Richard Edwin HEATH v. SWIFT WINGS, Inc

Court of Appeals of North Carolina

40 N.C. App. 158; 252 S.E.2d 526 (1979)

On 3 August 1975 a Piper 180 Arrow airplane crashed immediately after takeoff from the Boone-Blowing Rock Airport. Killed in the crash was the pilot, Fred Heath; his wife, Jonna; their son, Karl; and a family friend, Vance Smathers. Valerie Heath, a daughter of Fred and Jonna Heath, and sister of Karl, became the sole survivor of the Heath family. ***

Plaintiff's evidence, except to the extent it is quoted from the record, is briefly summarized as follows: Mary Payne Smathers Curry, widow of Vance Smathers, observed the takeoff of the Piper aircraft shortly after 5:00 o'clock on 3 August 1975. She observed Fred Heath load and reload the passengers and luggage, apparently in an effort to improve the balance of the aircraft. He also "walked around [the airplane] and looked at everything . . . She remembers seeing him and thinking that he's double checking it to be sure no one has slashed the tires." The airplane engine started promptly and the plane was taxied to the end of the runway where it paused for approximately five minutes before takeoff. The airplane came very close to the end of the runway before takeoff. However, "[t]he engine sounded good the entire time, and she did not recall hearing the engine miss or pop or backfire." After takeoff, the airplane "gained altitude but it didn't go up very high" and then "leveled off pretty low". ***

William B. Gough, Jr., a free-lance mechanical engineering consultant and pilot, testified concerning the operation and flight performance of the Piper 180 Arrow. He testified concerning the many factors affecting the takeoff capabilities of the Piper and the calculations to be made by the pilot before takeoff, utilizing flight performance charts. He testified that in his opinion, according to his calculations, the pilot should have used flaps to aid in the takeoff. Furthermore, he stated that in his opinion the reasonably prudent pilot should have made a controlled landing in the cornfield shortly after takeoff if he were experiencing difficulty attaining flight speed, and that if he had done so Jonna Heath and Karl Heath would have survived. ***

After the customary motions at the conclusion of all the evidence, the case was submitted to the jury upon voluminous instructions by the trial court. The jury returned a verdict answering the following issue as indicated: "1. Was Fred Heath, Jr., negligent in the operation of PA -- 28R 'Arrow' airplane on August 3, 1975 as alleged in the complaint?" Answer: "No". Plaintiff appeals assigning error to the exclusion of certain evidence and to the charge to the jury. ***

Morris, Chief Judge.
Plaintiff has brought forward on appeal 15 assignments of error directed to 26 exceptions to rulings and instructions of the trial court. ***

Assignment of error No. 4 is directed to the trial court's charge concerning the definition of negligence and the applicable standard of care:

"Negligence, ladies and gentlemen of the jury, is the failure of someone to act as a reasonably and careful and prudent person would under the same or similar circumstances. Obviously, this could be the doing of something or the failure to do something, depending on the circumstances. With respect to aviation negligence could be more specifically defined as the failure to exercise that degree of ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances."

It is a familiar rule of law that the standard of care required of an individual, unless altered by statute, is the conduct of the reasonably prudent man under the same or similar circumstances. See Williams v. Trust Co., 292 N.C. 416, 233 S.E. 2d 589 (1977); Toone v. Adams, 262 N.C. 403, 137 S.E. 2d 132 (1964). While the standard of care of the reasonably prudent man remains constant, the quantity or degree of care required varies significantly with the attendant circumstances. Pinyan v. Settle, 263 N.C. 578, 139 S.E. 2d 863 (1965); Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E. 2d 281 (1963).

The trial court improperly introduced a subjective standard of care into the definition of negligence by referring to the "ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances." (Emphasis added.) We are aware of the authorities which support the application of a greater standard of care than that of the ordinary prudent man for persons shown to possess special skill in a particular endeavor. See generally Prosser, Law of Torts (4th ed.) @ 32. Indeed, our courts have long recognized that one who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care. See e.g., Insurance Co. v. Sprinkler Co., 266 N.C. 134, 146 S.E. 2d 53 (1966) (fire sprinkler contractor); Service Co. v. Sales Co., 261 N.C. 660, 136 S.E. 2d 56 (1964) (industrial designer); Hunt v. Bradshaw, 242 N.C. 517, 88 S.E. 2d 762 (1955) (physician); Hodges v. Carter, 239 N.C. 517, 80 S.E. 2d 144 (1954) (attorney). Furthermore, the specialist within a profession may be held to a standard of care greater than that required of the general practitioner. See generally Dickens v. Everhart, 284 N.C. 95, 199 S.E. 2d 440 (1973). Nevertheless, the professional standard remains an objective standard. For example, the recognized standard for a physician is established as "the standard of professional competence and care customary in similar communities among physicians engaged in his field of practice." Dickens v. Everhart, 284 N.C. at 101, 199 S.E. 2d at 443.

Such objective standards avoid the evil of imposing a different standard of care upon each individual. The instructions in this case concerning the pilot's standard of care are misleading at best, and a misapplication of the law. They permit the jury to consider Fred Heath's own particular experience and training, whether outstanding or inferior, in determining the requisite standard of conduct, rather than applying a minimum standard generally applicable to all pilots. The plaintiff is entitled to an instruction holding Fred Heath to the objective minimum standard of care applicable to all pilots. ***

This matter was well tried by both counsel for plaintiff and counsel for defendants, and several days were consumed in its trial. Nevertheless, for prejudicial errors in the charge, there must be a

New trial.

Judges Martin (Harry C.) and Carlton concur.