949). Compre-hensive articles with analytical tabulations appear in McLarty, Res Ipsa Loquiturin Airline Passenger Litigation, 37 VA. L. Rev. 55 (1951). See also Goldin, ResIpsa Loquitur in Aircraft Law, 18 So. CALIF. L. REV. 15, 152 (1946).13 See note 12 supra. See also Notes, 22 N. C. L. REv. 160 (1944) and 28 N. C.L. Rv. 432 (1950).1955]NORTH CAROLINA LAW REVIEWdefendant's exclusive control. Another distinguishing feature is thenature of the interest invaded in each type case. In the ground damagecases, there is an invasion of two of the plaintiff's interests; (1) freedomfrom negligently inflicted harm to person or property, and (2) freedomfrom trespass upon his possessory interests in land.14No reported case on "all fours" with the instant case has been found,and in those cases presenting somewhat similar fact situations the plain-tiffs have not chosen to rely solely on negligence with its doctrine of resipsa loquitur but have asserted in addition strict liability,'5 whethercommon law for trespass,' 6 statutory, 17 or that arising from the carryingon of an ultrahazardous activity.' 8 Also, in many of these cases theplaintiff has been able to prove some antecedent acts of specific negligenceon the part of the defendant. 19 In the cases asserting that res ipsa loqui-tur is applicable, it is questionable whether statements to that effect areholdings or dicta.Two cases seem to hold that the doctrine of res ipsa loquiture isapplicable. However, in Parcell v. United States"° the court bolstersits decision with the further statement that the defendant was also liableon the grounds of strict liability for carrying on an ultrahazardous ac-tivity. In San Diego Gas & Electric Co. v. United States2 ' there wasevidence that the aircraft had been continuously operated below the legalaltitude of 500 feet.In the Parcell case two jet aircraft crashed and then exploded, hurlingburning fuel into the plaintiff's dwelling and outbuildings. Speaking ofthe grounds asserted for the decision in the principal case, the court said:"If one were to follow this logic to its ultimate conclusion therewould be few cases indeed in which the doctrine would be appli-cable. It is because the facts surrounding the accident are un-known that the plaintiff seeks the benefit of the legal inference orpresumption. An accident known to grow out of one set of cir-cumstances and no others would supply a plaintiff with good and"PROssER, TORTS §§ 6, 13 (1941).'5REsTATEmExT, TORTS §§ 519, 520 (a), (b), (d). (1938). PRossER, TORTS§44 (1941)." United States v. Gaidys et ir., 194 F. 2d 762 (10th Cir. 1952). Cf. RochesterGas and Electric Corp. v. Dunlop, 266 N. Y. Supp. 469 (Monroe Co. Ct. 1933)(Res ipsa loquitur not applicable but defendant liable on theory of trespass.)"7 United States v. Praylou et aL., 208 F. 2d 291 (4th Cir. 1953) ; D'Anna v.United States, 181 F. 2d 335 (4th Cir. 1950) ; Prentiss v. National Airlines Inc.,112 F. Supp. 306 (D. N. J. 1953).29Parcell v. United States, 104 F. Supp. 110 (S. D. W. Va. 1951)."9 United States v. Gaidys et ux., 194 F. 2d 762 (10th Cir. 1952) ; United Statesv. Kesinger, 190 F. 2d 529 (10th Cir. 1951) ; San Diego Gas & Elec. Co. v. UnitedStates, 173 F. 2d 92 (9th Cir. 1949); Leisy v. United States, 102 F. Supp. 789(D. Md. 1953); Evans et al. v. United States, 100 F. Supp. 5 (D. La. 1951).;0 Parcell v. United States, 104 F. Supp. 110 (S. D. W. Va. 1951).21 San Diego Gas & Elec. Co. v. United States, 173 F. 2d 92 (9th Cir. 1949).[Vol. 33NOTES AND COMMENTSsufficient evidence of itself, without the aid of a rule of law basedon probabilities.'22In D'Anna v. United States 3 an auxiliary fuel tank suspended be-neath the fuselage of a diving naval aircraft became detached and fellinto the plaintiff's fruitstand injuring the plaintiff and others, and dam-aging property. Here, there was a statute making the owner of the air-craft prima facie liable, rebuttable by a showing of proper care. Thecourt held res ipsa loquitur was applicable in addition to the statutorypresumption and justified a finding of liability. Speaking of the burdenon the defendant to rebut the presumption, Chief Judge Parker said."Such burden ... is more difficult to meet where the plane itselfor an object attached to it crashes to the ground and inflicts in-jury, for the falling in such case is the strongest sort of proof ofeither negligent operation defective constrution or equipment." 24The court points out in Kesigner v. United States25 that the hazardsof flying have been so reduced that the proposition is now acceptablethat aircraft do not usually fall in the absence of negligence. This viewhas gained some support since World War II largely due to considera-tions of the social value of air transport and the desire to remove thefledgling industry from under the rules of strict liability. On the otherhand, there has been much agitation pro and con among the legal writersas to which policy should control, and the trend in thinking seems tobe veering towards idea that flying is an ultrahazardous activity and thatthose legally responsibile should be liable accordingly.2 6The court in the instant case seems convinced that aviation has notyet reached the staged where the fiction of vis major or Act of God hasno application, and feels that there are some "accidents" which no amountof care would avoid. The distinction drawn between jet and conven-tional aircraft may be valid, and if so, the application of the legal ruleis probably correct. However, if such be the case, this is the strongestargument for the imposition of strict liability. Other considerationswould seem to indicate that the modified strict liability statute such as" 104 F. Supp. 110, 115.23 181 F. 2d 335 (4th Cir. 1950)." Id. at 337.22190 F. 2d 529 (10th Cir. 1951).20 See Notes, 22 GEo. WASH. L. REv. 245 (1954), 30 TEXAS L. Rnv. 790 (1952).Orr, Constitutionality of Prentiss v. National Airlinws, 21 INsUR. COUNSEL JOUR.48 (1954) (Statistical survey of air operations in relation to fatal accidents.)Leading articles urging strict liability are: Vold, Strict Liability for AircraftCrashes and Forced Landings on Ground Victims Outside of Established LandingAreas, 5 HASTING L. JOUR. 1 (1953) and Baker, An Eclipse of Fault Liability, 40VA. L. REv. 273 (1954). By international agreement absolute liability is imposedfor damages caused on the surface by aircraft or objects falling therefrom. Seediscussion of 1952 Rome Aircraft Convention in 31 CAN. BAR. REv. 90 (1953).1955]NORTH CAROLINA LAW REVIEWthat involved in the D'Anna case presents the most workable approach tothe problem for the benefit of all concerned.2 7  Without the benefit ofthe statute and without access to some evidence of negligence the plain-tiff faces the difficulty illustrated here.2 3North Carolina has not considered the problem directly, and has noexplicit statutory provision.29  If the case applying the doctrine of resipsa loquitur where injuries were sustained by a guest is held not to becontrolling,"° the policy of the statutory provision as to dangerous flyingmay afford the plaintiff some evidence of negligence. 31WALTER LEE HORTON, JR.Libel-Special DamagesThe law of libel is an area of the law which at the present time isfraught with confusion in this jurisdiction.Some of this confusion in North Carolina and elsewhere may beattributed to the fact that the common law distinguishes between thatdefamation which is oral and that which is written. Originally thecommon law courts took no jurisdiction over defamatory utterances, i.e.,spoken statements calculated to detract in a substantial way from theesteem in which a person is held in the community. The ecclesiasticalcourts took them under their jurisdiction, regarding them as sins, anddealt with them accordingly. As these spiritual courts began to lose2Art. I-A Maryland Code § 9 (1951) as applied in D'Anna v. United States,181 F. 2d 335 (4th Cir. 1950), provides that the owner of any aircraft damagingproperty or injuring persons in ascent, descent, or flight shall be prima facie liablein the absence of contributory negligence of the person involved or unless the air-craft is used without the consent, express or implied, of the owner. This statuteprovides the plaintiff a way to the jury as contrasted with the futility of the plain-tiff's position in the Williams case. It does not burden the aircraft industry withabsolute liability, but at the same time affords the plaintiff protection."8 These problems are set out and discussed fully in Simpson, Use of AircraftAccident Investigation Information in Actions for Damages, 17 J. AiR L. 283(1950). As to preparation for trial see Finley, Trial Technique in Aircraft Acci-dent Cases, 31 TEXAS L. REv. 809 (1953), in which the author points out the over-whelming ignorance of most attorneys in the intricacies of obtaining, evaluating,and presenting evidence in aircraft litigation. As was indicated in Williams v.United States, 115 F. Supp. 386 (N. D. Fla. 1952), where military aircraft are in-volved recourse may be had to Congress for legislative relief. For some of thedifficulties involved in obtaining Congressional relief where the judiciary offersnone see Gellhorn and Lauer, Congressional Settlement of Tort Claims against theUnited States, 55 Cok. L. REv. 1 (1955).2 Section 5 of the Uniform Aviation Act was adopted by North Carolina in1927, as N. C. GEN. STAT. § 63-14 (1943). It was repealed in 1947 by c. 1069, § 3of Session Laws of 1947. This statute is identical with that involved in the Praylouand Prentiss cases cited in footnote 17 supra. This statute imposed strict liabilityunder precisely the same conditions as the Maryland statute set out in footnote 27supra raises a prima facie presumption.I " Smith v. Whitley, 223 N. C. 534, 27 S. E. 2d 442 (1943). See Note, 28 N. C.L. REv. 432 (1950).3 N. C. GEN. STAT. § 63-18 (1953) makes it a misdemeanor to drop any objectfrom an aircraft other than water or loose sand.[Vol. 3

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Torts -- Res Ipsa Loquitur -- Mid-Air Explosion of Aircraft

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