First National Bank & Trust Corp. v. American Eurocopter Corp.

378 F.3d 682
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 9, 2004
Docket02-2274
StatusPublished
Cited by24 cases

This text of 378 F.3d 682 (First National Bank & Trust Corp. v. American Eurocopter Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First National Bank & Trust Corp. v. American Eurocopter Corp., 378 F.3d 682 (7th Cir. 2004).

Opinion

KANNE, Circuit Judge.

Tragically, on May 21, 1997, Lawrence Inlow was struck in the head by a helicopter rotor blade as he disembarked from the aircraft owned by his employer, Conse-co, Inc. He died instantly. His estate, represented by First National Bank and Trust Corporation, claimed that the helicopter was a defective product under Indiana law because its manufacturer, Eu-rocopter, S.A., had negligently failed to warn Inlow or Conseco of the relevant danger. Because we agree with the district court that Indiana’s sophisticated intermediary doctrine compels a grant of summary judgment to Eurocopter, we affirm.

I. History

Inlow served as general counsel for Con-seco. The corporation is based in Carmel, Indiana, and owns numerous insurance and financial services companies. Al *685 though Inlow worked out of Conseco’s Carmel headquarters, his duties took him around the country. On the morning of May 21, 1997, he and another attorney, Michael Colliflower, had a planned business trip. They intended to fly out of nearby Indianapolis International Airport to North Dakota via one of Conseco’s private jets. Inlow and Colliflower left the company’s headquarters aboard the helicopter. Upon arrival at the airport, Inlow was killed by the rotor blade as he made his way from the helicopter toward the private jet.

A. The Dauphin Helicopter

The helicopter involved in this case was a Dauphin AS-365-N2. It was manufactured by Eurocopter, a French corporation, and marketed in the U.S. by its subsidiary, American Eurocopter Corp. (collectively “Eurocopter”). Conseco purchased the Dauphin helicopter in 1992.

To better understand the specific circumstances of this accident, it is necessary to know a few basic facts about helicopters and, in particular, the Dauphin. As the district court performed this task concisely and without dispute by the parties, we will quote the helpful discussion:

The lift that allows a helicopter to stay in the air is generated by the high-speed flow of air over the main rotor blades, which have a cross-section of an airfoil, like the wings of a fixed-wing aircraft. For the Dauphin helicopter involved in the Inlow accident, the four main rotor blades have an overall diameter of 38 feet, 2 inches. Thus, at a typical flying speed of 350 [revolutions per minute (r.p.m.s) ], the blade tips travel about 700 feet per second, or about 477 miles per hour. The rotor blades are made of a strong, lightweight carbon fiber material. They can and do bend up and down as they rotate. When a helicopter runs its rotor blades at normal flight speeds, the blades are subject to centrifugal and lifting forces that raise the plane of the disk in which the blades rotate. When the Dauphin helicopter involved in this accident is parked and its blades are not moving, the blades droop to about 8 feet, 2 inches above level ground in front of the helicopter. (The blades are closest to the ground in front of the nose). The cyclic control on a helicopter controls the angle of the plane in which the rotor blades rotate. When the blades are under power and the cyclic control is in the neutral position, the blades may rise as high as 9 feet, 4 inches above level ground in front of the helicopter.

Dist. Ct. Op. at 8-9 (citations omitted).

The height of the rotor blades at rest (8'2" at the lowest point, which is directly in front of the helicopter) and during flight speed (up to 9'4") are marketed to Euro-copter’s customers — business executives, medical personnel, law enforcement, and offshore oil platform operators — as a safety feature and a convenience.

However, there are two ways in which the safety of the Dauphin’s high-set rotor is counteracted. First is the cyclic control factor, where the pilot tilts the rotor in order to move the helicopter in the direction of the tilt. As noted in the excerpt from the district court, “[wjhen the blades are under power and the cyclic control is in the neutral position, the blades may rise as high as 9 feet, 4 inches above level ground in front of the helicopter.” But, as testing done by Eurocopter in 1984 demonstrates, the height of the rotating blades at full power can decrease dramatically when the cyclic control is engaged. With normal use of the cyclic control at 5.2 degrees forward, the rotor blade clearance is 7 feet, 8 inches. But when the cyclic control is pushed beyond the normal oper *686 ating limit to its absolute maximum forward position of 13 degrees, the rotor blade can reach as low as 5 feet, 2 inches. The record contains information about an accident in which an offshore oil worker was fatally struck in the head by a Dauphin blade as he approached the helicopter from the front. At the time, the helicopter was operating under full rotor r.p.m.s and the cyclic control was pushed forward. 1

The second safety concern is known as “blade flap.” Information about this dangerous phenomenon is set forth and widely available in Federal Aviation Administration documents, federal regulations adopted in Indiana, helicopter industry publications, pilot safety manuals, and pilot training books. Simply stated, “blade flap” occurs because the rotor blades are made of a non-rigid, lightweight carbon fiber material; the blades, therefore, flex up and down. The downward flex occurs at lower r.p.m.s. The main rotor blades pose the greatest danger at ground level when they are decelerating with the engines off. Under those circumstances, the lifting and centrifugal forces on the rotor blades are diminishing, and the rotor blades are subject to gusts of wind that may push the blades lower.

Thus, despite the high-set rotor, evidence favorable to the Inlow Estate establishes that, under two circumstances, the Dauphin rotor blades pose grave danger to anyone within the circular path of the blades. And as the Inlow accident and the offshore oil worker accident demonstrate, there is an actual danger (at least in front of the nose of the Dauphin) of death from either use of the cyclic control or deceleration-enhanced blade flap.

But within the Eurocopter organization, there was a difference of opinion as to whether it is safe under any circumstances to disembark from the Dauphin while the rotor blades are decelerating. The head of the preliminary design department and the engineer in charge of testing the Dauphin testified that it is a basic “rule of the art” that passengers should never be under the rotor disk during deceleration or acceleration phases. The engineer noted that if circumstances dictated that the rotors must continue turning (such as a medical evacuation or mountain rescue), the rotors should be under full power. The Eurocop-ter safety manager agrees that it is “standard procedure” to not load or unload while the blades are decelerating, although he did not think it was a practice expressly prohibited by Eurocopter. And finally, Eurocopter’s former chief pilot agreed that unloading passengers while the blades are decelerating is the least desirable way to disembark, but he also said that he was never instructed to not do so and that he had probably unloaded some passengers while the blades were decelerating on demonstration flights in the past.

B. Conseco’s Policies and Practices

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378 F.3d 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-trust-corp-v-american-eurocopter-corp-ca7-2004.