Dinucci v. Clifford

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GINO DINUCCI, Plaintiff, v. WILLIAM J. CLIFFORD, Defendant.

Civil Action No. 21-2292 (GRB)(LGD)

United States District Court, E.D. New York

June 6, 2023

MEMORANDUM AND ORDER

GARY R. BROWN, United States District Judge:

The illustrious Oxford English Dictionary defines that vulgar though common idiom “sh*t happens” as denoting the unpleasant truth that “bad things often happen unavoidably” and “expressing a resigned attitude [that] these things happen, such is life.” Sh*t, Oxford English Dictionary (3d ed. 2011) https://www.oed.com/view/Entry/178328. One can easily understand plaintiff's resort to this expression to describe the occurrence that led to this case.^[1]

Factual Background

The facts, viewed in light most favorable to plaintiff, are undisputed except where otherwise stated and are as follows. This case involves a personal injury arising out of a unique activity: hand propping^[2] a vintage 1930 Brunner-Winkle Bird aircraft (the “Bird”). Plaintiff Gino DiNucci (“plaintiff”) and defendant William J. Clifford (“defendant”) are antique aircraft enthusiasts and hobbyists, each of whom owns several vintage aircraft. Docket Entry (“DE”) 254 ¶ 45; DE 25-1, Ex. 1 at 7:9-13; DE 25-1, Ex. 2 at 40:3-7.

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Though described as a hobbyist and enthusiast, plaintiff is no amateur. He has extraordinary experience in maintaining and repairing aircraft. While serving approximately six years in the United States Army, plaintiff attended helicopter and aircraft maintenance schools, spending 50% of his time performing aircraft maintenance on “[e]verything the army had.” DE 25-1, Ex. 2 at 10-12. Outside of the Army, plaintiff earned multiple aviation certifications including private pilot, commercial pilot, instrument pilot instrument instructor, flight instructor, seaplane instructor, and inspection authorization. DE 25-4 ¶ 12. Plaintiff also worked for Trans World Airlines as an aircraft mechanic for 10 years and then as a crew chief for over 25 years. Id. ¶ 17.

All the while, plaintiff performed aircraft maintenance as a sideline, sometimes for compensation but “[t]oo many times” for free. DE 25-1, Ex. 2 at 20:6-12. To maintain good standing with his inspector authorization certificate plaintiff performed at least ten inspections per year on individual aircraft. DE 25-4 ¶¶ 22-23.

The parties met at the Bayport Aerodrome^[3] approximately thirty years ago. Id. ¶ 25. Soon after, plaintiff began performing inspections and maintenance on defendant's vintage aircraft, including the Bird. Id. ¶ 27. At the time, the Bird had a Kinner K-5 engine and air starter system, which allowed the Bird to be started without hand propping. DE 25-1, Ex. 1 at 20:11-15. In spring 2002 plaintiff helped defendant install a new Kinner R-55 engine in the aircraft. DE 25-4 ¶ 29; DE 25-1, Ex. 4 at 7. While a starter system could have been installed with the new engine, defendant testified that he spent years searching for a compatible electric starter but had difficulty obtaining one because “[a]ny time you find one, it's already sold.” DE 25-1, Ex. 1 at 23-24. So, since 2002, the Bird has lacked a starter system and has needed to be hand propped. Id. at 21:1821; DE 25-7 ¶ 9.

Like his experience in maintaining aircraft, plaintiff is no stranger to hand propping vintage airplanes. In fact, with respect to hand propping, plaintiff advises that he is the “guy who teaches them how to do it” and that he has “shown them all how to do it.” DE 25-4 ¶ 37. Plaintiff's own fleet included a vintage 1946 Piper J-3 aircraft, which plaintiff hand propped himself approximately 500 times before its restoration in 2018. Id. ¶ 15.

Plaintiff also has considerable experience hand propping the Bird. Proclaiming to be “the more experienced hand propper [of the Bird],” plaintiff hyperbolizes that he has hand propped it- with its new engine-“a million times,” though his actual estimate is “[p]robably 100.” DE 25-5 ¶¶ 33-35. Plaintiff felt “comfortable hand-propping the ‘Bird' aircraft with [defendant] in the cockpit.” Id. ¶ 35. And plaintiff has only ever hand propped the Bird for recreational purposes and has neither sought nor received compensation for doing so. Id. ¶¶ 46, 47.

As someone who has been “[hand] propping for a long time,” plaintiff does not dispute that he was well aware of the risks involved. See DE 25-1, Ex. 2 at 35:9-10. When asked if he was aware of the risk of injury poised by hand propping the Bird, plaintiff testified “[w]e're always aware of it. That's why we take the precautions that we do.” Id. at 114:3-8. Plaintiff also alleged in his second amended complaint that “[h]and propping aircraft is an inherently risky activity and, according to the Federal Aviation Administration, is ‘extremely dangerous if even all goes as planned.'” DE 25-4 ¶ 40; DE 18 ¶ 18. To be sure, plaintiff admitted that “[a]t the time of the accident, [he] was aware of the risk of injury posed by hand-propping aircraft and the risk of injury posed by hand-propping the ‘Bird' aircraft.” DE 25-4 ¶ 38.

On September 16, 2018, the parties were at the Bayport Aerodrome attending the annual neighborhood appreciation picnic (“Neighbor's Day”), during which members of the local community would come together to tour and fly in vintage aircraft. Id. ¶ 48. To take part in the Neighbor's Day festivities, defendant took the Bird out for a few flights, each time being hand propped by individuals other than plaintiff and all without incident. Id. ¶ 2; DE 25-1 at 37:6-20. Defendant did not ask plaintiff to hand prop the Bird that day. DE 25-4 ¶ 4.

Preparing for another flight, defendant arranged for a man named Nick to hand prop the Bird. DE 25-1, Ex. 2 at 9:18-19. But when Nick stood ready at the Bird's propellor, plaintiff- without any communication with defendant-stepped in and told Nick that he would hand prop the Bird instead. DE 25-4 ¶¶ 3, 4. Nick moved out of the way, and plaintiff readied himself at the propellor. See id. Plaintiff grabbed the Bird's propellor and pulled down, starting the engine “as expected.” DE 25-4 ¶ 7. But for some unknown reason, the propellor allegedly “sort of slowed down” before firing again, striking and nearly severing plaintiff's arm before he was able to move out of the way. DE 25-1, Ex. 2 at 72:19-24, 78:3-32. Defendant heard the propellor hit plaintiff's arm and immediately shut down the Bird. DE 25-4 ¶ 7. Plaintiff was taken to the hospital and treated for his injuries. DE 25-1 at 80:4-6.

While the exact cause of the propellor to allegedly “slow down” is unknown, the Bird appears to have been in good working condition at the time of the accident. Plaintiff believes that the Bird was in airworthy condition on the day of the accident and even conducted the most recent inspection of the Bird prior to the accident. DE 25-4 ¶¶ 27, 31. Additionally, the FAA has not issued any “Airworthiness Directive” concerning the Bird aircraft or its engine. Id. ¶ 28. Nevertheless, this suit followed.

Procedural History

Plaintiff commenced this action against defendant on April 26, 2021, alleging three causes of action in his second amended complaint: (1) negligence, (2) strict liability, and (3) violation of New York General Business Law § 251. After the close of discovery, defendant requested a premotion conference seeking leave to file a motion for summary judgment. On July 1, 2022, the Court held a pre-motion conference and set a briefing schedule for defendant's motion for summary judgment. On September 29, 2022, defendant filed his motion for summary judgment, plaintiff's opposition, defendant's reply thereto, and all accompanying Rule 56.1 statements, declarations, and exhibits. This opinion follows.

Discussion Standard of Review

This motion for summary judgment is decided under the oft-repeated and well understood standard for review of such matters, as discussed in Bartels v. Inc. Vill. of Lloyd Harbor, 97 F.Supp.3d 198, 211 (E.D.N.Y. 2015), aff'd sub nom. Bartels v. Schwarz, 643 Fed. App'x. 54 (2d Cir. 2016), which discussion is incorporated by reference herein.

Preemption by the Federal Aviation Act

The Court must first determine what effect, if any, the Federal Aviation Act of 1958, 49 U.S.C. § 40101, et seq. (the “FAA”) has on plaintiff's claims. Under the Supremacy Clause of the Constitution, state and local laws that conflict with federal law are “without effect.” Altria Grp., Inc. v Good, 555 U.S. 70, 76 (2008) (quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). There is, however, an “assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). So, the key inquiry of a preemption analysis is to determine the intent of Congress, who may indicate preemptive intent expressly through a statute's language or implicitly through its structure and purpose. Id. (citing Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)).

Analyzing a statute's structure and purpose, Congress may indicate preemptive intent through “field preemption,” which exists where “Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law.” Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 351 (2d Cir. 2008). In determining whether a federal law has field-preemptive effect, a district court must determine (1) that Congress possessed the “intent to preempt,” and (2) what “the scope of that preemption” is. Goodspeed Airport LLC v. E. Haddam Inland Wetlands & Watercourses Comm'n, 634 F.3d 206, 211 (2d Cir. 2011).

As to the first prong, it is well-established that “Congress intended to occupy the field of...