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Filed 3/11/05

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ELLEN DIXON et al.,

Plaintiffs
and
Respondents,

A100310
v.

CITY OF LIVERMORE,
(Alameda
County

Super. Ct. No. 771269-8)

Defendant and Appellant.

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

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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.

DATED:

P. J.

2

Trial Court:
Superior Court of Alameda County

Trial Judge:
Honorable Demetrios Agretelis

Honorable Bonnie Sabraw

Attorney for Appellant:
Ralph S. LaMontagne, Jr.

Eric A. Amador

Shaw, Terhar & LaMontagne

Attorney for Respondent:
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

A100310

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