Opinion
Docket No. 88202.
Decided December 6, 1988.
Schaden, Heldman Lampert (by Victoria C. Heldman), for plaintiff.
Zamplas, Paskin, Nagi, Baxter, Johnson Walker, P.C. (by David R. Baxter and Christine Kaczanowski), for Freedom International, Inc., and Jet Care Center.
Plaintiff appeals as of right from an order granting a directed verdict in favor of defendants Freedom International and Jet Care Center. We affirm in part and reverse in part.
This case arose out of an April 7, 1981, airplane accident in which a Model 23 Learjet collided with a bird. Plaintiff's decedent, the copilot, was killed when the bird, a common loon weighing between 3 1/2 and 11 pounds, came through the windshield of the airplane on takeoff. The airplane was owned by Freedom International, which leased it to Executive Aviation, Inc., the employer of plaintiff's decedent. The plane was maintained by Jet Care Center. It was manufactured by Gates Learjet Corporation in 1965 and purchased by Freedom International in 1980.
Plaintiff alleged that Freedom International and Jet Care negligently failed to install a bird-resistant windshield on the airplane, and that Freedom International breached its implied warranty of fitness. The Model 23 aircraft was certified as airworthy by the Federal Aviation Administration in 1964 under regulations for light aircraft which did not require the windshield to be bird-resistant. In 1966, the FAA approved Learjet's Model 24 under regulations governing transport aircraft which did require bird-resistant windshields. The same year, Learjet made available for $50,000 a kit to convert Model 23 aircraft to Model 24 aircraft. This was a "fairly complicated conversion" involving systems and structural modifications and required factory installation. Included in the kit was a Model 24 bird-resistant windshield. The Model 23 in this case was never converted to a Model 24.
Stanley Wionczek, a mechanic and director of maintenance for Jet Care, testified that after Freedom International purchased the Model 23, Jet Care followed a factory approved inspection and maintenance program. There was no evidence that the windshield on the plane was defective in manufacture or that its failure was caused by improper maintenance. Instead, all evidence indicated that the windshield, as designed, simply could not withstand the impact of the bird.
Following plaintiff's proofs, Freedom International and Jet Care moved for a directed verdict, arguing that there was no evidence that they "did anything wrong." Plaintiff responded that the Michigan aircraft owners' liability statute, MCL 259.180a; MSA 10.280(1), imposed liability on these defendants for negligent maintenance. That statute provides that the "owner or operator or the person or organization responsible for the maintenance or use of an aircraft shall be liable for any injury occasioned by the negligent operation of the aircraft." The trial court ruled that the statute had no application to the facts of this case, and even were it to apply, plaintiff had not demonstrated negligence. We agree.
The purpose of MCL 259.180a; MSA 10.280(1), like that of the motor vehicle owners' liability statute, MCL 257.401; MSA 9.2101, is to impose liability on owners when they entrust their vehicles to negligent operators. See Sexton v Ryder Truck Rental, Inc, 413 Mich. 406, 438; 320 N.W.2d 843 (1982) (opinion of WILLIAMS, J.). The express language of MCL 259.180a; MSA 10.280(1) refers to liability for injuries occasioned by negligent operation of an aircraft. MCL 259.22; MSA 10.122 defines operation of aircraft as "use of aircraft for the purpose of air navigation, including the navigation or piloting of aircraft." All of this suggests that the Legislature in enacting MCL 259.180a; MSA 10.280(1) intended to impose liability on owners of aircraft who entrust their planes to negligent pilots, rather than owners who fail to install aircraft components not required under federal regulations. We agree with the trial court that the aircraft owners' liability statute does not apply on these facts. Cf. Storie v Southfield Leasing, Inc, 90 Mich. App. 612; 282 N.W.2d 417 (1979), aff'd on other grounds sub nom Sexton v Ryder Truck Rental, supra. In any event, as the trial court indicated, even if the statute did apply to this case, plaintiff failed to prove negligent maintenance of the aircraft which would trigger statutory liability. As noted, evidence showed that the windshield was free of physical defects and had been subjected to all regular inspections. Plaintiff's claim was that the non-bird-resistant windshield was inherently flawed, not that it was improperly cared for.
Neither are we persuaded that the trial court erred in granting a directed verdict in favor of Freedom International and Jet Care on plaintiff's claim that these defendants were negligent in failing to install a bird-resistant windshield.
Plaintiff claims that Jet Care had a duty to inform Freedom International regarding the dangers of the Model 23 windshield and of the bird-resistant alternative. However, there was no evidence that Jet Care was aware of any dangers or incidents associated with the Model 23 windshield. Moreover, although not argued by Jet Care on appeal, we note that no evidence was presented that, even if Jet Care had warned Freedom International, Freedom International would have changed the Model 23 windshield. In other words, there was no evidence to support the element of proximate cause regarding Jet Care's failure to inform and warn Freedom International. See Warner v General Motors Corp, 137 Mich. App. 340, 348; 357 N.W.2d 689 (1984), lv den 422 Mich. 852 (1985); Falkner v John E Fetzer, Inc, 113 Mich. App. 500, 503; 317 N.W.2d 337 (1982), lv den 417 Mich. 851 (1982).
Furthermore, no evidence was introduced that Freedom International was aware of any dangers or incidents regarding the Model 23 windshield. See, e.g., Ransford v The Detroit Edison Co, 124 Mich. App. 537, 543; 335 N.W.2d 211 (1983). Gates Learjet disseminated no warnings that the Model 23 windshield was defective or dangerous. The windshield was designed in conformance with governmental specifications and the plane was certified by the FAA. Conversion to Model 24 was not mandatory, nor even intended to "cure" a windshield problem; the windshield was merely one change among several other complex changes. On this record, we do not believe that the trial court erred in granting a directed verdict in favor of Freedom International and Jet Care as to plaintiff's negligence claim.
Plaintiff next contends that the trial court erred in granting a directed verdict in favor of Freedom International on plaintiff's claim of breach of an implied warranty of fitness. Plaintiff's breach of an implied warranty claim against Freedom International was based upon Freedom International's status as lessor of the Model 23 aircraft. The trial court ruled that, even assuming that an implied warranty existed and was breached, plaintiff, as an employee of the lessee, could not recover from the lessor for breach of an implied warranty. We disagree with this reasoning.
In Jones v Keetch, 388 Mich. 164, 168; 200 N.W.2d 227 (1972), the Court adopted the rule that, in the absence of an agreement to the contrary, the lessor of a chattel to be used by a lessee for a particular purpose known to the lessor impliedly warrants the reasonable suitability of the chattel for the lessee's known intended use of it, quoting 68 ALR2d 850, 854. In Robards v Estate of Kantzler, 98 Mich. App. 414; 296 N.W.2d 265 (1980), this Court cited Jones, supra, and noted that the lessor of a machine warrants its fitness to a plaintiff employee of the company to which it is leased. A fair reading of these cases makes it apparent that although plaintiff's decedent was an employee of the corporation which leased the airplane, plaintiff could make a claim against Freedom International, as lessor, for breach of an implied warranty of fitness. See also Prosser Kilborn, Torts (5th ed), § 104, p 7158; Cintrone v Hertz Truck Leasing Rental Service, 45 N.J. 434; 212 A.2d 769 (1965) (warranty extends to employees of company which leased truck from defendant lessor); Price v Shell Oil Co, 2 Cal.3d 245; 85 Cal.Rptr. 178; 466 P.2d 722 (1970) (warranty, expressed as strict liability, extends to employee of company which leased truck from defendant lessor); Stang v Hertz Corp, 83 N.M. 730; 497 P.2d 732 (1972) (warranty, expressed as strict liability, extends to passenger of car leased by driver from defendant lessor). Accord: Model Uniform Product Liability Act, § 102(A), 44 Fed Reg 62,717 (1979). Accordingly, the trial court erred in holding that, assuming plaintiff proved the existence of an implied warranty and its breach, lack of privity barred plaintiff from recovering for breach of implied warranty. We therefore reverse the grant of directed verdict in favor of Freedom International on plaintiff's implied warranty claim.
Affirmed in part and reversed in part.