United States District Court, W.D. New York
BRENDA CROUT, Temporary Administrator of the Estate of Dale R. Crout, decedent, Plaintiff,
HAVERFIELD INTERNATIONAL, INC., doing business as Haverfield Aviation, Inc., Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD UNITED STATES DISTRICT JUDGE
Brenda Crout ("Plaintiff) filed this wrongful death
action on January 22, 2014, in the Supreme Court of New York,
Kings County, relating to a tragic helicopter accident in
which Dale R. Crout ("the decedent") and helicopter
pilot Mackenzie Bleth ("Bleth") died. (Dkt. 1).
Defendant Haverfield International, Inc.
("Defendant") removed the action to the Eastern
District of New York on April 7, 2014. (Id. at
1-2).The case was transferred to this Court by
Stipulation and Order on September 9, 2014. (Dkt. 16).
before the Court are cross-motions for partial summary
judgment. (Dkt. 36; Dkt. 42). Plaintiff seeks summary
judgment on the issue of Bleth's negligence (and thereby
Defendant's vicarious liability), and for dismissal of
Defendant's affirmative defense of the decedent's
comparative negligence. (Dkt. 39). Defendant seeks summary
judgment on the applicable standard of care for Bleth's
negligence, and as to Plaintiffs claim for negligent hiring
and training. (Dkt. 43).
reasons stated below, Plaintiffs motion for partial summary
judgment (Dkt. 36) is denied, and Defendant's motion for
partial summary judgment (Dkt. 42) is granted.
morning of November 15, 2012, shortly before noon, a
helicopter owned by Defendant, piloted by Bleth, and carrying
the decedent took off on the second of three days of planned
flights to inspect power lines in the vicinity of Corning,
New York. (Dkt. 39 at 3; Dkt. 44 at ¶¶ 5-8, 11).
control of the aircraft was Bleth, a 24-year-old pilot
Defendant hired less than a month prior. (Dkt. 38 at
¶¶ 24-25). Bleth held appropriate "FAA
licenses and certifications" to fly the helicopter.
(Dkt. 44 at ¶ 13). Bleth and the decedent-a First Class
Linesman for New York State Electric and Gas Corporation-were
tasked with doing a "powerline patrol, " which
"requires a helicopter to fly close to wires, towers and
utility structures, " generally at speeds between 30 and
45 knots. (Dkt. 38 at ¶¶ 5, 11, 58; Dkt. 52 at 3).
Powerline patrol is a high-risk job. (Dkt. 38 at ¶ 17;
Dkt. 52 at 5).
first day flying powerline patrol had been the previous day,
November 14, 2012, during which he and the decedent had
completed 6.2 hours of aerial inspections. (Dkt. 38 at ¶
73). Before this first powerline mission, Defendant provided
Bleth with 2.1 hours of total flight training, and 27.2 hours
of ground training. (Id. at ¶¶ 27, 70;
Dkt. 52 at 7). Defendant released Bleth to fly powerline
patrol on November 9, 2012. (Dkt. 38 at ¶ 40; Dkt. 52 at
decedent had performed inspections on the same powerlines in
2009, 2010, and 2011, and was "more than
proficient" in reading a powerline map. (Dkt. 38 at
¶ 63; Dkt. 52 at 25; Dkt. 59 at 8). The November 15,
2012, flight was operated pursuant to 14 C.F.R. Part 91.
(Dkt. 38 at ¶20; Dkt. 52 at 6; see, e.g., Dkt.
37-4 at 2 (National Transportation Safety Board's
("NTSB") report stating that "[t]he aerial
observation flight was conducted under the provisions of 14
Code of Federal Regulations Part 91"); Dkt. 37-21 at 2
context, a description of the construction of power
transmission wire systems is necessary. A wire or series of
wires that runs perpendicular to another set of wires is
called a "tap" line. (Dkt. 38 at ¶ 50; Dkt. 52
at 12). A shield wire, which protects power transmission
lines from lightning strikes, generally runs along the top of
the towers. (Dkt. 38 at ¶8; Dkt. 52 at 12). The shield
wire is typically smaller than power transmission wires and
can be more difficult to observe. (Dkt. 38 at ¶ 49; Dkt.
52 at 12). During powerline patrol, a pilot should anticipate
that there is a shield wire, even if he cannot see one. (Dkt.
38 at ¶53; Dkt. 52 at 12). Transmission and static lines
are, at times, difficult to see, and can be invisible, during
powerline patrol. (Dkt. 52 at 22; Dkt. 59 at 1). The
visibility of a wire can change from moment to moment. (Dkt.
52 at 23; Dkt. 59 at 2).
requires its pilots and passengers to attend a safety
briefing, called a "tailboard, " before takeoff.
(Dkt. 38 at ¶42; Dkt. 52 at 11). During the tailboard,
the pilot and the inspector discuss the powerline
transmission map for the lines they plan to inspect. (Dkt. 38
at ¶ 43). Defendant requires details of the
tailboard to be recorded in a document and signed by each
person in the helicopter. (Id. at ¶ 42; Dkt. 52
at 11). No such document has been recovered or produced for
the November 15, 2012, flight. (Dkt. 38 at ¶ 46; Dkt. 52
November 15, 2012, flight took off at 11:49 AM. (Dkt. 38 at
¶ 75; Dkt. 52 at 17). At 12:11 PM, the vertical strut on
the helicopter's right landing skid struck a shield wire
on a tap line 96 feet above the ground. (Dkt. 38 at
¶¶ 77, 83; Dkt. 52 at 18-19). The helicopter had
been flying at approximately 43 knots in level flight. (Dkt.
38 at ¶79; Dkt. 52 at 18). The impact with the tap line
caused the helicopter to crash, killing both Bleth and the
decedent. (Dkt. 44 at ¶ 11; Dkt. 49 at 4). The
helicopter ignited once it hit the ground. (Dkt. 37-4 at 2).
Neither weather nor any mechanical issue caused the crash.
(Dkt. 38 at ¶¶ 89-90; Dkt. 52 at 19-20).
is no transcript or any recording of the communications
between Bleth and the decedent during the November 15, 2012,
flight. (Dkt. 38 at ¶ 94; Dkt. 52 at 20).
Standard of Review
Rule of Civil Procedure 56 provides that summary judgment
should be granted if the moving party establishes "that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The court should grant summary judgment
if, after considering the evidence in the light most
favorable to the nonmoving party, the court finds that no
rational jury could find in favor of that party. See
Scott v. Harris, 550 U.S. 372, 380 (2007) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986)).
the moving party has met its burden, the opposing party
"must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . [T]he
nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial." Caldarola
v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting
Matsushita Elec., 475 U.S. at 586-87). "[T]he
mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment" Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
the issues in this case begins with a determination as to the
existence and extent of federal preemption of state and
common law in relation to the applicable safety standards.
Defendant asserts that the federal government, through the
Federal Aviation Act of 1958, 49 U.S.C. §§ 1301
et seq. ("FAA"), preempted the entire
field of aviation safety. (Dkt. 43 at 9-13). Plaintiff
asserts that federal preemption of state and common law does
not reach the issues in this case, and, as such, the Court
must look to industry and state standards in determining the
merits. (Dkt. 48 at 10-19).
Supremacy Clause of the United States Constitution instructs
that the Constitution and laws of United States are "the
supreme Law of the Land . . . any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding."
U.S. Const. art. VI cl. 2. "[S]tate and local laws that
conflict with federal law are 'without effect.'"
N.Y. SMSA Ltd. P'ship v. Town of Clarkson, 612
F.3d 97, 103 (2d Cir. 2010) (quoting Altria Grp., Inc. v.
Good, 555 U.S. 70, 76 (2008)).
In general, three types of preemption exist: (1) express
preemption, where Congress has expressly preempted local law;
(2) field preemption, "where Congress has legislated so
comprehensively that federal law occupies an entire field of
regulation and leaves no room for state law"; and (3)
conflict preemption, where local law conflicts with federal
law such that it is impossible for a party to comply with
both or the local law is an obstacle to the achievement of
Id. at 104 (citation omitted). Congress's intent
is key to determining preemption. Altria
Grp., 555 U.S. at 76. "Pre-emptive intent may
also be inferred if the scope of the statute indicates that
Congress intended federal law to occupy the legislative
field, or if there is an actual conflict between state and
federal law." Id. at 76-77.
United States Government has exclusive sovereignty of
airspace of the United States." 49 U.S.C. §
40103(a)(1). "The FAA was enacted to create a
'uniform and exclusive system of federal regulation'
in the field of air safety." Air Trans. Ass'n
of Am., Inc. v. Cuomo, 520 F.3d 218, 224 (2d
Cir. 2008) (citation omitted). "[T]he FAA 'was
passed by Congress for the purpose of centralizing in a
single authority-indeed, in one administrator-the power to
frame rules for the safe and efficient use of the
nation's airspace.'" Id. (citing
Air Line Pilots Ass'n, Intern, v. Quesada, 276
F.2d 892, 894 (2d Cir. I960)); see, e.g., French v. Pan
Am Exp., Inc., 869 F.2d 1, 5 (1st Cir. 1989)
("[The] establishment of a single uniform system of
regulation in the area of air safety was one of the primary
'objects sought to be obtained' by passage of the
[FAA]."); Kohr v. Allegheny Airlines, 504 F.2d
400, 404 (7th Cir. 1974) ("[T]he principal purpose of
the Act is to create one unified system of flight rules and
to centralize in the Administrator of the Federal Aviation
Administration the power to promulgate rules for the safe and
efficient use of the country's airspace."). The
Second Circuit has held that "Congress intended to
occupy the entire field of air safety. . . ."
Goodspeed Airport LLC v. E. Haddam Inland Wetlands &
Watercourses Comm'n, 634 F.3d 206, 210 (2d Cir.
2011) (emphasis added). Thus, the law of this Circuit is that
field preemption applies in the area of air safety.
Congress's intent is established, the court must look to
the scope of the preemption to determine whether "the
state regulation sufficiently interferes with federal
regulation [such] that it should be deemed preempted."
Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505
U.S. 88, 107 (1992); see, e.g., Goodspeed Airport,
634 F.3d at 210-11 ("[T]he inquiry is twofold; we must
determine not only Congressional intent to preempt, but also
the scope of that preemption."). Even where an entire
field is preempted, if the state laws at issue do not
interfere with federal laws and regulations, the state laws
are not preempted. Goodspeed Airport, 634 F.3d at