Ballenger v. Sikorsky Aircraft Corporation, et al
OPINION AND ORDER that defendant Aeronautical Accessories, Inc.'s 132 MOTION for Summary Judgment is denied as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 11/4/2011. (dmn)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
ANN L. BALLENGER,
individually and as
Administratrix of the
Estate of Thomas
Ballenger, deceased, and
MARY ANNA WOEPPEL,
CORPORATION, a foreign
Corporation, et al.,
CIVIL ACTION NO.
OPINION AND ORDER
Following a fatal helicopter crash, plaintiffs Ann L.
Ballenger (on behalf of herself and as administratrix of
the estate of Thomas Ballenger) and Mary Anna Woeppel
Corporation and Aeronautical Accessories, Inc. (AAI) on
Louisiana state-law theories of design defect, negligence,
and failure to warn.
Jurisdiction is proper under 28
U.S.C. § 1332 (diversity).
AAI moves for summary judgment, arguing that there is
manufactured contributed to the accident.
will be denied.
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
Fed. R. Civ. P. 56(a).
Under Rule 56, the party
seeking summary judgment must first inform the court of
the basis for the motion, and the burden then shifts to
the non-moving party to demonstrate why summary judgment
would not be proper.
See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Fitzpatrick v. City of Atlanta, 2
F.3d 1112, 1115-17 (11th Cir. 1993).
The court’s role at the summary-judgment stage is not
to weigh the evidence or determine the truth of the
matter, but rather to determine only whether a genuine
See Anderson v. Liberty Lobby,
dispute exists for trial.
Inc., 477 U.S. 242, 249 (1986).
In doing so, the court
must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.
See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
plaintiffs bear the burden of proving that: (1) the
reasonably anticipated use; (2) the unreasonably dangerous
characteristic of the product was the proximate cause of
characteristic of the product existed at the time it left
the manufacturer’s control.
La. Rev. Stat. § 9:2800.54.
The undisputed facts are as follows.
On January 4,
2009, the plaintiffs’ decedent and eight others boarded a
Sikorsky S-76C++ helicopter bound for an oil platform in
the Gulf of Mexico.
The helicopter’s original windshield
had been removed and replaced with a lightweight, cast
acrylic windscreen manufactured by AAI.
takeoff, the helicopter suffered a catastrophic failure
due to a hawk colliding with the windshield.
were unable to maintain control and the helicopter crashed
in swampy terrain, killing all but one aboard.
The parties have competing interpretations as to
which design defect caused the accident.
argue that faults in the helicopter’s windshield and
throttle design caused the crash.
According to the
plaintiffs, the hawk’s impact cracked the windshield,
causing air and glass to enter the cockpit, and, in
addition, the helicopter’s throttle failed, resulting in
an uncommanded movement of the engine-control levers out
of the “fly” position.
Both of these events combined to
cause the crash. In
contends that the
helicopter’s throttle design alone caused an uncontrolled
movement and the crash. AAI argues there is no genuine
dispute that its windshield was not the proximate cause of
As Sikorsky has not moved for summary judgment, the
sole question here is whether a design defect in the AAI
windshield was a proximate cause of the crash.
concludes that there is a genuine dispute of material fact
as to this question.
AAI believes that no genuine dispute of material fact
exists because the plaintiffs’ own expert reports state
that the windshield did not fail.*
According to AAI, the
plaintiffs’ experts concluded that “there is no evidence
*AAI believes that the court should grant summary
judgment merely because the plaintiffs’ experts made
these findings and that the plaintiffs should not be
permitted to rely on reports prepared by Sikorsky. As an
initial matter, the court may look to the entire record
at the summary-judgment stage, not just reports prepared
by the nonmoving party. AAI’s factual premise is also
flawed. As discussed in more detail below, the plaintiffs
submitted a report prepared by a federal agency that
concluded the windshield failed due to the hawk strike.
of bird intrusion into the cockpit,” Gillespie & Meyer
Report, Doc. No. 133-2, at 18, and that prior accidents
had established that “a non-penetrating bird impact alone
could move the engine control levers.”
Id. at 17.
throttle quadrant is the sole proximate cause of the
Shipley Report, Doc. No. 133-3, at 79.
But AAI ignores that the plaintiffs’ reports were
canopy, center post or control quadrant.”
Meyer Report, Doc. No. 133-2, at 2; see also Shipley
Report, Doc. No. 133-3, at 4 (“It should be noted that
this report does not opine regarding whether or how much
the windshield in the subject helicopter may have been
cracked by the force of the bird impact.”). The fact that
the plaintiffs’ expert reports were written without an
examination of the windshield undermines AAI’s contention
that no material fact is in dispute.
National Transportation Safety Board (NTSB) that provides
substantial evidence that a windshield failure contributed
to the bird strike.
Unlike the plaintiffs’ experts, the
helicopter and found that both windshields were fractured
NTSB Report, Doc. No. 156-3, at 1.
report found it “likely that the bird impact shattered the
windshield” and precipitated the throttle failure. Id. at
The report agreed with AAI’s belief that the hawk
itself did not penetrate the cockpit, but nevertheless
found that the impact caused the windshield to break. See
Perhaps most significantly for the plaintiffs, the
NTSB concluded “that the probable cause of this accident
was (1) the sudden loss of power to both engines that
resulted from impact with a bird (red-tailed hawk), which
fractured the windshield and interfered with engine fuel
controls, and (2) the subsequent disorientation of the
flight crewmembers, which left them unable to recover from
Id. at 2 (emphasis added).
the loss of power.”
reports that provide additional evidence of windshield
One report states that the hawk impact near the
intersection of the canopy and windshield caused the
windshield to fail. See Moore Report, Doc. No. 160-10, at
4. Another report provided detailed findings of a similar
helicopter bird strike, where the windshield failed and
See Watson Report, Doc. No.
glass entered the cockpit.
160-9, at 8.
Thus, it is entirely unclear from the record evidence
whether the hawk strike cracked the windshield or whether
the impact was so severe that the engine controls moved
without the contributing factor of a windshield failure.
While it appears true that the hawk did not penetrate the
Reports prepared by various entities, both
interested parties and a federal agency, come to differing
judgment (Doc. No. 132) is denied.
DONE, this the 4th day of November, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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