Kathleen Johnson wins dismissal and summary judgment motions in federal aviation incident suit.

In a case arising from an airplane wire-strike incident, United States District Court Judge Wiley Y. Daniel granted dispositive motions filed by TAM Aviation Group attorney Kathleen Johnson on behalf of both the airplane’s owner and its operator.

In support of the strict liability claim against the aircraft owner, the plaintiff–a driver on I-70 whose vehicle was hit by the wires struck by the military trainer jet–alleged that as the owners of the aircraft who consented to its operation, the owner should be strictly liable for any damages caused by the pilot’s actions. Ms. Johnson moved to dismiss the claims against the owner on the grounds that any claims against the owner were preempted 49 U.S.C. § 44112(b) of the Federal Aviation Act. Judge Daniel held that Plaintiff’s allegations that the owners consented to the use of the airplane were inadequate to impart liability to the airplane owner. The Court expressly rejected the rationale that an owner is liable for the conduct of one to whom he entrusts an airplane, regardless of the degree of control maintained by the owner.

Plaintiff also alleged that both the owner and operator should be held strictly liable for the pilot’s actions because the incident flight was an ultrahazardous or abnormally dangerous activity. Ms. Johnson filed a motion for summary judgment on this claim arguing that the flight of the aircraft was not an ultrahazardous activity. In response, Plaintiff argued that the manner in which the airplane was flown (at low altitude) created an ultrahazardous risk to both people and property. The Court rejected Plaintiff’s argument stating that “As . . . Defendants note, [Plaintiff’s argument] is predicated upon the manner in which the activity was conducted by [the pilot] rather than the activity itself.” The Court granted the motion noting that there was no evidence that the flight itself, without regard to the pilot’s actions, was dangerous.