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O'Gee v. Dobbs Houses Inc.

decided: January 19, 1978.

KATHLEEN G. O'GEE, PLAINTIFF-APPELLEE,
v.
DOBBS HOUSES, INC., DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLANT, V. UNITED AIR LINES, INC., THIRD PARTY DEFENDANT-APPELLEE AND CROSS-APPELLANT



Suit for damages for personal injuries. District Court for the Eastern District of New York, Weinstein, Judge, entered judgment for plaintiff. Defendant appealed, alleging errors at trial and insufficient evidence to sustain verdict. Third-party defendant cross-appealed from dismissal of its counterclaim for indemnity.

Lumbard, Moore and Feinberg, Circuit Judges. Feinberg, Circuit Judge, concurring in part and dissenting in part.

Author: Lumbard

LUMBARD, Circuit Judge:

This appeal and cross-appeal arise out of an incident that took place during a United Airlines flight on April 23, 1972, as a result of which Kathleen O'Gee (now Mrs. Kathleen Collins), a United flight attendant, claimed to have suffered injuries to her back. The incident occurred when O'Gee attempted to reposition a large piece of kitchen equipment loaded on board the plane by Dobbs Houses, Inc. [Dobbs], a caterer. Defendant Dobbs appeals from a jury verdict against it in the amount of $170,000, and third-party defendant United cross-appeals from the dismissal of its counterclaim against Dobbs for indemnification of costs.

We affirm the judgment against Dobbs on the issues of liability, but remand to the district court with instructions to grant Dobbs a new trial on the issue of damages unless, within a reasonable time, plaintiff signifies willingness to accept a reduction of damages to $85,000. We reverse the dismissal of United's counterclaim.

I. FACTS

In 1968, Dobbs and United entered into a contract pursuant to which Dobbs agreed to provide the food that United would serve on flights out of Atlanta, Ga. This contract was in effect on April 23, 1972. Part of Dobbs' responsibility in Atlanta was to load food onto a cold buffet belonging to United. The buffet is a large, cabinet-like, four-drawer unit weighing between five and eight hundred pounds when loaded. After being filled, the buffet is raised to the galley section of the aircraft, where it is placed on tracks on the floor and slid into a recessed position.

Dobbs' responsibility ended when the buffet was latched in place. The locking mechanism consisted of a lever/latch on each rail of the track on which the buffet rode.*fn1 The levers had to be in the "up" position to permit a buffet to be removed; when the buffet was withdrawn, the levers were supposed to drop to the "down" position, permitting a new buffet to be installed. The levers would then remain down, locking the buffet in place, until they were once again raised, manually or by foot. Though this system was designed to work automatically, in that removing a buffet forced the levers down, and a new buffet could not be installed unless the levers were in the locked, "down" position, it was conceded that if the levers were, in fact, in the "up" position while a buffet was in place, the buffet would not be secure, and might slide out into the galley. Accordingly, the United Ramp Manual, which was binding on Dobbs, required a visual check of the levers, and a physical pull on the buffet, after the buffet was loaded on board, to ensure that the latches were down and that the buffet was locked in place.

On April 23, 1972, O'Gee was a stewardess on United flight #476, a Stretch 727, from Atlanta to New York City. That day, Dobbs was late in loading the buffet aboard the plane.*fn2 O'Gee watched the operation, and noted nothing out of the ordinary either then or when she soon after checked the contents of the buffet. As soon as this check was completed, the galley door was locked to bar entry by passengers during boarding. Since there was an emergency exit in the galley, however, to which access was essential, the galley door was reopened immediately after boarding.

Throughout the period of takeoff, O'Gee faced the galley and observed no one enter the area. Some five minutes after takeoff, she noticed that the buffet had slid two feet out of position, substantially blocking access to the emergency exit. O'Gee immediately sought to push the unit back into position, but failed. At this time, she "felt something pull" in her back. She then braced one foot behind her and tried again, again failing, and feeling a sharper pain in her back. A third try with the help of another stewardess failed, as did an attempt by the flight engineer. Finally, all three acting in concert succeeded in pushing the buffet back; O'Gee stepped on the locking levers to latch the buffet in place, where it remained for the rest of the flight. No report of this incident was made at the conclusion of the flight.

During the remainder of April 23, O'Gee had a "very bad backache," of which she complained to another stewardess and the flight engineer. She returned to work on April 24 and 25, but suffered pain and stiffness throughout both days. On April 26, she reported to a United medical officer, who gave her medication and requested that she return before her next flight. Over the next fourteen months, O'Gee saw several physicians, both in New York City and in Rochester, where her parents lived. Her problem was variously diagnosed as back sprain, a slipped disk, and a herniated disk. Much of this period was spent either in bed or in therapy; attempts to resume work in July and again in October of 1972 were unsuccessful.*fn3 Finally, in May of 1973, O'Gee underwent a laminectomy for the removal of a herniated disk from her back. After a period of recuperation, she returned to work at United (on smaller planes than formerly) in September of 1973. Thereafter, O'Gee lost no further time from work as a result of the April, 1972, incident, and even received commendations for perfect records in 1975 and 1976.*fn4

O'Gee brought suit against Dobbs, alleging that her injury was the result of the defendant's negligence in placing and securing the buffet unit on the plane. Dobbs impleaded United, claiming that any injury sustained resulted from defects in United's equipment. United counterclaimed against Dobbs for costs and counsel fees, citing the indemnity clause of its contract with Dobbs.

At trial, O'Gee did not call to testify any of the doctors she had consulted in the two years immediately following the incident.*fn5 Rather, she relied for her medical testimony exclusively on Dr. Leo J. Koven, who first saw her in December of 1976, but who was given access to the findings of the Rochester doctors who had recommended and performed the laminectomy, as well as to her hospital records. Dr. Koven was permitted to testify, over strenuous objection, to the opinions of other doctors O'Gee had seen, as he had learned of them through their reports, and through the history he had taken from O'Gee herself.

Following a seven-day jury trial, a special verdict was returned finding Dobbs negligent, its negligence 100% responsible for plaintiff's damages, and O'Gee entitled to $170,000. A motion to set aside the verdict as excessive was denied; so was United's attempt to press ...


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