Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

Document 186

Filed 06/06/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane Civil Action No. 01-cv-2056-JLK-MJW UNITED STATES AVIATION UNDERWRITERS, INC., a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. d/b/a ACCESS AIR, an Idaho corporation, Plaintiffs, vs. PILATUS BUSINESS AIRCRAFT, LTD., a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation PILATUS AIRCRAFT, LTD., a Swiss corporation; PRATT & WHITNEY CANADA, INC., a Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

PILATUS PROPOSED REVISIONS TO JURY INSTRUCTIONS

Pilatus proposed revisions to the jury instructions follow:

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Case 1:01-cv-02056-JLK

Document 186

Filed 06/06/2007

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1. DEFENDANTS' TENDERED INSTRUCTION 3.23 Defendants tendered jury instruction 3.23 (below) to which plaintiffs objected arguing that its use is limited to professionals like physicians, lawyers and accountants. That argument is without merit or authority, and is untrue. Testimony at trial will show that Mike Smith is a professional pilot and was acting in that capacity in the course and scope of his duties at the time of the incident. He held an Air Transport Pilot certificate, the highest level certificate offered by the Federal Aviation Administration. He had over 22,000 hours of flight time, which is more than the average airline pilot accrues in a career. And at the time of the accident, Mike Smith worked as a professional pilot for Access Air, an FAA certified Air Carrier. Proposed Instruction 3.23 was modeled after Colorado Jury Instruction 15:26. The Source and Authority for that Instruction states that it derives from the Restatement (Second) of Torts §299A (1965). The comments and illustrations from that section state: "This Section ... applies also to any person who undertakes to render services to others in the practice of a skilled trade, such as that of airplane pilot..." Restat 2d of Torts, § 299A. Indeed, airplane pilot is the only example of a skilled trade offered by the Restatement. This jury instruction is meant for professional pilots such as Mr. Smith, who are held to a higher standard of care while in the exercise of their duties.

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Case 1:01-cv-02056-JLK

Document 186

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INSTRUCTION No. 3.23 NEGLIGENCE -- PROFESSIONAL PILOT Plaintiffs Pratt & Whitney X Pilatus X Stipulated

Mike Smith is a professional pilot. A professional pilot who holds himself out as knowledgeable, skilled and licensed to fly a Pilatus PC-12/45 airplane around the world including extended over water flights is negligent when he does an act that reasonably careful professional pilots possessing such knowledge, skill and license would not do, or fails to do an act that reasonably careful professional pilots possessing such knowledge, skill and license would do.

To determine whether such a professional pilot's conduct is negligent, you must compare that conduct with what a professional pilot who has that same special knowledge, skill and license, would or would not have done under the same or similar circumstances. Source or Authority Colorado Jury Instruction 15:26

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Case 1:01-cv-02056-JLK

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2. INSTRUCTION 3.18 The Judge's Note indicates that this instruction is duplicative but does not address defendants' previous argument that it conflicts with Instruction 3.9 Affirmative Defense ­ Misuse, if given. Instruction 3.9 states that if you find that defendants have proven the elements of misuse, you must find for the defendants. Therefore, even though all of the elements of plaintiffs claim for strict liability have been proven, the jury must not find for the plaintiffs if they find that all the elements of misuse have been proven. Even if Instruction 3.9 is not given, this instruction, which is not provided in the Colorado Jury Instruction is confusing and adds nothing.

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Case 1:01-cv-02056-JLK

Document 186

Filed 06/06/2007

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INSTRUCTION 4.6 Question 4 in Instruction 4.6 is a simple statement of Idaho's comparative fault law for which Pilatus argued in a motion in limine. Although the Court denied that motion, Pilatus intends to raise the issue again at trial. The evidence will demonstrate the overwhelming weight of the Idaho nexus and complete lack of Colorado nexus. Moreover, the aircraft purchase contract upon which the court based its opinion that Colorado comparative fault law applies, provides that Idaho, not Colorado law should apply. (See Trial Exhibit A15, page 6 para. 11(e). This contract between Idaho buyer, DJS Aviation, and Western Aircraft, Pilatus' Idaho distributor, was the agreement under which the subject aircraft entered the stream of commerce. The aircraft was delivered and accepted in Boise Idaho (See Trail Exhibit A18.), registered in Boise Idaho (See Trial Exhibit A19), leased by DJS Aviation to Idaho Plaintiff Access Air in Boise Idaho, which lease was to be governed and construed under Idaho law (See Trail Exhibit A23 para, 6 E.) and the flight was chartered in Boise, Idaho (See Trial Exhibit 7). Respectfully submitted this 6th day of June 2007. Schultz & Associates By: /s Robert Schultz Robert B. Schultz 9710 W 82nd Ave Arvada CO 80005 Tel. (303) 456 5565 Fax. (303) 456 5575 Attorney for Defendants PILATUS BUSINESS AIRCRAFT, LTD and PILATUS FLUGZEUGWERKE AG/ PILATUS AIRCRAFT, LTD

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Case 1:01-cv-02056-JLK

Document 186

Filed 06/06/2007

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of June 2007, I caused the forgoing PILATUS PROPOSED REVISIONS TO JURY INSTRUCTIONS to be served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following addresses:

Jon A. Kodani Jeff Williams Law Offices of Jon A. Kodani [email protected] Thomas Byrne Byrne, Kiely & White LLP [email protected]

/s Robert Schultz Schultz & Associates [email protected]

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