CBC Engineers & Associates Ltd v. Miller Aviation LLC et al
Filing
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ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART MILLER AVIATION, LLC, et al.'s MOTION TO DISMISS (Doc. # 13 ). Signed by Judge Thomas M Rose on 7/27/12. (cib1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CBC ENGINEERS & ASSOCIATES LTD.,
Case No. 3:12-CV-00125
Plaintiff,
Judge Thomas M. Rose
-vMILLER AVIATION, LLC, et al.
Defendants
ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART MILLER
AVIATION, LLC, et al.’s MOTION TO DISMISS (Doc. # 13)
This matter arises from a plane crash that resulted in the death of David J. Cowherd, one
of CBC Engineers & Associates LTD’s (“CBC”) founders, on March 30, 2011. Compl. ¶ 1.
Plaintiffs raise three claims against Miller Aviation, LLC, et. al. (“Miller”), including breach of
contract, negligence, and gross negligence.
CBC’s Complaint was originally filed in the Court of Common Pleas, Montgomery
County, Ohio, on March 29, 2012. It was subsequently removed to this Court based upon this
Court having diversity jurisdiction.
Pending before the Court is Miller’s Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim upon which relief may be granted. Doc. #13. CBC has
responded to the Motion to Dismiss (doc. # 20) and Miller has replied to CBC’s response (doc. #
21). The Motion to Dismiss is, therefore ripe for decision. The relevant factual allegations will
first be set forth followed by an analysis of the Motion.
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I.
Relevant Factual Provisions
In the context of a motion to dismiss, the Court must accept as true all of the factual
allegations contained in the complaint. CBC’s Complaint includes the following factual
allegations:
CBC is a geotechnical engineering firm founded in 1995 by David Cowherd (“Cowherd”)
and his business partner, Al Banner. Compl. ¶ 12. Cowherd had some 30 years of experience in
the geotechnical engineering business when CBC was formed. Compl. ¶ 12.
Cowherd was 46% owner of CBC and served as the company’s Chief Executive Officer
and Chief Engineer. Compl. ¶ 15. He held an engineering license in all 50 states, which allowed
CBC’s business to expand throughout the United States. Compl. ¶ 15. Because he was licensed
in every state, his approval was required for the vast majority of drawings submitted for CBC
projects in other states. Compl. ¶ 15.
On the afternoon of March 30, 2011, Miller operated a Cessna 310R aircraft to fly
Cowherd from Dayton-Wright Brothers Airport in Dayton, Ohio, to Pike County Airport in
Pikeville, Kentucky. Compl. ¶¶ 16, 17, 21. Cowherd’s fare had been paid by CBC, as it had
been with prior flights. Compl. ¶ 18. Miller contracted with CBC, as they had done in the past.
Compl. ¶ 18. Miller knew or should have known of the fact that Cowherd was flying on business
for CBC and of Cowherd’s critical importance to CBC’s business operations. Compl. ¶ 19.
Miller had the duty to exercise the highest degree of care to provide safe transport to its
passenger because it was a common carrier. Compl. ¶ 20.
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The flight departed Dayton-Wright Brothers Airport at approximately 11:48 AM. Compl.
¶ 21. Cowherd was the only passenger onboard. Compl. ¶ 22. The only other person on the flight
was the pilot. Compl. ¶ 22.
As the flight approached Pikeville, KY, the pilot requested and was cleared for the
RNAV Runway 09 non-precision instrument approach procedure. Compl. ¶ 23. When the flight
was approximately twenty miles from the Pikeville Airport, the pilot requested information from
the airport regarding weather conditions. Compl. ¶ 24. An airport employee reported the current
Automated Weather Observation Service weather of 1 to 1 ½ miles of visibility and 200 to 300foot ceilings, but also told the pilot that the weather conditions that he personally observed were
worse than what was reported. Compl. ¶ 24.
The pilot knew that the non-precision approach that he requested had a minimum descent
altitude (“MDA”) of 1,960 feet, which was 506 feet above the runway elevation and that the
reported ceiling for the clouds were lower than 506 feet. Compl. ¶ 25. Thus, the pilot would not
have been able to see the airport or runway without going below the MDA. Compl. ¶ 25. Despite
this knowledge, the pilot recklessly continued to fly the non-precision approach while the ILS
Runway 27 precision approach was available to the pilot. Compl. ¶ 25. The ILS Runway 27
approach had an MDA of 200 feet above runway elevation. Compl. ¶ 25.
The pilot had accurate reports of current weather conditions in the Pikeville area during
the time the flight was to land. Compl. ¶ 26. At approximately 12:48 PM, the aircraft, while in
descent, flew well below the published MDA, and impacted several treetops 1,110 feet to the
right of the runway centerline, approximately 100 feet below the airport elevation. Compl. ¶ 27.
The damaged aircraft came to a rest approximately 1,200 feet beyond the first tree strike and 650
feet below the airport elevation. Compl. ¶ 27.
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The pilot, who could not see the ground due to the weather conditions, failed to maintain
situational awareness and failed to maintain a safe altitude, descended below the minimum
decision height, and crashed the aircraft into the trees. Compl. ¶ 28. Prior to the crash, the
aircraft’s engines were functioning properly, and post-crash examination revealed no evidence of
mechanical anomaly. Compl. ¶ 29.
Toxicological testing of the pilot detected 14.24 (μg/ml, μg/g) Acetaminophen in urine
and .26 (μg/ml, μg/g) Doxylamine in blood. Compl. ¶ 31. Doxylamine is marketed as NyQuil, an
over-the-counter antihistamine used in the treatment of the common cold and hay fever, and
Unisom, a sleep aid. Compl ¶ 31. The toxicological analysis revealed that the pilot had high
levels of Doxylamine in the heart blood. Compl. ¶ 32. The pilot’s ingestion of Doxylamine prior
to the flight caused the pilot to be impaired and created a hazard to flight safety. Compl. ¶ 33.
II.
Relevant Legal Provisions
a. Standard of Review
Under Fed. R. Civ. P. Rule 12(b)(6), a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(U.S. 2007). A plaintiff must “plead[] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (U.S. 2009). Also, the complaint must be construed in the light most favorable to the
non-moving party and its pleadings must be accepted as true. Morgan v. Church’s Fried
Chicken, 829, F. 2d 10, 12 (6th Cir. 1987).
b. Breach of Contract Claim
Ohio law permits an employer to recover damages in a breach-of-contract claim against a
third-party for injuries sustained its employee. Cincinnati Bell Telephone Co. v. Straley, 533
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N.E.2d 764, 772 (Ohio 1988). “Where a third party negligently injures an employer’s employee
and such injury is a direct result of a breach of contract which the third party had with the
employee’s employer, and as a direct result of such breach the employer suffers damages, such
damages are recoverable against the third party in an action for breach of contract.” Id. The
essential element to recovery by an employer from a third party for an employee’s injuries is the
existence of a contract. Midvale Coal Co. v. Cardox Corp., 89 N.E.2d 673 (Ohio 1949). The
contract can be express or implied. Appleton Papers, Inc. v. Allis-Chalmers, No. CA-11866,
1990 WL 78585, at *3 (Ohio Ct. App. June 8, 1990). The existence of a contract creates a duty to
not cause harm to the plaintiff’s employee. Id.
c. Negligence Claim
Ohio law recognizes the common law doctrine of negligence. Actionable negligence rests
on the concept of duty. Cincinnati Bell, 533 N.E.2d at 770. In order for one to recover damages,
another party must have owed them a duty, and the other party must have breached that duty. Id.
Where a common carrier is involved, the highest duty of care is required. Johnson v. Cravens,
476 N.E.2d 1073, 1075 (Ohio Ct. App. 1984).
In the context of employer/employee relationships, employers cannot recover in
negligence actions when their employees have been injured. Cincinnatti Bell, 533 N.E.2d at 770.
“The third party ha[s] a duty to the employee not to negligently injure him but that duty [is] not
owed to the employer.” Id. at 771. In a situation where plaintiff’s employee had only been
injured through negligence of the third party, where the third party owed no duty to the plaintiff,
no damages are owed to the plaintiff-employer. Cincinnati Bell, 533 N.E.2d at 771; SSD
Distribution System, Inc. v. General Motors Corp. 539 N.E.2d 1121, 1122 (Ohio 1989).
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d. Gross Negligence Claim
The Ohio Supreme Court has defined gross negligence in a number of ways. It has been
defined as the “failure to exercise any or very slight care.” Johnson v. State, 63 N.E. 607, 609
(Ohio 1902). It has also been defined as a “failure to exercise even that care which a careless
person would use.” Thompson Elec. V. Bank One, Akron, N.A., 525 N.E.2d 761 (Ohio 1988). To
establish gross negligence, all elements of negligence must exist. See Johnson, 63 N.E. at 609.
e. Wrongful-Death Claim
Ohio’s wrongful-death statute is evoked when the death of a person is “caused by
wrongful act, neglect, or default which would have entitled the party injured to maintain an
action and recover damages if death had not ensued…” Ohio Rev. Code § 2125.01 (emphasis
added). The Code further provides that an action for wrongful death shall be brought in name of
the “personal representative of the decedent for the exclusive benefit of the surviving spouse, the
children, and parents of the decedent…” Ohio Rev. Code §2125.02 (emphasis added). A
wrongful-death action in Ohio has three elements: (1) the existence of a duty owed to the
plaintiff’s decedent; (2) a breach of that duty; (3) proximate causation linking the breach of the
duty to the decedent’s death. Johnson v. Miller, No. 2:11-CV-00067, 2011 WL 3793497 at *7
(S.D. Ohio Aug. 25, 2011).
III.
Analysis
a. Breach of Contract Claim
In this case, Miller allegedly contracted with CBC for the flight on March 30, 2011, just
as they had many times previously. Compl. ¶ 18. CBC alleges that Miller has or did have an
express contract between the parties in their possession. Compl. ¶ 38. Even if that is not the case,
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CBC’s alleged payment of David Cowherd’s fare creates an implied contract between CBC and
Miller. Compl. ¶ 18.
The flight on March 30, 2011, was a routine matter for all parties involved—Miller,
CBC, and David Cowherd. Miller had flown Cowherd for CBC business many times, with many,
if not all of his fares being covered by CBC. Compl. ¶¶ 1, 18. Because a contract allegedly
existed between CBC and Miller, Miller owed CBC a contractual duty. Compl. ¶ 18. The
contractual duty was to get Cowherd from Dayton, OH to Pikeville, KY safely. Compl. ¶ 17.
When the plane crashed in Pikeville, KY, Miller breached its alleged duty to CBC. Compl. ¶¶
27-29. David Cowherd was allegedly negligently injured in the plane crash, and the injury was a
direct result of the alleged breach of contract between CBC and Miller.
As a direct result of Miller’s alleged breach of contract, CBC suffered damages. CBC’s
damages are recoverable against Miller in a breach-of-contract action.
b. Negligence Claim
In this case, Miller did not owe a duty of care to CBC. Miller did, however, owe David
Cowherd the highest duty of care due to their position as a common carrier. Compl. ¶ 20. While
it may be true that Miller acted negligently toward Cowherd, by breaching their duty to provide
safe, reliable, and dependable carriage from Dayton, OH to Pikeville, KY, the same is not true
regarding Miller’s duty to CBC.
The duty of care was only owed to Cowherd. As a common carrier, Miller owed the
highest duty of care to Cowherd to get him from Dayton, OH to Pikeville, KY safely. Compl. ¶
17. When the plane crashed, Miller allegedly breached its duty to Cowherd, thus resulting in
negligence to Cowherd. Compl. ¶¶27-29.
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However, Miller did not owe that same duty to CBC. Cowherd was an employee of CBC.
CBC cannot recover in a negligence action because Cowherd was injured. Because Miller did
not owe CBC a duty of care, there can be no action for negligence.
c. Gross Negligence Claim
Miller did not owe a duty of care to CBC, but rather allegedly owed a duty of care to
Cowherd, their passenger. Compl. ¶ 20. As stated above, without a duty care, negligence cannot
be established. Because negligence cannot be established, gross negligence cannot be
established.
d. Wrongful-Death Claim
Here, CBC does not raise a wrongful-death claim in their complaint. The complaint
clearly raises three separate counts: (1) Breach of Contract; (2) Negligence; and (3) Gross
Negligence. Compl. ¶¶ 37-50. As Cowherd’s employer, CBC is not in a position to bring a
wrongful-death claim, as wrongful death claims are reserved for sole benefit of the decedent’s
family. CBC has not been appointed the personal representative of Cowherd’s estate, and is
therefore legally prohibited from bringing a wrongful-death claim.
IV.
CONCLUSION
This Court must construe the facts in the most favorable light to CBC, the non-moving party.
Based upon CBC’s Complaint, Miller contracted with CBC for the flight on March 30, 2011,
David Cowherd was injured in the plane crash, and the injury was the direct result of an alleged
breach of contract between CBC and Miller. Compl. ¶¶ 1, 18, 27-29. As a direct result of
Miller’s alleged breach of contract, CBC suffered damages. Compl. ¶¶ 37-42. CBC’s damages
are recoverable against Miller in a breach-of-contract action. Therefore the Motion to Dismiss
for failure to state a claim in a breach-of-contract action must be DENIED.
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Based upon CBC’s complaint, CBC alleges that, as a common carrier, owner, and operator
of the flight, Miller owed CBC a duty of care to provide Cowherd a safe flight. Compl. ¶ 20.
While it is alleged that Miller acted negligently toward Cowherd by breaching their duty to
provide safe, reliable, and dependable carriage from Dayton, OH to Pikeville, KY, the same
cannot be said regarding Miller’s duty to CBC. Compl. ¶¶ 27-29. Miller did not owe CBC the
same duty of care it owed Cowherd. The duty of care was only owed to Cowherd. Because
Miller did not owe CBC a duty of care, there can be no action for negligence. Therefore, the
Motion to Dismiss for failure to state a claim for negligence is GRANTED.
Based upon CBC’s complaint, CBC alleges that, as a common carrier, owner, and operator of
the flight, Miller owed CBC the highest duty of care in transporting Cowherd, and thus brought
an action for gross negligence. Compl. ¶ 20. Because Miller owed CBC no duty of care, it is
impossible for them to have owed CBC the highest duty of care. There can be no action for gross
negligence. Therefore, the Motion to Dismiss for failure to state a claim for gross negligence is
GRANTED.
Based upon CBC’s complaint, there is no mention of a wrongful-death claim in any of the
three counts. Compl. ¶¶ 37-50. It is clear that CBC is aware that they are not entitled to bring a
wrongful-death claim, as they are personal representative to decedent’s estate, and are not
entitled to relief through this cause of action. Plaintiff’s complaint is not a wrongful-death action.
Miller’s Motion to Dismiss (Doc. #13) is GRANTED IN PART and OVERRULED IN
PART. CBC’s Negligence and Gross Negligence claims are DISMISSED. CBC’s Breach-ofContract claim remains to be adjudicated.1
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The Court acknowledges the valuable contribution and assistance of judicial extern Emelia J.
Hanson in drafting this opinion.
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DONE and ORDERED in Dayton, Ohio this Twenty-Seventh Day of July, 2012
s/Thomas M. Rose
_______________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of Record
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