Hampl v. Bell Helicopter Textron Inc.
Filing
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MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 17 motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against defendant; and that such claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 9/20/2018) (tln)
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
RASHEL A. HAMPL,
§
§
Plaintiff,
§
§
vs.
§
NO. 4:17-CV-975-A
§
BELL HELICOPTER TEXTRON INC.,
§
§
Defendant.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Bell
Helicopter Textron,
Inc.,
for summary judgment. The court, having
considered the motion, the response of plaintiff, Rashel A.
Hampl, the reply, the record,
1
and applicable authorities,
finds
that the motion should be granted.
I.
Plaintiff's Claims
On December 7,
2017, plaintiff filed her complaint in this
action. Doc.' 1. In it, plaintiff alleges:
Plaintiff is the surviving spouse of Thomas F. Hampl
("Hampl"). Doc. 1 , 2. Hampl was killed on December 10, 2015,
near McFarland, California, while piloting a Bell 407 helicopter
manufactured by defendant, with FAA registration N408FC and
1
Defendant has filed objections to plaintiffs summary judgment evidence. As is its practice, the
comi is giving the evidence whatever weight it may deserve.
2
The "Doc._" reference is to the number of the item on the docket in this action.
serial number 53450 (the "helicopter"). Id.
~
4. The helicopter
was registered to American Airborne EMS of Fresno, California.
Id. Plaintiff believes the helicopter was "operated by SKYLIFE
Medical Services, a dba of Rogers Helicopters, K.W.P.H. dba
American Ambulance EMS and American Airborne EMS." Id. "Radar
tracks and company flight tracking software revealed that the
[h]elicopter made a sudden left 180 degree descending turn,
causing the [h]elicopter to collide with hilly terrain." Id.
Plaintiff sets forth three causes of action she identifies
as "strict liability for defective product," "product liabilitynegligence," and "failure to warn of defective condition." Doc. 1
at 3, 6, 7. The only law referenced in the complaint, aside from
the reference to the diversity jurisdiction statute, is Tex. Civ.
Prac. & Rem. Code§ 71.004(a), a part of the Texas Wrongful Death
Act. Id. ~ 2.
II.
Grounds of the Motion
Defendant says that plaintiff has no evidence to support any
of her causes of action against it. Defendant addresses each of
plaintiff's causes of action, sets for the elements of each, and
argues that plaintiff has no evidence to support the necessary
elements. Doc. 17. It cites to plaintiff's discovery responses in
support of that contention.
2
III.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed. R. Civ.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324; see also Fed. R. Civ. P. 56(c)
asserting that a fact
the assertion by
the record
("A party
is genuinely disputed must support
citing to particular parts of materials in
• If )
•
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
3
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597
(1986).
In Mississippi Prot. & Advocacy
Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.
3
Celotex Corp., 477 U.S. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy sys., 929 F.2d at 1058.
IV.
Analysis
A.
Strict Liability
Texas applies 402A of the Restatement
(Second) of Torts.
Parsons v. Ford Motor Co., 85 S.W.3d 323, 329 (Tex. App.--Austin
3
Jn Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
4
2002, pet. denied). The elements of a strict products liability
cause of action are:
stream of commerce;
(1) defendant placed a product into the
(2) the product was in a defective or
unreasonably dangerous condition; and,
(3) there was a causal
connection between such condition and the plaintiff's injuries or
damages. Houston Lighting & Power Co. v. Reynolds, 765 S.W.2d
784, 785
(Tex. 1988). The causation standard is producing cause,
meaning that the defect was a substantial factor in bringing
about an injury and without which the injury would not have
occurred. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46
(Tex.
2007); Davis v. Conveyor-Matic, Inc., 139 S.W.3d 423, 429 (Tex.
App.--Fort Worth 2004, no pet.).
Plaintiff's first cause of action leaves it to the
imagination whether she is asserting a design or manufacturing
defect. She alleges:
[T]he Helicopter and its component parts were defective
and unsafe for their intended use because the
Helicopter lacked adequate and properly functioning
navigation equipment, including, without limitation, a
FreeFlight RA 4500 radar altimeter, GPS, annunciator
panel, Garmin GDU 620, GRS 77, GRS 88, RA-4500 radar
altimeter, Shadin Air Data Computer, engine, attitude
director and other navigational instruments, and
improperly functioning engine and fuel system.
Doc. 1
~
9. In any event, defendant asserts that it is entitled
to judgment because plaintiff has no evidence that (1) defendant
placed the helicopter into the stream of commerce in a defective
5
or unreasonably dangerous condition, or (2) any defect was a
producing cause of her damages. Doc. 17 at 4.
One of plaintiff's strict liability claims, identified as
her third cause of action, is based on failure to warn. A
defendant's failure to warn of a product's potential dangers when
warnings are required is a type of marketing defect. Caterpillar,
Inc. v. Shears, 911 S.W.2d 379, 382 (Tex. 1995). Liability will
attach if the lack of adequate warnings or instructions renders
an otherwise adequate product unreasonably dangerous. Id. The
elements of a marketing defect cause of action are:
(1) a risk of
harm that is inherent in the product or that may arise from the
intended or reasonably anticipated use of the product must exist;
(2) the product supplier must actually know or reasonably foresee
the risk of harm at the time the product is marketed;
(3) the
product must possess a marketing defect in the sense that the
manufacturer failed to warn of the risk;
(4) the absence of the
warning and/or instructions must render the product unreasonably
dangerous to the ultimate user or consumer of the product; and
(5) the failure to warn and/or instruct must constitute a
causative nexus in the product user's injury. Jaimers v. Fiesta
Mart, Inc., 21 S.W.3d 301, 305-06 (Tex. App.--Houston [1st Dist.)
1999, pet. denied). The causation standard is producing cause.
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Rolen v. Burroughs Wellcome Co., 856 S.W.2d 607, 609
(Tex. App.--
Waco 1993, writ denied).
Here, defendant maintains that plaintiff cannot produce
evidence to show that the helicopter possessed a marketing
defect, the absence of a warning and/or instructions rendered the
helicopter unreasonably dangerous, or that any alleged failure to
warn and/or instruct was a producing cause of Hampl's injuries.
Doc. 17 at 6.
B.
Negligence
To prove negligence in a products liability case, a
plaintiff must show that the defendant failed to use ordinary
care in the design or production of the product. Sipes v. Gen.
Motors Corp.,
946 S.W.2d 143, 159 (Tex. App.--Texarkana 1997,
writ denied). The elements of negligence are:
owed by one person to another;
(1) a legal duty
(2) a breach of that duty; and (3)
damages proximately resulting from the breach. Greater Houston
Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
Here, defendant maintains that plaintiff cannot establish
that it breached any duty owed to Hampl or that it proximately
caused Hampl's injuries. Doc. 17 at 4.
C.
Plaintiff's Response
Instead of addressing the grounds raised by defendant,
plaintiff engages in an extended discourse on the National
7
Transportation Safety Board preliminary report, Doc. 23 at App.
001-002, and the FAA accident/incident report, id. at App. 003005
(collectively, "the reports"). Doc. 22 at 1-6.' Plaintiff
says that "the NTSB is still testing certain avionics equipment,"
but offers no evidence to support that statement or any of her
other arguments regarding why the court should disregard the
reports she has provided.
Plaintiff further devotes extensive attention to an argument
that defendant has failed in its summary judgment burden. Doc.22
at 6-10. The argument reflects a lack of understanding of Rule 56
of the Federal Rules of Civil Procedure, the requirements of
which are explained, supra. And it reflects a lack of
understanding of defendant's motion. Contrary to plaintiff's
summation that defendant has merely made a conclusory statement
that plaintiff has no evidence to prove her case, Doc. 22 at 10,
defendant has concisely identified the elements of plaintiff's
causes of action and pointed out that she has no evidence to
support specific elements. Moreover, the motion is supported by
plaintiff's own discovery responses, which reflect that she has
"The FAA accident/incident repmt reflects that there were no technical factors involved in the
crash; operational factors were pilot induced error and loss of control. Doc. 23 at App. 003. A futther
notation reflects that the pilot had an IFR rating but was not actively using IFR in rain and foggy
conditions. Id. at App. 003-004. Plaintiff speculates, without any evidence to suppmt her belief, that the
final repott will "more likely than not demonstrate that the aircraft and/or its components caused this
incident and the attendant loss of life." Doc. 22 at 9.
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no evidence. Doc. 18 at App. 1-46. The burden is on plaintiff to
come forward with evidence to support the elements identified by
defendant, which plaintiff concedes she cannot do. Doc. 22 at 9.
Plaintiff next sets forth an argument that California law
should apply. 5 Doc. 22 at 10-12. In particular, she relies on the
doctrine of res ipsa loquitur. Id. at 12-16. Under California
law, a plaintiff invoking the doctrine must show:
(1) the event
is of a kind that ordinarily does not occur in the absence of
someone's negligence;
(2) the event was caused by an agency or
instrumentality within the exclusive control of the defendant;
and,
(3) the event must not have been due to any voluntary action
or contribution on the part of the plaintiff. Howe v. Seven Forty
Two Co.,
Inc., 189 Cal. App. 4th 155, 1161-62
2010), Texas applies a similar test.
6
(Cal, Ct. App,
See Mobil Chem, Co. v.
Bell, 517 S.W.2d 245, 251 (Tex. 1974)
Even assuming California law regarding that doctrine
applies,
7
however, plaintiff has not come forward with any
'She does not take issue with defendant's recitation of the elements of her causes of action. That
is, she does not say that the elements of strict liability, negligence, and failure to warn are different under
California law.
'Plaintiff erroneously argues that Texas only allows res ipsa loquitur to be applied in health care
liability eases. Doc. 22 at 12. See Sanders v. Naes Cent., Inc., 498 S.W.3d 256, 261 (Tex. App.--Houston
[1st Dist.] 2016, no pet.); Sherman v. HealthSouth Specialty Hosp., Inc., 397 S.W.3d 869, 875 (Tex.
App.--Dallas 2013, pet. denied).
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lt appears that the doctrine of !"es ipsa loquitur does not apply under California law to any action
predicated on a theory of strict liability. That is, a defect must be affinnatively established and an
(continued ... )
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evidence to support her theory. She simply argues that
helicopters do not normally crash in the absence of negligence
and in this case the negligence must have been on the part of
defendant. She argues:
Hampl was a highly qualified, experienced commercial
pilot (11,321 flight hours), with no known medical
problems or conditions to impair his flying abilities.
He was highly familiar with the helicopter he was
flying, as he had flown it countless times before in
his employment as a medivac pilot.
Id. at 12. The only evidence she cites in support of these
allegations is "App. 2," which the court interprets to mean tab 2
of her appendix, the FAA accident/incident report. Of the facts
recited, the report shows only that Hampl had flown 11,321 hours.
Doc. 23 at App. 004. 8 Further, plaintiff has made no attempt to
show that at the time of the alleged negligence that caused the
accident defendant had exclusive control or management of the
helicopter. Newing v. Cheatham, 15 Cal. 3d 351, 362
(Cal. 1975);
Hansen v. Matich Corp., 44 Cal. Rptr. 149, 152 (Cal. Ct. App.
1965} . And, she has made no attempt to show that the condition of
the helicopter did not change after it left defendant's
possession. See Fuller v. Sears, Roebuck
&
Co., 186 Cal. Rptr.
7
( ... continued)
inference of a defect as a result of an accident is not to be drawn. Barrett v. Atlas Powder Co., 86 Cal.
App. 3d 560, 565 (Cal. Ct. App. 1978).
'The report also reflects that Hampl had only 48 hours in the make and model and 15 hours in the
last 90 days. Doc. 23 at App. 004.
10
26, 29
(Cal. App. Dep't Super. Ct. 1982). Plaintiff •s own
pleading shows that the helicopter was registered to one company
and operated by another. Doc. 1
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4. Yet she argues:
[Defendant] exclusively designed and assembled this
helicopter with all of its component parts. The
helicopter designed and constructed by [defendant] had
not been altered or changed in any manner prior to this
incident. The failure of this aircraft was not
exclusively pilot error but had to have been in
substantial part a failure of the design and/or its
components.
Doc. 22 at 14. She cites no evidence to support these
contentions.
In sum, plaintiff has wholly ignored her obligation to come
forward with some evidence to support each of the elements of her
causes of action. Instead, she relies solely on the speculation
that the final report of the NTSB will establish that defendant
is at fault for the crash. Plaintiff has not bothered to present
any facts that could be established. Nor has she sought a
continuance pursuant to Fed. R. Civ. P. 56(d).
v.
Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted; that plaintiff take nothing
on her claims against defendant; and that such claims be, and are
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hereby, dismissed.
SIGNED September 20, 2018.
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