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PALISCHAK v. ALLIED SIGNAL AERO. CO.

July 3, 1995

JOAN PALISCHAK, Co-Executor of the Estate of J. Meade Williamson, Deceased, Plaintiff,
v.
ALLIED SIGNAL AEROSPACE COMPANY, Bendix/King General Avionics Division and the UNITED STATES OF AMERICA, Defendants, JOAN PALISCHAK, Co-Executor of the Estate of J. Meade Williamson, Deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: JOSEPH E. IRENAS

 IRENAS, District Judge:

 These are personal injury actions arising from plaintiff's decedent's airplane crash into the Atlantic Ocean. Defendant United States moves to dismiss Palischak v. U.S., 893 F. Supp. 341, and defendants, Allied Signal and United States, move for partial summary judgment in Palischak v. Allied Signal Inc., 893 F. Supp. 341. For the reasons below, defendant United States' motion to dismiss will be denied and the two actions will be consolidated. Defendants' motion for partial summary judgment will be granted in part and denied in part.

 I. FACTS

 At approximately 12:16 p.m., on January 13, 1992, plaintiff's decedent, J. Meade Williamson, took off from Millville, New Jersey in a Cessna 421C airplane. Williamson intended to fly from Millville, New Jersey to Sebastian, Florida. At approximately 4:06 p.m., radar contact with Williamson was lost while he was flying over the Atlantic Ocean off the coast of Florida.

 The following day, the right wing and other debris from the aircraft were located in the Atlantic Ocean approximately 20 miles off the coast of Florida. *fn1" On March 2, 1992, the main body of the wreckage was discovered 22 nautical miles off the coast of Florida. *fn2"

 On January 11, 1994, plaintiff filed a claim against the United States Federal Aviation Administration pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2401 et seq. ("FTCA"). On January 12, 1994, plaintiff also commenced a suit in Federal court. That suit was docketed as 94-cv-178(JFG) and named both the United States and Allied Signal as defendants. Plaintiff alleged negligence by defendant United States, for the actions of its air traffic controllers. Plaintiff sued Allied Signal, the manufacturer of the Cessna's radar system, on theories of products liability. Plaintiff asserted several grounds for federal jurisdiction: admiralty jurisdiction, diversity of citizenship, and the United States as a party.

 On September 28, 1994, after the denial of her FTCA administrative claim, plaintiff filed a second lawsuit against the United States. This second suit was also based on the negligence of the air traffic controllers, but this time alleged jurisdiction under the FTCA and was docketed as 94-cv-4768(JFG). The two cases were never consolidated.

 The United States has filed a motion to dismiss the plaintiff's claims in Palischak v. U.S. based on lack of subject matter jurisdiction because plaintiff did not file suit within the applicable statute of limitations. Both defendants have moved for partial summary judgment in Palischak v. Allied Signal Inc. on four grounds. First, defendants argue that plaintiff is barred from claiming any damages under New Jersey's Wrongful Death Act. Second, defendants argue that plaintiff is barred from claiming any nonpecuniary damages under the Death On the High Seas by Wrongful Act statute ("DOHSA"), 46 U.S.C. App. § 761, et seq. Third, defendants argue that plaintiff is barred from maintaining a survival action. Finally, defendants argue that plaintiff in not entitled to a trial by a jury.

 II. ANALYSIS

 A. Jurisdiction

 While both parties agree that this court has jurisdiction to hear this matter, the parties disagree as to the basis of this court's jurisdiction. The defendants contend that jurisdiction is based on admiralty, specifically on DOHSA. Plaintiff argues that jurisdiction is not based on admiralty, but instead, is based on diversity and because the United States is a defendant.

 On its face DOHSA is applicable:

 
Whenever the death of a person shall be caused by wrongful act, neglect, or a default occurring on the high seas beyond a maritime league *fn3" from the shore of any state, . . . the personal representative of the decedent may maintain a personal suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependant relative.

 46 U.S.C. App. § 761.

 The plaintiff argues that the two-pronged test set forth in the Supreme Court decision in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972), must be met before we can apply the provisions of DOHSA. The Court in Executive Jet held that for admiralty jurisdiction to exist, the court must find that the accident in question occurred on the high seas and that such accident has a nexus to traditional maritime activity. Executive Jet, 409 U.S. at 268. Plaintiff argues that the mere fortuity that the plane crashed outside the three mile territorial limit of a state is not sufficient to establish admiralty jurisdiction. *fn4"

 
To the extent that the terms of the Death on the High Seas Act become applicable to such flights, that Act, of course, is "legislation to the contrary."

 Executive Jet, 409 U.S. at 274 n.26; see also id. at 271 n. 20. The Court also stated that:

 
many actions for wrongful death arising out of aircraft crashes into the high seas beyond one maritime league from shore have ben brought under the Death on the High Seas Act and federal jurisdiction has consistently been sustained in those cases. Indeed, it may be considered as settled today that this specific federal statue gives the federal admiralty courts jurisdiction of such wrongful death actions.

 Id. at 263-64 (footnote omitted).

 Despite this clear language, plaintiff cites several subsequent lower court decisions which required a showing of significant maritime activity before applying DOHSA. See, e.g., Miller v. United States, 725 F.2d 1311 (11th. Cir.), cert. denied, 469 U.S. 821, 83 L. Ed. 2d 40, 105 S. Ct. 94 (1984) (DOHSA provides jurisdiction over aviation accident between the United States and the Bahamas because there is a nexus to traditional maritime activities); Kuntz v. Windjammer "Barefoot" Cruises, Ltd., 573 F. Supp. 1277 (W.D. Pa. 1983), aff'd, 738 F.2d 423 (3d. Cir.), cert. denied, 469 U.S. 858, 83 L. Ed. 2d 121, 105 S. Ct. 188 (1984) (DOHSA provides jurisdiction over accident during cruise where there is a nexus to traditional maritime activities); Brons v. Beech Aircraft Corp., 627 F. Supp. 230 (S.D. Fla. 1985) (state law, not DOHSA, applies to claims arising from an accident in which a plane traveling between two points in Florida crashed on the high seas).

 Any confusion on this issue was cleared up when the Supreme Court issued its decision in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 91 L. Ed. 2d 174, 106 S. Ct. 2485 (1986). In Tallentire the Court made clear that admiralty jurisdiction is expressly provided under DOHSA whenever the accidental death occurred more than a maritime league off shore. Id. at 218. After the Court's decision in Tallentire lower federal courts have found that:

 
the two-pronged test referred to in Executive Jet . . . only applies in the absence of a statute to the contrary, and the Supreme Court in Executive Jet repeatedly and explicitly emphasized that DOHSA was such a statute . . . therefore, the requirement of a traditional maritime nexus is not a ...

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