Date: 12-21-2013

Case Style: Jade P. Schiewe and Zachary Pfaff v. Cessna Aircraft Company, Spartan Aviation Industries, Inc., Kelly Aerospace Turbine Rotables, Inc. and Eaton Corporation

Case Number: CJ-2011-4802

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Tadd Justin Bogan and C. Michael Copeland

Defendant's Attorney: Richard L. Blanchard for Spartan Aviation Industries, Inc.

Steven J. Adams, Gary Swaim and Bryan Rose for Kelly Aerospace Turbine Rotables, Inc.

A.T. Elder and Jennifer Miller Ventura for Easton Corporation

James K. Secrest II and Edward John Maine for Cessna Aircraft Company

Description: Jade P. Schiewe and Zachary Pfaff sued Cessna Aircraft Company, Spartan Aviation Industries, Inc., Kelly Aerospace Turbine Rotables, Inc. and Eaton Corporation claiming:

Issue # 1.
Issue: PRODUCT LIABILITY (OTHER)
Filed by: SCHIEWE, JADE P
Filed Date: 08/29/2011
Party Name: Disposition Information:

Defendant: CESSNA AIRCRAFT COMPANY
Disposed: TRANSFERRED TO FEDERAL COURT, 09/06/2011. Dismissed- Transferred to Another Jurisdiction.

Defendant: SPARTAN AVIATION INDUSTRIES INC
Disposed: TRANSFERRED TO FEDERAL COURT, 09/06/2011. Dismissed- Transferred to Another Jurisdiction.

Defendant: CESSNA AIRCRAFT COMPANY
Pending.

Issue # 2.
Issue: PRODUCT LIABILITY (OTHER)
Filed by: PFAFF, ZACHARY
Filed Date: 08/29/2011
Party Name: Disposition Information:

Defendant: CESSNA AIRCRAFT COMPANY
Disposed: TRANSFERRED TO FEDERAL COURT, 09/06/2011. Dismissed- Transferred to Another Jurisdiction.

Defendant: CESSNA AIRCRAFT COMPANY
Pending.

Defendant: CESSNA AIRCRAFT COMPANY
Disposed: TRANSFERRED TO FEDERAL COURT, 09/06/2011. Dismissed- Transferred to Another Jurisdiction.

Issue # 3.
Issue: CAUSE #2 - NEGLIGENT MANUFACTURE &/OR DESIGN (NEGL)
Filed by: SCHIEWE, JADE P
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: CESSNA AIRCRAFT COMPANY
Pending.

Issue # 3.
Issue: CAUSE #2 - NEGLIGENT MANUFACTURE &/OR DESIGN (NEGL)
Filed by: PFAFF, ZACHARY
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: CESSNA AIRCRAFT COMPANY
Pending.

Issue # 4.
Issue: CAUSE #3 - NEGLIGENT INSTALLATION/MAINTENANCE INSTRUCTIONS (NEGL)
Filed by: PFAFF, ZACHARY
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: CESSNA AIRCRAFT COMPANY
Pending.

Issue # 4.
Issue: CAUSE #3 - NEGLIGENT INSTALLATION/MAINTENANCE INSTRUCTIONS (NEGL)
Filed by: SCHIEWE, JADE P
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: CESSNA AIRCRAFT COMPANY
Pending.

Issue # 5.
Issue: CAUSE #4 - DELCARATORY JUDGMENT (DECLARE)
Filed by: PFAFF, ZACHARY
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: SPARTAN AVIATION INDUSTRIES INC
Disposed: DISMISSED - WITH PREJUDICE, 04/09/2013. Dismissed- Settled.

Issue # 5.
Issue: CAUSE #4 - DELCARATORY JUDGMENT (DECLARE)
Filed by: SCHIEWE, JADE P
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: SPARTAN AVIATION INDUSTRIES INC
Disposed: DISMISSED - WITH PREJUDICE, 04/09/2013. Dismissed- Settled.

Issue # 6.
Issue: CAUSE #5 - MANUFACTURERS' PRODUCT LIABILITY (PROD)
Filed by: PFAFF, ZACHARY
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: KELLY AEROSPACE TURBINE ROTABLES INC
Pending.

Issue # 6.
Issue: CAUSE #5 - MANUFACTURERS' PRODUCT LIABILITY (PROD)
Filed by: SCHIEWE, JADE P
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: KELLY AEROSPACE TURBINE ROTABLES INC
Pending.

Issue # 7.
Issue: CAUSE #6 - NEGLIGENT MANUFACTURE &/OR DESIGN (NEGL)
Filed by: PFAFF, ZACHARY
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: KELLY AEROSPACE TURBINE ROTABLES INC
Pending.

Issue # 7.
Issue: CAUSE #6 - NEGLIGENT MANUFACTURE &/OR DESIGN (NEGL)
Filed by: SCHIEWE, JADE P
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: KELLY AEROSPACE TURBINE ROTABLES INC
Pending.

Issue # 8.
Issue: CAUSE #7 - NEGLIGENT MAINTENANCE (NEGL)
Filed by: PFAFF, ZACHARY
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: KELLY AEROSPACE TURBINE ROTABLES INC
Pending.

Issue # 8.
Issue: CAUSE #7 - NEGLIGENT MAINTENANCE (NEGL)
Filed by: SCHIEWE, JADE P
Filed Date: 06/07/2012
Party Name: Disposition Information:

Defendant: KELLY AEROSPACE TURBINE ROTABLES INC
Pending.

Issue # 9.
Issue: CAUSE #8 - MANUFACTURER'S PRODUCTS LIABILITY (PROD)
Filed by: PFAFF, ZACHARY
Filed Date: 05/15/2013
Party Name: Disposition Information:

Defendant: EATON CORPORATION
Disposed: DISMISSED - WITH PREJUDICE, 11/20/2013. Dismissed- Settled.

Issue # 9.
Issue: CAUSE #8 - MANUFACTURER'S PRODUCTS LIABILITY (PROD)
Filed by: SCHIEWE, JADE P
Filed Date: 05/15/2013
Party Name: Disposition Information:

Defendant: EATON CORPORATION
Disposed: DISMISSED - WITH PREJUDICE, 11/20/2013. Dismissed- Settled.

Plaintiffs alleged the following in their Amended Petition:

1 Plaintiff Schiewe is an individual residing in Tulsa County, State of Ok1homa

2. Plaintiff Pfaff is an individual residing in Tulsa County, State of Oklahoma.

3. Defendant Cessna is a foreign company, with its principal place of business in Wichita, Kansas.

4. Defendant Kelly is a foreign corporation, with its principal place of business in Wichita, Kansas.

5. Defendant Spartan is an Oklahoma corporation doing business in Tulsa County, State of Oklahoma.

6. The causes of action asserted herein arose in Tulsa County, State of Oklahoma.

7. This Court has jurisdiction over the parties hereto and subject matter hereof, and is a proper venue for this action.

FACTS

8. On or about September 28, 2010, Plaintiffs were flying a Cessna 172RG, Serial Number 172RG0258, Registration Number N5145U (the “Aircraft”) in Tulsa, Oklahoma, when a fire broke out in the engine compartment resulting in a crash landing.

9. The Aircraft was manufactured by Cessna, and owned by and registered to Spartan.

10. Schiewe, the pilot in command of the Aircraft at the time of the crash, was at all relevant times a certified flight instructor for Spartan with certificates/ratings for: commercial, Multi-engine Land, and Single-engine Land.

11. Pfaff was a certified flight instructor candidate at the time of the crash.

12. After conducting an instructional flight on September 28, 2010, Plaintiffs were attempting to return to Richard Lloyd Jones, Jr. Airport. When Schiewe lowered the landing gear in preparation for landing flames erupted from under the instrument panel.

13. The fire quickly spread to the floor of the Aircraft, and the cabin filled with smoke leaving the instruments unreadable and Plaintiffs struggling to breathe.

14. Schiewe immediately declared an emergency via the Aircraft’s radio which then failed, cutting off further communications between the Aircraft and the tower at Richard Lloyd Jones, Jr. Airport.

15. Plaintiffs were required to attempt a forced landing in a hearby field in an attempt to save their own lives and limit the danger posed to others.

16. Upon crashing the Aircraft Plaintiffs struck a fence and came to an abrupt stop.

17. After crashing the Aircraft Plaintiffs evacuated through the left door escaping further injury and certain death.

18. As a result of the foregoing, Schiewe suffered serious injuries to his right leg, right foot, and back, which required substantial medical treatment and caused extreme pain and suffering.

19. Schiewe further suffered severe emotional distress as a result of the trauma experience during the fire and ensuing crash landing.

20. As a result of the foregoing, Pfaff suffered physical injuries, significant pain and suffering and severe emotional distress as a result of the trauma experienced during the fire and ensuing crash landing. Further, the incident rendered him unable to pilot an airplane.

FIRST CAUSE OF ACTION (AGAINST CESSNA)
MANUFACTURERS’ PRODUCTS LIABILITY

21. Plaintiffs hereby incorporate and re-allege the allegations contained in paragraph numbers one (1) through twenty
(20) above.

22. Upon information and belief, the terminal lug on the hydraulic pump power pack for the landing gear on the Aircraft shorted, arched onto the case of the power pack, and caused the fire described herein above.

23. Cessna defectively designed and manufactured the hydraulic pump (which includes the power pack) in question.

24. Cessna sold or otherwise distributed the defective hydraulic pump into the stream of commerce.

25. The hydraulic pump was defective when it left the control of Cessna.

26. The defective hydraulic pump rendered the Aircraft unreasonably dangerous beyond that which would be contemplated by the ordinary user.

27. Plaintiffs were injured while using the Aircraft and landing gear hydraulic pump in a way in which it was intended to be used.

28. Plaintiffs’ personal injuries were the direct and proximate result the defect in the hydraulic pump.

29. Plaintiffs’ damages from the conduct alleged in this First Cause of Action exceed Seventy-Five Thousand Dollars ($75,000.00).

SECOND CAUSE OF ACTION (AGAINST CESSNA)
NEGLIGENT MANUFACTURE AND/OR DESIGN

30. Plaintiffs hereby incorporate and re-allege the allegations contained in paragraph numbers one (1) through twenty-nine (29) above.

31. Defendant Cessna failed to exercise ordinary care to avoid injury to operators of the Aircraft when manufacturing and/or designing the hydraulic pump on the landing gear of the Aircraft.

32. Cessna had a duty to act as a reasonable careful aircraft manufacturer and seller would act under the same or similar circumstances. Cessna owed this duty to Plaintiffs who were expected and foreseeable users of the Aircraft.

33. Cessna breached its duty when it designed the hydraulic pump with a power pack diode assembly wire atop a metal encased power pack containing a hydraulic reservoir, valves and electrically driven motor and pump, and the pressure switch.

34. Cessna’s manufacture and/or design of the hydraulic pump for the landing gear on the Aircraft caused the injuries to the Plaintiffs described herein above.

35. Cessna’s acts described in this Second Cause of Action were grossly negligent,
were committed with reckless disregard for the health and safety of others, and endangered the lives of the Plaintiffs.

36. Plaintiffs’ damages from the conduct alleged in this Second Cause of Action exceed Seventy-Five Thousand Dollars ($75,000.00).

THIRD CAUSE OF ACTION (AGAINST CESSNA)
NEGLIGENT INSTALLATION/MAINTENANCE INSTRUCTIONS

37. Plaintiffs hereby incorporate and re-allege the allegations contained in paragraph numbers one (1) through thirty-six (36) above.

38. Cessna’s Service Manual for Model 172RG aircrafts failed to provide clear installation procedures for the hydraulic pump.

39. As a direct and proximate result of Cessna’s failure to provide proper installation procedures for the hydraulic pump, the pump was improperly installed, leaving the terminal lug on the power pack exposed and not properly covered.

40. Cessna owed a duty to Plaintiffs to provide proper instructions on how to install the hydraulic pump for the landing gear on the Aircraft.

41. Cessna’s failure to provide proper installation procedures for the hydraulic pump caused the injuries to the Plaintiffs described herein above.

42. Cessna’s acts described in this Third Cause of Action were grossly negligent, were committed with reckless disregard for the health and safety of others, and endangered the lives of the Plaintiffs.

FOURTH CAUSE OF ACTION (AGAINST SPARTAN)
DECLARATORY JUDGMENT

42. Plaintiff Schiewe hereby incorporates and re-alleges the allegations contained in paragraph numbers one (1) through forty-one (41) above.

43. This cause of action for declaratory judgment is brought pursuant to Okla. Stat. tit. 12, § 1651 etseq.

44. Schiewe’ s injuries occurred while performing his duties as a flight instructor for his employer Spartan.

45. Because Schiewe’s injuries occurred while performing duties for his employer, Schiewe has received and continues to receive worker’s compensation benefits from Spartan.

46. As a matter of Oklahoma statutory law, Spartan, through its insurer, is entitled to assert the right to recover monies paid to Schiewe in worker’s compensation benefits from any settlement or other recovery Schiewe may obtain from Cessna as a result of the filing of this action.

47. Schiewe requests the Court determine whether and to what extent Spartan is entitled to recoup any worker’s compensation benefits paid to Schiewe from a settlement with or judgment against Cessna.

FIFTH CAUSE OF ACTION (AGAINST KELLY)
MANUFACTURERS’ PRODUCTS LIABILITY

48. Plaintiffs hereby incorporate and re-allege the allegations contained in paragraph numbers one (1) through forty-seven (47) above.

49. Kelly defectively designed and manufactured the hydraulic pump (which includes the power pack) in question.

50. Kelly sold or otherwise distributed the defective hydraulic pump into the stream
of commerce.

51. The hydraulic pump was defective when it left the control of Kelly.

52. The defective hydraulic pump rendered the Aircraft unreasonably dangerous beyond that which would be contemplated by the ordinary user.

53. Plaintiffs were injured while using the Aircraft and landing gear hydraulic pump in a way in which it was intended to be used.

54. Plaintiffs’ personal injuries were the direct and proximate result the defect in the hydraulic pump.

55. Plaintiffs’ damages from the conduct alleged in this Fifth Cause of Action exceed Seventy-Five Thousand Dollars ($75,000.00).

SIXTH CAUSE OF ACTION (AGAINST KELLY)
NEGLIGENT MANUFACTURE AND/OR DESIGN

56. Plaintiffs hereby incorporate and re-allege the allegations contained in paragraph numbers one (1) through fifty-five (55) above.

57. Defendant Kelly failed to exercise ordinary care to avoid injury to operators of the Aircraft when manufacturing and/or designing the hydraulic pump on the landing gear of the Aircraft.

58. Kelly had a duty to act as a reasonable careful aircraft parts manufacturer and seller would act under the same or similar circumstances. Kelly owed this duty to Plaintiffs who were expected and foreseeable users of the Aircraft and the hydraulic pump.

59. Kelly breached its duty when it designed the hydraulic pump with a power pack diode assembly wire atop a metal encased power pack containing a hydraulic reservoir, valves and electrically driven motor and pump, and the pressure switch,

60. Kelly’s manufacture and/or design of the hydraulic pump for the landing gear on the Aircraft caused the injuries to the Plaintiffs described herein above.

61. Kelly’s acts described in this Sixth Cause of Action were grossly negligent, were committed with reckless disregard for the health and safety of others, and endangered the lives of the Plaintiffs.

62. Plaintiffs’ damages from the conduct alleged in this Sixth Cause of Action exceed Seventy-Five Thousand Dollars ($75,000.00).

SEVENTH CAUSE OF ACTION (AGAINST KELLY)
NEGLIGENT MAINTENANCE

63. Plaintiffs hereby incorporate and re-allege the allegations contained in paragraph numbers one (1) through sixty-two (62) above.

64. Kelly overhauled the hydraulic pump on the landing gear prior to its installation on the Aircraft on or about March 13, 2006.

65. Defendant Kelly failed to exercise ordinary care to avoid injury to operators of the Aircraft when overhauling the hydraulic pump on the landing gear of the Aircraft.

66. Kelly’s failure to properly overhaul the hydraulic pump caused the injuries to the Plaintiffs described herein above.

67. Cessna’s acts described in this Seventh Cause of Action were grossly negligent, were committed with reckless disregard for the health and safety of others, and endangered the lives of the Plaintiffs.

68. Plaintiffs’ damages from the conduct alleged in this Seventh Cause of Action exceed Seventy-Five Thousand Dollars ($75,000.00).

WHEREFORE, premises considered, Plaintiffs request the Court enter judgment in their favor and against Defendants Cessna and Kelly, and award them actual damages in an amount exceeding Seventy-Five Thousand Dollars ($75,000.00), award them punitive damages against Cessna and Kelly in an amount sufficient to punish Cessna and Kelly and set an example to other aircraft manufacturers which, in any event, is in excess of Seventy-Five Thousand Dollars ($75,000.00), plus award them attorneys’ fees, costs, and all other relief which this Court deems just and equitable. Plaintiff Schiewe further requests the Court enter a declaratory judgment determining whether and to what extent Spartan is entitled to recoup any worker’s compensation benefits paid to Schiewe from settlement or judgment against Cessna.


Cessna Aircraft Company appeared and answered as follows:

1. Cessna is without sufficient knowledge, information or belief to admit or deny the allegations in Paragraphs 1 and 2 of Plaintiffs’ Petition; said allegations are accordingly denied and strict proof thereof demanded.

2. Cessna admits the allegations in Paragraph 3 of Plaintiffs’ Petition.

3. Cessna is without sufficient knowledge, information or belief to achiut or deny the allegations in Paragraphs 4 and 5 of Plaintiffs’ Petition; said allegations are aàèordingldenied and strict proof thereof demanded.

4. The allegations in Paragraph 6 of Plaintiffs’ Petition are legal conclusions which require no response. To the extent a response is required, the allegations are denied.

5. Cessna is without sufficient knowledge, information or belief to admit or deny the allegations in Paragraph 7 of Plaintiffs’ Petition; said allegations are accordingly denied and strict proof thereof demanded.

6. Cessna admits that in 1980, it manufactured a Cessna Aircraft Model 172RG, Serial No. 1 72RG0258, Registration No. N5 145U; Cessna is without sufficient knowledge, information or belief to admit or deny the remaining allegations in Paragraph 8 of Plaintiffs’ Petition; said allegations are accordingly denied and strict proof thereof demanded.

7. Cessna is without sufficient knowledge, information or belief to admit or deny the allegations in Paragraphs 9-20 of Plaintiffs’ Petition; said allegations are accordingly denied and strict proof thereof demanded.

8. Cessna responds to Paragraph 20 of Plaintiffs’ Petition consistent with its response to the allegations in Paragraphs 1-19.

9. The allegations in Paragraphs 21-28 of Plaintiffs’ Petition are denied.

10. Cessna responds to Paragraph 29 of Plaintiffs’ Petition consistent with its responses to Paragraphs 1-28.

11. The allegations in Paragraphs 30-35 of Plaintiffs’ Petition are denied.

12. Cessna responds to the allegations in Paragraph 36 of Plaintiffs’ Petition consistent with its responses to Paragraphs 1-35.

13. Cessna responds to the allegations in Paragraphs 37-41 of Plaintiffs’ Petition are denied.

14. Cessna responds to the allegations in Paragraph 42 of Plaintiffs’ Petition consistent with its responses to Paragraphs 1-41.

15. The allegations in Paragraphs 43-47 of Plaintiffs’ Petition are not directed to Cessna and no response thereto is required.

AFFIRMATIVE DEFENSES

1. Plaintiffs have failed to state a claim upon which relief may be granted against Cessna.

2. Plaintiffs have failed to state a claim upon which relief may be granted against Cessna for manufacturer’s products
liability.

3. Plaintiffs have failed to state a claim upon which relief may be granted against Cessna for negligent manufacture and/or design.

4. Plaintiffs have failed to state a claim upon which relief may be granted against Cessna for negligent installation/maintenance instructions.

5. Plaintiffs have failed to state a claim upon which relief may be granted against
Cessna because Plaintiffs’ claims are barred by the 18 year Statute of Repose in the General
Aviation Revitalization Act, 49 U.S.C. § 40101, note, 108 Stat. 1552, p. 1. 103-290 Aug. 17,
1994.

6. Plaintiffs’ claims are barred by applicable statutes of limitations and/or repose.

7. Plaintiffs’ claims are barred because the methods, standards, warnings and instructions used in manufacturing and/or marketing the product at issue conformed with the generally-recognized, reasonably-available and reliable state of knowledge when the product was manufactured and marketed.

8. All acts of Cessna at the time of the alleged manufacture, sale and/or distribution of the product at issue conformed to the state-of-the-art.

9. Plaintiffs’ claims are barred because the methods, standards, warnings and instructions used in manufacturing and/or marketing the product at issue conformed to industry, customs/usage standards and/or legislative/administrative/regulatory standards.

10. Plaintiffs’ claims are barred under the Common (k) Exception to the Strict Tort Liability defined by the Restatement (Second) of Torts, Section 402(A) and Section 4 of the Restatement (Third) of Torts (Products Liability).

11. If Plaintiffs have been injured or damaged (which is not admitted but denied) their damages were caused by abuse, misuse, user error and/or modification of the product at issue.

12. Cessna denies breaching any duty it may have owed to Plaintiffs, either or both of them.


13. If Cessna breached a duty to Plaintiffs (which is not admitted but denied) then such breach of duty was not the cause of the injuries alleged by Plaintiffs.

14. Cessna denies that its product was defective in any respect.

15. Cessna denies that any defect there may have been in its product (which is not admitted but denied) was the cause of any injury or damage to Plaintiffs, either or both of them.

16. The negligence of third parties, for whom Cessna may not be held responsible, intervened and superseded between any breach of duty on the part of Cessna (which is not admitted but denied) and any injury to Plaintiffs, either or both of them (which is not admitted but denied), thereby precluding any liability on the part of Cessna.

17. The negligence of third parties, for whom Cessna may not be held responsible, intervened and superseded between any defect in its product attributable to Cessna (which is not admitted but denied) and any injury to Plaintiffs, either or
both of them (which is not admitted but denied), thereby precluding any liability on the part of Cessna.

18. Cessna denies that any action or omission on its part was of such a nature as would support an award of punitive damages.

19. Any award of punitive damages based upon any standard of proof that is less than “clear and convincing” evidence would violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and the Due Process Clause of the Oklahoma Constitution.

20. Any award of punitive damages based upon vague and undefined standards of liability would violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and the Due Process Clause of the Oklahoma Constitution.

21. Plaintiffs’ claim for punitive damages is in contravention of Cessna’s rights under each of the following constitutional provisions:

A. The Commerce Clause of Article I, Section 8 of the United States Constitution;

B. The Contracts Clause of Article I, Section 10 of the United States Constitution;

C. The prohibition against cx post facto laws embodied in Article I, Section 10 of the United States Constitution;

D. The Supremacy Clause of Article VI of the United States Constitution;

E. The Free Speech Clause of the First Amendment of the United States Constitution;

F. The Due Process Clause of the Fiflh and Fourteenth Amendments of the United States Constitution;

G. The Takings Clause of the Fifth Amendment of the United States Constitution;

H. The Excessive Fines Clause of the Eighth Amendment of the United States Constitution;

I. The Right to Trial by Jury contained in the Seventh Amendment of the United States Constitution; and

J. The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, as well as the corresponding provisions of the Oklahoma Constitution.

22. The Plaintiffs’ claim for punitive damages is improper for the following reasons:

A. there are no standards provided by Oklahoma law for the imposition of punitive damages, and, therefore, Cessna has not been put on notice and given the opportunity to anticipate the punitive liability and/or the potential size of the award;

B. the procedures to be followed could permit the award of multiple punitive damages for the same act or omission;

C. the procedures under which punitive damages are awarded and the instructions used under Oklahoma law, jointly and separately, are vague and ambiguous and, thus, fail to eliminate the effects of, and to guard against, impermissible jury passion;

D. present Oklahoma law does not provide for sufficiently objective and specific standards to be used by the jury in its deliberations on whether to award punitive damages and, if so, on the amount to be awarded;

E. present Oklahoma law does not provide for a meaningful opportunity for challenging the rational basis for, and the excessiveness of; any award of punitive damages;

F. present Oklahoma procedures may permit the admission of evidence relative to punitive damages in the same proceeding during which liability is determined;

G. present Oklahoma procedures permit the imposition of joint and several judgments against multiple co-defendants for different acts or degrees of wrong doing or culpability;

H. present Oklahoma procedures fail to permit the reduction of any award for punitive damages based on the culpability of the plaintiff.

23. Cessna incorporates by reference, and adopts, as if fully set forth herein, any and all standards or limitations regarding the determination and enforceability of punitive damages awards set forth in State Farm Mutual Automobile Insurance Company v. Campbell, 123 S.Ct.
1513 (2003), BMW of North America v. Gore, 517 U.S. 559, 574, 116 S. Ct. 1589, 1598, 134 L,Ed.2d 809 (1996) and other opinions of the United States Supreme Court.

24. If there are any affirmative defenses available to Cessna which have not been explicitly stated herein, they are here and now asserted.

25. Cessna reserves the right to amend this reply and to assert additional affirmative defenses on its behalf.

WHEREFORE, premises considered, Defendant Cessna Aircraft Company, prays that Plaintiffs take nothing by reason of the allegations made in their Petition, and that, instead, judgment be entered in favor of the Cessna, and that it be awarded its costs, attorney fees and such other relief as this Court may deem just and proper.

CROSS-CLAIM AGAINST SPARTAN AVIATION INDUSTRIES

COMES NOW, the Defendant and Cross-Plaintiff, Cessna Aircraft Company, pursuant to 12 O.S. 2011 § 2013(G), and for its Cross-Claim against the Defendant and Cross-Defendant, Spartan Aviation Industries (hereinafter, “Spartan”), would show the Court as follows:

1. Cessna did not negligently design or manufacture Aircrafl Model 172RG, Serial No. 172RG0258, Registration No. N5145U,

2. No defect of design or manufacture was present in Aircraft Model 1 72RG, Serial No. 172RG0258, Registration No. N5145U at the time it left the care and custody of Cessna when it was sold to its first purchaser.

3. No negligence on the part of Cessna, or of anyone for whom Cessna may be held responsible, is causally related to the injuries for which Plaintiffs, including Plaintiff Zachary Pfaff, seek recovery.

4. No defect in the design or manufacture of Aircraft Model 172RG, Serial No.
172RG0258, Registration No. N5145U for which Cessna may be held responsible is causally related to the injuries for which Plaintiffs, including Plaintiff Zachary Pfaff, seek recovery.

5. Spartan was responsible for the maintenance of the aircraft implicated in the incident upon which Plaintiffs’ claims are based.

6. Spartan was responsible for the safety of persons occupying the aircraft implicated in the incident upon which Plaintiffs’ claims are based, including, but not limited to, the safety of Plaintiff Zachary Pfaff.

7. Spartan negligently failed to maintain, in a safe and airworthy condition, the aircraft implicated in the incident upon which Plaintiffs’ claims are based.

8. Spartan’s agents, servants, employees and others for whom it may be held responsible, negligently failed to maintain, in a safe and airworthy condition, the aircraft implicated in the incident upon which Plaintiffs’ claims are based.

9. The negligence of Spartan, its agents, servants, employees and others for whom it may be held responsible, resulted in the creation of a dangerous condition in the aircraft implicated in the incident upon which Plaintiffs’ claims are based.

10. The dangerous condition in the aircraft, created by the negligence of Spartan, its agents, servants, employees and others for whom it may be held responsible, was the proximate cause of the incident upon which Plaintiffs’ claims, including the claim of Plaintiff Zachary Pfaff, are based.

11. The negligence of Spartan, its agents, servants, employees and others for whom it may be held responsible, was the proximate cause of the incident upon which Plaintiffs’ claims, including the claim of Plaintiff Zachary Pfaff are based.

12. The negligence of Spartan, its agents, servants, employees and others for whom it may be held responsible, was the proximate cause of the injuries for which Plaintiffs, including Plaintiff Zachary Pfaff, seek recovery.

13. Should Plaintiffs, including Plaintiff Zachary Pfaft prevail on their claim that they were injured by reason of the condition of the aircraft implicated in the underlying incident (which is not admitted, but denied), then any such injury was proximately caused by the primary negligence of Spartan, its agents, servants, employees and others for whom it may be held responsible.

14. Should Plaintiffs, including Plaintiff Zachary Pfaff succeed in obtaining a recovery from Cessna on their claims (their right to which is not admitted, but denied), then any liability attributable to Cessna is secondary to and derivative of the primary negligence of Spartan, its agents, servants, employees and others for whom it may be held responsible.

15. Should Plaintiffs, including Plaintiff Zachary Pfaff, succeed in obtaining a recovery from Cessna on their claim (their right to which is not admitted, but denied), then Cessna is entitled to reimbursement from Spartan for all or part of any such recovery by Plaintiff Zachary Pfaff.

WHEREFORE, premises considered, the Defendant and Cross-Plaintiff Cessna Aircraft Company prays the Court to enter judgment in its favor and against the Defendant and Cross- Defendant Spartan Aviation Industries, for all or part of any recovery Plaintiff Zachary Pfaff may obtain on his claim against this Defendant and Cross-Plaintiff. The Defendant and Cross- Plaintiff Cessna Aircraft Company further requests that it be awarded its costs, attorney fees and such other relief as this Court may deem just and proper.

Kelly Aerospace Turbine Rotables, Inc. appeared and answered as follows:


1. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 1.

2 Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 2.

3. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 3.

4. Kelly admits the allegations in paragraph 4.

5. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 5.

6. Kelly admits the accident which occurred that is the basis for Plaintiffs lawsuit arose in Tulsa County, State of Oklahoma.

7. Kelly admits the allegation in paragraph 7.

8. Kelly admits the allegations in paragraph 8.

9. Kelly admits the allegations in paragraph 9.

10. Kclly lacks sufficient knowledge or information to form a belief about the truth of paragraph 10.

11. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 11.

12. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 12.

13. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 13.

14. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 14.

15. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 15.

16. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 16,

17. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 17.

18. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 18.

19. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 19.

20. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 20.

21. No response is required to this paragraph.

22—47 The allegations in paragraphs 22-47 pertain to claims against Defendants Cessna and Spartan, and therefore Kelly has no response to the allegations contained therein. To the extent an allegation in paragraphs 22-47 could pertain to Kelly the allegations are denied.

48. No response is required to this paragraph.

49. Kelly denies the allegations contained in paragraph 49.

50. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 50.

51. Kelly denies the allegations contained in paragraph 51.

52. Kelly denies the allegations contained in paragraph 52.

53. Kelly denies the allegations contained in paragraph 53.

54. Kelly denies the allegations contained in paragraph 54.

55. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 55.

56. No response is required to this paragraph.

57. Kelly denies the allegations contained in paragraph 57.

58. Kelly denies the allegations contained in paragraph 58.

59. Kelly denies the allegations contained in paragraph 59.

60. Kelly denies the allegations contained in paragraph 60.

61. Kelly denies the allegations contained in paragraph 61.

62. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 62.

63. No response is required to this paragraph.

64. Kelly denies the allegations contained in paragraph 64.

65. Kelly denies the allegations contained in paragraph 65.

66. Kelly denies the allegations contained in paragraph 66.

67, Kelly denies the allegations contained in paragraph 67.

68. Kelly lacks sufficient knowledge or information to form a belief about the truth of paragraph 68.

Affirmative Defenses

69. Kelly is not liable to Plaintiffs’ because all or a substantial portion of Plaintiffs’ injuries
and/or damages were caused by the actions or inactions of third parties for which Kelly had no
control or responsibility.

70. Plaintiffs Amended Petition fails to state a claim upon which relief may be granted.

71. Kelly reserves the right to amend or add additional affirmative defenses.

WHEREFORE, PREMISES CONSIDERED, Defendant Kelly Aerospace Turbine Rotables, Inc., requests the Court, upon final trial, render judgment for Kelly and against the Plaintiffs and that Kelly recover its costs, and that Kelly be awarded additional relief, both at law and in equity, to which it may be entitled.

Cessna moved for summary judgment in its favor asserting the following:

1. Plaintiffs allege that “[o]n or about September 28, 2010, Plaintiffs were flying a Cessna 172RG, Serial No. 172RG0258, Registration No. N5145U (the Aircraft) in Tulsa, Oklahoma, when a fire broke out in the engine compartment resulting in a crash landing.” Exhibit “1”, Plaintiffs’ Amended Petition, ¶ 8, p.2.

2. Plaintiffs allege that “[tihe Aircraft was manufactured by Cessna. . . .“ Exhibit “1”, Plaintiffs’ Amended Petition, ¶ 9, p. 2.

3. Plaintiffs’ allege that Jade P. Schiewe, (hereinafter “Schiewe”) was a certified flight instructor and that Zachary Pfaff (hereinafter “Pfaff’) was a certified flight instructor candidate, and that they were engaged in an instructional flight at the time of the incident upon which their claims are based, which occurred September 28, 2010. Exhibit “1”, Plaintiffs’
Amended Petition, ¶J 10-12, p. 2.

4. Plaintiffs’ first claim against Cessna sounds in manufacturer’s products liability and alleges that Cessna defectively designed and manufactured the hydraulic pump power pack for the landing gear on the aircraft, which allegedly shorted and caused Plaintiffs’ accident.
Exhibit “1”, Plaintiffs’ Amended Petition, ¶J 22 & 23, p. 3.

5. Plaintiffs’ second claim alleges that Cessna negligently manufactured or designed the hydraulic pump on the landing gear of the aircraft. Exhibit “1”, Plaintiffs’ Amended Petition,
¶J31 &33, p. 4.

6. Plaintiffs’ third claim alleges that “Cessna’s Service Manual for Model 172RG aircrafts failed to provide clear installation procedures for the hydraulic pump.” Exhibit “1”, Plaintiffs’ Amended Petition, ¶ 38, p. 5.

7. The Type Certificate for Cessna Aircraft Model 1 72RG was approved June 1,
1979, by the Federal Aviation Administration, U.S. Department of Transportation. Exhibit “2”,
Affidavit of Matthew D. Flesher, ¶ 3; Exhibit “3”, Type Certificate Data Sheet No. 3A17, Section IX, p. 11.

8. The Type Certificate establishes that Cessna Aircraft Model 172RG had four (4) seats. Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 4; Exhibit “3”, Type Certificate Data Sheet No. 3A17, Section IX, p. 12.

9. Avico South, Ltd. ordered a Cessna Aircraft, Serial No. 172RG0258, Registration No. N5145U, on November 21, 1979. Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 5; Exhibit “4”, Airplane Order Form.

10. Cessna Aircraft Model 172RG, Serial No. 172RG0258, Registration No. N5145U, was manufactured in January, 1980; as manufactured, that aircraft had a maximum seating capacity of fewer than twenty (20) passengers; in fact, it had only four (4) seats. Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 6; Exhibit “3”, Type Certificate Data Sheet No. 3A17, Section IX, p. 12.

11. On February 1, 1980, Cessna sold Aircraft Model 1 72RG, Serial No. 1 72RG0258, Registration No. N5145U, to its first purchaser, Avico South, Ltd. Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 7; Exhibit “5”, Aircraft Bill of Sale.

12. At the time of its sale to its first purchaser, Cessna Aircraft Model 172RG, Serial No. 172RG0258, Registration No. N5145U, had a maximum seating capacity of fewer than twenty (20) passengers; in fact, it had only four (4) seats. Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 8; Exhibit “3”, Type Certificate Data Sheet No. 3A17, Section IX, p. 12.

13. Cessna Aircraft Model 172RG, Serial No. 172RG0258, Registration No. N5145U, was certified as air worthy on February 6, 1980. Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 9; Exhibit “6”, FAA Registry, N514U.

14. Cessna Aircraft Company has not overhauled, serviced, or otherwise provided maintenance work for the hydraulic power pack on Cessna Aircraft Model 172RG, Serial No. 172RG0258, Registration No. N5145U, subsequent to its delivery to its first purchaser on February 1, 1980. Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 10.

15. Cessna Aircraft Company has not supplied any new component, system, subassembly or other part for the hydraulic power pack on Cessna Aircraft Model 1 72RG, Serial No. 172RG0258, Registration No. N5145U, subsequent to the delivery of that aircraft to its first purchaser on February 1, 1980. Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 11.

III. ARGUMENTS AND AUTHORITIES

A. The Standard for Summary Judgment

Rule 13 of the Rules for District Courts for Oklahoma provides that the Court may render judgment in favor of a moving party when there is no substantial controversy as to any material fact, and the party is entitled to judgment as a matter of law. By legislative mandate, 12 0.S. § 2056 now governs summary disposition. By enacting § 2056, the Oklahoma Legislature intended to alter some aspect of summary judgment procedure. See Minnesota Mining & Mfg Co. v. Smith, 1978 OK 98, ¶ 20, 581 P .2d 31, 35 (citations omitted). The Oklahoma Supreme Court has stated:

When amending a statute the legislature is presumed familiar with the extant judicial construction then enforced. Similarly, it can be presumed that when enacting a statute the legislature is familiar with the U.S. Supreme Court jurisprudence affecting that enactment.

TXO Production Corp. v. Okia. Corp. Comm., 1992 OK 39, ¶ 10, 829 P.2d 964, 970 (footnotes omitted).

The enactment of § 2056 is a legislative mandate that a motion for summary judgment in Oklahoma is governed by the principles pronounced by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); and Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986). These cases embody the “construction previously placed on [Fed.R.Civ.P.56] by the highest court of that [jurisdiction]...

• [O]ur legislature is presumed to have been aware of such construction and to have adopted the statute as so construed” in § 2056. Atlantic Richfield Co. v. State ex rel. Wildlife Conservation Comm., 1983 OK 14, ¶ 9, 659 P.2d 930, 934 n. 7 (citations omitted).

Under these standards, the role of the trial court in considering a motion for summary judgment is as follows:

The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Liberty Lobby, 477 U.S. at 250.

The Oklahoma Legislature has now settled the standard for summary judgment by enacting § 2056; the Courts in Oklahoma are to adhere to the principles of Celotex, Liberty Lobby and Matsushita in ruling on a motion for summary judgment.

Under these standards, Cessna is entitled to a summary disposition in its favor on Plaintiffs’ claims. The undisputed facts establish that in 1980, Cessna manufactured and sold the aircraft allegedly implicated in the incident of September 28, 2010. Over thirty years passed between the manufacture and sale of the aircraft and the incident in which Plaintiffs allege they were injured, a period well in excess of the eighteen year period of repose mandated by the GARA. Accordingly, Plaintiffs’ claims are barred and Cessna is entitled to judgment in its favor as a matter of law.

B. The GARA 18 Year Statute of Repose Bars Plaintiffs’ Claims

The Congress of the United States enacted the GARA in 1994 and prescribed an 18 year period of repose, after which civil actions for damages against manufacturers of allegedly defective aircraft that cause accidents resulting in injury or death are barred. 49 U.S.C. § 40101, Note, 108 Stat. 1552, P.L. 103-290, Aug. 17, 1994. Through GARA, Congress sought to revitalize the failing aviation industry in the United States:

Congress was deeply concerned about the enormous product liability costs that our tort system had imposed upon manufacturers of general aviation aircraft. It believed that manufacturers were being driven to the wall because, among other things, of the long tail of liability attached to those aircraft, which could be used for decades after they were first manufactured and sold.

Lyon v. Agusta S.P.A., 252 F.3d 1078, 1084 (9th Cir., 2001), citing HR. Rep. No. 103-525, Pt. I, at 1-4 (1994), reprinted in 1994 U.S.C.C.A.N. 1638, 1638-41.

[T]he purpose of GARA [is] to:

establish a Federal statute of repose to protect general aviation manufacturers from long-term liability in those instances where a particular aircraft has been in operation for a considerable number of years. A statute of repose is a legal recognition that, after an extended period of time, a product has demonstrated its safety and quality, and that it is not reasonable to hold a manufacturer legally responsible for an accident or injury occurring after that much time has elapsed. 140 Cong.Rec. H4998, H4999 (daily ed. July 27, 1994) (statement of Rep. Fish).

Aitseimer v. Bell Helicopter Textron, 919 F.Supp. 340, 342 (E.D. Cal., 1996); see Alter v. Bell Helicopter Textron, 944
F.Supp. 531, 542 (S.D. Tex., 1996).

The relevant provisions of GARA are:

Section 1, Short title.

This Act may be cited as the ‘General Aviation Revitalization Act of 1994’.

Sec. 2. Time limitations on civil actions against aircraft manufacturers.

(a) In general.—Except as provided in subsection (b), no civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if the accident occurred —

(1) after the applicable limitation period beginning on—

(A) the date of delivery of the aircraft to its first purchaser or lessee, if delivered directly from the manufacturer; or

(B) the date of the first delivery of the aircraft to a person engaged in the business of selling or leasing such aircraft; or

(2) with respect to any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft, and which is alleged to have caused such death, injury, or damage, after the applicable limitation period beginning on the date of completion of the replacement or addition.

(b) Exceptions.—Subsection (a) does not apply—

(1) if the claimant pleads with specificity the facts necessary to prove, and proves, that the manufacturer with respect to a type certificate or airworthiness certificate for, or obligations with respect to continuing airworthiness of, an aircraft or a component, system, subassembly, or other part of an aircraft knowingly misrepresented to the Federal Aviation Administration, or concealed or withheld from the Federal Aviation Administration, required information that is material and relevant to the performance or the maintenance or operation of such aircraft, or the component, system, subassembly, or other part, that is causally related to the harm which the claimant allegedly suffered;

(2) if the person for whose injury or death the claim is being made is a passenger for purposes of receiving treatment for a medical or other emergency;

(3) if the person for whose injury or death the claim is being made was not aboard the aircraft at the time of the accident; or

(4) to an action brought under a written warranty enforceable under law but for the operation of this Act.

(c) General aviation aircraft defined.—For the purposes of this Act, the term ‘general aviation aircraft’ means any aircraft for which a type certificate or an airworthiness certificate has been issued by the Administrator of the Federal Aviation Administration, which, at the time such certificate was originally issued, had a maximum seating capacity of fewer than 20 passengers, and which was not, at the time of the accident, engaged in scheduled passenger-carrying operations as defined under regulations in effect under part A of subtitle VII of title 49, United States Code [49 U.S.C.A. § 40101 et seq.], at the time of the accident.

(d) Relationship to other laws.—This section supersedes any State law to the extent that such law permits a civil action described in subsection (a) to be brought after the applicable limitation period for such civil action established by subsection (a).

Sec. 3, Other defmitions.

For purposes of this Act—

(1) the term ‘aircraft’ has the meaning given such term in section
41002(a)(6) of Title 49. United States Code, [49 U.S.C.A. §
401 02(a)(6)];

(2) the term ‘airworthiness certificate’ means an airworthiness certificate issued under section 603(c) of the Federal Aviation Act of 1958 (49 U.S.C. 1423(c)), [see 49 U.S.C.A. § 44704(c)(1)] or under any predecessor Federal statute;

(3) the term ‘limitation period’ means 18 years with respect to general aviation aircraft and the components, systems, subassemblies, and other parts of such aircraft; and

(4) the term ‘type certificate’ means a type certificate issued under section 44704(a) of Title 49, United States Code
[49 U.S.C.A. § 44704(a)], or under any predecessor Federal statute.

49 U.S.C. § 40101, Note, 108 Stat. 1552, P.L. 103-298. (emphasis original).

The 18 year period of limitation imposed by GARA “is a classic statute of repose.” Lyon v. Agusta, S.P.A., 252 F.3d at 1084 (citation omitted).

It does not run from the date on which an injury occurs. There will be a statute of limitations which runs from that date. Rather, it runs from what amounts to the date of the first transfer from the manufacturer.

Id. 252 F.3d at 1084.

[A] statute of repose proceeds on the basis that it is unfair to make somebody defend an action long after something was done or some product was sold. It declares that nobody should be liable at all after a certain amount of time has passed, and that it is unjust to allow an action to proceed after that.

Id., 252 F.3d at 1086. The 18 year “limitation period is triggered by the initial delivery of the aircraft.” Kennedy v. Bell Helicopter Texton, 283 F.3d 1107, 1113 (9th Cir., 2002). This is not just a defense; instead, “the GARA statute of repose . . . creates an explicit statutory right not to stand trial. . . .“ Id., 283 F.3d at 1110.

Recently, on June 28, 2011, the United States District Court for the Eastern District of Oklahoma entered summary judgment in favor of the manufacturers of the engine and of the fuel pump which had been installed in an aircraft which “crashed in the ocean waters near the Bahamas” on December 20, 2007 (the manufacturer of the aircraft had not been sued). Agape Flights v. Covington Aircraft Engines, 2011 WL 2560281 (E.D. Okia., June 28, 2011), *1. The Court noted that the accident occurred almost twenty-three years after the engine had been sold and delivered and over twenty years after the sale of the aircraft, engine and fuel pump. Id., at *1. A similar result should obtain in the present case.

The language of GARA is explicit:

[N]o civil action for damages for death or injury to persons . . . may be brought against the manufacturer of the aircraft. . . if the accident occurred
after the applicable limitation period beginning on — the date of delivery of the aircraft to its first purchaser or lessee if
delivered directly from the manufacturer;....

GARA, § 2(a)(l) (emphasis added).

[T]he term ‘limitation’ means 18 years with respect to general aviation aircraft and the components, systems, subassemblies, and other parts of such aircraft....

GARA, § 3(3). Thus, the period of repose is 18 years measured from the date the aircraft was delivered to its first purchaser. In the present case, Cessna delivered Aircraft Model 1 72RG, Serial No. 172RG0258, Registration No. N5145U, to its first purchaser in February 1980. Fact 11; see Facts 14 & 15. Therefore, the 18 year period of repose under GARA expired no later than February 1998. However, Plaintiffs’ claim is based upon an accident occurring September 28, 2010. Fact 1. Plaintiffs claim is based upon an accident which occurred 12 years after the very possibility of such a claim was barred by the terms of GARA.

Lest there be any doubt, the aircraft implicated in Plaintiffs’ claim is a “general aviation aircraft” for purposes of GARA. That phrase has the following definition under the Act:

For the purposes of this Act, the term ‘general aviation aircraft’ means any aircraft for which a type certificate or an airworthiness certificate has been issued by the Administrator of the Federal Aviation Administration, which, at the time such certificate was originally issued, had a maximum seating capacity of fewer than 20 passengers, and which was not, at the time of the accident, engaged in scheduled passenger-carrying operations as defined under regulations in effect under part A of subtitle VII of title 49, United States Code [49 U.S.C.A. § 40101 et seq.], at the time of the accident.

GARA, § 2(c). The first requirement is that the aircraft have a type certificate or an air worthiness certificate; the second requirement is that, at the time the certificate was issued, the aircraft had a maximum seating capacity of fewer than 20 passengers; and the third requirement is that, at the time of the accident, the aircraft was not engaged in scheduled passenger carrying operations. The aircraft implicated in Plaintiffs’ claim against Cessna satisfies all three of these requirements from which it follows that the GARA Statute of Repose applies to bar their claim.
Plaintiffs identify the aircraft implicated in their claim as “a Cessna 1 72RG, Serial No. 1 72RG0258, Registration No. N5 1 45U.” Fact 1; see Exhibit “1”, Plaintiffs’ Amended Petition, ¶ 8,
p. 2. “The Type Certificate for Cessna Aircraft Model 172RG was approved June 1, 1979, by the Federal Aviation Administration, U.S. Department of Transportation.” Fact 7; Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 3; Exhibit “3”, Type Certificate Data Sheet No. 3A17, Section IX, p. 11. Moreover, “Cessna Aircraft Model 172RG, Serial No. 172RG0258, Registration No. N5145U, was certified as air worthy on February 6, 1980.” Fact 13; Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 9; Exhibit “6”, FAA Registry, N514U. At the bottom of Exhibit “6”, the FAA Registry for this particular aircraft, is a section labeled “Air Worthiness” showing the “A/W Date” as “02/06/1980.” Therefore, the first requirement for a “general aviation aircraft” as defined in the GARA has been doubly satisfied.

The Cessna aircraft in question “had a maximum seating capacity of fewer than 20 passengers” from which it follows that the second requirement for a “general aviation aircraft” as defined by the GARA has been satisfied. The Type Certificate shows that Model 172RG had only four seats. Fact 8; Exhibit “2”, Affidavit of Matthew D. Flesher, ¶ 4; Exhibit “3”, Type Certificate Data Sheet No. 3A17, Section IX, p. 12. The specific aircraft, Serial No. 172RG0258, Registration No. N5145U, had only four seats when it was manufactured and delivered to Cessna’s first customer. Facts 10 & 12; Exhibit “2”, Affidavit of Matthew D. Flesher, ¶J 6 & 8; see Facts 14 & 15. An aircraft with only four seats obviously “had a maximum seating capacity of fewer than 20 passengers. ..

In their Amended Petition, Plaintiffs allege that they were utilizing the aircraft in question for “an instructional flight on September 28, 2010,” when the accident occurred. Fact 3; Exhibit “1”, Plaintiffs’ Amended Petition, ¶ 12, p.
2. From this it follows that the aircraft in question “was not, at the time of the accident, engaged in scheduled passenger-carrying operations” thereby satisfying the third requirement for a “general aviation aircraft” as defined by the GARA.

From the above, it follows that Cessna Aircraft Model 172RG, Serial No. 172RG0258, Registration No. N5145U is a “general aviation aircraft” as defined by the GARA from which it also follows that the 18 year Statute of Repose under that Act applies to any claims arising out of an accident involving that aircraft. That aircraft was sold to its first purchaser in February 1980, thereby starting the 18 year of repose. Fact 11; see Facts 14 & 15. That period expired in February 1998, 1 2’/2 years before the accident upon which Plaintiffs’ claim is based. Plaintiffs’ claim is barred by the GARA Statute of Repose and Cessna is entitled to summary judgment in its favor so holding.

Plaintiffs’ first claim alleges that Cessna defectively designed and manufactured the hydraulic pump power pack for the landing gear of the aircraft and Plaintiffs’ second claim alleges that Cessna negligently manufactured or designed the hydraulic pump on the landing gear of the aircraft involved in Plaintiffs’ accident. Facts 4 & 5. Clearly, Plaintiffs’ first and second claims are based upon Cessna in its status as manufacturer of that aircraft. Fact 2. Accordingly, the GARA Statute of Repose bars Plaintiffs’ first and second claims.

Plaintiffs’ third claim is barred as well even though it is based upon allegations regarding “installation procedures for the hydraulic pump” in a service manual. Fact 6. For example, in South Side Trust and Savings Bank of Peoria v. Mitsubishi Heay Industries, 927 N.E. 2d 179 (Ill. App. 2010), (appeal denied, Sept. 29, 2010), a revised maintenance manual did not warn that the last two gallons of gasoline in the fuel tank would be unusable. Nevertheless, the court affirmed the entry of summary judgment in favor of the successor to the manufacturer of the plane, which issued a revised maintenance manual. Similarly, in Burton v. Twin Commander Aircraft, 254 P.3d 778 (Wash. 2011), the Washington Supreme Court held that the trial court properly entered summary judgment for the successor of the original manufacturer of an aircraft even though a service bulletin contained allegedly defective instructions regarding the inspection of a rubber cap, the failure of which was implicated in a crash. Agape Flights v. Covington Aircraft, supra, the Eastern District entered summary judgment in favor of the manufacturer of a fuel pump which was also responsible for an allegedly defective maintenance manual for the fuel pump coupling in-situ inspection. Thus, under these authorities, the GARA statute of repose bars Plaintiffs’ third claim against Cessna as well.

Therefore, Cessna is entitled to judgment in its favor as a matter of law. The 18 year Statute of Repose in the GARA is a complete bar to all of Plaintiffs’ claims. The Cessna aircraft allegedly implicated in Plaintiffs’ accident was manufactured and delivered to its first buyer in February, 1980. Facts 10, 11, 14 & 15. The period of repose expired in 1998, 12 years before the accident upon which Plaintiffs’ claim is based.

IV. CONCLUSION

WHEREFORE, premises considered, the Defendant, Cessna Aircraft Company prays the Court to grant its motion and to enter judgment in its favor as a matter of law pursuant to 12 O.S. 2011 § 2056 and Rule 13, Rules for the District Courts of Oklahoma. Plaintiffs’ claims are based upon an accident occurring September 28, 2010 and implicating an aircraft allegedly manufactured by the Defendant Cessna Aircraft Company. The aircraft in question was delivered to its first purchaser in February 1998, thereby activating the 18 year period of repose under the General Aviation Revitalization Act, 49 U.S .C. § 40101, note, p. 1. 103-298. Accordingly, Plaintiffs’ claims are barred and the Defendant, Cessna Aircraft Company is entitled to judgment in its favor as a matter of law so holding.

The motion was overruled.

Outcome: Dismissed with prejudice as to Spartan Aviation on April 9, 2013.

Dismissed with prejudice as to Eaton Corporation on November 21, 2013.

Plaintiff's Experts:

Defendant's Experts:

Comments: