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BERGER v. WINER SPORTSWEAR

May 30, 1975

MICHAEL BERGER, As Executor of the Estate of MAXINE WINER, Deceased
v.
WINER SPORTSWEAR, INC., ROBERT S. WINER, As Executor of the Estate of MELVIN WINER, Deceased, and CESSNA AIRCRAFT COMPANY WINER SPORTSWEAR, INC., and ROBERT S. WINER, As Executor of the Estate of MELVIN WINER, Deceased v. UNITED STATES OF AMERICA


Cannella, District Judge.


The opinion of the court was delivered by: CANNELLA

CANNELLA, District Judge:

This is an action to recover damages for the wrongful death and conscious pain and suffering of the plaintiff's decedent, Maxine Winer, who died as the result of a crash of a twin-engine Cessna aircraft in the vicinity of Logan International Airport, Boston, Massachusetts, on March 2, 1972. The defendants are the personal representative of the decedent's husband, Melvin Winer (the pilot of the aircraft at the time of the accident), Winer Sportswear Inc. (the owner of the airplane) and Cessna Aircraft Co. (the craft's manufacturer). Each of the defendants is charged with negligence and, in addition, certain products liability claims are asserted against Cessna. Predicating jurisdiction upon the Federal Tort Claims Act, the defendants Winer Sportswear and the Estate of Melvin Winer have impleaded the United States as a third-party defendant (Fed.R.Civ.P. 14(a)). The third-party plaintiffs allege that the March 2, 1972 accident was caused, in whole or in part, by the negligent conduct of the F.A.A. air traffic controllers at Logan Airport. (The allegations of the third-party complaint are set out in full in the margin.) *fn1" Indemnity or, alternatively, contribution from the Government is sought by the third-party plaintiffs if they are found liable and cast in damages to the plaintiff on the primary claim. The Government has now moved to dismiss the third-party action pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that no legally cognizable claim has been stated. By a separate motion, the United States has moved to transfer this action to the District of Massachusetts pursuant to 28 U.S.C. § 1404(a). For the reasons expressed below, the motion to dismiss is hereby granted in part and denied in part and the venue motion is hereby denied.

 The Motion to Dismiss

 We start our inquiry by noting the well-recognized proposition that the United States may be impleaded as a third-party defendant under Fed.R.Civ.P. 14(a) when jurisdiction is asserted under the Federal Tort Claims Act and the claim raised is one which might have been made against it in an independent suit. United States v. Yellow Cab Co., 340 U.S. 543, 553, 95 L. Ed. 523, 71 S. Ct. 399 (1951); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1450 at 275 (1971). However, "(for) impleader to be proper when the United States is involved, there must be a substantive right to relief asserted by the third-party plaintiff. . . ." 6 C. Wright & A. Miller, supra at 277. Under the provisions of the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and §§ 2671-80, the substantive liability of the United States must be assessed "in accordance with the law of the place where the act or omission occurred" (28 U.S.C. § 1346(b)), here Massachusetts. Because of this statutory requirement the usual choice of law principles applicable to solely private disputes are put aside and the Court is directed to apply "the whole law of the State where the act or omission occurred," including that state's choice of law rules. *fn2" Richards v. United States, 369 U.S. 1, 11, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962) (and see the discussion at pp. 10-15). See also, Sanchez v. United States, 506 F.2d 702, 703-04 (10 Cir. 1974); Bibler v. Young, 492 F.2d 1351, 1357 (6 Cir.), cert. denied, 419 U.S. 996, 42 L. Ed. 2d 269, 95 S. Ct. 309 (1974); Hayes v. United States, 367 F.2d 340, 341 n. 1 (2 Cir. 1966); Klein v. United States, 339 F.2d 512, 515 (2 Cir. 1964); In re Silver Bridge Disaster Litigation, 381 F. Supp. 931 (S.D. W.Va. 1974); Cordaro v. Lusardi, 354 F. Supp. 1147, 1149-50 (S.D.N.Y. 1973).

 Unlike New York, Massachusetts continues to adhere to the "Bealean" choice of law approach advanced in the First Restatement -- the doctrine of lex loci delicti.3 Thus, whether or not the third-party plaintiffs may recover indemnity or contribution from the United States under the Tort Claims Act depends upon whether private persons similarly situated would be liable under the prevailing Massachusetts law -- the law of the place of the tort. 28 U.S.C. §§ 1346(b) and 2674. The issue at bar was well-framed by a recent decision of the Fifth Circuit Court of Appeals, Certain Underwriters at Lloyd's v. United States, 511 F.2d 159, 161 (1975), in the following terms:

 
It is clear that the United States can be sued for contribution (or indemnity) as a joint tortfeasor through the provisions of the Tort Claims Act, if a right of contribution exists under state law. 28 U.S.C.A. § 1346(b), § 2674; United States v. Yellow Cab Co., 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523 (1951); United States Lines, Inc. v. United States, 470 F.2d 487 (5th Cir. 1972). The act was only meant to confer a procedural remedy, however, and did not create a substantive cause of action. Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953); Van Sickel v. United States, 285 F.2d 87 (9th Cir. 1960); Lloyds' London v. Blair, 262 F.2d 211 (10th Cir. 1958). Therefore, the controlling question is whether the substantive law of (Massachusetts) permits (indemnification or) contribution recovery from the United States under the facts of this case.

 See also, United States Lines, Inc. v. United States, 470 F.2d 487, 490 (5 Cir. 1972); Murray v. United States, 132 U.S. App. D.C. 91, 405 F.2d 1361, 1363-64 (D.C. Cir. 1968); Emmert v. United States, 300 F. Supp. 45, 47 (D.D.C. 1969); Kantlehner v. United States, 279 F. Supp. 122 (E.D.N.Y. 1967); 1 L. Jayson, Handling Federal Tort Claims § 164 at 5-188 et seq. (1974).

 Wrongful Death

 Prior to recent legislative amendments which are not retroactively applicable to the instant suit (Mass. Session Laws 1973, ch. 699, effective Jan. 1, 1974, codified in Mass. Ann. Laws ch. 229, § 2 (1974)), Massachusetts law allowed only for wrongful death damages which were punitive in nature. As Mr. Justice Douglas pointed out in Massachusetts Bonding & Ins. Co. v. United States, 352 U.S. 128, 129, 1 L. Ed. 2d 189, 77 S. Ct. 186 (1956), under Massachusetts law "(the) assessment of damages with reference to the degree of culpability of the tort-feasor, rather than with reference to the amount of pecuniary loss suffered by the next of kin, makes those damages punitive in nature. . . . 'The chief characteristic of the statute is penal.'" See also, Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (Mass. Sup. Jud. Ct. 1972); Porter v. Sorell, 280 Mass. 457, 182 N.E. 837 (1932); Boott Mills v. Boston & Maine RR., 218 Mass. 582, 106 N.E. 680 (1914). As the Supreme Judicial Court of Massachusetts phrased the proposition in Porter v. Sorell, supra, 182 N.E. at 839,

 
"there is manifested in our death statutes in their present as much as in their earlier forms the clear legislative intent that by means of a judgment in an action of tort adequate punishment shall be meted out to the negligent killer of a human being."

 In light of the punitive nature of the former Massachusetts death statute and the rule that damages be assessed with reference to the degree of a tortfeasor's culpability, the courts of that state long ago recognized that indemnity and contribution could not be had between joint tortfeasors in death actions.

 
"The death statutes have as a purpose punishment. Punishment is a personal thing. There can be no vicarious atonement for the wrongful act of killing a human being which act by the death statutes the legislature manifestly intended to punish."

 Porter v. Sorell, supra, 182 N.E. at 839. This rule was definitely established by the Supreme Judicial Court in Boott Mills v. Boston & Maine RR., supra. In that case the court concluded that one who has been punished by paying wrongful death damages cannot recover over from another who has contributed to the wrongful conduct. The Court declared:

 
"It is an unavoidable consequence of the proposition that the damages recovered for death under (the wrongful death statute) are punitive and not compensatory in character that (a tortfeasor), who has been punished by paying the amount of a verdict against him, cannot recover over from one who has contributed to the wrongful conduct on which that verdict was founded. The (tortfeasor) has been required to pay simply damages proportioned to his own wrong and nothing more. Plainly he has not been compelled to pay for the wrongful conduct of any one else for which he is in no way blame-worthy. It would be almost a contradiction in terms to say that one could recover over from another a penalty to which he has been subjected for his own ...

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