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June 4, 1971


Tyler, District Judge.

The opinion of the court was delivered by: TYLER

TYLER, District Judge:

Plaintiffs, passengers on Eastern Airlines Flight 853 (EAL 853) which collided with Trans World Airlines Flight 42 (TWA 42) over Carmel, New York, on December 4, 1965, seek damages for personal injuries from the two airline companies responsible for the colliding aircraft. Jurisdiction is premised on diversity of citizenship, the amount in controversy exceeding $10,000 as to each of the three plaintiffs. 28 U.S.C. § 1332 (a)(1).

 The trial of the case, on December 21-22, 1970, resulted in a directed verdict in favor of TWA and against EAL on the issue of liability and a jury verdict awarding damages in the sums of $25,000 to plaintiff Ghisalberti, $20,810 to plaintiff Miele, and $15,000 to plaintiff Colditz.

 The primary purpose of this memorandum is to treat two novel issues raised in pre- and post-trial motions, namely, the applicability of the doctrine of res ipsa loquitur to this mid-air collision; and (2) the appropriateness of both defendants' pleas of collateral estoppel on the liability issue based on the jury verdict in the companion case of White v. Trans World Airlines, tried before the undersigned with a jury. See White v. Trans World Airlines, 320 F. Supp. 655 (S.D.N.Y. 1970). Defendant EAL's post-trial motions to set aside or reduce the verdicts will also be treated herein.

 I. Res Ipsa Loquitur

 At a pre-trial hearing, the undersigned ruled that plaintiffs' counsel could rely on the doctrine of res ipsa loquitur in the presentation of his case to the jury. Three essential conditions must be satisfied to permit invocation of the doctrine:

"(1) The accident must be one that ordinarily would not occur in the absence of negligence; or, as it is sometimes put, the instrumentality causing injury must be such that no injury would ordinarily result from its use unless there was negligent construction, inspection or use; (2) both inspection and use must have been at the time of the injury in defendants' control; (3) the injurious occurrence or condition must have happened irrespective of any voluntary action on plaintiffs' part." *fn1"

 As to the requirement that the accident be one not likely to occur without negligence, it is settled New York law, the state law applicable here, that negligence may be inferred from the happening of an aircraft accident. Citrola v. Eastern Air Lines, Inc., 264 F.2d 815, 817 (2d Cir. 1959); Lobel v. American Airlines, 192 F.2d 217 (2d Cir. 1951), cert. denied 342 U.S. 945, 96 L. Ed. 703, 72 S. Ct. 558 (1952); Rogow v. United States, 173 F. Supp. 547, 556 (S.D.N.Y. 1959). Although these cases concerned single craft crashes, the doctrine has more recently been applied to mid-air collisions. O'Connor v. United States, 251 F.2d 939 (2d Cir. 1958). Given the Federal Aviation Administration's (FAA) elaborate system of Air Traffic Control, to which these two aircraft were subject, the probability that this mid-air collision was an unavoidable accident is de minimis. Finally, since the nature of this accident justifies an inference of negligence, the absence of a common carrier-passenger relationship is irrelevant. *fn2"

 The second condition of invoking res ipsa loquitur is commonly referred to as the requirement that defendant have "exclusive control" over the injuring instrumentality. But the terminology, "exclusive control", overstates the principle that the greater probabilities must point to the defendant as the responsible agent. Corcoran v. Banner Super Market, Inc., supra 19 N.Y.2d at 432, 280 N.Y.S. 2d at 389. See 2 Harper & James, supra, § 19.7, p. 1086-7. Thus, "exclusive control" has been expanded to encompass multiple defendants who are charged by law with joint responsibility for the instrumentality of injury. Schroeder v. City & County Sav. Bank, 293 N.Y. 370, 57 N.E. 2d 57 (1944), Corcoran v. Banner Super Market, Inc., supra. Corcoran reflects some stretching even of the traditional concept of joint responsibility. It held res ipsa loquitur applicable against the owner of one of two adjacent buildings, between which was suspended a board which fell and injured plaintiff, without regard to whether the end of the board which was negligently secured or placed rested upon the defendant owner's building rather than upon that of the non-defendant owner. In addition, the notion of exclusive control has been traditionally ignored where one defendant has a relationship with plaintiff which calls for a higher standard of care, as here, the common carrier-passenger relationship between plaintiffs and EAL. *fn3"

 Absent either a special relationship or some basis for imposing joint responsibility, the applicability of res ipsa loquitur against multiple defendants where there is more than one possible agent or instrumentality of negligence is a question of first impression under New York decisional law. In discussing the erosion of the "exclusive control" requirement, the Corcoran court cited approvingly the seminal decision in Ybarra v. Spangard, 25 Cal. 2d 486, 154 P. 2d 687, 162 A.L.R. 1258 (1944), permitting the application of res ipsa loquitur against the members of a surgical team in favor of a plaintiff injured during an operation. Plaintiff in that case attempted to single out neither the agent nor the particular instrumentality of injury. Though the facts did not quite mandate so holding, Corcoran is strong indication that the New York Court of Appeals would approve invocation of the doctrine in a case such as this one.

 The two defendants herein remain the only parties arguably responsible for the accident, cf. Corcoran v. Banner Super Market, Inc., supra, since the Air Traffic Controllers were completely exonerated by the undersigned. White v. Trans World Airlines, supra, cf. Lobel v. American Airlines, supra, at 220-221 n 3. Moreover, the control system functions not only to prevent accidents but also to facilitate discovery of the responsible agent. Finally, defendant airlines were in a far better position than plaintiffs to marshall evidence explaining the accident to refute the inference that the negligence of either or both of them caused the mid-air collision. Thus, since plaintiff passengers could in no way have contributed to the accident, plaintiffs were permitted to rely on res ipsa loquitur in the presentation of their case, and they did so.

 Having established that plaintiffs were passengers on EAL 853, which collided with TWA 42 and made an emergency landing in a field near Carmel, New York, plaintiff rested. To the surprise of the court, both defendants EAL and TWA also rested, renewing their pre-trial motions for judgment according to the White verdict. The reasons for denial of the pre-trial motions and also for the undersigned's directed verdict in favor of TWA will be discussed hereinafter under the heading, "Collateral Estoppel". But first it is necessary to dispose of EAL's contention that it was error for the court to direct a verdict on liability for plaintiffs as against EAL on the basis of plaintiffs' prima facie or res ipsa loquitur case.

 It is clear that under New York law, res ipsa loquitur is treated as a permissible inference, shifting the burden of explanation to defendant, but not a presumption of negligence, shifting the burden of proof. Century Indemnity Co. v. Arnold, 153 F.2d 531 (2d Cir.), cert. denied 328 U.S. 854, 66 S. Ct. 1346, 90 L. Ed. 1626 (1946), Foltis v. City of New York, 287 N.Y. 108, 38 N.E. 2d 455 (1941) quoting with approval Sweeney v. Erving, 228 U.S. 233, 240, 33 S. Ct. 416, 57 L. Ed. 815 (1914). In the normal case, it is for the jury to determine whether the inference is warranted, even though defendant presents no explanation of the accident. But, even the Foltis court, which squarely overruled prior authority that the court may direct a verdict in these circumstances, left open the possibility that "there may be cases where the prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable if not rebutted by other evidence." At 121.

 Though the cases are few where the inference of negligence is virtually mandated by the circumstances, it may well be that this is such a case, given the high probability in properly controlled airspace of either operational negligence or defective functioning of the aircraft equipment for which the carrier as well as the manufacturer is held strictly liable. Cf. Goldberg v. Kollsman Instrument, Corp., 12 N.Y. 2d 432, 435, 240 N.Y.S. 2d 592, 191 N.E.2d 81 (1963). More importantly, however, it would be a pointless exercise to rely on the black letter of the law in a case such as this, where the judge, who directed the verdict, had in the White trial the benefit of evidence on the very issues of liability here clothed for the jury in the mysterious garb of res ipsa loquitur. Notwithstanding the jury's finding in White that the EAL pilots were not negligent, *fn4" the proof totally failed to refute the overwhelming circumstantial evidence that EAL 853 negligently departed from its ...

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