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Lewis Webb, Jr., An Individual v. Estate of Timothy Cleary

January 20, 2011


The opinion of the court was delivered by: Honorable Ronald B. Leighton



THIS MATTER comes before the Court upon motion for summary judgment filed by defendant, Twin Palms Aviation, Inc. ("TPA") [Dkt. #73]. The Court has reviewed the materials filed for and against the motion and heard argument of counsel. For the following reasons, the motion is GRANTED.


Plaintiffs Lewis Webb, Jr. and Michael L. Webb seek damages arising out of an air crash in which Michael Webb was seriously injured and Lewis Webb's plane was destroyed. Plaintiffs' separate complaints were consolidated by this Court. The accident occurred on October 28, 2007 at the Bermuda Dunes Airport. The plane was occupied by Michael Webb, a student pilot, in the left seat and Timothy Cleary, a flight instructor, in the right. The parties dispute who was operating the aircraft when it experienced an aerodynamic stall during "touch and go" drills at the airport. The stall caused the crash. The accident aircraft was owned by Michael Webb's grandfather, Lewis Webb. Michael Webb was injured in the crash; Timothy Cleary was killed. Cleary's blood alcohol content was .31% immediately after the accident. Plaintiffs assert that Timothy Cleary's negligence caused the accident and that Cleary was acting as the apparent or ostensible agent of TPA at the time.

Tim Cleary worked as an independent contractor for TPA until September 24, 2007. On that date he was terminated via written letter handed him by TPA's chief pilot, Chuck Sweet. The reason for termination was the smell of alcohol on Cleary's person while on airport grounds. That same date, Jim Kuhn, TPA's owner/operator died unexpectedly. After delivering the termination letter to Cleary, Sweet returned to the flight school to shut it down due to Kuhn's death. The school remained closed until October 11, 2007 when it re-opened for flight instruction.

Three generations of Webbs took flight lessons from TPA starting in 2004 when Tim Cleary instructed Lewis Webb in a TPA-owned aircraft. Tim Cleary continued to instruct Lewis Webb, and then his son, Robert Webb, and then his grandson, Michael Webb. Cleary and the Webbs were friends outside the student-instructor relationship. Even prior to the first instructional flight on April 13, 2004, Lewis Webb had flown with Cleary in TPA aircraft about six times.

On the date of the accident, Lewis Webb knew that Jim Kuhn had died and that the flight school (TPA) had closed. He did not know the then-current status of the business. Unlike all prior instructional flights involving Cleary and the Webb family, the accident flight was not arranged through TPA and was not placed on TPA's master calendar. The flight instruction fee was not paid to TPA; rather, Lewis Webb wrote a $500 check to Timothy Cleary. He did so as a loan in response to Cleary's claims that TPA owed him money but it was difficult to obtain due to the probate of the Estate of Jim Kuhn. Regardless of the designation of the $500 check, all prior costs for Michael Webb's flight instructions were paid by Lewis Webb directly to TPA by checks made payable to "Twin Palms Aviation."

At no time prior to the accident did TPA notify the Webbs that Timothy Cleary had been terminated or the reason for his termination.


Summary Judgment Standard.

Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). "The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient." Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, "summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable [fact finder] could return a [decision] in its favor." Triton Energy, 68 F.3d at 1220.

TPA's Liability for the Actions of Timothy Cleary is Determined According to Federal Law.

It is undisputed that Timothy Cleary was intoxicated at the time he was instructing Michael Webb on take offs and landings on October 28, 2007. As a licensed flight instructor, he was the pilot in command. At a minimum, he was a proximate cause of the accident. The question posed by defendant's motion is whether Cleary's former employer is liable for the damage Cleary caused during a flight the former employer knew nothing about. Plaintiffs theorize that the state law principle of "ostensible agency" provides the basis for such liability. Defendant ...

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