## Facts

- A Southeast Skyways DeHavilland Beaver aircraft, piloted by Richard Norvell, flew from Juneau toward Tenakee Springs and crashed into the water near False Bay on November 15, 1974.
- The pilot and three passengers (Peggy Rae Welch, her infant son Joshua, and Dermott R. O’Toole) died.
- Plaintiffs (personal representatives of the estates) sued the airline and the pilot’s estate for wrongful death based on negligent operation of the aircraft.
- Plaintiffs offered expert reconstruction testimony attributing the crash to pilot error and regulatory violations; defendants argued severe weather (including a snow squall) caused the crash.
- At trial, the court instructed on ordinary negligence (not common-carrier duty), gave an “act of God” instruction, declined to give a res ipsa loquitur instruction, and refused certain instructions that would have treated specific FAA regulations as standards of care.
- The court admitted defense expert opinions premised on an assumption that the pilot was not negligent.
- The jury returned a verdict for defendants, and plaintiffs appealed.

## Issues

1. Whether the jury should have been instructed that a commercial air carrier owes passengers a heightened common-carrier duty of care.
2. Whether the jury should have been instructed on res ipsa loquitur to permit an inference of negligence from the circumstances of an unexplained crash.
3. Whether the trial court properly refused to instruct the jury on specific FAA regulations as standards of care.
4. Whether the evidence supported giving an “act of God” instruction.
5. Whether it was error to admit expert causation opinions based on an assumed absence of pilot negligence.

## Decision

- The Supreme Court of Alaska reversed and remanded for a new trial.
- The trial court erred by failing to instruct on the heightened duty owed by a common carrier.
- The trial court erred by failing to give a res ipsa loquitur instruction, particularly in light of an instruction that the mere occurrence of an accident does not necessarily prove negligence.
- The trial court did not err in refusing to instruct on the requested, detailed FAA regulations.
- The trial court did not err in giving an “act of God” instruction because evidence supported the possibility of extraordinary weather as the sole proximate cause.
- The trial court erred by allowing defense expert testimony that assumed the pilot was not negligent, because it was not grounded in facts in evidence and risked deciding the central liability issue for the jury.

## Legal Principles

- A commercial air carrier is a common carrier and owes passengers a duty of “utmost care and vigilance” consistent with practical operations; a jury must be instructed on that heightened standard when supported by the record.
- Res ipsa loquitur is an evidentiary doctrine permitting (not compelling) an inference of negligence from circumstantial evidence when: (1) the accident ordinarily does not occur absent negligence, (2) the instrumentality was within the defendant’s control, and (3) the plaintiff did not contribute to the occurrence; these conditions are applied flexibly.
- Trial courts have discretion to refuse excessively detailed regulatory instructions when they risk confusing the jury, even if regulatory compliance may be argued as evidence of negligence.
- An “act of God” instruction is proper when evidence supports that an extraordinary natural event, unforeseeable and beyond human control, could be the sole proximate cause of the loss.
- Expert opinions must be based on facts in evidence; an expert may not premise causation on an assumed lack of negligence where negligence is the central disputed issue.

## Conclusion

The Alaska Supreme Court ordered a new trial because the jury was not properly instructed on the heightened duty of care applicable to a commercial air carrier and on res ipsa loquitur, and because the defense expert’s assumption-based testimony improperly rested on a presumed absence of negligence; other challenged instructions were upheld.


Widmyer v. Southeast Skyways, Inc., 584 P.2d 1 (Alaska 1978)