United Scottish Insurance, Kathryn Fleming, Maxine Cearley, Simone Weaver & John W. Dowdle v. United States

Fourteen years ago an air taxi crashed in Nevada because a defective fuel line for a gasoline-burning cabin heater caught fire in flight. The aircraft had been inspected and certified for airworthiness by the Federal Aviation Administration (F.A.A.). This is the second appeal to this court. The pertinent facts and most of the applicable law are set forth in our earlier opinion. United Scottish Ins. Co. v. United States, 614 F.2d 188 (9th Cir. 1979).

This case was remanded to the district court to determine whether California courts would impose a duty of due care by applying the good Samaritan doctrine, formulated in Restatement Second, Torts, §§ 323 and 324A and, if so, whether, under the facts of this case, California courts would find this duty breached if a private person had conducted the inspection and issued the certificate of airworthiness in question.

The trial judge, citing California cases, 1 answered both questions in the affirmative and confirmed the judgment earlier entered on behalf of plaintiffs under the Federal Tort Claims Act. 28 U.S.C. § 2671 , et seq.

In this second appeal, the government challenges the trial court’s rulings on the application of the good…

concurring:

It is apparent that if we affirm United Scottish Insurance, we must reverse Yarig Airlines. I believe that the development of the law on the Federal Torts Claims Act has overtaken me and that I must affirm the former and reverse the latter. Most of us thought when the Federal Torts Claims Act was passed that the discretionary exception to the Federal Torts Claims Act would preclude recovery on the facts of the two cases we decide today, but the developing law seems to have overtaken us. Thus I concur.

692 F.2d 1209 UNITED SCOTTISH INSURANCE, Kathryn Fleming, Maxine Cearley, Simone Weaver & John W. Dowdle, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. No. 81-5062. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 10, 1982. Decided Oct. 8, 1982. John C. Hoyle, Washington, D. C., Robert R. Smiley, III, Smiley & Lear, Washington, D. C., for defendant-appellant. Richard F. Gerry, San Diego, Cal., for plaintiffs-appellees. Appeal from the United States District Court for the Southern District of California. Before CHAMBERS, GOODWIN and PREGERSON, Circuit Judges. GOODWIN, Circuit Judge. 1 Fourteen years ago an air taxi crashed in Nevada because a defective fuel line for a gasoline-burning cabin heater caught fire in flight. The aircraft had been inspected and certified for airworthiness by the Federal Aviation Administration (F.A.A.). This is the second appeal to this court. The pertinent facts and most of the applicable law are set forth in our earlier opinion. United Scottish Ins. Co. v. United States, 614 F.2d 188 (9th Cir. 1979). 2 This case was remanded to the district court to determine whether California courts would…