KHIRY COSEY ON BEHALF * NO. 2019-CA-0756 OF HER MINOR CHILDREN, CORBIN HILLIARD AND * ALLYSSA HILLIARD COURT OF APPEAL INDIVIDUALLY AND ON * BEHALF OF THE ESTATE OF FOURTH CIRCUIT REGINALD HILLIARD, JR; * TIARA LIGGINS ON BEHALF STATE OF LOUISIANA OF HER MINOR CHILD, ******* TAKHIREE HILLIARD INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REGINALD HILLIARD, JR.; TUKEYA JARVIS INDIVIDUALLY AND ON BEHALF OF THOMAS HILLIARD; AND DOROTHY JARVIS
VERSUS
FLIGHT ACADEMY OF NEW ORLEANS, LLC; JAZZ AVIATION, LLC; QBE INSURANCE CORPORATION; CHRISTIANSEN AVIATION, INC.; ABC INSURANCE COMPANY; SIGNATURE FLIGHT SUPPORT CORPORATION; ALLIANZ GLOBAL CORPORATE & SPECIALTY SE; THE ESTATE OF JAMES BIONDO; AND DEF INSURANCE COMPANY
CONSOLIDATED WITH: CONSOLIDATED WITH:
KHIRY COSEY ON BEHALF OF NO. 2019-CA-0785 HER MINOR CHILDREN, CORBIN HILLIARD AND ALLYSSA HILLIARD INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REGINALD HILLIARD, JR; TIARA LIGGINS ON BEHALF OF HER MINOR CHILD, TAKHIREE HILLIARD, ET AL. VERSUS
FLIGHT ACADEMY OF NEW ORLEANS, LLC; JAZZ AVIATION, LLC; QBE INSURANCE CORPORATION; CHRISTIANSEN AVIATION, INC.; ABC INSURANCE COMPANY; SIGNATURE FLIGHT SUPPORT CORPORATION; ALLIANZ GLOBAL CORPORATE & SPECIALTY SE; THE ESTATE OF JAMES BIONDO; AND DEF INSURANCE COMPANY
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-09317 C\W 2016-11198, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Judge Daniel L. Dysart ****** (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano)
John D. Sileo Casey W. Moll LAW OFFICE OF JOHN D. SILEO, LLC 320 North Carrolton Avenue, Suite 101 New Orleans, LA 70119
Ike Spears SPEARS & SPEARS 1631 Elysian Fields Ave. New Orleans, LA 70117
Roderick "Rico" Alvendia Jeanne K. Demarest Kurt A. Offner ALVENDIA, KELLY & DEMAREST, L.L.C. 909 Poydras Street, Suite 1625 New Orleans, LA 70112-4500 Eric J. Allen ZEHL & ASSOCIATES, PC 2700 Post Oak Blvd., Suite 1120 Houston, TX 77056
Cleo Fields THE FIELDS LAW FIRM, LLC 2147 Government St. Baton Rouge, LA 70806 COUNSEL FOR PLAINTIFF/APPELLANT
D. Russell Holwadel Heather A. England Reznik ADAMS HOEFER HOLWADEL, L.L.C. 400 Poydras Street, Suite 2450 New Orleans, LA 70130
Stephen P. Hall PHELPS DUNBAR LLP 365 Canal Street, Suite 2000 New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
NOVEMBER 12, 2020 DLD RLB This is an appeal of a trial court judgment granting motions for summary JCL judgment in favor of defendants, Christiansen Aviation, Inc., and its insurer, Old
Republic Insurance Company. After a de novo review of the record, we find that
the trial court properly granted the summary judgments, and we affirm.
FACTS AND PROCEDURAL BACKGROUND
This lawsuit arises out of a tragic accident that occurred on August 27, 2016,
when a Cessna 172 airplane, piloted by James Biondo, crashed into Lake
Pontchartrain. Mr. Biondo had been hired to perform an aerial tour of New
Orleans by Briana Davis; Ms. Davis and her boyfriend, Reginald Hilliard, Jr., were
passengers in the airplane at the time of the accident. Mr. Biondo and Mr. Hilliard
both perished as a result of the accident, while Ms. Davis survived. Mr. Hilliard’s
surviving family members filed a lawsuit seeking damages resulting from the
crash.1 The suit named a number of parties, including Flight Academy of New
Orleans (“FANO”), Christiansen Aviation and its insurer, Old Republic.
1 Mr. Hilliard’s surviving family members are identified as his minor children, on whose behalf suit was filed by their mothers: Corbin Hilliard and Alyssa Hilliard (whose mother is Khiry Cosey) and Takhiree Hilliard (whose mother is Tiara Liggins). Also named as plaintiffs are
1 On January 1, 2019, Christiansen Aviation, the owner and lessor of the
airplane, filed a motion for summary judgment seeking to be dismissed from this
action on the basis that the plaintiffs would be unable to bear their burden of proof
that any negligence on its part caused or contributed to the August 27, 2016 crash.
Its insurer, Old Republic, filed its own motion for summary judgment, as its
liability is contingent on the liability of its insured, Christiansen Aviation.
The trial court conducted a hearing on the motions for summary judgment
on February 15, 2019. By judgment dated February 26, 2019, the trial court
granted the motions for summary judgment, dismissing the plaintiffs’ claims
against Christiansen Aviation and Old Republic, with prejudice. This appeal
followed.
DISCUSSION
The summary judgment procedure “is favored” and “is designed to secure
the just, speedy, and inexpensive determination of every action, except those
disallowed by Article 969.” La. C.C.P. art. 966(A)(2).
It is well-settled that “[a]ppellate courts review the grant or denial of a
motion for summary judgment de novo, employing the same criteria that govern
the trial court’s determination of whether summary judgment is appropriate.”
Maddox v. Howard Hughes Corp., 19-0135, p. 4 (La. App. 4 Cir. 4/17/19), 268
Tukeya Jarvis, Mr. Hilliard’s mother, and Dorothy Jarvis, Mr. Hilliard’s grandmother. Tukeya Jarvis appears in her own capacity and in her capacity as mother of Mr. Hilliard’s minor brother, Thomas Hilliard.
Ms. Davis filed a lawsuit as well for her personal injuries that was consolidated with the Hilliard plaintiffs’ lawsuit; her suit was settled and has been dismissed.
2 So.3d 333, 337 (citations omitted). A “[d]e novo review generally ‘involves
examining the facts and evidence in the record, without regard or deference to the
judgment of the trial court or its reasons for judgment.’” Cutrone v. English Turn
Prop. Owners Ass’n, Inc., 19-0896, p. 10 (La. App. 4 Cir. 3/4/20), 293 So.3d 1209,
1216 (quoting Hooper v. Hero Lands Co., 15-0929, p. 12 (La. App. 4 Cir. 3/30/16),
216 So.3d 965, 973-74.
Summary judgment is appropriate and shall be granted “[a]fter an
opportunity for adequate discovery, . . . [when] the motion, memorandum, and
supporting documents show that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law.” La. C.C.P. art.
966(A)(3). The burden of proof rests with the party moving for summary
judgment; however, this burden does not require that the moving party “negate all
essential elements of the adverse party’s claim, action, or defense, but rather to
point out to the court the absence of factual support for one or more elements
essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(D)(1).
The adverse party has the “burden of produc[ing] factual support sufficient to
establish the existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.” Id.
There is no dispute in this case that Christiansen Aviation is the owner of
the airplane involved in the accident which it leased to FANO, a company whose
business includes providing recreational aerial tours of the New Orleans area.
3 FANO leased the airplane continuously since March 4, 2013, or for a period of
three years and five-and-a-half months prior to the accident.
The issue in this case turns on whether, under the circumstances of this case,
there are any theories under which liability can be assessed against Christiansen
Aviation, as the lessor of the airplane. We note the record is void of any evidence
that expressly indicates the cause of the accident. Christiansen Aviation indicates
in its appellate brief that no defect or malfunction of the plane was detected when
the airplane was inspected after the accident, and that the evidence points to pilot
error as its cause. Plaintiffs have not disputed either of these statements and have
not alleged that the airplane had a defect or other condition that caused the
accident. The claims of plaintiffs against Christiansen Aviation, therefore, sound
in negligence.
In its memorandum in support of its motion for summary judgment,
Christiansen Aviation outlined the plaintiffs’ claims against it as follows; that
Christiansen Aviation: (1) “knew or should have known that the subject Cessna
172 was not fit for flight and that the use of the aircraft under such conditions
could cause serious injury;” (2) “so negligently and carelessly maintained,
inspected, operated, and/or services the subject Cessna 172 aircraft that it failed
catastrophically during a landing approach;” and (3) “negligently entrusted” the
aircraft to FANO.2 In their first supplemental and amending petition, plaintiffs
restated their negligent entrustment claims as follows:
2 The record does not contain copies of Petition for Damages, nor any of the supplemental and amending petitions. None of these pleadings were included as exhibits to the Motion for
4 Christiansen Aviation, leased a dangerous instrument (the aircraft) to the lessees even though the Christiansen Aviation knew, or should have known, that the lessees were likely to cause an accident in risk to others.
****
The lessor knew or should have known of the incompetence and/or knew or should have known that the aircraft was being used as a commercial touring aircraft and therefore required additional safety precautions, safety briefings, equipment, and instruments yet lessor took no reasonable steps to inspect the lessees’ operations or require compliance with reasonable safe practices or regulations prior to entering the lease and then continued to operate under the lease without taking any of these adequate measures;
****
The lessor has a duty to provide oversight to ensure that passengers fly on airplanes that are adequately selected, equipped, safely maintained, and operated by safely trained and qualified pilots; and
****
Because Christiansen Aviation was negligent and grossly negligent in leasing the aircraft to the lessees without reasonable steps to make sure the lessees were complying with regulations or otherwise operating its aircraft safely, Defendant Christian Aviation is liable to plaintiff.
In support of its motion for summary judgment, Christiansen Aviation
contended that the plaintiffs would be “unable to meet their burden of proving that
any negligence on the part of Christiansen Aviation caused or contributed to the
accident at issue.” In this regard, it makes several arguments. First, pursuant to
the lease between it and FANO, FANO undertook the obligation to maintain,
Summary Judgment nor any other supporting or opposing memoranda. Because plaintiffs have not disputed the characterization of their allegations by Christiansen, we accept these as the allegations against Christiansen Aviation.
5 inspect and repair the airplane. Second, the lease required FANO to allow only
properly certified pilots to operate the airplane. Third, under the terms of the lease,
FANO maintained “operational control” over the airplane. Fourth, Christiansen
Aviation exercised no control over the airplane. Fifth, under the provisions of the
lease, neither FANO nor Christiansen Aviation would be responsible for the acts or
omissions of the other. Lastly, it maintains that, under the facts alleged, plaintiffs
have failed to assert a legally cognizable negligent entrustment claim.
In opposition to Christiansen Aviation’s motion for summary judgment,
plaintiffs advance several arguments. Generally characterizing Christiansen
Aviation’s “approach . . . prior to and throughout the leasing of its aircraft” as
“extraordinarily nonchalant and negligent,” plaintiffs maintain that Christiansen
Aviation, “as the owner of a potentially dangerous instrument, may be held to a
higher, extraordinary standard of care, particularly in light of its failure to do
anything to inquire about FANO, its operations, and/or its pilots.” They contend
that it breached even an ordinary standard of care by failing “to conform its
conduct and standard of care to a reasonable person in like circumstances.”
Christiansen Aviation’s breach was allegedly the result of several failures,
including the failure to take “minimal, reasonable steps to ensure that FANO was a
responsible operator prior to and/or during the three-and-a-half years in which
FANO flew the plane.” The plaintiffs then cite various specific failures on
Christiansen Aviation’s part which are generally summarized as failing to “at least
meet[] with the operator, inquiring about the operator’s qualifications and safety
6 measures, understanding the operator’s use of the plane, and taking some
reasonable steps to monitor the operator’s actions and safety standards at some
point during the term of the lease.”
Plaintiffs also contend that Christiansen Aviation failed to properly vet
FANO prior to leasing to it, failed to follow its own internal vetting procedure
before leasing its airplane to it, and failed to act “as a reasonable and prudent
aircraft owner prior to and during the lease of the aircraft to FANO.” They further
contend that Christiansen Aviation failed to request and examine documentation
“verifying FANO’s licensing, skill, qualifications, maintenance schedule, intent on
usage of the aircraft, or operations in general over a three-and-half-year lease
term.”
At the outset, the parties do not identify and we know of no statutes or
regulations under Louisiana law that apply to aviation activities such as those
undertaken by FANO, nor any state regulations regarding the leasing of airplanes,
even the leasing of an airplane for the purposes of recreational touring.3 Aviation
activities are, on the other hand, regulated by the Federal Aviation Administration
(“FAA”), whose purpose is to “promote safe flight of civil aircraft.” 49 U.S.C.
§44701. “To that end, the FAA is empowered to regulate nearly every aspect of
3 We recognize that Title 2 of Louisiana’s Revised Statutes pertains to “Aeronautics” and that “[a]eronautics is defined therein as “the act or practice of the art and science of transportation by aircraft, and operations, construction, repair, or maintenance of aircraft, airports, landing fields, landing strips, air navigation facilities, or air instruction.” La. R.S. 2:1(2). There is nothing, however, within Title 2 which sets forth any duties vis-à-vis the lessor/owner of an aircraft and its lessee.
7 private and commercial flight, including licensing and regulation of pilots and their
operations.” Flytenow, Inc. v. F.A.A., 808 F.3d 882, 885 (D.C. Cir. 2015).
Among these federal regulations are those found under Title 14 of the Code
of Federal Regulations, “Aeronautics and Space.” These regulations include those
for “[p]assenger carrying flights for compensation or hire” (See 14 C.F.R. §91.147)
and “National Air Tour Safety Standards,” found within Part 136, “Commercial
Air Tours and National Parks Air Tour Management.”
Under 14 C.F.R. §91.147(b), “[a]n Operator must comply with the safety
provisions of part 136, subpart A of this chapter, and apply for and receive a Letter
of Authorization from the responsible Flight Standards office.” While the term
“operator” is not defined, “operational control” is defined “with respect to a flight,
[as] the exercise of authority over initiating, conducting or terminating a flight.” 14
C.F.R. §1.1. An “operator” necessarily would be one with “operational control”
over a flight.
There can be no question that the “operator” in this case is FANO. Attached
to Christiansen Aviation’s supporting memorandum is the Letter of Authorization
issued to FANO, that authorizes FANO, as the operator, to “[c]onduct commercial
air tour operations under 14 CFR Section 91.147.” There can be no dispute that
this Letter applies to FANO, alone, and does not confer to Christiansen Aviation
the authority to conduct any aerial tours either directly or by extension.
The National Air Tour Safety Standards provide specific rules for air tour
operations, which applies solely “to each person operating or intending to operate a
8 commercial air tour in an airplane.” 14 C.F.R. §136.1(a). Again, here, it is FANO
who operated the airplane for commercial tours, and the standards for safety, thus,
apply to it, alone. There is nothing in the regulations suggesting that the safety
standards can be expanded so as to apply to a party, such as Christiansen Aviation,
which does not actually “operate” or “intend to operate” commercial aerial tours.
Nor is there any basis for imposing liability on Christiansen Aviation for “failing to
provide safety instructions in its aircraft,” as plaintiffs contend. Plaintiffs cite no
law, regulation or other provision mandating that the owner of an airplane provide
written safety instructions.
However, there are federal regulations, the National Air Tour Safety
Standards, 14 C.F.R. §136.1 et. seq., which apply “to each person operating or
intending to operate a commercial air tour in an airplane.” 14 C.F.R. §136.1(a).
Those regulations place the responsibility of providing safety briefings before an
air tour with the pilot, alone. 14 C.F.R. §136.7, dealing with passenger briefing,
provides:
(a) Before takeoff each pilot in command shall ensure that each passenger has been briefed on the following:
(1) Procedures for fastening and unfastening seatbelts;
(2) Prohibition on smoking; and
(3) Procedures for opening exits and exiting the aircraft.
(b) For flight segments over water beyond the shoreline, briefings must also include:
(1) Procedures for water ditching;
9 (2) Use of required life preservers; and
(3) Procedures for emergency exit from the aircraft in the event of a water landing.
Another safety obligation is found at 14 C.F.R. §136.9(a), which requires
“the operator and pilot in command of commercial air tours over water beyond the
shoreline [to] ensure that each occupant is wearing a life preserver from before
takeoff until flight is no longer over water,” or, under certain circumstances, to
have “a life preserver . . . readily available for its intended use and easily
accessible to each occupant.” 14 C.F.R. §136.9(b).
These federal regulations clearly apply to operators and pilots and cannot be
construed to apply to any other party, including the owner of an airplane who is
neither an operator nor a pilot. Nor are these responsibilities delegable to third
parties. Accordingly, we find no authority under federal law by which the duties to
ensure the safety of passengers in a commercial air touring enterprise can be
extended to an owner-lessor of an airplane which is not its operator or pilot.
We also note that, under federal law, there is a limitation of liability found in
Title 49, “Transportation,” under which the Department of Transportation was
established for “[t]he national objectives of general welfare, economic growth and
stability, and security of the United States” and to serve the purpose of “the
development of transportation policies and programs that contribute to providing
fast, safe, efficient, and convenient transportation.” 49 U.S.C.A. §101. While
Title 49 applies in the context of “air commerce,” which is defined as “foreign air
commerce, interstate air commerce, the transportation of mail by aircraft, the
10 operation of aircraft within the limits of a Federal airway, or the operation of
aircraft that directly affects, or may endanger safety in, foreign or interstate air
commerce,” 49 U.S.C.A. §40102 (a), and there is insufficient information in the
record to determine whether it applies to this matter, we note that it contains an
express provision limiting the liability of the lessor of an aircraft. 49 U.S.C.A.
§44112 (b),4 which provides:
Liability.--A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage only when a civil aircraft, aircraft engine, or propeller is in the actual possession or operational control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of—
(1) the aircraft, engine, or propeller; or
(2) the flight of, or an object falling from, the aircraft, engine, or propeller.5
(Emphasis added).
Cases interpreting this statute have consistently held that “a lessor cannot be
liable for personal injury or death on an aircraft it owns unless the lessor ‘is in the
actual possession or operational control’ of the flight.” Escobar v. Nevada
Helicopter Leasing LLC, No. CV 13-00598 HG-WRP, 2020 WL 1076107, at *2
(D. Haw. Mar. 6, 2020). As the Escobar Court noted, the statute “provides
protection from liability only when the aircraft’s lessor possesses neither actual
possession nor actual control.” Id. (emphasis supplied; internal citation omitted).
That is, “[f]or liability to attach to a lessor, the statute requires actual possession or 4 This provision is found in Title 49, “Transportation,” Subtitles VII, “Aviation Programs,” Part A, “Air Commerce and Safety,” Subpart III, “Safety” and Chapter 441. “Registration and Recordation of Aircraft.” 5 “Lessor” is defined in the statute as “a person leasing for at least 30 days a civil aircraft, aircraft engine, or propeller” and “owner” is defined as “a person that owns a civil aircraft, aircraft engine, or propeller.” 49 U.S.C.A. §44112 (a)(1) and (2).
11 actual operational control of the aircraft by the lessor at the time of the injury-
causing accident.” Id. (citing In re Lawrence W. Inlow Acc. Litigation, 2001 WL
331625, at *18 (S.D. Ind. Feb. 7, 2001). See also, Salles v. Leasing, No. 115-CV-
457, 2015 WL 10912053, at *1 (W.D. Mich. Nov. 4, 2015)(“The [FAA] limits the
liability of owners of aircraft when the owner does not . . . possess or control the
aircraft.”); Matei v. Cessna Aircraft Co., 35 F.3d 1142, 1146 (7th Cir. 1994).
It is clear that, under federal law, a lessor of an airplane cannot be held liable
unless it has possession or control of the airplane. Here, there is no dispute that
Christiansen had neither and, therefore, cannot be held liable for the accident under
federal law.
Christiansen Aviation raises the issue of whether the plaintiffs’ claims are
preempted by federal law and notes that there are numerous cases finding state law
claims arising out of aircraft accidents to be preempted by federal laws.
Christiansen Aviation cites Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir.
1999) for its contention that “state law standards of care are completely preempted
by federal aviation safety standards in personal injury actions.”6 Abdullah did, in
fact, hold that, “because of the need for one, consistent means of regulating
aviation safety, the standard applied in determining if there has been careless or
reckless operation of an aircraft, should be federal; state or territorial regulation is
preempted.” Id. at 372. However, while Abdullah found “implied federal
preemption of the entire field of aviation safety,” Id., at 365, the Court recognized
that “the traditional state and territorial law remedies continue to exist for violation
6 Many of the cases dealing with the preemption issue consider the issue in the context of state laws which may conflict with the federal aviation laws. In this case, there are no specific state laws which are at odds with the federal aviation laws. We note, too, that some cases have found that certain state law claims are not preempted. See Retzler v. Pratt & Whitney Co., 309 Ill. App. 3d 906, 723 N.E.2d 345 (1999); Vreeland v. Ferrer, 71 So.3d 70, 84 (Fla. 2011)
12 of those standards” because “[f]ederal preemption of the standards of care can
coexist with state and territorial tort remedies.” Id. at 375.
In the instant matter, plaintiffs’ claims against Christiansen Aviation arise
not from the actual negligence of FANO’s pilot, but from its alleged failures prior
to leasing the airplane to FANO and its lack of oversight of FANO during the
pendency of the lease. No claim could be asserted against Christiansen Aviation
for Biondo’s negligence, as we know of no cases finding a lessor liable to third
parties for the negligence of its lessee’s employee under similar circumstances. “It
is well entrenched in Louisiana law that the negligence of a lessee in the exclusive
physical control of the object of the lease cannot be imputed to the lessor.”
Cenance v. Tassin, 03-1379, p. 4 (La. App. 4 Cir. 3/3/04), 869 So.2d 913, 916.
The issue of a lessor’s liability to third parties arises most often in the
context of vehicle lease cases or premises liability actions, the latter of which is
clearly inapplicable here. In vehicle lease cases, an owner may be liable under a
negligent entrustment theory, for which, as discussed more fully infra, there is no
basis in this case. Nor is there a basis for liability under La. C.C. art. 2317.1,
which provides that “[t]he owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the
exercise of reasonable care, should have known of the ruin, vice, or defect which
caused the damage, that the damage could have been prevented by the exercise of
reasonable care, and that he failed to exercise such reasonable care.” Here, there is
no indication that the airplane owned by Christiansen Aviation was defective (and,
therefore, the issue of Christiansen Aviation’s knowledge of a defect is moot).
It is clear that Louisiana law no longer recognizes strict liability based solely
upon ownership. See Sewell v. Sewerage & Water Bd. of New Orleans, 18-0996,
13 p. 4, n.7 (La. App. 4 Cir. 5/29/19), --- So.3d ----. 2019 WL 2305673, writ denied,
19-01166 (La. 10/15/19), 280 So.3d 612 (“traditional[] notions of strict liability
have been nearly entirely abrogated” by amendments to the Civil Code.”)(internal
citation omitted). Indeed, “La. C.C. art. 2317.1 effectively abrogates strict
liability in cases involving defective things and imposes a negligence standard
based on the owner or custodian’s knowledge or constructive knowledge of the
defect.” Griffith v. Universal Furniture House, Inc., 07-1551, p. 4 (La. App. 4 Cir.
7/30/08), 990 So.2d 739, 741. “Liability arises out of a defendant’s legal
relationship to the thing based on the defendant’s custody or control of the thing,
not solely ownership of the thing.” Szewczyk v. Party Planners W., Inc., 18-0898,
p. 8 (La. App. 4 Cir. 5/29/19), 274 So.3d 57, 62.
While plaintiffs argue that “Christiansen Aviation, as the owner of the
aircraft, negligently and recklessly leased the aircraft, a potentially dangerous
instrument when piloted by a negligent pilot under the influence of antidepressants
and operated by [a] company without sufficient safety measure in place,” plaintiffs
cite no case law imposing liability to the lessor of a plane for the negligent
operation of the plane by a lessee’s employee. Thus, as a matter of law, the
circumstances of this case do not provide a sufficient basis upon which liability can
be assessed against Christiansen Aviation.
Moreover, in this case, the Aircraft Lease Agreement (“Lease”) required that
FANO, not Christiansen Aviation, ensure that the airplane was operated in a safe
and proper manner. The Lease contained a clause whereby FANO agreed to:
use and operate the Aircraft in accordance with the manufacture’s operating instructions, in conformity with the laws, ordinances, rules and regulations, municipal, state, national or otherwise, now existing or hereafter enacted, controlling or in any way affecting the
14 operation, use or possession of the Aircraft or the use of any airport premises by the Aircraft, and only in compliance with the terms, conditions and limitations set forth in the applications for or policies of insurance made or issued pursuant to the terms of this lease.7
We likewise find no merit to plaintiffs’ contention that a “duty of
extraordinary care” exists to those “who own, or control a dangerous
instrumentality.” Nor are we persuaded that the operation of an airplane can be
compared to the handling of “inherently dangerous agencies, substances, or
instrumentalities,” as plaintiffs suggest. Plaintiffs cite several cases8 for their
contention that “explosives, electricity, firearms, combustibles and fireworks
which might endanger persons or property are held to a high or extraordinary
degree of care.” In our view, airplanes are not in the same class of any of these
inherently dangerous materials. We are similarly not convinced that the Maryland
Cas. Co. v. W. H. Stewart & Sons, Inc., 100 So.2d 912, 913 (La. App. 1 Cir 1958)
case advances plaintiffs’ arguments on this point. While the Court in Maryland
Cas. noted that “[a]n airplane is not an inherently dangerous instrument, although
in flight, when improperly used or in the hands of an incompetent pilot, it may be,”
Id., 100 So.2d at 913, again, any negligence on Biondo’s part in this case would
not be imputable to Christiansen Aviation.9
Moreover, our review of cases from other jurisdictions reflects consistency
in the principle that airplanes are not dangerous instrumentalities and that aviation
is not an ultrahazardous activity. See, e.g., Garland v. Sybaris Clubs Int'l, Inc.,
7 Similarly, the Lease provided that FANO (and not Christiansen Aviation) would at all times, be the party in “operational control,” of the airplane. 8 Waters v. Southern Farm Bureau Cas. Ins. Co., 212 So.2d 487 (La. App. 3 Cir. 1968); Miller v. Lambert, 380 So.2d 695 (La. App. 4 Cir. 1980) and Cathey v. Bernard, 467 So.2d 9 (La. App. 1 Cir. 1985) 9 See, e.g., Lockwood v. Astronautics Flying Club, Inc., 437 F.2d 437 (5th Cir. 1971)(rejecting the theory of vicarious liability of the owner of an aircraft for the negligence of the pilot of the aircraft).
15 2019 IL App (1st) 180682, ¶ 31, 141 N.E.3d 730, 748 (“an airplane is not an
inherently dangerous article, [although] it may become so if operated by a pilot
who is incompetent, inexperienced, or reckless”); Wilson v. Greg Williams Farm,
Inc., 2014 Ark. App. 334, 5-6, 436 S.W.3d 485, 489 (2014)(quoting Little v.
McGraw, 250 Ark. 766, 769, 467 S.W.2d 163 (1971)(“[a]viation is now so
commonplace that it cannot be considered to be either inherently dangerous or
ultrahazardous”); Joshi v. United States, 2009 WL 2449234, at *5 (N.D. Ind. Aug.
6, 2009)(“an aircraft does not qualify as a dangerous instrumentality”); Lange v.
Nelson-Ryan Flight Serv., Inc., 263 Minn. 152, 157, 116 N.W.2d 266, 270
(1962)(“Technical progress in the art of flying has reached a point where an
airplane cannot be regarded as a dangerous instrumentality per se”); Wood v.
United Air Lines, Inc., 32 Misc. 2d 955, 960, 223 N.Y.S.2d 692, 697 (Sup. Ct.
1961)(“flying should no longer be deemed to be an ultrahazardous activity,
requiring the imposition of absolute liability for any damage or injury caused in the
course thereof. This view is [in] accord with the current trend of the law.”).
In this matter, therefore, plaintiffs can only rely on theories of general
negligence. As early as 1949, courts have recognized that, although there is “no
statute specifically applicable to the issue of negligence in the operation of
aircraft,” “[i]n the absence of [such] statutes . . . , specifically applicable to the
issue of negligence in the operation thereof, the rules of law applicable to torts—
the ordinary rules of negligence and due care—obtain.” S. Air Transp. v. Gulf
Airways, 40 So.2d 787, 789 (La. 1949). See also Nichols v. Jones, 260 So.2d 748,
750 (La. App. 2 Cir. 1971)(“[t]he rule in Louisiana is that in the absence of any
statute specifically applicable to the issue of negligence in the operation of aircraft,
the ordinary rules of negligence apply.”).
16 Negligence claims have as their foundation, La. C.C. art. 2315 A, which
provides that “[e]very act whatever of man that causes damage to another obliges
him by whose fault it happened to repair it.” As this Court explained, “[t]he
duty/risk analysis is the standard negligence analysis our Court employs in
determining whether to impose liability under La. C.C. art. 2315.” Moore v.
Choice Found., 18-0603, p. 5 (La. App. 4 Cir. 5/29/19), 274 So.3d 33, 37. Thus:
in order for liability to attach under a duty/risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element).
Id. (quoting Mathieu v. Imperial Toy Corp., 94-0952, pp. 4-5 (La. 11/30/94), 646
So.2d 318, 322). The absence of any of these elements “results in a determination
of no liability.” Id. (quoting Mathieu, p. 11, 646 So.2d at 326).
It is axiomatic that the “threshold issue in any negligence action is whether
the defendant owed the plaintiff a duty.” FIE, LLC v. New Jax Condo Ass’n, Inc.,
16-0843, p. 23 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, 391-92, writ denied, 18-
449 (La. 5/25/18), 243 So.3d 544, and writ denied, 18-446 (La. 5/25/18), 243
So.3d 545. “The existence of a duty is a question of law.” Hohensee v. Turner,
14-0796, p. 13 (La. App. 4 Cir. 4/22/15), 216 So.3d 883, 890. In considering this
issue, “the inquiry is whether the plaintiff has any law—statutory, jurisprudential,
or arising from general principles of fault—to support his claim.” Ducote v.
Boleware, 15-0764, p. 16 (La. App. 4 Cir. 2/17/16), 216 So.3d 934, 945, writ
17 denied, 16-0636 (La. 5/20/16), 191 So.3d 1071 (quoting Faucheaux v. Terrebonne
Consolidated Government, 615 So.2d 289, 292 (La.1993)).
Plaintiffs cite no statute or case law requiring a lessor, even the lessor of an
airplane, to undergo the measures plaintiffs assert Christiansen should have
undertaken before a lease, and the obligations contained in that lease, become
effective. Nor have plaintiffs cited any federal or state law imposing such duties.
Their position is simply that Christiansen Aviation’s conduct was not reasonable
under the circumstances of this case. Because we can find no duty under state or
federal law for the claims asserted by plaintiffs against Christiansen Aviation, we
find that the plaintiffs have failed to meet the first element of a negligence claim
against it.10 We, thus, need not address any of the other elements of a negligence
claim.
Furthermore, the Lease contained a provision whereby “[n]either party shall
at any time during [the Lease] for any purpose whatsoever be or become the agent
of the other, nor shall either party be responsible for the acts or omissions of the
other or its agents.” It also contained an indemnification provision whereby FANO
agreed to:
indemnify and save [Christiansen Aviation] harmless from and against any and all claims, costs, expenses, demand, and liabilities of any nature whatsoever which may be asserted against [Christiansen Aviation] or incurred by [Christiansen Aviation] and arising solely out of [FANO’s] use or operation of the Aircraft during the term of this lease, whether caused by [FANO’s] negligence, or not.
10 Even assuming Christiansen Aviation owed a duty to the plaintiffs, any such duty would not encompass any of FANO’s day-to-day operations, including the hiring or training of its pilots. Nor can we see any manner by which a breach of a duty could be a cause-in-fact or a legal cause of the accident insofar as it resulted from pilot error.
18 These provision clearly release Christiansen Aviation from liability for any
negligence on FANO’s part. “Where a lease’s words are clear and unambiguous, a
court must enforce its explicit terms.” Gravolet v. Fair Grounds Corp., 03-0392,
p. 4 (La. App. 4 Cir. 7/14/04), 878 So.2d 900, 903. We find no ambiguity in the
either of these provisions and thus, find further support for our finding that
Christiansen Aviation has no liability in this action.
Turning to plaintiffs’ negligent entrustment claims, Christiansen Aviation
cites several cases involving the liability of a lessor of a vehicle for the negligence
of its lessee. Plaintiffs distinguish these cases on the basis that they involve
vehicles, rather than aircraft, and contend that the “[c]ircumstances and standards
imposed upon a person lending his or her car to someone are extraordinarily
different from those related to and/or imposed upon the owner of an aircraft leasing
its property to an out-of-state operator,” which, plaintiffs argue, require
“heightened,” “not lessened” standards. Plaintiffs, again, urge this Court to adopt a
“reasonable person in like circumstances” to this claim.
There are no cases in Louisiana addressing a negligent entrustment claim
asserted against the owner of an aircraft by the victim of its lessee’s alleged
negligence.11 However, we see no discernable reason as to why the principles of
negligent entrustment outlined in those cases would not apply to other types of
leases, including the lease of an aircraft, particularly given that there are no other
analogous Louisiana cases on this issue.
In the context of the lease of a vehicle, our jurisprudence indicates that,
under a “negligent entrustment theory, the lender of a vehicle is not responsible for
11 We note here, again, that Christiansen Aviation cannot be held liable for Mr. Biondo’s alleged negligence because the negligence of a lessee “in the exclusive physical control of the object of the lease cannot be imputed to the lessor.” Cenance, 03-1379, p. 4, 869 So.2d at 916.
19 the negligence of the borrower, unless he had or should have had knowledge that
the borrower was physically or mentally incompetent to drive . . . [thus,] one who
entrusts an automobile to an intoxicated, or otherwise incompetent, driver is
responsible for the harm resulting from the incompetent operation of the vehicle.’”
Thistlethwaite v. Gonzalez, 12-130, p. 27 (La. App. 5 Cir. 12/18/12), 106 So.3d
238, 257 (internal citations omitted). As the Thistlethwaite Court further noted,
“[o]ne who loans a car to another when the lender knows or has reason to know
that the borrower is likely to use the car in a manner involving an unreasonable risk
of physical harm, because of the borrower’s youth, inexperience, intoxication,
incompetence, or otherwise, can be held liable to a third party for damage caused
by the borrower.” Id.
We need not rely solely on principles detailing negligent entrustment of
vehicles, as the prevailing concept of negligent entrustment is that, in order “[t]o
prove a claim of negligent entrustment, a plaintiff must show that a lessor had
actual or constructive knowledge that the lessee was incompetent or had an
apparent disability at the time of the lease. “ Cenance, 03-1379, p. 6, 869 So.2d at
917.
In the instant matter, plaintiffs rely on their assertion that “Christiansen
Aviation leased an aircraft to an out-of-state lessee for a period of three-and-a-half
years and did so without learning anything about the lessee’s operation, licensing,
or qualification” as a basis for finding that it negligently entrusted its airplane to
FANO. Plaintiffs do not, however, offer any facts establishing that Christiansen
Aviation knew or should have known that FANO (or Biondo) was incompetent or
otherwise incapable of fulfilling the Lease’s covenant that FANO would “endeavor
to use and operate the Aircraft in accordance with the manufacturer’s operating
20 instructions” and “in conformity with the laws, ordinances, rules and regulations,
municipal, state, national or otherwise.” Absent such a showing, plaintiffs cannot
maintain a negligent entrustment claim.
CONCLUSION
Based on the foregoing and our de novo review of the record, we do not find
any genuine issues of material facts in dispute in this matter. The trial court,
therefore, properly granted summary judgment in Christiansen Aviation’s favor.
The trial court’s judgment is affirmed.
AFFIRMED