# FILED
September 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
GODWIN AIRCR

AFT, INC., ) a Tennessee Corporation, ) ) Plaintiff/Appellee, ) Shelby Circuit No. 76548 T.D. ) VS. ) Appeal No . 02A01-9708-CV- 00187 ) WAYNE WALKER, ) ) Defendant/Appellant. )
APPEAL FROM

THE CIRCUI T COURT OF SH ELBY COUN TY AT MEMPHIS, TENNESSEE THE HONORABLE KAREN R. WILLIAMS, JUD GE

ALAN E. GLENN Memphis, Tennessee Attorney for Appellant

MICHAEL RICHARDS BAKER, DONELSON, BEARMA N & CALDWELL Memphis, Tennessee Attorney for Appellee

REVERSED AND

RENDERED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. Defendant/appellant

appeals the judgment of the trial court finding him 90% at fau lt2

fordamages to plaintiff/appellee’s ai rplane. Plaintiff/appellee raises an issue regarding the trial court’s finding that

it was 10% at fault. For reasons stated hereinafter, we rever se the judgment of the trial court findi ng plaintiff/appellee to be 10% at fault.
Plaintiff/appellee, Godwin Aircraft, Inc. (“appellee”), is eng aged in the business of selling and/or leasing priv ate aircraft. On September 25, 1995 , defenda nt/appellant, Wayne Walker (“appellant”), leased a 1974 58 Series Beechcraft Baronfrom appellee for $225 per hour. This aircr aft is a twi n engine p lane wi th retractable landing gear. Upon returning from a t rip to Vicksburg, Missi ssippi, appellant landed the ai rcraft at General Dewitt Spain Airport in Memphis, Tennessee. After taxi ing down the runway approximately 1800 feet, intending to raise the flaps, appellant reached over and pulled the landing gear retraction lever

instead. This resulted

in the retraction of the landi ng gear thereby caus ing damage to the aircraft as a consequence of the contact wi th the ground by both the body of the airplane and its rotating propellers.

On this airplane there is a mechanical device called a squat switch that w hen working properly , prevents an airplane l anding gear from retracting w hen on the ground. In this instance, the squat switch did not work as evidenced by the airplane’s descentupon the activation of the landing gear retraction lev

er by appellant.
Appellantis a full-time, professional pilot, with approx

imately 9,000 hours of total flighttime. He has been a flight instructor for more than 20 years and has flown bet ween 800 and 1,000 hours in Beechcraft Baro n aircrafts. In particular, appellant has flown the specific airplane in ques tion approximately 25-

30 hours.
The flap lever is located to the left of the middle control panel i n the 197 4 Beechc raft Baron 58 series. It is flat and of a different color from the landing gear retraction lever. The landing gear retrac tion lever is approx

imately 14 inches to the r ight of the flap lever

on the opposite side of the middle control panel. In contrast to the flap lev er, the landing gear retraction lever is

round in shape and white i n color.3

At trial, appellant admitted tha t touching the landing g ear retraction lever while the aircra ft is on the ground violates a cardinal rule of safety, pil ot checklist procedures, a nd FAAGuidelines. Indeed, he acknow ledged that as a flight ins tructor he w

oul d always caution his students to never mov e the landing gear retr

action lever while the

airplane was
on the ground because airplan es were subject to mechanical problems. Appellant explained that these mechanical problems can sometimes resu lt in retraction of the landing gear in spite of the implementati on of safety devices to prev ent such occurrences.

After the accident, the airplane w as inspected by Glen Mitchell, an A&P mechanic with 53 years experience.Mitchell was as siste d by another A&P mechanic, William Bryner, to place jacks und er t he airplane and determine whether or not the squat switch
on the airplane was

in working order. Mitchell testified that he jacked the airplane up off the ground, placed a

jack under the left landing gear strut, raised it approximatel y 1 inch, and marked the position to determin e where the s trut should be for on-the-gr ound operation. Mitchell and Bryner then jacked the airplane down to place w eight on the strut thereby activating the sq uat switch. T he sq uat switch warnin g horn sounded, and the switch operated thereby disabling the landing

gear from retracting.
Appellee filed this suit allegi ng negligence, breach of express contract, and breach of bailment contract as seen in Tenn. Code Ann. § 24-5-11 1. Appellant fil ed his answ er admitting his negligence, but per sisted to lay

blame on appellee for the failing squatswitch. Appellant, in his a nswer, contended that no express contract existed with appellee. He further denied the existence of a bail ment situation between the par ties. The trial in this matter was had on July 7, 1997, in the Circuit Court of Tennessee for the Thirtieth Judicial District at Memph is.Judge Karen Williams presided.Judge Williams heard the testimony of appellee and appellant, two mechanics who inspected the airplane’s safety device after the incident occurred, and s everal other witnes

ses.

At the conclusion of the trial, th e trial court found that appellee’s airplane had sustained damages in the amount of $31,212.00, but found that appellee was

10% at fault4

in this matter

and thereby

reduced the j udgme nt by 10% f or a total judgment of $28,091.00. More specifically, the trial court stated:

On the other hand , I belie ve this is a comparativ e fault case. If the f ai l-safe sys tem had wo rked, the plane cou ld not ha ve crashed. So at that moment that system w asn’t working. But nothing would have gone wrong had not the defendant pulled the wrong lever. Similarly, the tri al court, in its final ju dgment, provided in perti nent part:

From all of w

hich the Court fi nds that

Plaint iff i s guilty of compara tive negligence in the amount of 10% and Defendant is guilty of comparati

ve negligence in the

amount of 90%. This appeal followed.

This case was tried

by a court sitting without a j ury. Thus, we rev iew the case de
novo upon the record with a pr esumption of correctness of the findings of fact by the

trial court. Unl ess t he evidence preponderates ag ainst the findings, we mus t affirm, absent error of law. Tenn. R. App. P. 13(d).

Several procedural issues aris e out of the facts of this case, particularly, whether principles

of comparative fault apply t o bailment situations and w hether comparative fault was, indeed, plead by

appellant, and if not whether the issue of compara tive fault was tried with the implied consent of the parties under Tenn. R. Civ. P. 15. 02. However , th ese issues are of no consequence in this matter. Although, clearl y, appellee owed a duty of due care when leasing appe llantthe airplane in question, there is insufficient evidence in the record of appellee’s negli gen ce in breaching this duty . This is true regardl ess of whether one analyzes the facts in this matter under bailment doctrine or under a negligence/comparativ

e negligence line of reas oning.

More specifically, appellee’ s breach of bailment contract cl aim under Tenn. Code Ann. § 24-5-111 involv es negligence. Tenn. Code A nn. § 24-5-111 provides: In all actions by a bailor against a bailee for loss or damage to perso nal property, proof by t he bailor that the property w a s delivered to the bailee in good condit ion and that it was not returned or redelivered accor ding to the contract, or that it was returned or redelivered in a damaged condition, sha ll con stitute prima facie evidence that the bailee was negligent, pr ovided5 the loss or damage was not due to the inherent nature of the property bailed. There is ample evidence that appel lee delivered the airpl ane “in good condition.” On one hand, appellant contends that the facts in this case do not fall within the parameters of the above statute because of the failure of the sq uat switch on appellee’s airplane, but

on the othe rhand, appellant admits in his answ er that the airplane was delivered “in good condition.”It is the opinion of this Co urt th at the e vidence in the record ev inces that the airplane was deliv

ered in good condition. The ai rplane passed its annual ins pections as required by the FAA, and the squat switch was operable upon inspection after the incident at issue occurred. As such, under Tenn. Code Ann. § 24-5-111, this constitutes

prima facie evidence that the appellant w as negligen t i n returning the airplane in the damaged condition. Appellant fails to r ebut this evidence. In fact, he admits the fact that he was negligent, but insist that appellee shou ld be held responsible for the d am age to th e a irplane because of the failure of the squat sw itch on said plane. In doi ng so, however , appellantfa ils to set forth any evidence in the record to persuade this Court to hold appellee responsible for any amount of the damages to the airplane.
Along these lines, appellant contends that appellee has failed in its duty to inspect the airplane under 8 Am Jur 2d § 165, “Bailments.” Section 165 pr ovides in pertinent part : Section 165. Bailor’s duty to inspe ct. If the su bject of a bailmentfor hire is of su ch a nature that its use threatens serious danger

to others unless it is in good condition, there is a positive duty on the part of the bailor to take reasonable care to ascertain its condition by inspection. Failure to do so ma y be n egligence without actual knowledge on the pa rt of the bailor of any d efect or of facts sufficient to stimulate investigation. Appellantonce again has failed to document an y evidence in the r

ecord o f appellee’s failure to positively inspect the airplane. In fact, quite the opposite is true. The evidence displayed in the rec ord illustrates that appel lee’s airplane passed its yearly FAA inspec

tions and, indeed, passed the post-accident inspection performed by A&P mechanics Mitchell and Bryner. In light of this, we see no basis to support a 10% reduction of judg ment from appellee.6

I n summar y, whether t he trial co urt proce eded und er a neglige nce/com parative negligence line of reasoning or under the do c trine of bailment is inconseq uential. The result in this case is the same. What is noticeably absent from the rec ord and ultimately fatal to appellant’s case is the fact that there is absolutely no ev idence that appellee was negligent. The mere failure of the squat switch in appellee’s airplane is not negligence in and of itself. I ndeed, appellant admitted that there a re a “large amount of mechanical problems

with airplanes,” i n fact, causing the landing gear to retract whi le on the ground despite the imp lem entation of safety systems to prevent such fro m occurring. Undoubt edly, appellee had a duty of due care i n leasing the ai rplan e in question to appellant. However, the record is devoid o f any evide nce that appellee breache d this dut y. There is no evidence of appellee’s failure to inspect the airplane or that appellee knew or shoul d have kn own that the squat sw itch in the airplane w

as defective. There is no evidence by appellant

of a ppellee’s inspection proc ess or lack thereof. There is no evidence by appellant of directiv es from the FAA or Beechcraft as to req uired inspections
or the frequency of such, if required. Without evidence of appel lee’s breach of his duty of due care toward appellant, appellee cannot beheld responsible for 10% of the damage to his airplane.

Accordin gly, we reverse th e judgment of the trial court and render judgment for appellee in the amount of $31,212.00. Costs are taxedto appellant, for which ex ecution may issue if necessary

.

HIGHERS, J.7

CONCUR:

FARMER, J.

LILLARD, J.