O’gee v. Dobbs Houses, Inc.

570 F.2d 1084 (2nd Cir. 1978)

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Nature of the Case

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Facts

D and United entered into a contract for D to provide the food that United would serve on flights out of Atlanta. D would load food onto a cold buffet belonging to United. It weighed between five and eight hundred pounds when loaded. After being filled, the buffet is raised to the galley section of the aircraft, where it is placed on tracks on the floor and slid into a recessed position. D then latched in place. On April 23, 1972, P was a stewardess on United flight #476. D was late in loading the buffet aboard the plane. P watched, then checked the drawers and then locked the galley door was locked to bar entry by passengers during boarding. The galley door was reopened immediately after boarding for access to the emergency exit. Five minutes after takeoff, she noticed that the buffet had slid two feet out of position, substantially blocking access to the emergency exit. P tried to push the unit back into position but failed. At this time, she 'felt something pull' in her back. She then braced one foot behind her and tried again, again failing, and feeling a sharper pain in her back. A third try with the help of another stewardess failed, as did an attempt by the flight engineer. Finally, all three acting in concert succeeded in pushing the buffet back; P stepped on the locking levers to latch the buffet in place, where it remained for the rest of the flight. No report of this incident was made at the conclusion of the flight. P had a 'very bad backache,' of which she complained to another stewardess and the flight engineer. She returned to work on April 24 and 25 but suffered pain and stiffness throughout both days. On April 26, she reported to a United medical officer, who gave her medication and requested that she return before her next flight. For over a year, P saw several physicians, both in New York City and in Rochester, where her parents lived. P eventually underwent a laminectomy for the removal of a herniated disk from her back. After a period of recuperation, she returned to work at United (on smaller planes than formerly) in September of 1973. P's attendance at work was perfect in 1975 and 1976. P sued D alleging that her injury was the result of the defendant's negligence in placing and securing the buffet unit on the plane. D impleaded United, claiming that any injury sustained resulted from defects in United's equipment. United counterclaimed against D for costs and counsel fees, citing the indemnity clause of its contract with D. D was found negligent, its negligence was 100% responsible for P's damages. P was awarded $170,000. A motion to set aside the verdict as excessive was denied; so was United's attempt to press its claim under the indemnification agreement. D appealed. On its cross-appeal, United alleges that the terms of its indemnification agreement with D require that D be found liable to United for any expenses incurred in defending against the third-party complaint.