text:
    Wanza Smith McGuffie, wife of/and Danny Paul McGUFFIE v. TRANSWORLD DRILLING COMPANY.
    Civ. A. No. 84-2224.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    Dec. 9, 1985.

      Abadie, Harang & Coluin, Peter J. Abadie, Jr., New Orleans, La., for plaintiffs.
    Deutsch, Kerrigan & Stiles, Howard L. Murphy, Christopher Tompkins, New Orleans, La., for defendant.
   RULING ON POST TRIAL MOTION

W. EUGENE DAVIS, Circuit Judge, sitting by designation.

The defendant, Transworld Drilling Company (Transworld), filed a motion for judgment notwithstanding the verdict and alternatively for new trial following entry of a judgment on a verdict awarding compensatory and punitive damages against it. The only serious question presented in these motions is whether the punitive damage award should be allowed to stand. Because the award is bottomed solely on the reckless or wanton act of defendant’s foreman or toolpusher, committed without knowledge or approval of officials of Transworld, I conclude that the judgment must be modified to delete the punitive damage award.

I

Viewing the evidence in a light most favorable to the plaintiff, the jury was entitled to accept the following version of the facts:

Plaintiff Danny Paul McGuffie’s action under the Jones Act and general maritime law arose out of his employment as a roughneck aboard the jackup drilling rig TRANSWORLD NO. 59. Plaintiff’s seaman status was conceded by the defendant.

The TRANSWORLD NO. 59 and her crew were engaged in drilling an oil well in the Gulf of Mexico on June 7, 1984, the date of the accident. Mr. McGuffie began his work shift around noon on the day of his injury. His crew continued the work of running pipe in the hole that the previous crew had started. The pipe that was to be run in the hole was stored in racks on a level of the rig approximately twenty feet below the rig floor where plaintiff worked and where the pipe was stabbed into the hole to be lowered into the well. The particular operation that caused the accident related to the transfer of the pipe from the pipe rack level of the rig up to the drill floor. This transfer was accomplished by tying one end of a line to a length of pipe; the opposite end of the line was made fast to a mechanical hoist and when power was applied to the hoist, the pipe was pulled up a ramp onto the rig floor. When the pipe reached the rig floor, plaintiff and his fellow crewmembers stabbed the pipe into the hole and then the pipe was lowered into the well.

Shortly after plaintiff began his work shift that day, plaintiff and his fellow crew-members saw that joints of pipe were frequently hanging up on the ramp, which caused difficulty in pulling the pipe up from the pipe rack to the drill floor. Closer inspection revealed that a portion of the metal ramp was broken and the bottom of the length of pipe was hanging up on the rough edges of the fractured metal. At times when a length of pipe hung up and the hoist continued to pull on it, the pipe would suddenly jerk free and catapult upwards onto the rig floor. When the bottom end of the pipe cleared the top of the ramp, the joint of pipe would swing out of control around the work area of the rig floor. This sent plaintiff and his fellow workers scurrying for cover behind or under some heavy object to protect them from the swinging pipe. After this occurred two or three times, the driller, plaintiff’s immediate supervisor, called Mr. Joe Sadler, the toolpusher and foreman of the Transworld personnel aboard the rig, and asked for a welder to repair the broken ramp. The toolpusher refused to halt the job and allow the ramp to be repaired on grounds that it required too much time at this particularly critical phase of the operations. During that afternoon, the driller repeated his request two or three times and the toolpusher consistently refused the requests to repair the broken ramp. The plaintiff and his fellow crewmembers continued this operation until approximately 6:30 p.m. when plaintiff was struck by a joint of pipe after it catapulted, out of control, on the rig floor.

Mr. Sadler, as toolpusher, was the supervisor in direct charge of the TRANS-WORLD 59 and all Trans world employees aboard the rig. No evidence was adduced indicating that Mr. Sadler had any authority or responsibility beyond the operations aboard the TRANSWORLD 59 and the employees assigned to the rig.

At the close of the evidence, I was persuaded that the jury was entitled to conclude from the testimony that Mr. Sadler was reckless and wanton in declining to repair the ramp and avoid the extreme hazard created by this defect. I did not focus on the total absence of evidence of knowledge by corporate officers or policymakers that Mr. Sadler would respond as he did to the dangerous conditions aboard the vessel.

Defendant’s motion for directed verdict was denied and the jury, in response to special interrogatories, found the defendant negligent, the vessel unseaworthy and no contributory fault on the part of the plaintiff. The jury fixed plaintiff’s compensatory damages at $693,520 (plus $15,-000 to Mrs. McGuffie) and assessed $500,-000 in punitive damages against defendant.

II.

We now turn to the issue at hand: Can the isolated negligent conduct of a foreman committed without the knowledge or approval of the employer serve as a predicate to impose punitive damages against the employer? We look to the general maritime law for a solution.

The Complaint of Merry Shipping Co., 650 F.2d 622 (5th Cir.1981), the seminal case in this circuit which permitted recovery of punitive damages under the general maritime law, did not face the question which confronts us today. Several courts have faced this problem, however, and except for a single Ninth Circuit case, all the cases we discovered, which were decided under the general maritime law, are in accord. They hold that the principal or master cannot be cast for punitive damages for the willful or reckless act of the agent or employee unless the act was committed with the approval or knowledge of the principal.

This issue was first presented to the Supreme Court in an admiralty case in The Amiable Nancy, 16 U.S. (3 Wheat) 546, 4 L.Ed. 456 (1818). In this case, the plaintiff’s ship was boarded and plundered by the crew of a vessel owned by the defendants. The court considered whether the defendants were responsible for punitive damages for the malicious acts of its crew committed without the approval or knowledge of the defendant. The Court stated:

Upon the facts disclosed in the evidence, this must be pronounced a case of gross and wanton outrage, without any just provocation or excuse. Under such circumstances, the honor of the country and the duty of the court equally require that a just compensation should be made to the unoffending neutrals, for all the injuries and losses actually sustained by them. And if this were a suit against the original wrong doers, it might be proper to go yet further, and visit upon them in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered, that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of the opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libelants, but they are not bound to the extent of vindictive damages.

16 U.S. at 558-59, 3 Wheat at 558-59.

In Pacific Packing & Navigation Co. v. Fielding, 136 F. 577 (9th Cir.1905), the captain of the defendant’s vessel falsely imprisoned the ship’s purser. The district court cast the shipowner for punitive damages and the circuit court reversed. The court relied heavily upon The Amiable Nancy and Prentice and concluded that punitive damages can only be awarded against one who has participated in the offense.

In a more recent opinion, U.S. Steel v. Fuhrman, 407 F.2d 1143 (6th Cir.1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2162, 26 L.Ed.2d 542 (1970) a vessel owned by the defendant, U.S. Steel, collided with another ship in a heavy fog. Within a few minutes after the collision, Captain Joppich of the CEDARVILLE decided to beach the vessel rather than abandon ship. This proved to be a disastrous error in judgment because the ship capsized during its attempted run for the beach and ten crewmembers were drowned. The district court imposed punitive damages against U.S. Steel on grounds that its officials, who were in radio contact with Captain Joppich, should have intervened and countermanded the captain’s order to beach the vessel and that failure to do so was in callous disregard of the duty of U.S. Steel to its crewmembers. The district court also found that the officials of U.S. Steel routinely ordered its ships to proceed at full speed in fog and deviate from recommended courses. The Sixth Circuit found both of the above factual findings of the district court clearly erroneous. The Sixth Circuit then considered whether the acts of Captain Joppich could be imputed to U.S. Steel and serve as a basis for the punitive damage award:

We think the better rule is that punitive damages are not recoverable against the owner of a vessel for the act of the master unless it can be shown that the owner authorized or ratified the acts of the master either before or after the accident. Punitive damages also may be recoverable if the acts complained of were those of an unfit master and the owner was reckless in employing him. Lakeshore & Michigan Southern Railway Co. v. Prentice ...; The Amiable Nancy ... Pacific Packing & Navigation Co. v. Fielding....

407 F.2d at 1148.

The only other expression on this question in an admiralty case by the Supreme Court or a federal court of appeals since that time that we have discovered is Protectus Alpha Navigation Co. v. North Pacific Grain Growers, 767 F.2d 1379 (9th Cir.1985). In Protectus, the Ninth Circuit affirmed imposition of punitive damages against the owner of a dock terminal for the reckless conduct of its dock foreman. The plaintiff established that a vessel caught fire while tied up at defendant’s dock. When the flames were almost under control, defendant’s foreman arrived on the scene and insisted on casting off the ship. The vessel then drifted away from the firefighting equipment positioned on the dock and at least one fireman left aboard the vessel was killed, another seriously injured and the vessel ultimately destroyed. The Ninth Circuit, relying primarily on the Restatement of Torts, held that the defendant was properly cast for punitive damages because Anderson, its foreman, was a managerial employee acting in the scope of his employment.

Section 909, Restatement of Torts relied upon by the Ninth Circuit provides:

Punitive damages can properly be awarded against, a master or other principal because of an act by an agent if, but only if,
(a) the principle or a managerial agent authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.

The Ninth Circuit reasoned that the dock foreman was an agent “employed in a managerial capacity” under subsection (c) and thus his reckless act was imputed to the dock owner. The Protectus court gave the following reasons for adopting the restatement position on this issue: 1) Most courts have rejected the corporate authorization or ratification standard; 2) requiring corporate authorization of ratification would make recovery of punitive damages against a corporation impractical.

It may well be that most states have adopted the Restatement position; however, our review of the general maritime law on the issue reflects that the Ninth Circuit decision in Protectus is the only admiralty court which has adopted this view. Indeed, the principal authorities relied upon by the Fifth Circuit in Merry Shipping in determining that an action would lie for punitive damages under the general maritime law include the cases discussed above, namely, The Amiable Nancy, Lakeshore and M.S. Railway Co. v. Prentice and U.S. Steel v. Fuhrman. I believe the sounder view on this issue is expressed in these authorities and I also conclude that the Fifth Circuit would look to these authorities for determining the restrictions and limitations on the action for punitive damages under the general maritime law. Also, I do not find the policy arguments made by the Protectus court persuasive. Deterrence and punishment have been the traditional policy arguments in favor of imposing punitive damages. I agree with McCormick that “there would seem to be little justification for punishing the master for willfulness or wantonness of which the agent is alone guilty.” C.T. McCormick, Handbook on the Law of Damages § 80 at 282 (1935). Also, I seriously question whether the threat of punitive damages would enable the employer to perform the difficult task of predicting or controlling the reckless or malicious conduct of its employees which is generally sporadic.

CONCLUSION

Because no evidence was adduced which tended to show that Transworld authorized or ratified the acts of its toolpusher, Mr. Sadler, either before or after the accident or that Transworld was at fault in employing Mr. Sadler, I conclude that the award for punitive damages cannot stand. Accordingly, the motion for judgment notwithstanding the verdict is granted to the extent of striking the award for punitive damages. The motion for judgment NOV and for new trial are in all other respects denied.

      . See also Lakeshore & M.S. Railway Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97 (1893). This opinion by the Supreme Court was not rendered in an admiralty case but the Court relied heavily upon The Amiable Nancy and reaffirmed the principle announced in that case.

      . Restatement (Second) of Torts § 909(c) (1977).

      . See Note, The Assessment of Punitive Damages Against an Entrepreneur for the Malicious Torts of His Employees, 70 Yale Law Journal 1296, 1304 (1961).


source: Caselaw Access Project

author: HUYETT, District Judge.

license: Public Domain

text:
    HANCOCK INDUSTRIES, et al. v. Erik J. SCHAEFFER, et al.
    Civ. A. No. 85-3158.
    United States District Court, E.D. Pennsylvania.
    Dec. 9, 1985.

      Nolan N. Atkinson, Jr., Philadelphia, Pa., for plaintiffs.
    Joseph A. Tate, Stephen D. Brown, Alison M. Benders, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for J. Erik Schaeffer and Chester County Solid Waste Authority.
    Francis P. Connors, County Sol., Michael J. Ehling, Asst. County Sol., Media, Pa., for Delaware County.
    Michael F.X. Gillin, Halligan & Gillin, Media, Pa., for Victor Petaccio and Delaware County Incinerator (Solid Waste) Authority.
   MEMORANDUM OPINION AND ORDER

HUYETT, District Judge.

On July 5, 1985, following a hearing on plaintiffs’ motion for preliminary injunction and argument on defendants’ motions for summary judgment, I denied the preliminary injunction motion and granted summary judgment in favor of defendants as to plaintiffs’ due process and antitrust claims. I granted plaintiffs thirty days to conduct discovery as to their equal protection claims. Presently pending before me are defendants J. Erik Schaeffer, Chester County Solid Waste Authority (“Authority”) and Chester County’s renewed motions for summary judgment as to plaintiffs’ equal protection claim.

As I noted in my opinion of August 5, 1985, 619 F.Supp. 322, because there is no suspect classification involved and plaintiffs do not have a fundamental right to engage in their businesses, defendants must merely show that there is a rational relationship between the classification and a legitimate state interest. Both the Chester County Solid Waste Authority and the Delaware County Incinerator (Solid Waste) Authority have decided to limit the dumping at their respective landfills to the trash generated within the county with an exception for certain long-term contracts providing for the dumping of out-of-county trash; the classification created therefore is that consisting of out-of-county trash. The interests which defendants have identified are the interests of each county involved in providing for the disposal of trash generated within that county.

Under state law, ie., the Solid Waste Management Act, 35 P.S. § 6018.202(a), each county is required to provide for the collection, transportation, processing and disposal of municipal waste generated within its boundaries. Plaintiffs, apparently, do not dispute that the proper disposal of county trash is a legitimate state interest. Rather, they dispute the conclusion that the Authority’s actions were rationally related to that interest.

Defendants contend that the closure of the Lanchester Landfill to out-of-county trash is rationally related to the interest in maintaining an available means of providing for the disposal of in-county trash. In support of their respective motions for summary judgment, defendants contend that there are no material issues of fact which would preclude entry of judgment as a matter of law pursuant to Fed.R.Civ.P. 56.

Summary judgment may only be granted when it has been established that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Small v. Seldows Stationery, 617 F.2d 992 (3d Cir.1980). The court does not decide issues of fact, but merely determines if there is an issue of fact to be tried. Ettinger v. Johnson, 556 F.2d 692 (3d Cir.1977). The facts must be viewed in the light most favorable to the non-moving party and any reasonable doubt as to the existence of a genuine issue of fact is to be resolved against the moving parties. Continental Ins. Co. v. Brodie, 682 F.2d 436 (3d Cir. 1982).

In response to defendants’ renewed motions for summary judgment, plaintiffs contend that there are a number of material factual issues in dispute which preclude the entry of judgment at this time. I will address each of plaintiffs’ contentions in seriatim. First, plaintiffs contend that certain documentary evidence contradicts the testimony of two defense witnesses to the effect that the Chester Authority acted independently of both Chester County and the Delaware County defendants in deciding to close the Lanchester Landfill to out-of-county trash. Plaintiffs refer to a confidential memorandum dated April 25, 1985 from Chester County Bureau of Environmental Health and Protection Director, David A. Jackson and Chester County Solid Waste Coordinator, Carole A. Rubley to Larry Boling, Chairman of the Authority with a carbon copy to defendant Eric Schaeffer, in which they noted that Delaware County’s Colebrookdale Landfill was to be closed to out-of-county trash and then suggested that the Chester Authority consider taking the same steps. Plaintiffs contend that this memorandum reflects the fact that Mr. Schaeffer knew of Delaware County’s plans despite his testimony to the contrary. I do not believe that this factual dispute is at all material to the legal issue raised by the motions for summary judgment which is whether the classification created by defendants is rationally related to their legitimate interest in providing for the disposal of in-county trash. Moreover, I am not sure the discrepancy of plaintiffs suggest is that great if it exists at all. Despite the fact that they attached it to their complaint, plaintiffs ignore a memorandum dated March 29, 1985 from Mr. Schaeffer to all haulers in which Mr. Schaeffer stated that there was a possibility that due to high waste volume, out-of county trash would not be accepted after June 30, 1985. Therefore, Mr. Schaeffer and undoubtedly members of the Authority were actively considering geographic restrictions at least a month before the confidential memorandum was sent.

Plaintiffs also contend that the testimony of defense witnesses Boling and Schaeffer was misleading as to the actual tonnage figures. While it is true that the average daily tonnages in December did not rise to 3,000, it is true that on ten days that month the daily tonnages exceeded 2,500 tons. More important for purposes of the present analysis, is that the monthly tonnage increased 34% in December from the September 1984 tonnage and by May, 1985, the monthly tonnage had increased 101% from the September tonnage. Clearly, the tonnage during this period nearly doubled; it is not material to the present analysis whether this occurred in December, March or May. It was entirely reasonable that as the volume started to increase, Landfill management, particularly Mr. Schaeffer, grew concerned about the Landfill’s capacity to handle adequately the increased volume and started to look into means by which to maintain the Landfill at a reasonable dumping volume. By May, when the Authority officially adopted the Schaeffer proposal that dumping be restricted to in-county trash, the volume had reached a daily average of 3,150 tons.

Plaintiffs also contend that the tonnage figures presented at the July 5th hearing are misleading because the Authority had previously made representations to potential investors that the equipment at the Lanchester Landfill was capable of handling 3,000 tons per day. As defendants note, however, the equipment is only one element to be taken into consideration; manpower, compaction time and the ability to control litter are other elements which the Landfill management are in the best position to consider in determining the optimal dumping rate. Moreover, the important consideration for the present analysis is whether the Authority’s actions were rationally related to its interest in providing for the disposal of in-county trash. The fact that the daily dumping had doubled and therefore necessarily shortened the life expectancy of the Landfill supports the Authority’s conclusion that it had to act to prolong the life of the Landfill to best serve the interests of Chester County residents in the safe disposal of trash generated within the county. Therefore, I do not find merit in plaintiffs’ contention that there is a material issue as to the volume the Landfill could handle such that precludes the entry of judgment.

Similarly, plaintiffs’ contention that because there was no reference in the Authority’s meeting minutes to discussions about environmental hazards and maintenance concerns, they did not exist. Both Boling, Chairman of the Authority, and Schaeffer, Executive Manager of the Landfill, testified that they were concerned about the increased dumping by the end of 1984. I do not find it as unreasonable or surprising as plaintiffs evidently do that the concerns were not reflected in the minutes of the formal meetings prior to the taking of action by the Authority. I certainly do not believe that the absence of such discussion on the record has any bearing on the present issue which is again whether there was a rational relationship between the action finally taken by the Authority and the interest in providing for disposition of in-county trash.

Plaintiffs also contend that there is some dispute about whether the Landfill’s life expectancy was fifteen or eighteen years and whether there were other steps which could be taken by the Authority to lengthen the Landfill’s life. With respect to the fifteen years or eighteen year conflict I do not believe that this is a material dispute. Second, in support of their contention that other steps could be taken to lengthen the life of the Landfill, plaintiffs cite a report dated May 31, 1985 from the Chester Authority in which the engineers noted that in addition to other steps, the Authority could extend the Landfill life by applying for a permit to use additional property within the existing property. The engineers also noted, however, that the Authority was taking steps to restrict the use of the Landfill and would continue to do so when two long-term contracts expire. The fact that the Authority could apply for the permit or had decided not to renew to long-term contracts in 1987 is immaterial to the present action.

Plaintiffs further argue that the 400 tons per day which they were dumping was insignificant given the total picture and therefore their dumping would have little bearing on the life expectancy of the Landfill. Again, I do not believe it is appropriate for me or for the plaintiffs to second guess decisions made by defendants so long as they are rationally related to the stated interest which I believe they are. Similarly, I do not believe it appropriate for me or plaintiffs to question the imposition of minimum weekly tonnage requirements. As defendants note, the minimum tonnage requirements are merely a tool by which the Landfill controls the flow of trash into the facility; it has no bearing on the total amount of trash received and is immaterial to the issue presently before me.

Because I do not find that plaintiffs have established the existence of any genuine issue of material fact, judgment may be entered in favor of defendants if the classification they have created is rationally related to the interest in the proper disposal of in-county trash. In Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976), the Court held that a distinction between in-state and out-of-state scrap processors did not violate the equal protection clause because the distinction bore a rational relationship to the state interest in using its limited funds to clean up its environment. Similarly, the distinction between in-county and out-of-county trash drawn by the Authority bears a rational relationship to the statutory obligation imposed on the county to provide for adequate and safe disposition of solid waste generated within Chester County. It is reasonable for defendants to assume that closing the Landfill to out-of-county trash will enable the county to lengthen the life of the Landfill to serve the interest of the county residents and will enable the Authority to protect the environment and prevent health and safety hazards. Accordingly, I conclude that the Chester County defendants are entitled to judgment as a matter of law as to plaintiffs’ equal protection claim and I will therefore grant their motions for summary judgment.

      . One issue which plaintiffs have not raised in response to the renewed motions for summary judgment is the disposal at the Lanchester Landfill of asbestos from outside the county. I believe that the continued acceptance of such high-priced, low-volume items at the Landfill does not violate the equal protection clause. Again, the acceptance of these items is rationally related to the need to reduce the volume of dumping while at the same time maintaining sufficient income to make timely payments on the outstanding bonds.


author: RICE, District Judge.

text:
    Kathryn LEACH, et al., Plaintiffs, v. NEWPORT YELLOW CAB, INC., et al., Defendants.
    No. C-3-82-077.
    United States District Court, S.D. Ohio, W.D.
    Dec. 9, 1985.

      Kenneth G. Rush, Springfield, Ohio, Al J. Cone and Melinda Penney Gamot, West Palm Beach, Fla., for plaintiffs.
    David P. Faulkner, Cincinnati, Ohio, for defendants Newport Yellow Cab, Hay and DeMoss.
    Gary D. Bullock and Carl J. Stitch, Jr., Cincinnati, Ohio, for defendant Conrail.
   RICE, District Judge.

This case is presently before the Court on Plaintiffs’ Motion for Reconsideration (Doc. # 57) of this Court’s Decision Sustaining in Part and Overruling in Part Defendant Conrail’s Motion for Summary Judgment (Doc. # 52) (hereinafter the “August 22 Decision), and on Defendant Conrail’s Renewed Motion for Summary Judgment (Doc. # 52A). The facts underlying this action are set forth in the Court’s Decision of August 22, 1985 (Doc. # 52) and need not be repeated here. For the reasons set forth below, Plaintiffs’ Motion for Reconsideration (Doc. # 57) is overruled, and Defendant’s Renewed Motion for Summary Judgment (Doc. # 52A) is sustained.

I. Plaintiffs Motion for Reconsideration.

Plaintiffs’ Motion for Reconsideration (Doc. # 57) asks the Court to overturn its August 22 Decision (Doc. # 52) granting summary judgment to the Defendant Conrail on the issue of whether it could be held liable for Plaintiffs’ injuries under the doctrine of respondeat superior. In that decision, this Court found the question of whether Newport Yellow Cab was Conrail’s servant rather than its independent contractor to be, under the particular circumstances of this action, a question of law for the Court. Further, in examining the contract language in this case, the Court held that the contract required the conclusion that Newport Yellow Cab was an independent contractor of Conrail. On this basis, the Court held that Conrail could not be held liable under a theory of respondeat superior for the alleged negligence of Defendant Newport Yellow Cab or its employee, Charles DeMoss.

Plaintiffs’ Memorandum of Law in Support of its Motion for Reconsideration (Doc. # 58) advances two grounds for overturning this Court’s previous decision. First, Plaintiffs argue that a jury should resolve the issue of when the degree of control by the master is sufficient to support a finding that a master/servant relationship exists. Second, Plaintiffs argue that a jury should decide whether conduct is within the “scope of employment” in this particular case.

Plaintiffs support their first argument by citing Marshall v. Aaron, 15 Ohio St.3d 48, 472 N.E.2d 335, 337 (1984), for the proposition that “the right to control the means or manner of doing work” is the central issue in distinguishing master-servant from independent contractor relationships, and that where reasonable minds could differ, summary judgment on this issue is precluded. Marshall v. Aaron, however, does not set any new legal standards regarding when a right to control exists. Rather, the Ohio Supreme Court there relies on Councell v. Douglas, 163 Ohio St. 292, 126 N.E.2d 597 (1955), just as did this Court in its August 22 Decision. Compare Marshall v. Aaron, 15 Ohio St.3d at 49, 472 N.E.2d at 337, with Doc. # 52 at 8.

However, Marshall v. Aaron does indicate that the Court must consider a wide range of factors in determining whether this requisite right to control exists. 15 Ohio St.3d at 49-50, 472 N.E.2d at 337-38. As noted in the Court’s last Decision (Doc. # 52 at 10), Industrial Commission of Ohio v. Laird, 126 Ohio St. 617, 186 N.E. 718 (1933), held that where a written contract stating the terms of employment exists, the issue of right of control is a matter of law for the Court. However, several recent decisions have indicated, without explicitly overruling Laird, that a written contract is not determinative of the right to control issue, and that such a determination must be based upon all of the facts of the particular case. See N & G Construction, Inc. v. Lindley, 56 Ohio St.2d 415, 384 N.E.2d 704 (1978); Duke v. Sany Metal Products Co., 31 Ohio App.2d 78, 286 N.E.2d 324 (1972). See also Prudential Insurance Co. v. Eslick, 586 F.Supp. 763, 765 (S.D.Ohio 1984) (“While the contract between the two entities characterizes Es-lick as an independent contractor, Prudential now seeks a legal determination that Eslick was in fact its agent. Under Ohio law, the nature of an employment relationship such as agency or an independent contractor arrangement must be determined through a comprehensive factual analysis.”). Nevertheless, even if the Court looks to the entire record presented in this case, no genuine issue as to material fact exists regarding Conrail’s lack of a right to control Newport Yellow Cab.

The relevant record in this action, beyond the contract between Conrail and Newport Yellow Cab, consists of the depositions of Mr. Hay, Newport’s owner, and of Mr. DeMoss, the cab driver at the time of the accident, and a collection of letters from Conrail to Newport. (Doc. #48, Exh. A). None of these items contains any evidence that raises a genuine issue as to any material facts that would support a finding that Conrail had a right of control over Newport. The first letter Plaintiffs have attached to their Memorandum Contra Defendant’s Motion for Summary Judgment (Doc. # 48) is merely a solicitation for bids that indicates any contractor bidding must be able to provide twenty-four hour a day, seven day a week service with competent drivers and within the laws of Ohio, Kentucky and Indiana. It in no way demands a right of control over either the drivers or vehicles in question. The other letters are complaints regarding delays in service or the condition of the vehicles used. None of these letters is any more than a demand that Newport comply with its contractual obligations. If the contract does not create a right of control, demands made for performance of obligations under the contract cannot create a right of control.

Likewise, the depositions of Mr. Hay and Mr. DeMoss give no indication that Conrail hold a de facto right of control over Newport. Plaintiffs’ have not directed the Court to any portion of these depositions that would support their contention that a genuine issue exists as to Conrail’s right of control over Newport. Nor can the Court, having scrutinized these depositions in their entireties, find any evidence therein that could create a genuine issue as to a material fact regarding the right of control.

In sum, even accepting arguendo that Ohio law requires this Court to look beyond the written contract and examine the substantive relationship between Conrail and Newport, the Court can find no evidence that raises any genuine issue of fact regarding the right to control. The letters and depositions in the record no more show a right of control of Conrail over Newport than did the contract.

Furthermore, the Ohio Supreme Court’s holding that summary judgment was inappropriate in Marshall v. Aaron was based on the particular facts of that case, and not a blanket prohibition of summary judgment on the issue of right of control. Therefore, because this Court’s examination of the contract between Conrail and Newport Yellow Cab and the substantive relationship stemming therefrom fails to uncover any genuine issues as to material facts, there is no basis for the Court’s reversing its previous finding that Newport was an independent contractor in respect to its employment by Conrail.

Plaintiff’s second argument, that a jury should decide whether Newport Yellow Cab was acting within the scope of its employment when the accident in question occurred, is irrelevant given the Court’s determination that Newport was an independent contractor with Conrail. The scope of employment issue would only be relevant if Newport were found to have been a servant of Conrail.

Accordingly, because Plaintiffs’ Motion for Reconsideration raises no new issues of fact or law relevant to the Court’s August 22 Decision, this motion is overruled.

II. Defendant Conrail’s Renewed Motion for Summary Judgment.

Defendant Conrail’s Renewed Motion for Summary Judgment (Doc. # 52A) asks the Court to grant summary judgment ití its favor on the issue of whether liability for negligent hire can be found even though the accident occurred outside of the scope of the employment relationship between Conrail and Newport Yellow Cab. Conrail argues that because this Court has found that Newport Yellow Cab was acting outside of its employment at the time of the injury in question, Conrail cannot be held liable under the negligent hire doctrine for those injuries. While not specifically agreeing with the reasoning of Conrail’s argument, the Court does concur in its conclusion, and therefore sustains this Motion for Summary Judgment.

Conrail’s argument for summary judgment is based upon its theory that the negligent hire doctrine requires that “the plaintiff must establish that the relationship of employer and independent contractor existed____” Doc. # 52A at 5-6 (quoting 78 A.L.R.3d 910, 919 (1977)). Conrail construes this to require that at the time of the injury the independent Contractor must have been acting within the scope of employment in order for the employer to be liable. Essentially, Conrail would add a respondeat superior scope of employment test as an element of the negligent hiring doctrine. Conrail, however, cites no case law in support of this requirement, nor can this Court find any cases in which this specific problem is addressed. Rather, Conrail supports its argument by analogizing negligent hire to respondeat superior and by suggesting that without such a requirement, there would be no limitation on these claims.

However, because this Court finds that there is no genuine issue as to material facts regarding proximate causation of Plaintiffs’ injuries, the Court will not determine whether a separate requirement that the activity within the scope of employment should be found in the negligent hire doctrine.

Before turning to the issue of proximate cause, the Court notes: “The summary judgment standard in this Circuit is a stringent one. Fed.R.Civ.Pro. 56(c) permits the Court to grant summary judgment only when there is no genuine issue of material fact and when the moving party is entitled to judgment as a matter of law.” Snider v. Creasy, 548 F.Supp. 601, 602 (S.D.Ohio 1982). Thus, if a genuine issue about any material fact regarding proximate causation is found, summary judgment cannot be granted.

Proximate causation is a necessary element of a negligence action under Ohio law. See Moncol v. Board of Ed. of North Royalton School Dist., 55 Ohio St.2d 72, 378 N.E.2d 155, 158 (1978) (“When determining the presence or absence of negligent conduct it is necessary to examine (1) the existence of a duty owed to the plaintiffs; (2) a breach of that duty; and (3) proximate causation.”); Bennison v. Stillpass Transit Co., 5 Ohio St.2d 122, 214 N.E.2d 213 (1966); Baier v. Cleveland Ry. Co., 132 Ohio St. 388, 391, 8 N.E.2d 1 (1937). In Ross v. Nutt, the Ohio Supreme Court defined proximate causation: “For an act to be the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of such act.” 177 Ohio St. 113, 114, 203 N.E.2d 118, 120 (1964) (citing Foss-Schneider Brewing Co. v. Ulland, 97 Ohio St. 210, 119 N.E. 454 (1918)). The court elaborated the requirements of this definition:

To find that an injury was the natural and probable consequence of an act, it must appear that the injury complained of could have been foreseen or reasonably anticipated from the alleged negligent act. As is said in Miller v. Baltimore & Ohio Southwestern Rd. Co., 78 Ohio St. 309, at page 325, 85 N.E. 499, at page 504, 18 L.R.A., N.S., 949, “the rule is elementary that a defendant in an action for negligence can be held to respond in damages only for the immediate and proximate result of the negligent act complained of, and in determining what is direct or proximate cause the rule requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstances of the particular case might, and should have been foreseen or anticipated by the wrongdoer as likely to follow his negligent act.”

Id. Thus, in deciding issues of proximate causation, the courts must determine the relationship of the alleged act of negligence to the alleged injury.

In the present action, the alleged act of negligence was Conrail’s hiring of Newport Yellow Cab. The Court already has found that “the accident occurred while the driver was driving his own vehicle after completing the deliveries on behalf of his employer and where the driver was under no further obligation to his employer.” Doc. # 52 at 6. Given this finding of fact, no genuine issue exists as to the question of whether Plaintiffs injury was “the natural and probable consequence of the negligence alleged.” Since Conrail’s alleged negligence was only in the hiring of Newport, an injury occurring when “the driver was under no further obligation to” Conrail could not “have been foreseen or reasonably anticipated from the alleged negligent act.” No reading of the facts presented in this ease could raise an inference that such an injury, occurring outside of the contractual scope of employment, was caused by the alleged negligent hiring.

Furthermore, the Court notes that Plaintiffs’ arguments in their Motion for Reconsideration (Doc. # 57) regarding scope of employment do not effect the Court’s previous finding that the undisputed facts show that at the time of the accident Newport Yellow Cab was “under no further obligation to” Conrail. Plaintiffs cite Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 280, 344 N.E.2d 334, 339 (1976), and Calhoun v. Middletown Coca-Cola Bottling Co., 43 Ohio App.2d 10, 13, 332 N.E.2d 73, 76 (1974), for the proposition that scope of employment is an issue of fact for the jury and that summary judgment on this issue is thus precluded by Ohio law. The Court does not dispute that scope of employment is a question of fact. However, when all of the material facts relevant to an issue of fact are undisputed, summary judgment is appropriate. See Bouldis v. U.S. Suzuki Motor Corp., 711 F.2d 1319 (6th Cir.1983); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193, 1195 (6th Cir.1974); Snider v. Creasy, 548 F.Supp. 601, 602 (S.D.Ohio 1982). As this Court noted in its last Decision: “Herein there is simply no genuine issue of fact as to whether the accident occurred after DeMoss had dropped off the Conrail employees that he was transporting and while DeMoss was on his return trip.” Doc. # 52 at 6-7). Thus, “the uncontradicted evidence effectively shows that at the time of the collision, he was engaged in no business or service of [Conrail], but was acting exclusively in his own behalf and for his own purposes.” Kirtland v. Interstate Motor Freight System, 53 Ohio App. 459, 461-62, 5 N.E.2d 707 (1936).

Therefore, because the Court finds the uncontroverted facts in this action show that Conrail’s alleged negligent hiring of Newport Yellow Cab could not have been the proximate cause of Plaintiffs’ injuries, Conrad’s Renewed Motion for Summary Judgment is sustained. Since no claims in this action remain against it, Conrail is dismissed as a Defendant herein, and this action will proceed between Plaintiffs and Defendant Newport Yellow Cab.

      . The Court notes, in passing, that it cannot agree with Conrail’s assertion that it (Conrail) did "address" this issue in its earlier Motion for Summary Judgment (Doc. #44). Conrail’s assertion that “Before even negligent selection may result in liability, there must be a negligent act committed during the performance of the contract,” made without citation of authority or elaboration of its underlying reasoning, may raise this issue, but in this Court’s view such an assertion does not "address” it.

      . The Court has, however, found at least one commentator that disagrees with Conrail’s interpretation:
      Although the plaintiff must prove the fact of employment, he need not prove that the employee was acting within the scope of his employment at the time of the injury caused by the employee’s incompetence. If the act of the employee was not, or may not have been, within the scope of his employment, application of the negligent hiring theory allows the injured person to establish the liability of the employer when no liability would exist otherwise.
      Comment, Negligent Hiring and Negligent Entrustment: The Case Against Exclusion, 52 Or.L. Rev. 296, 298 (1973). However, the authority cited in support of conclusion, Tuite v. Union Pac. Stages, Inc., 204 Or. 565, 576, 284 P.2d 333, 339 (1955), does not prove direct support therefor.

      . Essentially, the Court believes that the requirement of proximate causation does provide a limitation upon negligent hiring claims sufficient to prevent overly broad liability. It is unclear to the Court, however, whether the proximate causation limitation would bar all claims based upon acts occurring outside the scope of employment.

      . Plaintiffs’ contention that DeMoss’ cab was radio equipped and that he therefore could have been called at any time to transport Conrail employees (Doc. # 58 at 3) is irrelevant for two reasons. First, it is undisputed that DeMoss was out of the range of radio contact on this trip. DeMoss Deposition at 263-70. Second, and more importantly, DeMoss was not called upon after dropping off the Conrail employees in Bellefontaine.
      Furthermore, Plaintiffs’ claim that, "On the return trip from Bellefontaine, he was available solely for CONRAIL assignments, and not for hire to the general public” (Doc. #58 at 3), ignores the reason for this limitation. DeMoss could not pick up other fares not because of the contract with Conrail, but because of Ohio state law. DeMoss Deposition at 74. DeMoss could have picked up fares from other companies that had contracts with Newport Yellow Cab. Id. at 75.


author: FULLAM, District Judge.

text:
    Joyce Taylor GREEN and John J. Green v. SHEARSON LEHMAN/AMERICAN EXPRESS, INC. and Donald G. Kurtz.
    Civ. A. No. 85-1368.
    United States District Court, E.D. Pennsylvania.
    Dec. 9, 1985.

      Edward M. Dunham, Jr., Miller, Marvin, Dunham, Doering, Schreiber & Sloan, Philadelphia, Pa., for plaintiffs.
    John J. Murphy, III, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

FULLAM, District Judge.

Plaintiffs in this securities litigation have filed a motion in limine, seeking to preclude the defendants from establishing before the jury that the husband plaintiff was convicted more than five years ago in Massachusetts, for possessing cocaine with intent to distribute — an offense for which he served six months in jail and a term of probation. The defendants oppose the motion, citing the recent decision of the Third Circuit Court of Appeals in Diggs v. Lyons, 741 F.2d 577 (3d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2157, 85 L.Ed.2d 513 (1984), to the effect that Rule 609(a) of the Federal Rules of Evidence mandates the admission of previous felony convictions for impeachment purposes in civil cases, and that the trial judge has discretion to exclude such evidence only when offered against a defendant in a criminal case.

I am, of course, bound to follow the Diggs holding, and there can be no question that the holding was that the trial judge must admit, for purposes of impeachment, evidence that the plaintiff in a civil case was previously convicted of a felony. Both the majority and dissenting opinions in Diggs recognized that the holding would lead to bizarre results, plainly not foreseen by the rule-makers; but the majority concluded that the language of Rule 609(a) and the legislative history left it no choice.

Were it not for the Diggs holding (which is, as there acknowledged, at odds with all other appellate decisions on the subject), my analysis would proceed along the following lines: Rule 609(a) expressly provides that previous felony convictions are not admissible for purposes of impeachment unless “the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant ” (emphasis supplied); the words “to the defendant” refer to the person who was the defendant in the criminal case resulting in the felony conviction; therefore, the balancing test, and the exercise of discretion, is mandated in all cases, civil or criminal. It is very probably true that the net result would be to permit impeachment of non-party witnesses by evidence of their previous felony convictions — a non-party witness is unlikely to have any interest in the trial which could be prejudiced by the use of such impeaching evidence. But with respect to parties to litigation, whether criminal or civil, the balance would often be struck in favor of excluding the prior convictions. I would reach this result from the language of Rule 609(a) itself, without the need to resort to Rule 403.

Of course, if Rule 403 were held applicable, the existence of discretionary authority to exclude such impeaching evidence would follow a fortiori. In U.S. v. Wong, 703 F.2d 65 (3d Cir.1983) (per curiam), the court held that Rule 403 does not override specific provisions of other rules, but is merely a catch-all provision governing situations not dealt with explicitly elsewhere in the Rules. The Wong case involved impeachment by conviction of crimen falsi, under Rule 609(a)(2), and it would indeed be difficult to reconcile Rule 403’s balancing test with the mandatory language of Rule 609(a)(2). I suggest, however, that here is no inconsistency between Rule 403 and the first clause of Rule 609(a). The latter is certainly not an express requirement that previous felony convictions be received for impeachment — such prior convictions are not to be admitted in evidence unless their probative value outweighs their prejudice.

It is not altogether clear whether the Diggs court held that the words “prejudicial effect to the defendant” referred only to defendants in criminal cases, or whether the ruling was merely that these words do not include plaintiffs in civil cases, or non-party witnesses. If the latter reading is the correct one, I respectfully suggest that there may well be due process and equal protection implications in the holding.

Be all that as it may, I am required to apply the law as established in Diggs. Plaintiffs’ motion in limine will therefore be denied.

It will, of course, remain open for the court to instruct the jury concerning the weight to be given to such impeaching evidence, if offered.


author: FARNAN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Gabriel deJesus MARTINEZ, et al., Defendants.
    Crim. A. No. 85-61-JJF.
    United States District Court, D. Delaware.
    Dec. 10, 1985.
    Richard J. McMahon, ■ Asst. U.S. Atty., Wilmington, Del., for plaintiff.
    Victor F. Battaglia, and J. Michael Johnson, of Biggs & Battaglia, Wilmington, Del., Attorneys for defendant Martinez.
    Thomas R. Hunt, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for defendant Seaver.
    James L. Patton, Jr., of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for defendant Demestichas.
    Daniel A. Durkin, Wilmington, Del, for defendant Totora.
   OPINION

FARNAN, District Judge.

This matter comes before the Court on defendant Gabriel DeJesus Martinez’s (hereinafter “Martinez”) Motion to Suppress the fruits of a warrantless search of a parked aircraft. Martinez is charged with possession with intent to distribute marijuana (21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2), importing marijuana (21 U.S.C. § 952(a) and 18 U.S.C. § 2), and conspiracy with intent to distribute and conspiracy to import marijuana (21 U.S.C. § 846 and 18 U.S.C. § 2). These charges stem from an incident on October 4-5, 1985, at the Wilmington Airport, during which in excess of 50 kilograms of marijuana were seized and Martinez was arrested. Pursuant to the Motion, suppression hearings were held on November 12 and November 22, 1985. During the hearings, the defendant did not present any evidence, deciding to rely on evidence elicited from the government’s witnesses. Defendant Martinez’s Motion is denied based on the findings of fact and conclusions of law stated herein.

FINDINGS OF FACT

On October 4, 1985, Airport Security Officer Rand Townley (“Townley”) was on duty at the Wilmington Airport. As a security officer employed by New Castle County, Townley has the power to arrest, and to tow illegally parked aircraft. He is generally responsible for maintaining peace and order at the airport. Transcript of November 12,1985 (hereinafter Tr. I) at pp. 4-7. At approximately 11:30 p.m., Townley was informed that Russell Becker (“Becker”) at Bear Delivery was trying to reach him. Tr. I at 6. Bear Delivery receives freight flown from Detroit for Chrysler and General Motors (Tr. I at 6).

When Townley arrived at Bear Delivery, a Beech 18 aircraft was parked with its front wheels on the pavement and its rear wheel in the grass. Id. Becker told Townley that the aircraft was not making deliveries to Bear Delivery, that the pilot had asked permission to park on the ramp at Bear Delivery, and that another Bear Delivery employee had taken the pilot to the Kings Inn. Tr. I at 6. Because the ramp was in the control of Wilmington Airport, and therefore of Townley (Tr. I at 15), and because overnight parking is not permitted on ramps, Townley prepared to tow the aircraft (Tr. I at 7).

Airport regulations require that aircraft parked overnight in unauthorized areas, i.e. anywhere other than the terminal ramp or Atlantic Aviation, be towed. The airport has a contractual arrangement with Atlantic Aviation that provides for towing. The normal procedure calls for the security officer to enter the aircraft to check that the brake is released. The brake must be released to prevent damage during towing. Tr. I at 9-10.

Townley approached the aircraft to prepare it for towing. While standing on the ground at the rear of the aircraft, Townley shone his flashlight through the side window. Tr. I at 7, 17. Townley noted that the aircraft contained many bundles (Tr. I at 7), about three feet by one and one-half feet by one and one-half feet. Tr. I at 35. None of the bundles appeared to contain the customary airbills or manifests. Tr. I at 7. He also observed “green plant-like material” inside the aircraft about two feet away from him. Tr. I at 18, 33. The material covered an area approximately five inches by one-half inch, in between two stacks of bundles. Tr. I at 33. Townley estimated the quantity of the material was sufficient for one cigarette. Id. The material was not in leaf form, but appeared plant-like in its color and texture. Tr. I at 18-19. Townley testified it resembled chopped cigarette tobacco, except the pieces were larger. Tr. I at 19. Townley concluded that the plant-like material was marijuana because it looked like marijuana he has seen at the New Castle County Police Headquarters. Tr. I at 19-20. Based on these observations, Townley radioed the New Castle County Police Department for assistance, and requested a supervisor. Tr. I at 8.

Sergeant Handley Orr, a Street Supervisor with the New Castle County Police, Department, was the first officer to arrive. Tr. I at 8, 43. Orr had worked as an undercover agent in the Drug Control Unit from 1970 through 1972. Tr. I at 43. When Orr arrived, Townley explained his conversation with Becker, that the aircraft was illegally parked and had to be towed, and his observations that led him to believe the aircraft contained marijuana. Tr. I at 8, 44-45.

While standing on the ground, Orr smelled an odor of marijuana near the cargo door of the aircraft (Tr. I at 45), and observed many bundles (Tr. I at 60). Orr observed more bundles when he stepped on the wing of the aircraft. Id. Orr noticed that one of the bundles on the top of a stack had a torn corner, about one and one-half to three inches in diameter, on which there was no paper (Tr. I at 61; Tr. II at 25), and through which he observed a green plant material protruding (Tr. I at 45, 56-57, 60). The tear was not a cut or a slit, but appeared to be a rupture caused by being thrown or bumped. Tr. I at 61. Orr does not recall whether he observed the torn bundle while he was on the ground or on the wing. Id.

At Orr’s request, Townley unlocked the aircraft using a master key supplied by his employer. Tr. I at 8, 22. After the door was opened, Townley also smelled the odor of marijuana. Tr. I at 8, 45. Orr entered the plane alone. Id. While inside, he noted that the odor of marijuana was stronger, and that a green residue of plant material was on the floor by the doorway. Tr. I at 45, 62. Orr inspected the package with the torn corner and “felt” it contained marijuana. Id. He counted twenty-seven packages weighing approximately sixty pounds each. Tr. I at 57. He did not seize anything, however, he did have Townley secure the plane, i.e. lock the door. Tr. I at 45-46; Tr. II at 25, 33.

After Orr’s inspection of the aircraft, he had Townley notify the U.S. Customs Service, and he also requested that the County Police Detective Division have a detective report to the site. Tr. I at 46. While awaiting the detective’s arrival, Orr learned from another New Castle County patrol officer, who had also responded to the scene, that the pilot was at the General Wayne Motel. Id. Orr sent the patrol officer to the motel to attempt to locate the pilot. Id.

After searching the aircraft, Townley took the tail number to determine to whom it was registered. At that point, he noticed the third character, a numeral two, was newer and larger than the other three characters. Townley determined from microfiche records at the terminal building that the number was fictitious. Tr. I at 8.

Detective James R. Hedrick (“Hedrick”) arrived at the site of the aircraft at approximately 11:50 p.m. Transcript of November 22, 1985 (Tr. II) at p. 24. Orr and Townley recounted their observations to Hedrick. Tr. II at 25. Hedrick then examined the interior of the plane, while standing on the ground. Id. He noticed a bale near the door with a small tear in the corner, “about the size of a fifty cent piece or a little larger” with what appeared to him to be marijuana protruding from it. Id.

After the door was opened for him, Hedrick looked inside and saw small particles of what appeared to be marijuana on the floor at the rear of the aircraft. He also smelled what he believed to be marijuana. Id. After his inspection, Hedrick had Townley secure the door again. Tr. II at 26.

Hedrick interviewed Becker, the Bear Delivery employee who had initially contacted Townley about the illegally parked aircraft. Becker advised Hedrick that the pilot requested permission to leave the plane on the ramp for a short time and said he could not tell Becker the contents of the cargo. Tr. II at 26.

Hedrick, another detective, and Orr commenced a surveillance of the aircraft. Tr. I at 46; Tr. II at 26. A group of officers was stationed at a facility approximately one-quarter of a mile from the aircraft. Two more officers were sent to the General Wayne Motel to determine the pilot’s room number and begin a surveillance there. Tr. II at 27. Orr and a Customs Agent also participated in the motel surveillance. Tr. I at 47.

Approximately forty-five minutes after Orr arrived at the motel surveillance site, two vehicles, a Capri and a white rental van, arrived at the pilot’s room. Tr. I at 49; Tr. II at 28. Both vehicles left the motel after a short time, and proceeded north on Route 13. Tr. I at 47. Orr and another officer followed the vehicles. Id. Meanwhile, at about 3:00 a.m., Hedrick was advised that the vehicles had departed the motel. Tr. II at 28. The vehicles took more than forty-five minutes to find their way back to the airport gate where the aircraft had been parked. Tr. I at 47.

The Capri remained at the gate with one person standing nearby. The rental van parked on the left side of the aircraft, near the cargo door. Tr. I at 48; Tr. II at 28.

Orr remained near the gate to continue his surveillance of the Capri. Tr. I at 48. Hedrick and the officers surveilling the aircraft could observe the Capri and the man near it, as well as the van, the aircraft, and the three men in the van. Tr. II at 28.

After the three men with the van unloaded about five of the bales from the aircraft, Hedrick signalled for all of the surveillance officers to close in. Tr. I at 48; Tr. II at 28. Orr approached the airport gate in his car, and identified himself to the man near the Capri. The man ran through the gate and toward the aircraft. Other officers apprehended him near the airplane. Tr. I at 49. That man was later identified as Gabriel Dejesus Martinez.

The three men who were unloading the aircraft, one of whom was later identified as the pilot, were apprehended in the vicinity of the aircraft and van. Tr. II at 29. Customs Officer John Murphy (“Murphy”) assisted in the apprehension of the pilot, Arthur Seaver. Tr. II at 5. Hedrick arrested another man, Ronald J. Totora. Tr. II at 29. Another officer arrested the third participant, James C. Demestichas. Tr. II at 21. Between the time of the arrests, about 3:00 a.m., and 3:17 a.m., Murphy advised all four arrestees of their Miranda Rights. Tr. II at 5.

Within about two minutes of the time the officers and Customs agents arrived at the aircraft, a Customs agent slit open one of the bales to inspect the contents. Tr. II at 9. Murphy conducted a cursory search of the Capri and the aircraft. Tr. II at 22. He seized from the Capri “some notes and some line drawings of Limerick Airport, also some pages torn out of an AOPA manual, showing Limerick Airport and the approaches and the frequencies.” Tr. II at 22. Murphy left two radios and two beacons in the Capri. Tr. II at 23.

After daybreak, and thus after the arrests, the battery was removed from the aircraft. Tr. I at 29; Tr. II at 8, 11, 33. There is no evidence that the fuel was drained before or after the arrests. See Tr. II at 7-8, 33. The only “immobilizing” activity was Townley’s re-locking of the door when Orr and Hedrick ordered him to secure the aircraft (Tr. I at 46; Tr. II at 26, 33).

The two motor vehicles were towed to a fenced-in area, a sally port, at the rear of the New Castle County Police Headquarters. Tr. II at 31. A private company towed them, with Hedrick following the van and another officer following the Capri. Id. The sally port has an electronic gate controlled by the House Sergeant. Customs agents inspected the Capri while it was at police headquarters, seized the lights, and gave them to Hedrick to temporarily place in the County Police Evidence Unit. Tr. II at 31.

The aircraft was towed to the rear of the airport terminal building, where it was stored. Tr. I at 30.

The four arrestees received new Miranda warnings after they arrived at County Police headquarters. Tr. II at 29, 30. Only Totora and Demestichas gave statements. Id. Both men reported that Martinez recruited them to off-load marijuana at a Pottstown area airport (Limerick Airport). The aircraft was forced to land at the Wilmington Airport, and they received directions to Wilmington. Id.

All four men were indicted for possession with intent to distribute marijuana, importing marijuana and conspiracy to possess with intent to distribute and to import marijuana. All defendants, except Martinez, have pled guilty.

CONCLUSIONS OF LAW

I. Martinez Had No Privacy Interest in the Aircraft and its Contents.

The right of people “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” is guaranteed by the Fourth Amendment of the United States Constitution. This substantive right to legitimately expect privacy in one’s property and person is protected by the requirement that searches be conducted pursuant to search warrants issued by a neutral magistrate. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed.2d 319 (1920). Where a search is performed without such a search warrant, it must fall within one of the recognized exceptions to this rule. If a court determines that the search was unconstitutional, then the fruits of that search must be suppressed in any criminal proceedings against those whose substantive rights to privacy were violated. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

The ability of defendants to invoke the Fourth Amendment when a warrantless search produces incriminating evidence was, at one time, characterized as an issue of standing. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Supreme Court jurisprudence held that anyone charged with a crime as a result of the fruits of a warrantless search of which that person was the object, was “injured”, and therefore had standing to raise the constitutionality of the search. Jones, 362 U.S. at 261, 263-65, 80 S.Ct. at 731, 732-33. However, in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court began to move away from an injury/standing analysis, and toward an analysis of the substantive right to privacy in the searched property. A defendant who asserted “neither a property nor a possessory interest” in either the property searched or seized, had no Fourth Amendment claim. Rakas, 439 U.S. at 148, 99 S.Ct. at 433. The Supreme Court completed the transition from the “automatic standing” rule when it specifically overruled Jones in United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980). Thus, a defendant now has the burden of proving that he/she had a “legitimate expectation of privacy” in the searched property. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. West, 508 F.Supp. 1028, 1031 (D.Del. 1981).

Proof of a “legitimate expectation of privacy” requires more than proof of ownership of the property seized. Rawlings, 448 U.S. at 105,. 100 S.Ct. at 2561 (ownership of drugs concealed in a third party’s purse, insufficient evidence of a privacy interest in the purse); Salvucci, 448 U.S. at 91-93, 100 S.Ct. at 2552-53 (ownership of stolen checks seized in apartment of defendant’s mother, insufficient evidence of a privacy interest in the apartment). Moreover, existence of a legitimate privacy interest is not based on the subjective expectations of the defendant. United States v. Perez, 644 F.2d 1299, 1303 (9th Cir.1981), citing Rakas, 439 U.S. at 143-44, n. 12, 99 S.Ct. at 430, n. 12. Furthermore, any proof of a privacy interest in the searched or seized property must be affirmatively established by the accused. Id., citing Rakas, 439 U.S. at 148-49, 99 S.Ct. at 432-33.

After reviewing the testimony presented during the suppression hearing, the Court finds that Martinez has not carried his burden of proving a privacy interest in the aircraft and its contents. He argues that three factors demonstrate his privacy interest: (1) the government’s indictment alleges possession of the seized marijuana and a conspiracy relating to it; (2) a government witness, Sergeant Orr, on cross-examination, repeated statements by two of Martinez’s co-defendants in which they stated he had recruited them to offload the drugs; and (3) Martinez fled from the police toward the aircraft when they attempted to apprehend him. Thus, Martinez argues that the government’s own case clearly establishes his privacy interest in the aircraft and its contents.

Martinez’s argument misinterprets current law. Since the Jones “automatic standing” principle was specifically overruled in Salvucci, the contents of an indictment, and elements necessary to prove those charges, are not evidence of a right to assert a Fourth Amendment claim. His argument also ignores the distinction between ownership of the property seized, and a legitimate expectation of privacy in the property searched. Salvucci and Rawlings make it clear that even positive proof of ownership of the seized property is insufficient evidence of a privacy interest in the searched property possessed by a third party.

If this Court were to accept as defendant’s “proof”, the contents of the indictment and the elements of the crimes charged, it would reach the results dictated by the Jones automatic standing analysis, albeit within the rubric of the Rakas/Salvucci, legitimate expectation of privacy analysis. To do so would be to engage in intellectual dishonesty.

Similarly, the defendant cannot use the counts of the indictment charging conspiracy, nor the government witness’ recollection of statements made by two co-defendants, as proof that Martinez had a legitimate expectation of privacy in the aircraft. As indicated above, there is no proof of ownership of the marijuana in the record. Without such proof, the Court need not reach the issue of Martinez’s privacy interest in the aircraft. He has not demonstrated he had any interest in the contents, therefore, he cannot prove an interest in the aircraft itself.

Furthermore, the Court has no evidence that Martinez entered into a formal bailorbailee arrangement with the pilot, the presumed owner of the aircraft, from which it could imply he owned the marijuana. Martinez argues that the statements made by the two co-defendants, alleging he recruited them to offload the marijuana, proves both his ownership and that he had a bail- or-bailee relationship with the pilot. He erroneously relies upon United States v. Johns, 707 F.2d 1093 (9th Cir.1983), reversed on other grounds, 469 U.S. -, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985), and on United States v. Perez, 689 F.2d 1336 (9th Cir.1982).

In Johns, the court found (1) that two pilots owned the seized marijuana, and (2) that they had a “formalized arrangement with the other five defendants for the transportation of the contraband.” 707 F.2d at 1100. Similarly, in Perez, the court found (1) that the defendants owned the seized drugs, and (2) that it was “clear that a formalized arrangement had been made between (the defendants and the owner of the searched truck) for the transportation of the contraband.” 689 F.2d at 1338. Thus, both courts concluded that the defendants had legitimate expectations of privacy in the searched vehicles.

These cases are distinguishable from the facts in Martinez’s ease. Here, there is no evidence of ownership of the marijuana. If Sergeant Orr’s recitation of Totora’s and Demestichas’ allegations that Martinez recruited them to transport the marijuana were taken as “proof of a formalized arrangement”, then it would only prove an arrangement between Martinez and Totora and Demestichas. There is no evidence who owned the marijuana, Martinez, the pilot, or an unknown third party, nor is there any evidence who hired whom as between the pilot, Martinez, and possibly an unknown third party. Therefore, Sergeant Orr’s testimony at trial does not provide Martinez with sufficient evidence to convince the Court that he has carried his burden of proof.

Finally, the fact of Martinez’s flight towards the aircraft when confronted by Sergeant Orr may support the existence of a conspiracy, but has no bearing on the issues of ownership of the marijuana and his privacy interest in the aircraft.

Based on the foregoing, Martinez has not carried his burden of proving that he has a legitimate expectation of privacy in the searched aircraft. Rawlings, 448 U.S. at 104, 100 S.Ct. at 2561; West, 508 F.Supp. at 1031. Thus, a warrantless search of the aircraft and seizure of the marijuana did not implicate his Fourth Amendment rights. However, even if Martinez were able to prove that he had a privacy interest in the aircraft, the government has carried its burden of proving that the warrantless search and seizure did not violate the Fourth Amendment.

II. The Warrantless Search of the Aircraft and Seizure of the Contraband did not Violate the Fourth Amendment.

Although the Fourth Amendment warrant clause generally requires that all searches and seizures be performed pursuant to a warrant issued by a neutral magistrate, the Supreme Court has recognized certain exceptions to the warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). When contraband is within the “plain view” of a police officer, a search and seizure for which probable cause existed, based on the officer’s having seen the contraband, does not implicate the Fourth Amendment. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502 (1985). Any search resulting from the observation of the contraband is constitutional if it does not exceed the scope that could have been authorized by a search warrant. United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982). Where a warrantless search is conducted based on the “plain view” doctrine, the fact that the contraband was in “plain view alone is never enough to justify the warrantless seizure of evidence.” Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971). Thus, the Coolidge court held that observation of an item comports with the “plain view” doctrine when (1) it can be seen by a police officer from a lawful vantage point; (2) its “incriminating nature” is “immediately apparent”; and (3) it was “inadvertently discovered” by the police. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502 (1985), citing Coolidge, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The observation of the marijuana in the interior of the aircraft by Officer Townley and Sergeant Orr comported with the plain view doctrine as enunciated in Coolidge and applied in Brown.

When Officer Townley first observed the marijuana, he was inspecting the interior of the aircraft from the ground through a window. His inspection was in preparation for his planned towing of the aircraft from its illegal parking place. Even if he had inspected the interior of the aircraft due to his mere curiosity, the intrusion would have been lawful. In Brown, the Supreme Court held that a “diligent police officer” was not precluded from assuming any position to observe the interior of a vehicle which a curious private citizen might, and that no legitimate expectation of privacy protected items that "would be entirely visible to ... a private citizen.” 105 S.Ct. at 1542. Thus Townley’s inspection which first revealed the possible presence of marijuana inside the aircraft, was a lawful intrusion conducted from a lawful vantage point.

Likewise, Sergeant Orr’s initial inspection did not constitute an unlawful intrusion, and was not conducted from an improper position. Sergeant Orr smelled the odor of marijuana while on the ground by the cargo door. He observed packages which, based on the totality of the circumstances (that is the late night arrival of the aircraft, the request to park at a warehouse located away from the terminal building and the public parking area, and the sight of green plant-like material protruding from one of the bundles), appeared to him to contain marijuana.

Martinez argues that the initial intrusions were illegal because of the use of flashlights by Townley and Orr, and because Orr possibly observed the torn package while standing on the wing. The Supreme Court recently held that an Officer’s “action in shining his flashlight to illuminate the interior of [a vehicle] trenched upon no right secured to the [defendant] by the Fourth Amendment.” Texas, 103 S.Ct. at 1541. Therefore, the use of lights to illuminate the interior of the aircraft did not trigger Fourth Amendment protection. See also Brown, 103 S.Ct. at 1541 n. 5, citing cases.

When determining whether an officer’s position on a wing constituted an illegitimate vantage point, the Sixth Circuit in a similar case applied a totality of the circumstances test. United States v. Bellina, 665 F.2d 1335, 1344 (4th Cir.1981). In Bellina, the court found that (1) a plane’s heavy damage suggested an attempt may have been made to land at a nearby unlighted airfield, rather than the lighted airfield at which the pilot finally set down, (2) the seats had been removed, suggesting the transportation of cargo, and (3) the pilots had left the plane without explaining the damage or requesting information on repairs, were such significant facts to a Customs Officer experienced in drug investigations, that failure to diligently inspect would have been a dereliction of his duty. 665 F.2d at 1345. The court held, therefore, that the officer’s standing on the wing did not constitute an unconstitutional intrusion or an unlawful vantage point.

Here, Officer Townley unambiguously testified that he observed green plant material while on the ground. Thus, Orr’s inspection from the wing is not dispositive of the applicability of the plain view doctrine. However, even if it were, his inspection from the wing was not from an unlawful vantage point. As in Beilina, Orr was an experienced drug investigator. He knew that the aircraft had been landed in a remote area of the airport, rather than in the public area near the terminal building. He knew that the pilot did not know where to stay, and had no one to transport him to a motel. From the ground, Orr observed stacks of bundles and smelled a strong odor of marijuana. He mounted the wing for a better look into the aircraft. As the Sixth Court concluded in Beilina, Orr would have ignored his duty to diligently inspect the scene of a suspected crime if he had not mounted the wing. Therefore, it is irrelevant whether he noticed the torn package with protruding green plant material from the ground or from the wing. Thus, both officers’ inspections constituted lawful intrusions made from legal vantage points.

The second criterion of the plain view doctrine, that the incriminating nature of the item observed be “immediately apparent” to the inspecting officers, was met. The immediately apparent criterion does not require officers to know the observed items “are contraband or evidence of a crime”, but requires the officers to have probable cause to believe that they are. Brown, 103 S.Ct. at 1542 (citations omitted). Both officers had the following knowledge when they observed the green plant material in the plane: (1) the pilot had chosen to land and illegally park at a remote portion of the airport rather than in the public parking area; (2) the aircraft did not contain cargo destined for the warehouse at which it had parked; (3) green plant-like material had been or was being transported within the plane. In addition, Sergeant Orr smelled the odor of marijuana. Officer Townley testified that he had examined the visible parts of the packages for air bills and found none. Thus, the Court concludes that the officers had probable cause to believe that the contents of the packages were marijuana. The Court having reached this conclusion, holds that the second criterion of the plain view doctrine was met.

Although the continued viability of the third criterion of the plain view doctrine has been questioned, Brown, 103 S.Ct. at 1543, n. 8, citing cases, the requirement that the incriminating evidence be “inadvertently discovered” was also satisfied. Evidence is inadvertently discovered when officers have no advance knowledge of the location of the evidence and no intent to seize it. Coolidge, 403 U.S. at 470, 91 S.Ct. at 2040, cited in Brown, 105 S.Ct. at 1543. An expectation that evidence will be discovered is not sufficient knowledge. Id. Orr did not know Townley’s suspicions until he arrived at the airport. Even if he had, an officer’s suspicions are not sufficient knowledge of the presence of incriminating evidence to defeat the inadvertence requirement.

Therefore, the Court concludes that the warrantless search of the aircraft and seizure of the contraband comported with the requirements of the plain view doctrine, and thus did not violate the Fourth Amendment.

Martinez also argues that the plain view doctrine was not met because the search and seizure were not made under exigent circumstances. In determining whether a warrantless seizure violates the Fourth Amendment, the Court must determine whether the warrantless search and seizure were constitutional at the time the initial search was conducted. United States v. Johns, 105 S.Ct. 881, 885-87. See also, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, Michigan v. Thomas, 458 U.S. 259, 260, 102 S.Ct. 3079, 3080, 73 L.Ed.2d 750 (1982). The Court concluded earlier that the totality of the circumstances surrounding the aircraft’s presence at a remote part of the airport and the observations made by Townley and Orr provided the necessary elements to establish probable cause to search and seize the aircraft. At the time the initial search occurred, the aircraft was fully mobile. Although the pilot had been transported to a motel, the officers had no means of knowing when the pilot would return, or whether other confederates of the pilot were in the area. Therefore, at the time the initial search occurred, exigent circumstances were present.

Finally, even if the facts did not support the legitimacy of the search and seizure of the aircraft and of its contents, the recently adopted Supreme Court doctrine of inevitable discovery would prevent the suppression of the fruits of the illegal search and seizure. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The court stated that “When ... the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there was no nexus sufficient to provide a taint and the evidence is admissible.” 104 S.Ct. at 2511. Officer Townley’s testimony clearly proves that the marijuana would have been discovered as soon as he entered the plane to prepare it for towing. Martinez did not challenge Townley’s legal right to enter an illegally parked airplane to prepare it for towing.

Also, the government argues that agents of the Customs Service would have seized the aircraft because it had a false tail number, further indicating that the marijuana would have been inevitably discovered by the authorities. However, as Martinez correctly notes, Townley did not notice the tail number was pasted over until after the initial search of the aircraft. There is no testimony on the record from which the Court could conclude that Officer Townley would have checked the tail number as a routine part of preparing the aircraft for towing. Therefore, the Court cannot conclude that Customs would have inevitably discovered the marijuana. This, however, does not change the conclusion that the inevitable discovery doctrine prevents the suppression of the evidence because Officer Townley, a sworn peace officer with arrest powers, would have discovered the marijuana as soon as he entered the plane to prepare it for towing.

Having reviewed the facts surrounding the warrantless search and seizure of the aircraft and of its contents, the Court concludes that if Martinez had had a legitimate expectation of privacy in the aircraft, his Fourth Amendment rights would not have been violated.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, the Court finds that Martinez did not have a legitimate expectation of privacy in the aircraft, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), and that the search and seizure of the aircraft and the marijuana comported with the requirements of the Fourth Amendment, Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Therefore, Martinez’s Motion to Suppress the fruits of the search and seizure of the aircraft will be denied.

      . Neither opinion states whether the defendants presented any evidence at the suppression hearing. However, the detail with which the drug transactions were described in the written opinions, indicates that the courts in Johns and Perez had more affirmative evidence of ownership and of "formalized agreements” than the testimony of the government witness upon whom Martinez relied. Further, the Johns court indicated that two defendants had asserted ownership during the suppression hearing when it noted that the government had acquiesced on the issue of continuing ownership. Johns, 707 F.2d at 1100, n. 6. Thus, the Court concludes that in both of those cases the defendants, through their own testimony or that of their witnesses, presented affirmative evidence on which the courts made their findings. Even if they did not, this Court interprets Salvucci and Rawlings to require a defendant to present more evidence on the issue of a legitimate expectation of privacy in the property searched than was provided by Sergeant Orr's testimony.