Helwig, Jerry B.

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Torts--Airline\u27s Inspection during Aircraft Manfacturing Process--Contributory Negligence

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 7 | Issue 21956Torts--Airline's Inspection during AircraftManfacturing Process--Contributory NegligenceJerry B. HelwigFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationJerry B. Helwig, Torts--Airline's Inspection during Aircraft Manfacturing Process--Contributory Negligence, 7 W. Res. L. Rev. 206 (1956)Available at: https://scholarlycommons.law.case.edu/caselrev/vol7/iss2/12WESTERN RESERVE LAW REVIEWTORTS - AIRLINE'S INSPECTION DURING AIRCRAFTMANFACTURING PROCESS- CONTRIBUTORY NEGLIGENCEPlaintiff airline commenced an action in the District Court of theNorthern District of Ohio, Eastern Division, against an aircraft manu-facturer for negligence in design and manufacture of certain airplanes. Itwas alleged that the wing splice was susceptible to metal fatigue, resultingin complete destruction of the aircraft and the death of thirty-three pass-engers and three crew members. No questions of warranty are involved,since the purchase agreement, in effect, limited the liability of the manu-facturer to that imposed upon it by law for negligence.In the trial court, the defendant denied that it had failed to exerciseordinary care, and contended alternatively that the airline had assumed therisk of danger, or was guilty of contributory negligence. Evidence was in-troduced to show that the airline had several engineers, inspectors, pilotsand other personnel present in its plant throughout the entire manufacturingprocess, and that these employees had full opportunity to see that the air-planes conformed to established specifications.On the basis of this evidence, the district judge instructed the jury thatit could consider whether or not the airline had assumed the risk of dangerresulting from the defective wing joint, or was contributorily negligent inthis respect. From a general verdict in favor of the manufacturer, as toeach claim of damages, the airline appealed. On review, the Court of Ap-peals, Sixth Circuit, reversed the judgment entered by the district court andremanded the case for new trial, holding that the evidence presented was in-sufficient to warrant an instruction as to either assumption of risk or con-tributory negligence.'As to assumption of risk, the court found that there was a completelack of evidence that the airline had knowledge or appreciation of anyrisk of danger associated with the design or manufacture of the faulty wingsplices. Also, there was no evidence that the danger was so obvious to air-line personnel that they must be held to have appreciated that danger.While conceding that the airline was not negligent with respect tomaintenance of the airplanes after they were delivered, the manufacturerargued that since the airline did, in fact, undertake an independent in-spection prior to the time of completion and delivery, it was guilty of con-tributory negligence if dangers existed which could have been discoveredby the exercise of ordinary care. Noting that the manufacturer was unableto cite authority for this proposition, the court refused to apply such atheory of contributory negligence, in light of the undisputed facts of thecase. The fact that the inspections were made in no way increased the'Northwest Airlines v. Martin Co., 224 F.2d 120 (6th Cir. 1955).[March6RECENT DECISIONSrisk of harm, particularly since there was no evidence that the aircraft manu-facturer acted, or refrained from acting, in reliance upon the airline's inspec-tion. That being so, the court was unable to say that these inspections con-tributed in any way to the damages which were sustained by the airline, andrefused to penalize it for attempting to conform to a higher standard of carethan that imposed upon it by law.It is well settled that a manufacturer of chattels owes a legal duty toexercise reasonable care to inspect its product to discover defects, and inpreparing the chattels for sale.2 Furthermore, it is clear that one need notanticipate the negligence of another until he becomes aware of such negli-gence,3 and that it is not contributory negligence to fail to look out fordanger when there is no reason -to apprehend any.4 While thus recogniz-ing that the airline was under no legal duty to make a detailed examinationof the airplanes or defendant's manufacturing process, the court was facedwith a situation where such an inspection had actually been made.In its determination of the legal effect of such an inspection, with regardto contributory negligence on the part of the plaintiff, the court mightwell have reached its decision in terms of "shifting the risk." Had theairline simply relied on the manufacturer to produce a safe airplane, therisk of danger resulting from the defective wing joint would unquestiona-bly have rested upon the manufacturer. The court was dearly unwilling toallow the defendant to shift this risk of harm, unless there was evidenceof reliance by the manufacturer upon the inspection with respect to the air-planes generally or the king joint in particular. Where one undertakes anact which he has no duty to perform, and another reasonably relies uponthat undertaking, the act must ordinarily be performed with ordinary care.5In the leading case of American Airways v. Ford -Motor Co.,0 it is inter-esting to note that liability was found on grounds of 'breach of contract,where the defendant had agreed to repair propellers on the plaintiff's air-planes, and failed to exercise ordinary care to discover defects while doingso. Had the airline in the instant case based its action upon the purchase'Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48 (1913); Harper v.Bullock, 198 N.C. 448, 152 S.E. 405 (1930); RESTATEMENT, TORTs § 402(1934).'Baldridge v. Wright Gas Co., 154 Ohio St. 452, 96 N.E.2d 300 (1951).'Standard Oil Co. v. Burleson, 117 F.2d 412 (5th Cir. 1941); S.S. Kresge v. Hol-land, 158 F.2d 495 (6th Cir. 1946); Phillips Petroleum Co. v. Hooper, 164 F.2d743 (5th Cir. 1948).'See Conowingo Power Co. v. Maryland, .120 F.2d 870, 874 (4th Cir. 1941); cf.RESTATEMENT, TORTS § 325 (1934).10 N.Y.S.2d 816, 170 Misc. 721 (Sup. Ct. 1939), aff'd inem., 258 App. Div. 957,17 N.Y.S.2d 998 (1st Dep't 1940), affirmed without opinion 284 N.Y. 807, 31N.E.2d 925 (1940).19561WESTERN RESERVE LAW REVIEWagreement itself, rather than upon the negligence of the manufacturer, thequestion of contributory negligence might well have been avoided. Theavailability of such an approach would seem to depend, in the final analysis,upon the express terms of the contract in dispute.Aside from the immediate impact of this case upon the rights andliabilities of the parties, which is by no means insignificant, the decisionwould appear to define more clearly the function of the court within theframework of such a factual controversy, and permit less speculation by thejury. In negligence cases, a primary function of the court involves the"determination of the preliminary question whether the evidence as to thefacts which have occurred makes an issue upon which reasonable men maydiffer."7  To warrant a finding of contributory negligence from the factsof the instant case, the trial judge must now find evidence not only as tothe existence and scope of the airline's inspection, but also evidence thatsuch inspection in some way increased the risk of harm, in the form of re-liance thereon by the manufacturer.Of perhaps even greater significance, however, is the impact of the de-cision upon the airline and aircraft manufacturing industries, and the legalrelationships between them. It appears to be a common practice for air-line personnel to be present during the manufacturing process of an air-plane being purchased, to familiarize themselves with the technical charac-teristics and performance of the new aircraft, and to ascertain whethersuch airplanes conform to established specifications and safety standards.In so doing, the airline seemingly is acting not only in its own interests,but with regard to those of its passengers and the general public as well.If a manufacturer in the purchase agreement has limited his liability fordefects in the aircraft to negligence, as seems to be the prevailing tendency,the airline would have little choice but to forego this inspection, shouldsuch inspection itself warrant a jury's finding of contributory negligence.It would seem that the court properly placed great weight upon thesepolicy considerations, and the interest of the public affected thereby, inreaching its conclusion in the present controversy.While the court places considerable emphasis upon the complex andintricate nature of the aircraft manufacturing process, its holding is never-theless based upon familiar principles of negligence. As a result, it is con-ceivable that the concept of contributory negligence which emerges mightwell find further application in other cases involving such a buyer-sellerrelationship. In any event, the decision would appear to have a vital andfar-reaching impact upon existing aviation law, with regard to the legaleffect of an airline's inspection during an aircraft manufacturing process.JERRY B. HELWIG7 PROSSBR, TORTS 191 (2d ed. 1955).[Mtarch

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Torts--Airline\u27s Inspection during Aircraft Manfacturing Process--Contributory Negligence

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