Opinion
Trial Court: Superior Court of Alameda County, Trial Judge: Honorable Demetrios Agretelis, Honorable Bonnie Sabraw, (Alameda County Super. Ct. No. 771269-8)
Ralph S. LaMontagne, Jr., Eric A. Amador, Shaw, Terhar & LaMontagne, Attorney for Appellant:
Ellen Dixon and Joesph Dock Terry O’Reilly, Gary L. Simms, O’Reilly, Collins & Danko, David Dixon, Jr. Thomas Marc Litton, Frederick J. Geonetta, Litton & Geonetta, Attorney for Respondent:
THE COURT:
The petition for rehearing filed by plaintiffs and respondents on March 1, 2005, is denied.
The opinion filed herein on February 10, 2005, and ordered published February 23, 2005, is ordered modified as follows:
1. The first paragraph on page 13 is modified to read: “Our review of the record persuades us that there is no substantial evidence to support a finding that the accident was due to the negligence of Wings.” Footnote No. 12 remains unchanged.
2. Footnote No. 13 on page 14 is modified to read: “In fact, Chris MacDonald (MacDonald), a partner in Tri-Valley, testified that the route and the altitude were determined by a meeting with an FAA representative. Brent Rodrigues, another Tri-Valley partner, testified that he told Jayne Kruse, the director of air operations for Wings, that he thought the altitude was unsafe for the terrain. However, Rodrigues was not qualified as an expert and this testimony does not contradict the evidence provided by plaintiffs’ own expert that the ride area contained safe places for autorotation landings.”
3. The following footnote is added after the cite to “(14 C.F.R. § 61.129(c) (2004).)” on page 16, line three of the carry-over paragraph: “As noted above, plaintiffs presented evidence at trial that the number of hours Crist reported in the Enstrom may have been inaccurate; specifically, the flight meter on the helicopter indicated that it had been flown for fewer hours than Crist reported having flown it in his logbook. However, no one argues that checking a pilot’s qualifications would require not only checking the logbook, but also examining the flight meters of each of the helicopters the pilot had flown to ensure that the hours reported in the pilot’s logbook were accurate.”
4. The following footnote is added after the sentence “Crist also testified that he had previous experience flying passengers for hire in the 1994 Livermore air show.” on page 16, line six of the carry-over paragraph: “In addition, Crist testified that he believed he had ferried helicopters at another event, the Isleton Crawdad Festival, although he was not sure whether he had flown passengers. MacDonald testified that he did not recall Crist flying in previous Livermore air shows.”
There is no change in the judgment.