as a separate cause of action under New York law.
Defendants are correct in noting that a claim for punitive damages does not state a separate cause of action under New York law. See Sribnyj v. New York, 1990 U.S. Dist. LEXIS 7140, 1990 WL 83477, at *1 (S.D.N.Y. 1990) (citing Green v. Fischbein Olivieri Rozenholc & Badillo, 119 A.D.2d 345, 507 N.Y.S.2d 148, 153 (1st Dep't 1986)).
However, in the federal courts, leave to amend under Federal Rule of Civil Procedure 15 shall be freely granted "when justice so requires." Fed. R. Civ. P. 15(a). Moreover, pleadings may be amended "to conform to the evidence . . . at any time, even after judgment." Fed. R. Civ. P. 15(b). Ultimately, "the grant of leave to amend rests in the sound discretion of the court." Scottish Air Int'l, Inc. v. British Caledonian Group, Plc., 152 F.R.D. 18, 29 (S.D.N.Y. 1993).
Here, justice requires that Plaintiffs' assertion of willful and wanton conduct on the part of Champlain not be dismissed because of a technical deficiency in Plaintiffs' Amended Complaint. Defendant Champlain has clearly been put on notice that Plaintiffs' are seeking punitive damages for the alleged conduct of Champlain and its employees. To allow Plaintiffs to properly plead punitive damages will not prejudice Champlain.
Accordingly, Plaintiffs have 30 days to move to further amend their Amended Complaint to properly plead punitive damages.
E. Claims Against Beech Aircraft Corp.
Plaintiff's Fifth Cause of Action alleges negligence on the part of Beech Aircraft in the design and manufacture of the Beech 1900C aircraft's Instrument Landing System ("ILS") components, as well as failure to instruct and warn concerning the alleged deficiencies. Plaintiff's sixth Cause of Action sounds in strict liability, in that Beech is alleged to have sold a product that was unreasonably dangerous.
The crux of Plaintiffs' claims against Beech is that Beech improperly manufactured and/or designed the Beech 1900C aircraft's radome. The radome is a part of the aircraft structure that covers the aircraft's nose; it provides an aerodynamic shape and is made of a material that allows passage of radio signals. The compartment behind the radome houses the weather radar and ILS glideslope antennae.
Specifically, Plaintiffs' allege that the radome on Flight 4821 was improperly grounded, thus allowing for precipitation static interference ("P-static"), which caused errors in the aircraft's glideslope indicator. Defendant Beech Aircraft seeks summary judgment on the basis that Plaintiffs' have failed to produce any evidence or expert witnesses to support these allegations.
Under New York tort law, a plaintiff can recover for an injury sustained as a result of a "defect" under a number of theories. A plaintiff may assert that the product is defective due to a mistake in manufacturing; due to an improper design; or because of the manufacturer's failure to provide adequate warnings regarding use of the product. See generally Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983).
Under a manufacturing defect theory, the plaintiff must show that a mistake in the manufacturing process was the proximate cause of plaintiff's injury. In other words, a manufacturing defect results when a mistake in manufacturing renders an ordinarily safe product dangerous so that it causes harm. See Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1322 (E.D.N.Y. 1996) (citing Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275 (1975)).
The New York Court of Appeals has held that a defectively designed product "is one which, at the time it leaves the [manufacturer's] hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is, one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce." Voss, 463 N.Y.S.2d at 401; see also Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 426 N.Y.S.2d 717, 720, 403 N.E.2d 440 (Ct. App. 1980).
In order to establish a prima facie case in strict products liability for a design defect, a plaintiff "must show that the manufacturer . . . marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury." Voss, 463 N.Y.S.2d at 402; see also Parsons v. Honeywell, Inc., 929 F.2d 901, 905 (2d Cir. 1991) (citing Voss, 463 N.Y.S.2d at 402). When a plaintiff asserts a design defect claim on a theory of negligence, the only difference in the inquiry is that in the negligence action, the jury must ask whether the manufacturer acted unreasonably in designing the product. That is, "the focus shifts from whether the product, as designed, was not reasonably safe to whether the manufacturer was aware of that condition" and chose to market the product anyway." Gonzalez v. Morflo Industries, Inc., 931 F. Supp. 159, 165 (E.D.N.Y. 1996) (citing Voss, 463 N.Y.S.2d at 401-402, 450 N.E.2d at 207-209).
Alternatively, under a failure to warn theory, "[a] manufacturer is subject to liability where it has (1) reason to know that the product it markets is likely to be dangerous for the use for which it is supplied; (2) no reason to believe the user will realize its dangerous condition; and (3) fails to exercise reasonable care to inform the user of the facts which make the product dangerous." Gonzalez, 931 F. Supp. at 168 (citing Kerr v. Koemm, 557 F. Supp. 283 (S.D.N.Y. 1983) (citing Young v. Elmira Transit Mix, Inc., 52 A.D.2d 202, 383 N.Y.S.2d 729, 731 (4th Dep't. 1976))). It must also be established that the alleged failure to warn is the proximate cause of plaintiffs' injury. See Cramer v. Toledo Scale Co., Inc., 158 A.D.2d 966, 551 N.Y.S.2d 718 (4th Dep't. 1990) (holding that an eight year-old boy was not a reasonably foreseeable user of commercial meat grinder and thus the manufacturer had no duty to provide a warning designed to alert minor child of dangers inherent in product's use).
As the previous exposition of New York tort law makes clear, in order for Plaintiffs to make out a prima facie case against Beech Aircraft under any of the theories outlined above, ie. manufacturing defect, negligent design, strict products liability, or failure to warn, they must, at a minimum, demonstrate that CommutAir's Beech 1900C aircraft was dangerous when it left Beech Aircraft's control--the common element under all theories of liability. See, e.g., Hamilton, 935 F. Supp. at 1322 (a manufacturing defect results when a mistake in manufacturing renders an ordinarily safe product dangerous so that it causes harm) (citing Bock Laundry, 373 N.Y.S.2d at 39, 335 N.E.2d at 275); Hamilton, 935 F. Supp. at 1322 (design defect occurs when product as designed is unreasonably dangerous for its intended use) (citing Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976)); Gonzalez, 931 F. Supp. at 168 (under failure to warn theory, manufacturer is subject to liability where it fails to exercise reasonable care to inform the user of facts that make the product dangerous).
Here, defendant Beech Aircraft moves for summary judgment on the assertion that Plaintiffs have failed to show that the Beech 1900C aircraft in question was dangerous and/or that the hypothesized defect proximately caused Plaintiffs' injury. In this regard, Beech states that "even if there was P-static present it would not affect this flight in the manner that Plaintiffs' allege." (Beech Mem. of Law at 4.)
In their opposition papers and affidavits, Plaintiffs have failed to show that CommutAir's Beech 1900C was dangerous, let alone that the dangerous condition was the result of an act or omission by defendant Beech Aircraft. After extensive discovery and opportunity for expert depositions, Plaintiffs offer not one factual affidavit that asserts that the Beech 1900C was dangerous when it left Beech Aircraft's control. Plaintiffs' attorney's affidavit is simply not sufficient to establish a genuine issue of material fact. See Kamen, v. Amer. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (attorney affidavits not based upon personal knowledge do not comply with Rule 56(e)).
In comparison, defendant Beech Aircraft offers copious evidence that there was nothing structurally wrong with the Beech 1900C prior to the accident. Defendant's supporting affidavits assert that the radome was properly bonded to the airframe, thus minimizing P-static interference. (See Affidavit of Dr. Richard D. Gilson, Def's Ex. B, P5.) Furthermore, tests done on production configuration airplanes that were in service found none of the aircraft had ungrounded radomes. (See Deposition of Kenneth Condon, III, Def's Ex. G, at 107.) Accordingly, because Plaintiffs have not shown that the Beech 1900C was dangerous, they certainly have not met their burden of showing that the aircraft was "unreasonably dangerous" such that strict liability attaches.
In addition, even assuming arguendo that Plaintiffs have demonstrated that the Beech 1900C was dangerous, Plaintiffs fail to offer any factual affidavits that assert that any dangerousness was due to Beech Aircraft's defective design or improper manufacture. As this Court noted in a previous decision applying New York tort law:
The plaintiff must also make a prima facie showing that the defendant acted unreasonably in designing the product in question. Such a showing may be achieved by the submission of evidence from which this Court could infer that the defendants did not undertake a reasonable degree of care when they designed their products. For example, evidence that a competitor used a safety device missing here, or that a relatively inexpensive addition to the products would have prevented the accident would be sufficient to satisfy this burden.
Hinkley v. Safepro, Inc., 853 F. Supp. 594 (N.D.N.Y. 1994) (citing Micallef, 384 N.Y.S.2d at 121, 348 N.E.2d at 577) (emphasis added).
In this instance, Plaintiffs simply refer the Court to the National Transportation Safety Board ("NTSB") Report that states, inter alia, that two sections of the accident aircraft's radome were found to have screw holes that were "worn to bare fiberglass" and consequently were "electrically isolated from the anti-static paint on the surface." (See Pltfs' Ex. 1 at 5-6.) Notwithstanding the ongoing debate concerning the admissibility of NTSB accident reports, compare 49 U.S.C. § 1441(e) ("No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence . . . ."), Israel v. U.S., 247 F.2d 426, 429 n.2 (2d Cir. 1957) (finding NTSB report inadmissible in airplane accident cases), and In re Air Crash Disaster at Sioux City, Iowa, 569 F.2d 547 (10th Cir. 1978) (same), with Curry v. Chevron, U.S.A., 779 F.2d 272, 274 (5th Cir. 1985) (allowing admission of factual portions, but not conclusive statements) and Travelers Insurance Co. v. Riggs, 671 F.2d 810, 816 (4th Cir. 1984) (same), Plaintiffs have simply not linked the NTSB's findings with defendant Beech Aircraft. To wit, Plaintiffs have failed to offer any evidence that the "worn screw holes" were the result of a defective design by Beech Aircraft or the result of improper manufacture by Beech Aircraft.
Although the Court must resolve all ambiguities and draw all reasonable inferences against the moving party, Plaintiffs must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Based on the facts presented, the Court concludes that no rational finder of fact could find in favor of Plaintiffs against Beech Aircraft, and thus summary judgment should be granted. See Gallo, 22 F.3d at 1223. Consequently, Plaintiff's Fifth Cause of Action asserting negligence in the design and manufacture of the Beech 1900C aircraft's Instrument Landing System ("ILS") components, as well as failure to instruct and warn concerning the alleged deficiencies, and Plaintiff's Sixth Cause of Action sounding in strict liability, must be dismissed.
In summary, the United States' Motion for Summary Judgment seeking to dismiss Plaintiffs' First Cause of Action as barred by the "discretionary function exemption" to the Federal Tort Claims Act is GRANTED.
Furthermore, USAir and Champlain's Motions for Summary Judgment seeking to dismiss Plaintiffs' Second and Third Causes of Action are DENIED.
Furthermore, Champlain's Motion for Summary Judgment seeking dismissal of Plaintiffs' Fourth Cause of Action, requesting punitive damages, is GRANTED IN PART and DENIED IN PART. Plaintiffs have 30 DAYS to move to further amend their Amended Complaint to properly plead punitive damages.
Furthermore, Beech Aircraft's Motion for Summary Judgment seeking dismissal of Plaintiffs' Fifth and Sixth Causes of Action is GRANTED.
Accordingly, Plaintiffs' Seventh Cause of Action, asserting loss of consortium against all defendants, is DISMISSED as to defendants United States and Beech Aircraft.
IT IS SO ORDERED
December 2, 1996
Binghamton, New York
Thomas J. McAvoy
Chief U.S. District Judge