Johnson v. Jacobs

970 N.E.2d 666 (2011)

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Nature of the Case

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Facts

Eric and P were married on June 18, 1994. Emily, their only child, was born on February 16, 1999. In June 2006, P filed a petition for dissolution of marriage. The following month, Eric threatened P and held her at gunpoint for an entire night. P obtained a restraining order against Eric. After the divorce, Eric told P on several occasions that he would not permit her to take Emily away from him. Eric began flight lessons and completed his first solo flight on January 20, 2007. During the last week of February 2007, Eric took Emily to Cancun, Mexico, for a vacation. On March 1, while still in Cancun, Eric called P. P was in Florida with her new boyfriend, Dean Winegardener, and Eric became upset. The next day, Eric told his friend, Brenda Cooper, that he thought P and Winegardener were going to take Emily away from him. Eric was supposed to take Emily to school on March 5, 2007. Sometime before March 5, 2007, Eric made a reservation to rent a Cessna airplane from a Flight Services company at Grissom Airport. On March 5, Eric sent a Limestone Girls Club Donor Brick and Block Program Form and a check for $500 through the mail to the Limestone Girls Club in Bedford. The form requested a brick be engraved 'Emily and Eric Johnson 3-1-07.' That same day, Eric emailed the school and informed Emily's teacher that she would be late. P learned about the email only after she called the school. Eric went to Grissom Airport at approximately 8:45 a.m. and retrieved from Lance Jacobs, an airport employee, some keys for one of the airplanes. Jacobs recognized Eric from a photograph on the wall, demonstrating that Eric was Newbold's student. It was routine policy for student pilots to retrieve the keys to the hangar, pull out the airplane, and wait for the instructor to join them. Approximately ten minutes later, Jacobs heard a plane's engine start. Mike Sipes, a private pilot, walked into the building and mentioned that he had seen a little girl run-up to a plane outside. Jacobs picked up some binoculars but could not see anyone other than the pilot in the plane. Eric knew that he was not permitted to have unsupervised flights. Eric attempted to call P three times on her cell phone. Approximately one hour and fifteen minutes into the flight, P answered. Eric was angry and yelling and cursing. Eric called P a 'bitch' and 'whore,' and told her that he would see her and Winegardener 'in hell.' Emily also talked to P on the phone and told her mother to come get her. Witnesses noticed that Eric was not trying to land as he was with the wind with flaps up. One witness, who as an experienced pilot heard the Cessna's engine throttle increase approximately 500 feet past his house. He observed the Cessna bank 'hard left and nose down.' The Cessna crash into Pace's residence (the mother-in-law’s house). The witness opined that the plane looked like it was going to fly into the house. The NTSB reported that suicide was the probable cause of the crash. P sued Ds for Emily's wrongful death. Ds got summary judgment because the court held that the designated evidence established that Eric intentionally flew the airplane he had rented into his mother-in-law's house. P appealed.