Judge upholds decision in RV crash case
Contributed by John Wiegenstein

On February 6, 2007, Judge David Kurtz heard argument from EAA and NWEAA on their motions for a directed verdict or, in the alternative, for a new trial.   At the conclusion of argument, Judge Kurtz denied all of the motions.   He offered extensive commentary explaining his decision making process and his view of the trial itself.

Judge Kurtz noted that this was a very complex and complicated case, with many witnesses, conflicting evidence, and a number of complex legal issues.   He also stated that it was an emotional case, particularly for the Corbitt family.   He concluded, however, that all parties had a fair opportunity to fully present and argue their respective positions and that the verdict of the jury was well within the broad range of the evidence and applicable law.

According to Judge Kurtz, the Hansen and Nivens cases relied on by EAA and NWEAA were not applicable on the facts of this case, which he characterized as "rather unique."   He went on to note that the key jury instruction appeared to be No. 10, which was a modified version of Washington Pattern Instruction 120.06.010.   This instruction stated in essence that "the operator of the Fly In owes to a person who is either expressly or impliedly on the permission at the request and for the businesses purposes of the operator, a duty of ordinary care for safety of those invitees, including maintaining in a reasonably safe condition those portions of the premises where the invitee is either expressly or impliedly invited to be, or may reasonably be expected to go."   As Judge Kurtz explained, EEA tried to distance itself from any liability for the conditions at the fly-in based on its Letter of Understanding with NWEAA, and he agreed that this Letter of Understanding did not create third-party beneficiary status as to Corbitt or any other attendee of the Fly In.   However, it did set out the relati onship between EAA and the local chapter, NWEAA.

Corbitt argued at trial that this was really EAA's event, and that NWEAA was really a junior partner [my characterization of the judge's tone and tenor].   Judge Kurtz commented that he was surprised Corbitt's attorneys did not argue this point more heavily, with the unrebutted evidence showing that EAA is a large organization with approximately 180,000 members, a multi-million dollar budget, numerous paid professional personnel, and extensive resources.   In contr ast, he commented that NWEAA appeared to be in effect one paid full-time person, supported by a large network of dedicated volunteers.    In any event, Judge Kurtz concluded that, based on the evidence presented, the jury was entitled to find direct liability on the part of both EAA and NWEAA.  

Judge Kurtz next commented on Jury Instruction No. 11, which read more or less as follows, "Whether the EAA and NWEAA's reliance on the City of Arlington Fire Department services was reasonable and constituted the exercise of ordinary care is for you, the jury, to decide. NWEAA and EAA may not automatically relieve themselves of responsibility for providing reason ably safe premises merely by delegating those duties to the City."   Judge Kurtz commented that this gave a mixed message to the jury, in a sense, but that this instruction was much better than the proposed ones from both parties.  

As the court phrased it, this instruction essentially told the jury that you can delegate responsibility for safety and rely on the entity providing the services (the City in this case) if that delegation was reasonable under the circumstances.   However, you cannot simply "pass the buck" and wash your hands of the responsibility for providing a safe premises for the business invitees simply by having somebody else agree to carry out that work.

With respect to the defendants' arguments as to express assumption of risk by Corbitt, the Court concluded there was no evidence to support that theory, and that in Washington implied assumption of the risk is subsumed within contributory negligence, which was argued at length by EAA to the jury.

With respect to the defendants' argument that the crash occurred outside the "area of invitation" for which EAA and NWEAA were responsible, the judge characterized this as an extremely weak argument, apparently adopting the Corbitt's argument that you can't have a fly in without a runway and the surrounding portions of the airfield itself.

The question of survivability once Corbitt crashed was hotly debated, and Judge Kurtz concluded that this was ultimately a jury question.   He conceded that it was hard for any medical expert to have offered solid opinion testimony as to just how badly injured Corbitt was at any time during the sequence of events, and what his precise prognosis would have been at any of those points.   It was up to the jury to take the facts and evidence and use their common sense. The court specifically commented that the evidence on these issues was very conflicting, but that in Corbitt's favor there was eyewitness testimony that Corbitt stood up and was talking to people after the crash and before the fire suppression and rescue effort was made.   In the end, the Court stated that it would not invade the province of the jury on this determination.

One issue that NWEAA and EAA both argued was that the jury had been improperly influenced by Corbitt's argument in closing that the EAA and NWEAA were callous and heartless in continuing the air show after Corbitt's death.   Judge Kurtz felt that this argument in closing, and evidence presented on that issue, was somewhat relevant in providing the full context and sequence of events that day.   He stated that he watched the jury carefully during that testimony and closing argument on that issue to gauge the impact, and he did not see a significant impact on the jury.   He also pointed out that NWEAA had a witness who explained in detail why they continued with the air show, and did so in a sensitive and compelling way.   Judge Kurtz ultimately concluded that any prejudice from this was minimal at best.

In contrast, Judge Kurtz concluded that the arguments made in closing by NWEAA and EAA counsel were much more inflammatory and possibly counterproductive.   (He did not state just what these arguments were, and I don't know what they were my educated guess would be that they were to the effect that Corbitt was negligent and caused his own death, that he was a goner no matter what the fire/rescue response was, or some variation of those themes).   He pointed out, in the end, that it was the defendant's choice to make those arguments and to accept whatever consequences came from them.

The only new issue which Judge Kurtz saw raised in the post-trial motions was the question of whether the negligence of Corbitt was the proximate cause of his injury.   The jury found Corbitt negligent, but found that that negligence was not a proximate cause of his injuries and damages, and EAA and NWEAA took issue with that.   Judge Kurtz pointed out that both parties had ample opportunities to argue whether or not Corbitt was contributorily negligent, and if so how and whether it contributed to his injuries.   The Court also commented on specific jury questions during deliberation that came out on this point.   One question from the jury on December 21 was to the effect of, "we need to understand the pilot's contributory negligence.

Does being hurried, inexperienced, and making mistakes qualify?   Or can we only consider the evidence of the rushed pre-flight and the failure to remove the passenger seatbelt from around the controls. The parties agreed to an answer which stated in essence, "You are to consider all of the evidence before you on this issue."  

Second, a question was raised with respect to Jury Instruction No. 14, in the nature of "Can we use other examples of possible contributory negligence by the pilot, or just the two issues (hurried preflight and the seatbelt wrapped around the controls)?"   The answer given by the Court was that these were examples only, and did not limit the jury.   The jury was to consider all evidence in light of all of the instructions.

Thus, Judge Kurtz concluded that the jury may have felt that Corbitt was negligent and took off in a hurry, but they may not have agreed with the seatbelt theory advanced by the defendants.   Judge Kurtz commented that the seatbelt theory had very little hard evidence at trial, and the jury may have just concluded that the defendants had failed to make their proof on that particular theory of contributory negligence.  

The court commented that at the close of the trial there was no clear evidence of what, exactly, caused the crash to occur, and that airplanes fall out of the sky sometimes for unknown reasons.   [And, as Corbitt's attorneys argued, this was an "enhanced injury" case, where the liability of the defendants is not based on the injuries from the crash, but on the additional, enhanced injuries suffered after the crash because of the slow and/or inadequate response.  

This is the same as the seatbelt cases against auto manufacturers, where the occupant is injured in a crash and the theory is that the safety belt was not properly designed or installed, and hence the injuries were worse than what should have been expected, i.e., the belt caused enhanced or aggravated injuries beyond what should have resulted.   In those cases, the issues of who was at fault for the crash itself are irrelevant, because the damages being sought are only those for the enhanced injury caused by the belt.]

Finally, Judge Kurtz commented that the Court was not at all shocked by the outcome of the trial.   Other juries might have reached somewhat different results, but the Court rejected the idea that there was any passion or prejudice in the jury decision.   In fact, Judge Kurtz stated that other juries might have awarded much more, considering the evidence of the impact of this loss on the Corbitt family.   In his view, a $10.5 million damages award (less 15% for fault attributed to the City of Arlington) was arguably fairly modest.  He stated that he watched the jury carefully during the trial and they were engaged, thoughtful and had lots of questions.   He viewed them as very conscientious.   They took three days in deliberations.

When all was said and done, Judge Kurtz would not question their result.   It was within the law and the evidence.   The motions for a new trial and/or directed verdict were denied.

The next step, after entry of the formal order on the February 6th hearing, will undoubtedly be an appeal to the Court of Appeals, Division I, for review of the various trial court decisions and jury verdict.

For more information:
EAA asks court to overturn verdict in RV crash trial