Filed 3/11/13 Rogers v. Bell Helicopter
Textron CA3
NOT TO
BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ALIKA ROGERS,
Plaintiff
and Appellant,
v.
BELL HELICOPTER TEXTRON, INC.,
Defendant
and Respondent.
C069471
(Super.
Ct. No. 06AS02842)
Plaintiff Alika Rogers appeals
following a jury verdict in favor of defendant Bell Helicopter Textron, Inc.
(Bell Helicopter), alleging instructional
errors. We affirm because Rogers cannot demonstrate
prejudice.
FACTUAL AND PROCEDURAL
BACKGROUND
I
Rogers was injured in 2005
when the 54-year-old Bell helicopter she was
piloting crashed as a result of a failed bolt in the helicopter’s tail
rotor.
A
Rogers’s theory was that the
bolt failed because Bell Helicopter’s maintenance manual for the helicopter was
confusing and the mechanics relying on the manual balanced the tail rotor
blades incorrectly. To support her
theory, Rogers presented expert
witness testimony from architect and mechanical engineer Peter Leffe. Leffe’s opinion was that the manual was unclear
on how to balance the tail rotor blade.
Leffe also testified that if the mechanics had followed the manual in
balancing the blades, the crash would not have occurred.
B
Bell Helicopter’s theory was that an
unknown person had installed the wrong washer (a homemade washer) on the tail
rotor and this resulted in loosening of one of the bolts, causing the bolt’s
failure. To support its theory, Bell
Helicopter presented expert witness testimony from engineer and scientist Aaron
Slager that the washer was asymmetrical and too thick and had been “smushed
down,†causing the bolt to loosen and ultimately fail.
Bell Helicopter also presented the
testimony of two people who worked on the helicopter in the year before the
crash, licensed helicopter mechanics Kenneth Bartholomew and Chester
Peterson. In February 2005, Bartholomew
installed new tail rotor blades on the helicopter and balanced the tail rotor
blades. He relied on the manual to
balance this particular helicopter. The
manual’s instructions did not confuse him.
In October 2005, Peterson worked on the helicopter, including balancing
the tail rotor blades. He learned how to
balance tail rotor blades from Bartholomew, and every time they balanced the
blades they consulted the manual. When
Peterson balanced the blades this time, he believed he was following the proper
procedures set forth in the manual.
II
The jury was instructed regarding
strict liability under the risk-benefit test and on negligence regarding the
allegedly defective manual.
III
The court refused to instruct on
strict liability under the consumer expectation test, strict liability under
the failure to warn test, and on negligence per se for violating federal
aviation regulations. We set forth these refused instructions below.
A
Rogers proposed a version of
CACI No. 1203 that read as follows:
“Alika Rogers claims the [manual]’s
design was defective because the [manual] did not perform as safely as an
ordinary consumer [here, the mechanic] would have expected it to perform. To
establish this claim, Alika Rogers must prove all of the following:
“1. That Bell Helicopter Textron,
Inc. [manufactured/distributed/sold] the [manual];
“2. That the [manual] did not
perform as safely as an ordinary consumer [mechanic] would have expected it to
perform when used or misused in an intended or reasonably foreseeable way;
“3. That Alika Rogers was harmed;
and
“4. That the [manual]’s failure to
perform safely was a substantial factor in causing Alika Roger’s harm.â€
B
Rogers proposed a version of CACI
No. 1205 that read as follows:
“Alika Rogers claims that Bell
Helicopter Textron, Inc.’s maintenance manual lacked sufficient [instructions]
[or] [warning of potential [risks/side effects/allergic reactions]]. To
establish this claim, Alika Rogers must prove all of the following:
“1. That Bell Helicopter
manufactured/distributed/sold the maintenance manual;
“2. That the maintenance manual had
potential [risks/side effects/allergic reactions] that were [known/ [or]
knowable [by the use of scientific knowledge available] at the time of
[manufacture/distribution/sale];
“3. That the potential [risks/side
effects/allergic reactions] presented a substantial danger when the maintenance
manual is used or misused in an intended or reasonably foreseeable way;
“4. That ordinary consumers would
not have recognized the potential [risks/side effects/allergic reactions];
“5. That Bell Helicopter[] failed to
adequately warn [or instruct] of the potential [risks/side effects/allergic
reactions];
“6. That Alika Rogers was harmed;
and
“7. That the lack of sufficient
[instructions] [or] [warnings] was a substantial factor in causing Alika
Rogers’s harm.â€
C
Rogers proposed a version of CACI
No. 418 that read as follows:
“Title 14 of the Code of Federal
Regulations states:
“Title 14: Aeronautics and Space
“[¶] . . . [¶]
Ҥ 23.1529 Instructions For
Continued Airworthiness.
“The applicant must prepare
Instructions for Continued Airworthiness in accordance with appendix G to this
part that are acceptable to the Administrator. The instructions may be
incomplete at type certification if a program exists to ensure their completion
prior to delivery of the first airplane or issuance of a standard certificate
of airworthiness, whichever occurs later.
“[¶] . . . [¶]
“Appendix G to Part 23 -
Instructions for Continued Airworthiness
“[¶] . . . [¶]
“. . . Format. [¶]
(a) The Instructions for
Continued Airworthiness must be in the form of a manual or manuals as
appropriate for the quantity of data to be provided.
“. . . Content. The contents of the manual or manuals must be
prepared in the English language. The
Instructions for Continued Airworthiness must contain the following manuals or
sections, as appropriate, and information:
“(a) Airplane maintenance manual or
section. [¶] . . . Basic control and operation information describing how the
airplane components and systems are controlled and how they operate, including
any special procedures and limitations that apply.
“(b) Maintenance instructions. [¶] . . .
Troubleshooting information describing probable malfunctions, how to
recognize those malfunctions, and the remedial action for those
malfunctions. [¶] . . . Other general
procedural instructions including procedures for system testing during ground
running, symmetry checks, weighing and determining the center of gravity,
lifting and shoring, and storage limitations.
“If you decide
“1. That defendant Bell Helicopter
Textron, Inc. violated this law and
“2. That the violation was a
substantial factor in bringing about the harm, then you must find that Bell
Helicopter was negligent [unless you also find that the violation was excused].
“If you find that Bell Helicopter
did not violate this law or that the violation was not a substantial factor in
bringing about the harm [or if you find the violation was excused], then you
must still decide whether [name of plaintiff/defendant] was negligent in light
of the other instructions.†(Bolding and
italics omitted.)
IV
“CLAIM OF NEGLIGENCE
“1.
Did Bell Helicopter design, manufacture and supply the maintenance manual?
“
X Yes ___ No
“[¶] . . . [¶]
“2.
Was Bell Helicopter negligent in designing, manufacturing and supplying
the maintenance manual?
“ ___ Yes
X No
“ If
your answer to question 2 is yes, then answer question 3. If you answered no, then go to question 4.
“3.
Was Bell Helicopter’s negligence a substantial factor in causing harm to
Alika Rogers?
“ ___ Yes ___ No
“Answer question 4.
“CLAIM OF DESIGN DEFECT
“4.
Was the maintenance manual’s design a substantial factor in causing harm
to Alika Rogers?
“ ___ Yes
X No
“
If your answer to question 4 is . . . no, and your answer to question 2
or question 3 is no, then stop here . . . .
“5.
Did the risks of the maintenance manual’s design outweigh the benefits
of the design?
“ ___
Yes ___ Noâ€
DISCUSSION
Rogers claims the court erred in
failing to give the three instructions quoted above. We find any error harmless.
“ ‘A judgment may not be reversed
for instructional error in a civil case ‘unless, after an examination of the
entire cause, including the evidence, the court shall be of the opinion that
the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)†(Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) A miscarriage of justice occurs “ ‘where it
seems probable’ that the error ‘prejudicially affected the verdict.’ †(Ibid.)
It is improbable that any error in
failing to give the instructions affected the verdict. The first question in the verdict form for
the claim of design defect asked whether the manual’s design was a “substantial
factor†in causing harm to Rogers. The
jury answered “no.†From this answer, it
appears the jury did not accept Rogers’s theory of the case that the crash was
caused by the manual.
This jury finding dooms any ability
for Rogers to show prejudice for failing to give the three requested
instructions. Each of the three
instructions Rogers requested had a similar causation component. The jury instruction on the consumer
expectation test required the jury to find that the manual’s failure to perform
safely was a “substantial factor in causing†Rogers’s harm. The jury instruction on failure to warn
required the jury to find that lack of sufficient instructions in the manual
was a “substantial factor in causing†Rogers’s harm. And the jury instruction on negligence for
failing to follow the Code of Federal Regulations on the content of the manual
required the jury to find the violation of the regulation was “a substantial
factor in bringing about the harm.†For
the jury to have answered “yes†to any one of these questions would have
required the jury to find that the manual was a substantial factor in causing
the harm to Rogers. But we already know
the jury found that the manual was not such a factor. On this record, there was no prejudice from
the failure to give the three requested jury instructions.
DISPOSITION
The judgment is affirmed. Bell Helicopter is entitled to its costs on
appeal. (Cal. Rules of Court, rule
8.278(a).)
ROBIE , J.
We concur:
BLEASE , Acting P. J.
DUARTE , J.
