Newing v. Cheatha

15 Cal.3d 351 (1975)

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Nature of the Case

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Facts

Newing (P) sued the estate of Cheatham (D) for negligence in an airplane crash. All three occupants of the airplane, including P and D were dead. The plane was a single-engine Cessna 172 owned and piloted by D. The plane's wreckage was located 13 miles east of Tijuana. Three theories were advanced for the action against D. (1) D had negligently permitted the airplane to run out of fuel. (2) D had been negligent as a matter of law in that he had violated FAA regulations. (3) D was negligent under the doctrine of res ipsa loquitur. P entered evidence from an eyewitness who saw no fuel at the crash site and who also attempted to drain the fuel from the bottom of each tank by removing the plugs; no fuel came out. There was no ground spillage, and after measuring the fuel in one of the wing tanks, it was found to be 3/16 of an inch. That witness also testified that from the appearance of the propeller and control surfaces and the upright position of the plane and the general description of the accident site, all indicated that the crash had been caused by fuel exhaustion. Much of this evidence was contradicted on cross-examination or shown to be incomplete and possibly inaccurate. An expert testified about proper pilot fuel safety measures and that under proper operating conditions, D's plane should have run out of fuel just about the time that was indicated on the clock on the instrument panel (5:18). That expert also found that a stationary Cessna 172 stopped when its fuel supply was down to 5/16 inch. D called an air crash expert who testified about proper procedures to investigate an air crash. That evidence indicated that P's investigation was rudimentary at best. That expert testified that there were 7.5 gallons of fuel left in the plane to raise it to 3/16 inch and that was a usable amount of fuel. Evidence was introduced that d has been drinking. The trial judge ruled that res ipsa loquitur had been established and that the inference of negligence had not been rebutted. P got the verdict and D appealed.