5D07-4389 Godfrey v. Precision

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-4389

Case Date: 09/06/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2010

MARK GODFREY AND NICHOLAS GRACE, Appellants/Cross-Appellees, v. PRECISION AIRMOTIVE CORPORATION, ET AL., Appellees/Cross-Appellants. ______________________________/ Opinion filed September 10, 2010 Appeal from the Circuit Court for Volusia County, Richard S. Graham, Judge. Jeffrey E. Bigman, of Law Firm of Smith Hood Bigman, Daytona Beach, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Arthur Alan Wolk, The Wolk Law Firm, Philadelphia, Pennsylvania, for Appellants/CrossAppellees. Matthew J. Conigliaro and Stephanie Zimmerman of Carlton Fields, P.A., St. Petersburg, and Wendy F. Lumish, of Carlton Fields, P.A., Miami, for Appellees/Cross-Appellants Teledyne Continental Motors, Inc., and Teledyne Technologies, Incorporated. No Appearance for other Appellees. PER CURIAM. Mark Godfrey and Nicholas Grace (the Plaintiffs) timely appeal an order granting defendants Teledyne Continental Motors, Inc., and Teledyne Technologies, Inc.'s (collectively Teledyne) motion for a new trial in the Plaintiffs' suit for damages suffered CASE NO. 5D07-4389

when the airplane they were in crashed allegedly as the result of a faulty carburetor. On cross-appeal, Teledyne also raises a number of issues. We need not address all issues raised, but agree with Teledyne that the trial court committed reversible error by allowing the Plaintiffs to introduce evidence of more than 100 problem occurrences involving other aircraft engines without a showing that the other incidents were caused by defects substantially similar to the defect that the Plaintiffs alleged here. These documents were purportedly offered solely to show that Teledyne was on notice of the carburetor defect that allegedly caused its engine to fail. Yet, most of the incidents involved a larger aircraft engine built by a competing manufacturer and using a different carburetor than the one Teledyne certified for use with the engine at issue in this case. Generally, in this context, "evidence of the occurrence or non-occurrence of prior accidents is admissible only if it pertains to the use of the same type of appliance or equipment under substantially similar conditions." Frazier v. Otis Elevator Co., 645 So. 2d 100, 101 (Fla. 3d DCA 1994) (citations omitted). Florida law places the burden on the proponent of this type of evidence to demonstrate "substantial similarity" before the evidence can be admitted. Ford Motor Co. v. Hall-Edwards, 971 So. 2d 854, 860 (Fla. 3d DCA 2007), review denied, 984 So. 2d 1250 (Fla. 2008). Teledyne filed a timely pretrial motion to bar the Plaintiffs from admitting any evidence of other accidents without making the required showing. In response, the trial court entered an order that accurately set forth the law in this area and required the Plaintiffs to make the required showing in writing. The Plaintiffs filed a written submission that failed, in our view, to make the required showing as to the majority of these incidents. Basically, the Plaintiffs relied upon testimony from one of their experts, who opined that the engine at issue in

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this case was similar to other engines, including engines from other manufacturers. The same expert testified to a list of carburetors that he opined to be similar in that they all share the defects alleged to exist in the carburetor that allegedly contributed to the engine failure in this case. That testimony, however, was not sufficient to show that the more than 100 incidents placed before the jury met the required test for substantial similarity. In fact, even if all of the accidents had involved the same Teledyne engine, that showing, alone, would not have been sufficient to secure admission of evidence regarding all of the other accidents. For example, one of the effects of the defects alleged by the Plaintiffs is a build-up of carbon in the engine exhaust valve that can interfere with the engine's operation and, ultimately, cause the engine to fail (stop running during flight). The parties do not dispute, however, that there are other potential causes of carbon build-up inside an aircraft engine. For example, the Plaintiffs' expert conceded that failing to change the engine oil when specified can cause this same condition. Yet, all that is known about some of the supposedly similar accidents is that they involved engines with carbon build-up. That showing, alone, is clearly insufficient to meet the similarity requirement of Frazier because there is no way of knowing whether the build-up was caused by the same condition alleged as a defect in this case. An accident caused because of failure to change an engine's oil when required -- even if it involved the same Teledyne engine type as the one at issue here -- would not have put Teledyne on notice of the defects alleged in this case and would therefore have had no relevance to the matters at issue in this case.

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Because the Plaintiffs' pre-trial showing was not sufficient to meet the Frazier similarity standard, the trial court erred in denying Teledyne's pre-trial motion on this issue. Given the volume of other accident evidence introduced in this case without a sufficient similarity showing, we cannot conclude that the error in admitting this evidence was harmless. Accordingly, a new trial is warranted. For the benefit of the trial court and the parties in future proceedings, we note that we find no error in: (1) the trial court's entry of summary judgment in favor of Teledyne on the issue of punitive damages; (2) the trial court's failure to enter judgment in Teledyne's favor as to the Plaintiffs' negligent omission claim; or (3) the trial court's denial of Teledyne's other post-trial motions. We do note, however, that the jury

instructions regarding the Plaintiffs' negligent omission claim were problematic. Basically, the Plaintiffs claimed that Teledyne had a duty to disclose known defects under various Federal Aviation Administration (FAA) regulations. The Plaintiffs are

correct that a legal duty may arise from administrative regulations. McCain v. Florida Power Corp., 593 So. 2d 500, 503 n.2 (Fla. 1992). The trial court properly rejected Teledyne's argument that the duty to disclose apparently created by these regulations cannot apply to them because the Plaintiffs alleged a defect with another manufacturer's carburetor, and not with Teledyne's engine. The problem with this argument is that Teledyne specified the carburetor that had to be used with its engine. And, the

Plaintiffs' theory is that the defective carburetor caused the engine to fail during flight. We agree with the Plaintiffs, as did the trial judge, that if FAA regulations require an airplane engine manufacturer to report known engine defects to the public, this disclosure requirement would necessarily include a duty to disclose a known defect in a

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carburetor or other part certified by the engine manufacturer for use with the engine that will cause the engine itself to fail. The problems with the jury instructions on this issue arose as the trial court allowed the Plaintiffs' theory to morph during trial from an affirmative misrepresentation theory to a negligent omission theory. Although we find no abuse of discretion, on this record, in allowing the Plaintiffs to basically amend their complaint to conform with the evidence, the parties ended up using standard instructions on affirmative On

misrepresentation that did not match the Plaintiffs' ultimate theory of liability.

remand, the Plaintiffs should be granted an opportunity to formally amend their complaint to match the theory presented to the jury. And, this opinion should not be read as barring any legal defenses that Teledyne may raise in response to the amended complaint, other than the one expressly rejected in this opinion. AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

LAWSON and COHEN, JJ., concur. SAWAYA, J., dissents with opinion.

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Case No. 5D07-4389 SAWAYA, J., dissenting. I respectfully dissent. Three defendants remained in this case at the time of the trial and only two suffered adverse verdicts of liability and damages: Teledyne

Continental Motors, Inc. and Teledyne Technologies (collectively Teledyne), which manufactured the motor that failed on the doomed aircraft, and Precision Airmotive Corporation (Precision), which manufactured the faulty carburetor--the only carburetor that could be used on the Teledyne motor. Precision settled with the plaintiffs after this appeal was filed, leaving Teledyne as the only other party. During the trial, the plaintiffs introduced a substantial amount of evidence, including a number of composite exhibits regarding prior accidents and incidents involving the Precision carburetor and the Teledyne motor. The prior accident evidence was presented to the jury for a very limited purpose: to establish that Teledyne was on notice that there were problems with its motor and that Precision was on notice that there were problems with its carburetor. The jury was given a specific instruction that read: During the course of the case various SDRs [Service Difficulty Reports] and warranty reports were admitted at this trial for a limited purpose only. These documents are not admissible for the truth of the matters recorded in the document because the person who made this report is not here to testify. In other words, you can [sic] may not conclude from the mere fact that certain events were recorded in these documents, either that the events truly occurred as they are described, or that they happened for the reason stated in the document. These documents are being admitted solely for the purpose of showing that the report was made and that certain parties may have learned that the report was made and had notice

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of the alleged difficulty with the service, not for the truth of what was reported. The majority reverses the verdict in favor of Teledyne, concluding that some of this evidence was erroneously admitted because the incidents in the reports were not substantially similar to the incident in the instant case. I do not believe admission of this evidence constitutes reversible error. Although prior incidents must be substantially similar to the incident at issue if used to prove the existence of a dangerous condition, this requirement is relaxed if evidence of prior incidents is introduced only to establish notice of a potentially dangerous condition,1 as it was in this instance. When prior accident evidence is used to prove notice, the evidence may pertain to the same type of product; if different models of the product are involved, the proponent must establish that they are substantially similar to the model at issue and malfunction under similar circumstances.2
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See U.S. Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1147-48 (10th Cir. 2009); Wheeler v. John Deere Co., 862 F.2d 1404, 1407-08 (10th Cir. 1988) ("Evidence proffered to illustrate the existence of a dangerous condition necessitates a high degree of similarity because it weighs directly on the ultimate issue to be decided by the jury. The requirement is relaxed, however, when the evidence of other accidents is submitted to prove notice or awareness of the potential defect."); see also Lawrence v. Fla. E. Coast Ry. Co., 346 So. 2d 1012, 1015 (Fla. 1977) ("However, Mrs. Lawrence argues that the evidence was not introduced for the purpose of showing that the King's Street crossing was dangerous, but rather for the purpose of showing that the Railroad had notice that the signal system was not operating properly. The record supports her argument. It appears the District Court confused the rule governing prior similar accidents with the rule governing admission of evidence of notice of defective appliances."). See Ry. Express Agency, Inc. v. Fulmer, 227 So. 2d 870, 873 (Fla. 1969); Hogan v. Gable, 30 So. 3d 573, 575 (Fla. 1st DCA 2010); Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1176 (Fla. 1st DCA 1994); Lasar Mfg. Co. v. Bachanov, 436 So. 2d 236 (Fla. 3d DCA 1983); Warn Indus. v. Geist, 343 So. 2d 44 (Fla. 3d DCA 1977); see also Ford Motor Co. v. Hall-Edwards, 971 So. 2d 854, 860 (Fla. 3d DCA 2007).
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As the court explained in Emerson Electric Co. v. Garcia, 623 So. 2d 523, 524 (Fla. 3d DCA 1993): Evidence of the safety-history of a product is admissible where the evidence pertains to the use of the same type of appliance or equipment, and is based on use of the product under substantially similar conditions. Railway Express Agency, Inc. v. Fulmer, 227 So. 2d 870 (Fla. 1969); Nance v. Winn Dixie Stores, Inc., 436 So. 2d 1075 (Fla. 3d DCA 1983), rev. denied, 447 So. 2d 889 (Fla. 1984); Lasar Mfg. Co. v. Bachanov, 436 So. 2d 236 (Fla. 3d DCA 1983); Warn Indus. v. Geist, 343 So. 2d 44 (Fla. 3d DCA) cert. denied, 353 So. 2d 680 (Fla. 1977). The purpose of product safety-history history is to show the dangerous character of the product and the defendant's knowledge thereof. Railway Express Agency, Inc., 227 So. 2d at 872 (citing Chambers v. Loftin, 67 So. 2d 220 (Fla. 1957)). In order to admit such evidence, the trial court must make "at least a threshold determination" of substantial similarity. Hogan v. Gable, 30 So. 3d 573, 575-76 (Fla. 1st DCA 2010). "The other accidents do not have to occur at an identical place and time, but the conditions should be similar enough to provide the requisite probative value." Ford Motor Co. v. Hall-Edwards, 971 So. 2d 854, 858 n.7 (Fla. 3d DCA 2007) (citing Charles W. Ehrhardt, Florida Evidence

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