Forbes v. Midwest Air Charter, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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FORBES, ADMR., APPELLANT, v. MIDWEST AIR CHARTER, INC. ET AL., APPELLEES.
[Cite as Forbes v. Midwest Air Charter, Inc. (1999), 86 Ohio St.3d 83.]
Torts -- Wrongful death action -- Determination of pilot in airplane crash -- Trial
court erred in instructing jury on the rebuttable presumptions contained in
R.C. 4561.23.
(No. 91-1259 -- Submitted October 27, 1998 -- Decided July 14, 1999.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 56815.

On April 27, 1979, a Piper Cheyenne II aircraft crashed at the Lorain County
Airport in Elyria, Ohio. Daniel F. Forbes and Henry L. Dietrich, the plane's only
occupants, were both killed.

The record indicates that at the time of the crash, Dietrich, a certified flight
instructor and the assistant chief pilot of appellee Midwest Air Charter, Inc.
("Midwest"), was seated in the right front seat and that Forbes was seated in the
left front seat. An instructor pilot typically sits in the right front seat. In a Piper
Cheyenne II, the flight instruments can be controlled from either front seat.

Although the record indicates that Forbes had a private pilot's license, the
testimony suggests that he was not qualified to fly the Piper Cheyenne II. The
record further indicates that Forbes had logged only eight hours of flight time with
Dietrich, in the Piper Cheyenne II, prior to the crash.

Forbes was in the process of purchasing the plane prior to the crash.
Michael J. Garrihy, President of Midwest and a friend of Forbes, knew that Forbes
was not capable of piloting the plane. Accordingly, Garrihy arranged for Midwest
to supply Forbes with a pilot for flights in the Piper Cheyenne II, and arranged that
the pilot (who turned out to be Dietrich) not give flight instructions to Forbes.

On the day of the crash, Forbes filed the flight instrument plan, a common
indicator of pilot status. However, several witnesses testified that students are
routinely assigned the task of filing the flight instrument plan.

Ray Fuqua, chief flight instructor for Midwest, testified that Dietrich would
have been considered the "pilot in command." Further, Thomas V. Sumpter,
Midwest's vice-president of operations, signed and submitted proof of loss
documents to Midwest's insurance underwriter, which identified that Dietrich was
the "pilot in command." However, in his testimony, Sumpter stated that, although
the proof of loss was notorized, he had merely been confirming the dollar amount
of the loss when he signed the form. Nevertheless, Sumpter acknowledged that the
information in the form was correct. An investigation performed by the National
Transportation Safety Board identified Dietrich as the "pilot in command."

Ina Forbes, the widow of Forbes, filed a wrongful death action. At the
conclusion of the trial, the trial court charged the jury to determine who had been
the "pilot in command" at the time of the crash. The trial court informed the jury
that it should consider Title 14 of the Code of Federal Regulations and R.C.
4561.23. The court read R.C. 4561.23 in its entirety to the jury.

During deliberations, the jury submitted a question to the court about the
exceptions to the rebuttable presumptions contained in R.C. 4561.23. The court
provided the jury with a written answer, stating that "[a] presumption is a term
used to signify that which may be assumed without proof or taken for granted" and
that "[a] rebuttable presumption is a presumption which is not conclusive and
which may be contradicted by evidence. The issue as to who was the [`]pilot in
command[`] in this case is to be decided by the jury from a consideration of all of
the evidence."

The jury found in favor of Midwest. Ina Forbes appealed, arguing that the
jury should not have been given an instruction concerning R.C. 4561.23. The court
of appeals affirmed the judgment of the lower court, determining that the
instructions had been proper, since both parties had submitted "substantial credible
evidence" on the issue of "pilot in command."

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The cause is now before this court upon the allowance of a discretionary
appeal.
__________________

Weisman, Goldberg & Weisman Co., L.P.A., David C. Landever and James
R. Goldberg, for appellant.

Martindale, Brzytwa & Quick, John E. Martindale and Margaret Mary
Meko; and Nicholas R. Curci, for appellee Midwest Air Charter, Inc. et al.

Gallagher, Sharp, Fulton & Norman, Michael R. Gallagher, Alton L.
Stephens and Gary L. Nicholson, for appellee Piper Aircraft Corporation, n.k.a.
KEWPAC.
__________________

PFEIFER, J. The issue in this case is whether the jury was properly
instructed on the issue of who was the "pilot in command." For the reasons that
follow, we conclude that the jury should not have been instructed on the rebuttable
presumptions contained in R.C. 4561.23.
In
Ayers v. Woodard (1957), 166 Ohio St. 138, 1 O.O.2d 377, 140 N.E.2d
401, this court stated: "A presumption is a procedural device which is resorted to
only in the absence of evidence by the party in whose favor a presumption would
otherwise operate; and where a litigant introduces evidence tending to prove a fact,
either directly or by inference, which for procedural purposes would be presumed
in the absence of such evidence, the presumption never arises and the case must be
submitted to the jury without any reference to the presumption in either a special
instruction or a general charge." Id. at paragraph three of the syllabus. Appellant
Forbes argues that the Ayers case stands for the proposition that presumptions,
statutory or otherwise, are not provided to juries when evidence as to the subject
matter of the presumption has been presented.

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In
State v. Myers (1971), 26 Ohio St.2d 190, 55 O.O.2d 447, 271 N.E.2d
245, this court stated: "In a trial of a person for the offense of operating a motor
vehicle while under the influence of alcohol, the presumption provided by R.C.
4511.19(B) may be included in the court's instructions to the jury and used by
them in arriving at their decision, even though the prosecution introduces evidence
of the defendant's physical appearance, his walk, his manner of speaking, the smell
of his breath, and opinion evidence that defendant was under the influence of
alcohol." Id. at paragraph two of the syllabus. Appellees argue that this case
stands for the proposition that statutory presumptions are not subject to the rule of
Ayers and, therefore, juries should be instructed as to the presumptions contained
in R.C. 4561.23.

As far as we can tell, the Myers decision has never been relied upon by this
or any court as to the point in contention. The Ayers decision, on the other hand,
has been relied upon by this court under analogous conditions. Cotterman v. Ohio
Dept. of Pub. Welfare (1986), 28 Ohio St.3d 256, 258, 28 OBR 334, 336, 503
N.E.2d 757, 759; Cincinnati Bd. of Edn. v. Hamilton Cty. Bd. of Revision (1997),
78 Ohio St.3d 325, 328, 677 N.E.2d 1197, 1200; Evid.R. 301, Staff Note.

Cotterman involved the presumption set forth in Ohio Adm.Code 5101:3-
50-22(C). This court stated that the presumption "would ab initio be inapplicable"
where evidence was presented to rebut the presumption. Id., 28 Ohio St.3d at 258,
28 OBR at 336, 503 N.E.2d at 759. The court's sole authority, and without
comment, was Ayers. Id.

Cincinnati Bd. of Edn. involved the common-law presumption that "the sale
price reflects the true value of property." Id., 78 Ohio St.3d at 327, 677 N.E.2d at
1199, citing Ratner v. Stark Cty. Bd. of Revision (1986), 23 Ohio St.3d 59, 61, 23
OBR 192, 193, 491 N.E.2d 680, 682; Walters v. Knox Cty. Bd. of Revision (1989),
47 Ohio St.3d 23, 24, 546 N.E.2d 932, 934. In Cincinnati Bd. of Edn., this court

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stated that "[i]f evidence had been introduced by the BOE [board of education], or
others, which had shown that the sale was not an arm's-length transaction, the
rebuttable presumption that sale price reflects true value either would never have
arisen or it would have disappeared." Id., 78 Ohio St.3d at 328, 677 N.E.2d at
1200. The court relied solely on Ayers in support of this proposition.

Evid.R. 301 states, "In all civil actions and proceedings not otherwise
provided for by statute enacted by the General Assembly or by these rules, a
presumption imposes on the party against whom it is directed the burden of going
forward with evidence to rebut or meet the presumption, but does not shift to such
party the burden of proof in the sense of the risk of non-persuasion, which remains
throughout the trial upon the party on whom it was originally cast." The Staff
Note specifically states that Evid.R. 301 "does not change Ohio law relative to the
effect of a presumption in civil cases," citing Ayers.
The
Myers court distinguished its decision from Ayers because Ayers
involved a common-law presumption, while Myers involved a statutory
presumption. Myers, 26 Ohio St.2d at 200, 55 O.O.2d at 452, 271 N.E.2d at 251.
Given Cotterman, which involved an Administrative Code presumption, and
Evid.R. 301, which was adopted by this court long after Myers was decided, we are
convinced that the more apt distinction is between a civil case, Ayers, and a
criminal case, Myers. We conclude that Ayers governs the instant case and that
Myers has no application.

Accordingly, we conclude that the jury in this case should not have been
instructed as to the statutory presumptions set forth in R.C. 4561.23 because
"evidence tending to prove a fact * * * which for procedural purposes would be
presumed in the absence of such evidence," was presented. Ayers, 166 Ohio St.
138, 1 O.O.2d 377, 140 N.E.2d 401, at paragraph three of the syllabus. The

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judgment of the court of appeals is reversed, and the cause is remanded to the trial
court for a new trial.
Judgment reversed
and cause remanded.

DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
__________________

COOK, J., dissenting. I respectfully dissent because I believe that the
majority incorrectly analyzes the issue presented by this appeal and thereby arrives
at an erroneous conclusion.

The majority decides the case by reviewing the decisional law on the subject
of rebuttable presumptions, but fails to analyze the evidentiary prerequisites for the
application of that law. To properly decide this appeal, the court must sort the trial
evidence into the relevant categories: (1) direct evidence, if any, tending to prove
the presumed fact, i.e., which pilot was actually the pilot in command ("PIC"), and
(2) evidence tending to prove basic facts that support the rebuttable presumptions
in the PIC statute. Without any evidence in the first category (direct evidence),
there is no reason to withhold the jury instruction on the PIC presumptions.

In 2 McCormick, Evidence (4 Ed. Strong Ed.1992) 460, 460-461, Section
344, Professor McCormick teaches:

"Sometimes the effect of a presumption * * * is easy to discern; it follows
naturally from the definition of the term. Thus, where a party proves the basic
facts giving rise to a presumption, it will have satisfied its burden of producing
evidence with regard to the presumed fact and therefore its adversary's motion for
directed verdict will be denied. If its adversary fails to offer any evidence or offers
evidence going only to the existence of the basic facts giving rise to the
presumption and not to the presumed fact, the jury will be instructed that if they

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find the existence of the basic facts, they must also find the presumed fact."
(Footnotes omitted.) (Emphasis added.)

Applying decisional law and McCormick's teachings to the facts of this
case, I conclude that the trial court properly instructed the jury on the PIC
presumptions found in R.C. 4561.23. Two individuals, who were both pilots, were
aboard the accident flight, and neither one survived. And no one testified from
first-hand knowledge about who was the PIC during the flight. No one actually
witnessed who was flying the plane during the flight, no one spoke with Forbes or
Dietrich about who the PIC was during the flight, and no communication, which
may have established who was in control of the aircraft, occurred between the
plane and air traffic control. Neither party, therefore, was able to offer substantial
credible direct evidence at trial regarding the presumed fact -- which of the two
occupants was the PIC. Rather, the parties sought to prove or disprove with the
trial evidence the various basic facts giving rise to the PIC presumption in
divisions (A), (D), and (E) of R.C. 4561.23.
Division (A) of the PIC Statute

Appellees presented evidence at trial to prove that Forbes was the occupant
of the left front seat. This basic fact gives rise to the presumed fact that Forbes
was the PIC, unless appellant offered direct evidence that Forbes was not the PIC.
No direct evidence was presented.
In
Ayers v. Woodard (1957), 166 Ohio St. 138, 1 O.O.2d 377, 140 N.E.2d
401, this court decided that there must be "direct evidence" or "direct proof," as
opposed to circumstantial and/or opinion evidence, regarding the presumed fact in
order to defeat a rebuttable presumption. Id., 166 Ohio St. at 144-145, 1 O.O.2d at
380-381, 140 N.E.2d at 406.

The trial court properly instructed the jury to consider the trial evidence
presented to prove or disprove the basic fact of cockpit seating for purposes of

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applying the presumption in R.C. 4561.23(A). If the jury credited the evidence
that Forbes was in the left seat, it would be required to find the presumed fact, i.e.,
that Forbes was the PIC pursuant to R.C. 4561.23(A).
Division (D) of the PIC Statute

Division (D) of R.C. 4561.23 begins with the phrase "[n]otwithstanding
divisions (A)." Thus, the rebuttable presumption that the pilot in the left seat is the
PIC is trumped by the presumption applicable to instructional flights. Appellant
presented evidence at trial to prove the basic fact that Dietrich instructed Forbes
during the accident flight. That evidence included entries for prior flights in
Forbes's pilot logbook, testimony of eyewitnesses who believed that the maneuver
performed just prior to the crash was one done for flight instruction purposes, and
testimony stating that students often file flight plans during flight instruction
sessions. Appellees presented evidence contradicting the evidence produced by
appellant, e.g., statements that Dietrich was instructed not to give flight
instructions to Forbes. Accordingly, the issue of whether the flight was
instructional is a matter of proof of a basic fact (instructional flight) that supports
the presumed fact that the instructor was the PIC. But, again, since there was no
direct evidence that either pilot was the PIC, the court correctly instructed on the
PIC presumption from R.C. 4561.23(D).
Division (E) of the PIC Statute
Appellees
presented
evidence to prove the basic fact that Forbes filed the
instrument flight plan. According to R.C. 4561.23(E), that basic fact establishes
who was the PIC, notwithstanding other evidence of seat occupancy or instruction.
The basic fact evidence showed that Forbes had an instrument rating and that
Forbes filed the instrument flight plan. Appellant sought to rebut the flight plan
evidence with evidence that the flight plan was cancelled immediately prior to the
crash. But again, no direct evidence was presented regarding who was the PIC.

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Consequently, the trial court properly instructed the jury to consider this evidence
presented to prove or disprove the basic fact that Forbes filed the instrument flight
plan for purposes of applying the presumption in Division (E).
Conclusion

R.C. 4561.23 allows either of the two pilots to be labeled as the PIC,
depending on which of the several contested basic facts the jurors believed in this
case. Accordingly, the trial court properly charged the jury on the rebuttable
presumptions in R.C. 4561.23, and I would affirm the judgment of the court of
appeals.

MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
dissenting opinion.
__________________

Lundberg Stratton, J., dissenting. I agree with the appellate court that it
was proper for the trial court to instruct the jury on the rebuttable presumptions
contained in R.C. 4561.23 regarding the "pilot in command."

The majority relies primarily upon Ayers v. Woodard (1957), 166 Ohio St.
138, 1 O.O.2d 377, 140 N.E.2d 401. In Ayers, the court recognized a common-law
presumption as a device to supply facts where none is available. Ayers, 166 Ohio
St. at 144, 1 O.O.2d at 380-381, 140 N.E.2d at 406. Thus, " `[c]ourts will not go
into the domain of presumptions where direct proof can be obtained.' " Id.
Therefore, under Ayers, where either party presents some evidence as to a
presumed fact, the presumption disappears. Although the Ayers court does not
refer to the theory by name, it employed the "bursting bubble" theory of rebuttable
presumptions. 2 McCormick, Evidence (4 Ed. Strong Ed.1992) 460, 462, Section
344. Under the bursting bubble theory, if some evidence is produced pertaining to
the presumed fact, the presumption disappears. Id. Applying this theory, the court

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in Ayers held that because direct evidence was introduced that went to the
presumed fact, the presumption disappeared.

In this case, R.C. 4561.23 sets out a hierarchy of statutory presumptions as
to who was the pilot in command with regard to an aircraft accident. The majority,
consistent with the analysis set out in Ayers, holds that because the parties
presented evidence as to who was the pilot in command, the statutory presumptions
should have disappeared.

I disagree with the majority's conclusion that the statutory presumptions in
R.C. 4561.23 are a mechanism used for the purpose of fact-finding. Presumptions
are not created solely as a device to supply facts where none is available, but are
also created to address public policy concerns. See, e.g., State v. Myers (1971), 26
Ohio St.2d 190, 200, 55 O.O.2d 447, 452-453, 271 N.E.2d 245, 251-252; see, also,
2 McCormick, supra, at 454-460, Section 343.

In an aviation accident, the complex rules and regulations, as well as rules of
regular practice in the aviation industry, are not matters within the common
understanding of a layperson or juror. Unlike driving a car, where common sense
leads a jury to conclude that the person behind the wheel is the person driving and
in control, there is no such parallel in most aircraft.

Most aircraft are equipped with two pilot's seats -- each seat equipped with
controls that let either pilot fully control the aircraft. The issues of whether a pilot
is an instructor or student, who filed the flight plan, and who is in the left or right
seat are all important in determining who is in control of an airplane. Therefore, I
believe that the purpose of the statutory presumptions in R.C. 4561.23 is to clarify
the complex rules of pilot liability in the specific instance where two or more
occupants of the plane were qualified to fly an aircraft that had dual controls that
allowed either pilot to control the aircraft.
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Because aviation is controlled by federal regulations, federal law has
established the legal meaning of "pilot in command." Federal regulations define
the term "pilot in command" (Section 1.1, Title 14, C.F.R.) and establish that a
pilot in command is responsible for operation of that aircraft. (Section 1.1, Title 14,
C.F.R.) But federal law does not provide any guidance in determining the identity
of the pilot in command for purposes of assessing liability where the aircraft had
dual controls and two qualified pilots were flying the plane. Therefore, in
promulgating R.C. 4561.23, the General Assembly sought to remedy this void in
the law as revealed by the Senate Judiciary Report, which states:

"The purpose of this legislation is to provide statutory rules for rebuttable
presumption of who is `pilot in command' of an aircraft when there has been a
crash which has involved possible pilot negligence and all of the occupants were
killed. Federal Civil Air Regulations provide that when more than one licensed
pilot occupies a plane in flight, one of them shall be solely responsible for the
operation and safety of the plane and has final authority for its operation. The
federal regulations do not define who, as a matter of law, shall be conclusively
presumed to have been appointed `pilot-in-command.' The bill attempts to relieve
this situation." (Emphasis added.) Legislative Service Commission, Senate
Judiciary Committee, Am.H.B. No. 79 (1961).

I believe that in promulgating R.C. 4561.23, the General Assembly intended
that jurors be instructed on the statutory presumptions in R.C. 4561.23 in order to
clarify the law on pilot liability where two qualified pilots occupied a plane with
dual controls. In a situation where the presumption is created for a policy reason,
discarding the presumption on the basis that some evidence was presented may
defeat the policy considerations upon which the presumption is based.

The presumptions exist to provide a road map to jurors in examining the
facts and determining who was the pilot in command to establish liability.
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Therefore, as in Myers, the jury charge on the presumptions should be given
whether or not other evidence is presented and as an aid to evaluating that
evidence.

However, the presumptions in R.C. 4561.23 can be rebutted, pursuant to the
statute itself, if evidence is presented to refute the presumptions. But that is a
matter the jury, not the judge, should evaluate as part of the its fact-finding role.
Because the statutory presumptions are given for public policy reasons, it is the
jury that applies the facts to those presumptions.

In this case, there was no clear, direct evidence as to who was the pilot in
command. Facts, inference, and opinion evidence were presented by both sides in
support of their respective claims that the other pilot was in command. Both pilots
were fully licensed to fly the Piper Cheyenne. The prior log book entries could be
interpreted to support both positions. Dietrich may or may not have been giving
Forbes flight instruction. Flight plans can be filed by either a student or an
instructor. The last maneuver witnessed by two spectators could have been a
maneuver for flight instructor purposes or the pilot could have been simply
performing the maneuver for practice. It was up to the members of the jury to take
all the conflicting evidence, weigh it according to the statutory presumptions as to
who was the pilot in command, decide if those presumptions were rebutted, and
render their verdict accordingly. This they did in this case.

Therefore, because I believe the purpose of the presumptions in R.C.
4561.23 is to clarify legal liability as opposed to fact-finding and because I believe
the jury was properly charged as to the pilot in command, I respectfully dissent.
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