Khiry Cosey on Behalf of Her Minor Children, Corbin Hilliard and Allyssa Hilliard Individually and on Behalf of the Estate of Reginald Hilliard, Jr; Tiara Liggins on Behalf of Her Minor Child, Takhiree Hilliard Individually and on Behalf of the Estate of Reginald Hilliard, Jr.; Tukeya Jarvis Individually and on Behalf of Thomas Hilliard; And Dorothy Jarvis v. Flight Academy of New Orleans, LLC; Jazz Aviation, LLC; Qbe Insurance Corporation; Christiansen Aviation, Inc.; Abc Insurance Company; Signature Flight Support Corporation; Allianz Global Corporate & Specialty Se; The Estate of James Biondo; And Def Insurance Company

KHIRY COSEY ON BEHALF * NO. 2019-CA-0756
OF HER MINOR CHILDREN,
CORBIN HILLIARD AND *
ALLYSSA HILLIARD COURT OF APPEAL
INDIVIDUALLY AND ON *
BEHALF OF THE ESTATE OF FOURTH CIRCUIT
REGINALD HILLIARD, JR; *
TIARA LIGGINS ON BEHALF STATE OF LOUISIANA
OF HER MINOR CHILD, *******
TAKHIREE HILLIARD
INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF
REGINALD HILLIARD, JR.;
TUKEYA JARVIS
INDIVIDUALLY AND ON
BEHALF OF THOMAS
HILLIARD; AND DOROTHY
JARVIS

VERSUS

FLIGHT ACADEMY OF NEW
ORLEANS, LLC; JAZZ
AVIATION, LLC; QBE
INSURANCE CORPORATION;
CHRISTIANSEN AVIATION,
INC.; ABC INSURANCE
COMPANY; SIGNATURE
FLIGHT SUPPORT
CORPORATION; ALLIANZ
GLOBAL CORPORATE &
SPECIALTY SE; THE ESTATE
OF JAMES BIONDO; AND DEF
INSURANCE COMPANY

CONSOLIDATED WITH: CONSOLIDATED WITH:

KHIRY COSEY ON BEHALF OF NO. 2019-CA-0785
HER MINOR CHILDREN,
CORBIN HILLIARD AND
ALLYSSA HILLIARD
INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF
REGINALD HILLIARD, JR;
TIARA LIGGINS ON BEHALF OF
HER MINOR CHILD, TAKHIREE
HILLIARD, ET AL.

VERSUS

FLIGHT ACADEMY OF NEW
ORLEANS, LLC; JAZZ
AVIATION, LLC; QBE
INSURANCE CORPORATION;
CHRISTIANSEN AVIATION, INC.;
ABC INSURANCE COMPANY;
SIGNATURE FLIGHT SUPPORT
CORPORATION; ALLIANZ
GLOBAL CORPORATE &
SPECIALTY SE; THE ESTATE OF
JAMES BIONDO; AND DEF
INSURANCE COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-09317 C\W 2016-11198, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Daniel L. Dysart
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy
Cossich Lobrano)

John D. Sileo
Casey W. Moll
LAW OFFICE OF JOHN D. SILEO, LLC
320 North Carrolton Avenue, Suite 101
New Orleans, LA 70119

Ike Spears
SPEARS & SPEARS
1631 Elysian Fields Ave.
New Orleans, LA 70117

Roderick "Rico" Alvendia
Jeanne K. Demarest
Kurt A. Offner
ALVENDIA, KELLY & DEMAREST, L.L.C.
909 Poydras Street, Suite 1625
New Orleans, LA 70112-4500

Eric J. Allen
ZEHL & ASSOCIATES, PC
2700 Post Oak Blvd., Suite 1120
Houston, TX 77056

Cleo Fields
THE FIELDS LAW FIRM, LLC
2147 Government St.
Baton Rouge, LA 70806
COUNSEL FOR PLAINTIFF/APPELLANT

D. Russell Holwadel
Heather A. England Reznik
ADAMS HOEFER HOLWADEL, L.L.C.
400 Poydras Street, Suite 2450
New Orleans, LA 70130

Stephen P. Hall
PHELPS DUNBAR LLP
365 Canal Street, Suite 2000
New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

NOVEMBER 12, 2020

DLD
RLB This is an appeal of a trial court judgment granting motions for summary
JCL
judgment in favor of defendants, Christiansen Aviation, Inc., and its insurer, Old

Republic Insurance Company. After a de novo review of the record, we find that

the trial court properly granted the summary judgments, and we affirm.

FACTS AND PROCEDURAL BACKGROUND

This lawsuit arises out of a tragic accident that occurred on August 27, 2016,

when a Cessna 172 airplane, piloted by James Biondo, crashed into Lake

Pontchartrain. Mr. Biondo had been hired to perform an aerial tour of New

Orleans by Briana Davis; Ms. Davis and her boyfriend, Reginald Hilliard, Jr., were

passengers in the airplane at the time of the accident. Mr. Biondo and Mr. Hilliard

both perished as a result of the accident, while Ms. Davis survived. Mr. Hilliard’s

surviving family members filed a lawsuit seeking damages resulting from the

crash.1 The suit named a number of parties, including Flight Academy of New

Orleans (“FANO”), Christiansen Aviation and its insurer, Old Republic.

1
Mr. Hilliard’s surviving family members are identified as his minor children, on whose behalf
suit was filed by their mothers: Corbin Hilliard and Alyssa Hilliard (whose mother is Khiry
Cosey) and Takhiree Hilliard (whose mother is Tiara Liggins). Also named as plaintiffs are

1

On January 1, 2019, Christiansen Aviation, the owner and lessor of the

airplane, filed a motion for summary judgment seeking to be dismissed from this

action on the basis that the plaintiffs would be unable to bear their burden of proof

that any negligence on its part caused or contributed to the August 27, 2016 crash.

Its insurer, Old Republic, filed its own motion for summary judgment, as its

liability is contingent on the liability of its insured, Christiansen Aviation.

The trial court conducted a hearing on the motions for summary judgment

on February 15, 2019. By judgment dated February 26, 2019, the trial court

granted the motions for summary judgment, dismissing the plaintiffs’ claims

against Christiansen Aviation and Old Republic, with prejudice. This appeal

followed.

DISCUSSION

The summary judgment procedure “is favored” and “is designed to secure

the just, speedy, and inexpensive determination of every action, except those

disallowed by Article 969.” La. C.C.P. art. 966(A)(2).

It is well-settled that “[a]ppellate courts review the grant or denial of a

motion for summary judgment de novo, employing the same criteria that govern

the trial court’s determination of whether summary judgment is appropriate.”

Maddox v. Howard Hughes Corp., 19-0135, p. 4 (La. App. 4 Cir. 4/17/19), 268

Tukeya Jarvis, Mr. Hilliard’s mother, and Dorothy Jarvis, Mr. Hilliard’s grandmother. Tukeya
Jarvis appears in her own capacity and in her capacity as mother of Mr. Hilliard’s minor brother,
Thomas Hilliard.

Ms. Davis filed a lawsuit as well for her personal injuries that was consolidated with the
Hilliard plaintiffs’ lawsuit; her suit was settled and has been dismissed.

2

So.3d 333, 337 (citations omitted). A “[d]e novo review generally ‘involves

examining the facts and evidence in the record, without regard or deference to the

judgment of the trial court or its reasons for judgment.’” Cutrone v. English Turn

Prop. Owners Ass’n, Inc., 19-0896, p. 10 (La. App. 4 Cir. 3/4/20), 293 So.3d 1209,

1216 (quoting Hooper v. Hero Lands Co., 15-0929, p. 12 (La. App. 4 Cir. 3/30/16),

216 So.3d 965, 973-74.

Summary judgment is appropriate and shall be granted “[a]fter an

opportunity for adequate discovery, . . . [when] the motion, memorandum, and

supporting documents show that there is no genuine issue as to material fact and

that the mover is entitled to judgment as a matter of law.” La. C.C.P. art.

966(A)(3). The burden of proof rests with the party moving for summary

judgment; however, this burden does not require that the moving party “negate all

essential elements of the adverse party’s claim, action, or defense, but rather to

point out to the court the absence of factual support for one or more elements

essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(D)(1).

The adverse party has the “burden of produc[ing] factual support sufficient to

establish the existence of a genuine issue of material fact or that the mover is not

entitled to judgment as a matter of law.” Id.

There is no dispute in this case that Christiansen Aviation is the owner of

the airplane involved in the accident which it leased to FANO, a company whose

business includes providing recreational aerial tours of the New Orleans area.

3

FANO leased the airplane continuously since March 4, 2013, or for a period of

three years and five-and-a-half months prior to the accident.

The issue in this case turns on whether, under the circumstances of this case,

there are any theories under which liability can be assessed against Christiansen

Aviation, as the lessor of the airplane. We note the record is void of any evidence

that expressly indicates the cause of the accident. Christiansen Aviation indicates

in its appellate brief that no defect or malfunction of the plane was detected when

the airplane was inspected after the accident, and that the evidence points to pilot

error as its cause. Plaintiffs have not disputed either of these statements and have

not alleged that the airplane had a defect or other condition that caused the

accident. The claims of plaintiffs against Christiansen Aviation, therefore, sound

in negligence.

In its memorandum in support of its motion for summary judgment,

Christiansen Aviation outlined the plaintiffs’ claims against it as follows; that

Christiansen Aviation: (1) “knew or should have known that the subject Cessna

172 was not fit for flight and that the use of the aircraft under such conditions

could cause serious injury;” (2) “so negligently and carelessly maintained,

inspected, operated, and/or services the subject Cessna 172 aircraft that it failed

catastrophically during a landing approach;” and (3) “negligently entrusted” the

aircraft to FANO.2 In their first supplemental and amending petition, plaintiffs

restated their negligent entrustment claims as follows:

2
The record does not contain copies of Petition for Damages, nor any of the supplemental and
amending petitions. None of these pleadings were included as exhibits to the Motion for

4

Christiansen Aviation, leased a dangerous instrument (the
aircraft) to the lessees even though the Christiansen
Aviation knew, or should have known, that the lessees
were likely to cause an accident in risk to others.

****

The lessor knew or should have known of the
incompetence and/or knew or should have known that the
aircraft was being used as a commercial touring aircraft
and therefore required additional safety precautions,
safety briefings, equipment, and instruments yet lessor
took no reasonable steps to inspect the lessees’
operations or require compliance with reasonable safe
practices or regulations prior to entering the lease and
then continued to operate under the lease without taking
any of these adequate measures;

****

The lessor has a duty to provide oversight to ensure that
passengers fly on airplanes that are adequately selected,
equipped, safely maintained, and operated by safely
trained and qualified pilots; and

****

Because Christiansen Aviation was negligent and grossly
negligent in leasing the aircraft to the lessees without
reasonable steps to make sure the lessees were complying
with regulations or otherwise operating its aircraft safely,
Defendant Christian Aviation is liable to plaintiff.

In support of its motion for summary judgment, Christiansen Aviation

contended that the plaintiffs would be “unable to meet their burden of proving that

any negligence on the part of Christiansen Aviation caused or contributed to the

accident at issue.” In this regard, it makes several arguments. First, pursuant to

the lease between it and FANO, FANO undertook the obligation to maintain,

Summary Judgment nor any other supporting or opposing memoranda. Because plaintiffs have
not disputed the characterization of their allegations by Christiansen, we accept these as the
allegations against Christiansen Aviation.

5

inspect and repair the airplane. Second, the lease required FANO to allow only

properly certified pilots to operate the airplane. Third, under the terms of the lease,

FANO maintained “operational control” over the airplane. Fourth, Christiansen

Aviation exercised no control over the airplane. Fifth, under the provisions of the

lease, neither FANO nor Christiansen Aviation would be responsible for the acts or

omissions of the other. Lastly, it maintains that, under the facts alleged, plaintiffs

have failed to assert a legally cognizable negligent entrustment claim.

In opposition to Christiansen Aviation’s motion for summary judgment,

plaintiffs advance several arguments. Generally characterizing Christiansen

Aviation’s “approach . . . prior to and throughout the leasing of its aircraft” as

“extraordinarily nonchalant and negligent,” plaintiffs maintain that Christiansen

Aviation, “as the owner of a potentially dangerous instrument, may be held to a

higher, extraordinary standard of care, particularly in light of its failure to do

anything to inquire about FANO, its operations, and/or its pilots.” They contend

that it breached even an ordinary standard of care by failing “to conform its

conduct and standard of care to a reasonable person in like circumstances.”

Christiansen Aviation’s breach was allegedly the result of several failures,

including the failure to take “minimal, reasonable steps to ensure that FANO was a

responsible operator prior to and/or during the three-and-a-half years in which

FANO flew the plane.” The plaintiffs then cite various specific failures on

Christiansen Aviation’s part which are generally summarized as failing to “at least

meet[] with the operator, inquiring about the operator’s qualifications and safety

6

measures, understanding the operator’s use of the plane, and taking some

reasonable steps to monitor the operator’s actions and safety standards at some

point during the term of the lease.”

Plaintiffs also contend that Christiansen Aviation failed to properly vet

FANO prior to leasing to it, failed to follow its own internal vetting procedure

before leasing its airplane to it, and failed to act “as a reasonable and prudent

aircraft owner prior to and during the lease of the aircraft to FANO.” They further

contend that Christiansen Aviation failed to request and examine documentation

“verifying FANO’s licensing, skill, qualifications, maintenance schedule, intent on

usage of the aircraft, or operations in general over a three-and-half-year lease

term.”

At the outset, the parties do not identify and we know of no statutes or

regulations under Louisiana law that apply to aviation activities such as those

undertaken by FANO, nor any state regulations regarding the leasing of airplanes,

even the leasing of an airplane for the purposes of recreational touring.3 Aviation

activities are, on the other hand, regulated by the Federal Aviation Administration

(“FAA”), whose purpose is to “promote safe flight of civil aircraft.” 49 U.S.C.

§44701. “To that end, the FAA is empowered to regulate nearly every aspect of

3
We recognize that Title 2 of Louisiana’s Revised Statutes pertains to “Aeronautics” and that
“[a]eronautics is defined therein as “the act or practice of the art and science of transportation by
aircraft, and operations, construction, repair, or maintenance of aircraft, airports, landing fields,
landing strips, air navigation facilities, or air instruction.” La. R.S. 2:1(2). There is nothing,
however, within Title 2 which sets forth any duties vis-à-vis the lessor/owner of an aircraft and
its lessee.

7

private and commercial flight, including licensing and regulation of pilots and their

operations.” Flytenow, Inc. v. F.A.A., 808 F.3d 882, 885 (D.C. Cir. 2015).

Among these federal regulations are those found under Title 14 of the Code

of Federal Regulations, “Aeronautics and Space.” These regulations include those

for “[p]assenger carrying flights for compensation or hire” (See 14 C.F.R. §91.147)

and “National Air Tour Safety Standards,” found within Part 136, “Commercial

Air Tours and National Parks Air Tour Management.”

Under 14 C.F.R. §91.147(b), “[a]n Operator must comply with the safety

provisions of part 136, subpart A of this chapter, and apply for and receive a Letter

of Authorization from the responsible Flight Standards office.” While the term

“operator” is not defined, “operational control” is defined “with respect to a flight,

[as] the exercise of authority over initiating, conducting or terminating a flight.” 14

C.F.R. §1.1. An “operator” necessarily would be one with “operational control”

over a flight.

There can be no question that the “operator” in this case is FANO. Attached

to Christiansen Aviation’s supporting memorandum is the Letter of Authorization

issued to FANO, that authorizes FANO, as the operator, to “[c]onduct commercial

air tour operations under 14 CFR Section 91.147.” There can be no dispute that

this Letter applies to FANO, alone, and does not confer to Christiansen Aviation

the authority to conduct any aerial tours either directly or by extension.

The National Air Tour Safety Standards provide specific rules for air tour

operations, which applies solely “to each person operating or intending to operate a

8

commercial air tour in an airplane.” 14 C.F.R. §136.1(a). Again, here, it is FANO

who operated the airplane for commercial tours, and the standards for safety, thus,

apply to it, alone. There is nothing in the regulations suggesting that the safety

standards can be expanded so as to apply to a party, such as Christiansen Aviation,

which does not actually “operate” or “intend to operate” commercial aerial tours.

Nor is there any basis for imposing liability on Christiansen Aviation for “failing to

provide safety instructions in its aircraft,” as plaintiffs contend. Plaintiffs cite no

law, regulation or other provision mandating that the owner of an airplane provide

written safety instructions.

However, there are federal regulations, the National Air Tour Safety

Standards, 14 C.F.R. §136.1 et. seq., which apply “to each person operating or

intending to operate a commercial air tour in an airplane.” 14 C.F.R. §136.1(a).

Those regulations place the responsibility of providing safety briefings before an

air tour with the pilot, alone. 14 C.F.R. §136.7, dealing with passenger briefing,

provides:

(a) Before takeoff each pilot in command shall ensure
that each passenger has been briefed on the following:

(1) Procedures for fastening and unfastening seatbelts;

(2) Prohibition on smoking; and

(3) Procedures for opening exits and exiting the
aircraft.

(b) For flight segments over water beyond the shoreline,
briefings must also include:

(1) Procedures for water ditching;

9

(2) Use of required life preservers; and

(3) Procedures for emergency exit from the aircraft in
the event of a water landing.

Another safety obligation is found at 14 C.F.R. §136.9(a), which requires

“the operator and pilot in command of commercial air tours over water beyond the

shoreline [to] ensure that each occupant is wearing a life preserver from before

takeoff until flight is no longer over water,” or, under certain circumstances, to

have “a life preserver . . . readily available for its intended use and easily

accessible to each occupant.” 14 C.F.R. §136.9(b).

These federal regulations clearly apply to operators and pilots and cannot be

construed to apply to any other party, including the owner of an airplane who is

neither an operator nor a pilot. Nor are these responsibilities delegable to third

parties. Accordingly, we find no authority under federal law by which the duties to

ensure the safety of passengers in a commercial air touring enterprise can be

extended to an owner-lessor of an airplane which is not its operator or pilot.

We also note that, under federal law, there is a limitation of liability found in

Title 49, “Transportation,” under which the Department of Transportation was

established for “[t]he national objectives of general welfare, economic growth and

stability, and security of the United States” and to serve the purpose of “the

development of transportation policies and programs that contribute to providing

fast, safe, efficient, and convenient transportation.” 49 U.S.C.A. §101. While

Title 49 applies in the context of “air commerce,” which is defined as “foreign air

commerce, interstate air commerce, the transportation of mail by aircraft, the

10

operation of aircraft within the limits of a Federal airway, or the operation of

aircraft that directly affects, or may endanger safety in, foreign or interstate air

commerce,” 49 U.S.C.A. §40102 (a), and there is insufficient information in the

record to determine whether it applies to this matter, we note that it contains an

express provision limiting the liability of the lessor of an aircraft. 49 U.S.C.A.

§44112 (b),4 which provides:

Liability.--A lessor, owner, or secured party is liable for
personal injury, death, or property loss or damage only
when a civil aircraft, aircraft engine, or propeller is in the
actual possession or operational control of the lessor,
owner, or secured party, and the personal injury, death, or
property loss or damage occurs because of—

(1) the aircraft, engine, or propeller; or

(2) the flight of, or an object falling from, the
aircraft, engine, or propeller.5

(Emphasis added).

Cases interpreting this statute have consistently held that “a lessor cannot be

liable for personal injury or death on an aircraft it owns unless the lessor ‘is in the

actual possession or operational control’ of the flight.” Escobar v. Nevada

Helicopter Leasing LLC, No. CV 13-00598 HG-WRP, 2020 WL 1076107, at *2

(D. Haw. Mar. 6, 2020). As the Escobar Court noted, the statute “provides

protection from liability only when the aircraft’s lessor possesses neither actual

possession nor actual control.” Id. (emphasis supplied; internal citation omitted).

That is, “[f]or liability to attach to a lessor, the statute requires actual possession or
4
This provision is found in Title 49, “Transportation,” Subtitles VII, “Aviation Programs,” Part
A, “Air Commerce and Safety,” Subpart III, “Safety” and Chapter 441. “Registration and
Recordation of Aircraft.”
5
“Lessor” is defined in the statute as “a person leasing for at least 30 days a civil aircraft, aircraft
engine, or propeller” and “owner” is defined as “a person that owns a civil aircraft, aircraft
engine, or propeller.” 49 U.S.C.A. §44112 (a)(1) and (2).

11

actual operational control of the aircraft by the lessor at the time of the injury-

causing accident.” Id. (citing In re Lawrence W. Inlow Acc. Litigation, 2001 WL

331625, at *18 (S.D. Ind. Feb. 7, 2001). See also, Salles v. Leasing, No. 115-CV-

457, 2015 WL 10912053, at *1 (W.D. Mich. Nov. 4, 2015)(“The [FAA] limits the

liability of owners of aircraft when the owner does not . . . possess or control the

aircraft.”); Matei v. Cessna Aircraft Co., 35 F.3d 1142, 1146 (7th Cir. 1994).

It is clear that, under federal law, a lessor of an airplane cannot be held liable

unless it has possession or control of the airplane. Here, there is no dispute that

Christiansen had neither and, therefore, cannot be held liable for the accident under

federal law.

Christiansen Aviation raises the issue of whether the plaintiffs’ claims are

preempted by federal law and notes that there are numerous cases finding state law

claims arising out of aircraft accidents to be preempted by federal laws.

Christiansen Aviation cites Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir.

1999) for its contention that “state law standards of care are completely preempted

by federal aviation safety standards in personal injury actions.”6 Abdullah did, in

fact, hold that, “because of the need for one, consistent means of regulating

aviation safety, the standard applied in determining if there has been careless or

reckless operation of an aircraft, should be federal; state or territorial regulation is

preempted.” Id. at 372. However, while Abdullah found “implied federal

preemption of the entire field of aviation safety,” Id., at 365, the Court recognized

that “the traditional state and territorial law remedies continue to exist for violation

6
Many of the cases dealing with the preemption issue consider the issue in the context of state
laws which may conflict with the federal aviation laws. In this case, there are no specific state
laws which are at odds with the federal aviation laws. We note, too, that some cases have found
that certain state law claims are not preempted. See Retzler v. Pratt & Whitney Co., 309 Ill. App.
3d 906, 723 N.E.2d 345 (1999); Vreeland v. Ferrer, 71 So.3d 70, 84 (Fla. 2011)

12

of those standards” because “[f]ederal preemption of the standards of care can

coexist with state and territorial tort remedies.” Id. at 375.

In the instant matter, plaintiffs’ claims against Christiansen Aviation arise

not from the actual negligence of FANO’s pilot, but from its alleged failures prior

to leasing the airplane to FANO and its lack of oversight of FANO during the

pendency of the lease. No claim could be asserted against Christiansen Aviation

for Biondo’s negligence, as we know of no cases finding a lessor liable to third

parties for the negligence of its lessee’s employee under similar circumstances. “It

is well entrenched in Louisiana law that the negligence of a lessee in the exclusive

physical control of the object of the lease cannot be imputed to the lessor.”

Cenance v. Tassin, 03-1379, p. 4 (La. App. 4 Cir. 3/3/04), 869 So.2d 913, 916.

The issue of a lessor’s liability to third parties arises most often in the

context of vehicle lease cases or premises liability actions, the latter of which is

clearly inapplicable here. In vehicle lease cases, an owner may be liable under a

negligent entrustment theory, for which, as discussed more fully infra, there is no

basis in this case. Nor is there a basis for liability under La. C.C. art. 2317.1,

which provides that “[t]he owner or custodian of a thing is answerable for damage

occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the

exercise of reasonable care, should have known of the ruin, vice, or defect which

caused the damage, that the damage could have been prevented by the exercise of

reasonable care, and that he failed to exercise such reasonable care.” Here, there is

no indication that the airplane owned by Christiansen Aviation was defective (and,

therefore, the issue of Christiansen Aviation’s knowledge of a defect is moot).

It is clear that Louisiana law no longer recognizes strict liability based solely

upon ownership. See Sewell v. Sewerage & Water Bd. of New Orleans, 18-0996,

13

p. 4, n.7 (La. App. 4 Cir. 5/29/19), --- So.3d ----. 2019 WL 2305673, writ denied,

19-01166 (La. 10/15/19), 280 So.3d 612 (“traditional[] notions of strict liability

have been nearly entirely abrogated” by amendments to the Civil Code.”)(internal

citation omitted). Indeed, “La. C.C. art. 2317.1 effectively abrogates strict

liability in cases involving defective things and imposes a negligence standard

based on the owner or custodian’s knowledge or constructive knowledge of the

defect.” Griffith v. Universal Furniture House, Inc., 07-1551, p. 4 (La. App. 4 Cir.

7/30/08), 990 So.2d 739, 741. “Liability arises out of a defendant’s legal

relationship to the thing based on the defendant’s custody or control of the thing,

not solely ownership of the thing.” Szewczyk v. Party Planners W., Inc., 18-0898,

p. 8 (La. App. 4 Cir. 5/29/19), 274 So.3d 57, 62.

While plaintiffs argue that “Christiansen Aviation, as the owner of the

aircraft, negligently and recklessly leased the aircraft, a potentially dangerous

instrument when piloted by a negligent pilot under the influence of antidepressants

and operated by [a] company without sufficient safety measure in place,” plaintiffs

cite no case law imposing liability to the lessor of a plane for the negligent

operation of the plane by a lessee’s employee. Thus, as a matter of law, the

circumstances of this case do not provide a sufficient basis upon which liability can

be assessed against Christiansen Aviation.

Moreover, in this case, the Aircraft Lease Agreement (“Lease”) required that

FANO, not Christiansen Aviation, ensure that the airplane was operated in a safe

and proper manner. The Lease contained a clause whereby FANO agreed to:

use and operate the Aircraft in accordance with the
manufacture’s operating instructions, in conformity with
the laws, ordinances, rules and regulations, municipal,
state, national or otherwise, now existing or hereafter
enacted, controlling or in any way affecting the

14

operation, use or possession of the Aircraft or the use of
any airport premises by the Aircraft, and only in
compliance with the terms, conditions and limitations set
forth in the applications for or policies of insurance made
or issued pursuant to the terms of this lease.7

We likewise find no merit to plaintiffs’ contention that a “duty of

extraordinary care” exists to those “who own, or control a dangerous

instrumentality.” Nor are we persuaded that the operation of an airplane can be

compared to the handling of “inherently dangerous agencies, substances, or

instrumentalities,” as plaintiffs suggest. Plaintiffs cite several cases8 for their

contention that “explosives, electricity, firearms, combustibles and fireworks

which might endanger persons or property are held to a high or extraordinary

degree of care.” In our view, airplanes are not in the same class of any of these

inherently dangerous materials. We are similarly not convinced that the Maryland

Cas. Co. v. W. H. Stewart & Sons, Inc., 100 So.2d 912, 913 (La. App. 1 Cir 1958)

case advances plaintiffs’ arguments on this point. While the Court in Maryland

Cas. noted that “[a]n airplane is not an inherently dangerous instrument, although

in flight, when improperly used or in the hands of an incompetent pilot, it may be,”

Id., 100 So.2d at 913, again, any negligence on Biondo’s part in this case would

not be imputable to Christiansen Aviation.9

Moreover, our review of cases from other jurisdictions reflects consistency

in the principle that airplanes are not dangerous instrumentalities and that aviation

is not an ultrahazardous activity. See, e.g., Garland v. Sybaris Clubs Int'l, Inc.,

7
Similarly, the Lease provided that FANO (and not Christiansen Aviation) would at all times, be
the party in “operational control,” of the airplane.
8
Waters v. Southern Farm Bureau Cas. Ins. Co., 212 So.2d 487 (La. App. 3 Cir. 1968); Miller v.
Lambert, 380 So.2d 695 (La. App. 4 Cir. 1980) and Cathey v. Bernard, 467 So.2d 9 (La. App. 1
Cir. 1985)
9
See, e.g., Lockwood v. Astronautics Flying Club, Inc., 437 F.2d 437 (5th Cir. 1971)(rejecting
the theory of vicarious liability of the owner of an aircraft for the negligence of the pilot of the
aircraft).

15

2019 IL App (1st) 180682, ¶ 31, 141 N.E.3d 730, 748 (“an airplane is not an

inherently dangerous article, [although] it may become so if operated by a pilot

who is incompetent, inexperienced, or reckless”); Wilson v. Greg Williams Farm,

Inc., 2014 Ark. App. 334, 5-6, 436 S.W.3d 485, 489 (2014)(quoting Little v.

McGraw, 250 Ark. 766, 769, 467 S.W.2d 163 (1971)(“[a]viation is now so

commonplace that it cannot be considered to be either inherently dangerous or

ultrahazardous”); Joshi v. United States, 2009 WL 2449234, at *5 (N.D. Ind. Aug.

6, 2009)(“an aircraft does not qualify as a dangerous instrumentality”); Lange v.

Nelson-Ryan Flight Serv., Inc., 263 Minn. 152, 157, 116 N.W.2d 266, 270

(1962)(“Technical progress in the art of flying has reached a point where an

airplane cannot be regarded as a dangerous instrumentality per se”); Wood v.

United Air Lines, Inc., 32 Misc. 2d 955, 960, 223 N.Y.S.2d 692, 697 (Sup. Ct.

1961)(“flying should no longer be deemed to be an ultrahazardous activity,

requiring the imposition of absolute liability for any damage or injury caused in the

course thereof. This view is [in] accord with the current trend of the law.”).

In this matter, therefore, plaintiffs can only rely on theories of general

negligence. As early as 1949, courts have recognized that, although there is “no

statute specifically applicable to the issue of negligence in the operation of

aircraft,” “[i]n the absence of [such] statutes . . . , specifically applicable to the

issue of negligence in the operation thereof, the rules of law applicable to torts—

the ordinary rules of negligence and due care—obtain.” S. Air Transp. v. Gulf

Airways, 40 So.2d 787, 789 (La. 1949). See also Nichols v. Jones, 260 So.2d 748,

750 (La. App. 2 Cir. 1971)(“[t]he rule in Louisiana is that in the absence of any

statute specifically applicable to the issue of negligence in the operation of aircraft,

the ordinary rules of negligence apply.”).

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Negligence claims have as their foundation, La. C.C. art. 2315 A, which

provides that “[e]very act whatever of man that causes damage to another obliges

him by whose fault it happened to repair it.” As this Court explained, “[t]he

duty/risk analysis is the standard negligence analysis our Court employs in

determining whether to impose liability under La. C.C. art. 2315.” Moore v.

Choice Found., 18-0603, p. 5 (La. App. 4 Cir. 5/29/19), 274 So.3d 33, 37. Thus:

in order for liability to attach under a duty/risk analysis, a
plaintiff must prove five separate elements: (1) the
defendant had a duty to conform his or her conduct to a
specific standard of care (the duty element); (2) the
defendant failed to conform his or her conduct to the
appropriate standard (the breach of duty element); (3) the
defendant’s substandard conduct was a cause-in-fact of
the plaintiff’s injuries (the cause-in-fact element); (4) the
defendant’s substandard conduct was a legal cause of the
plaintiff’s injuries (the scope of liability or scope of
protection element); and, (5) actual damages (the
damages element).

Id. (quoting Mathieu v. Imperial Toy Corp., 94-0952, pp. 4-5 (La. 11/30/94), 646

So.2d 318, 322). The absence of any of these elements “results in a determination

of no liability.” Id. (quoting Mathieu, p. 11, 646 So.2d at 326).

It is axiomatic that the “threshold issue in any negligence action is whether

the defendant owed the plaintiff a duty.” FIE, LLC v. New Jax Condo Ass’n, Inc.,

16-0843, p. 23 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, 391-92, writ denied, 18-

449 (La. 5/25/18), 243 So.3d 544, and writ denied, 18-446 (La. 5/25/18), 243

So.3d 545. “The existence of a duty is a question of law.” Hohensee v. Turner,

14-0796, p. 13 (La. App. 4 Cir. 4/22/15), 216 So.3d 883, 890. In considering this

issue, “the inquiry is whether the plaintiff has any law—statutory, jurisprudential,

or arising from general principles of fault—to support his claim.” Ducote v.

Boleware, 15-0764, p. 16 (La. App. 4 Cir. 2/17/16), 216 So.3d 934, 945, writ

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denied, 16-0636 (La. 5/20/16), 191 So.3d 1071 (quoting Faucheaux v. Terrebonne

Consolidated Government, 615 So.2d 289, 292 (La.1993)).

Plaintiffs cite no statute or case law requiring a lessor, even the lessor of an

airplane, to undergo the measures plaintiffs assert Christiansen should have

undertaken before a lease, and the obligations contained in that lease, become

effective. Nor have plaintiffs cited any federal or state law imposing such duties.

Their position is simply that Christiansen Aviation’s conduct was not reasonable

under the circumstances of this case. Because we can find no duty under state or

federal law for the claims asserted by plaintiffs against Christiansen Aviation, we

find that the plaintiffs have failed to meet the first element of a negligence claim

against it.10 We, thus, need not address any of the other elements of a negligence

claim.

Furthermore, the Lease contained a provision whereby “[n]either party shall

at any time during [the Lease] for any purpose whatsoever be or become the agent

of the other, nor shall either party be responsible for the acts or omissions of the

other or its agents.” It also contained an indemnification provision whereby FANO

agreed to:

indemnify and save [Christiansen Aviation] harmless
from and against any and all claims, costs, expenses,
demand, and liabilities of any nature whatsoever which
may be asserted against [Christiansen Aviation] or
incurred by [Christiansen Aviation] and arising solely out
of [FANO’s] use or operation of the Aircraft during the
term of this lease, whether caused by [FANO’s]
negligence, or not.

10
Even assuming Christiansen Aviation owed a duty to the plaintiffs, any such duty would not
encompass any of FANO’s day-to-day operations, including the hiring or training of its pilots.
Nor can we see any manner by which a breach of a duty could be a cause-in-fact or a legal cause
of the accident insofar as it resulted from pilot error.

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These provision clearly release Christiansen Aviation from liability for any

negligence on FANO’s part. “Where a lease’s words are clear and unambiguous, a

court must enforce its explicit terms.” Gravolet v. Fair Grounds Corp., 03-0392,

p. 4 (La. App. 4 Cir. 7/14/04), 878 So.2d 900, 903. We find no ambiguity in the

either of these provisions and thus, find further support for our finding that

Christiansen Aviation has no liability in this action.

Turning to plaintiffs’ negligent entrustment claims, Christiansen Aviation

cites several cases involving the liability of a lessor of a vehicle for the negligence

of its lessee. Plaintiffs distinguish these cases on the basis that they involve

vehicles, rather than aircraft, and contend that the “[c]ircumstances and standards

imposed upon a person lending his or her car to someone are extraordinarily

different from those related to and/or imposed upon the owner of an aircraft leasing

its property to an out-of-state operator,” which, plaintiffs argue, require

“heightened,” “not lessened” standards. Plaintiffs, again, urge this Court to adopt a

“reasonable person in like circumstances” to this claim.

There are no cases in Louisiana addressing a negligent entrustment claim

asserted against the owner of an aircraft by the victim of its lessee’s alleged

negligence.11 However, we see no discernable reason as to why the principles of

negligent entrustment outlined in those cases would not apply to other types of

leases, including the lease of an aircraft, particularly given that there are no other

analogous Louisiana cases on this issue.

In the context of the lease of a vehicle, our jurisprudence indicates that,

under a “negligent entrustment theory, the lender of a vehicle is not responsible for

11
We note here, again, that Christiansen Aviation cannot be held liable for Mr. Biondo’s alleged
negligence because the negligence of a lessee “in the exclusive physical control of the object of
the lease cannot be imputed to the lessor.” Cenance, 03-1379, p. 4, 869 So.2d at 916.

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the negligence of the borrower, unless he had or should have had knowledge that

the borrower was physically or mentally incompetent to drive . . . [thus,] one who

entrusts an automobile to an intoxicated, or otherwise incompetent, driver is

responsible for the harm resulting from the incompetent operation of the vehicle.’”

Thistlethwaite v. Gonzalez, 12-130, p. 27 (La. App. 5 Cir. 12/18/12), 106 So.3d

238, 257 (internal citations omitted). As the Thistlethwaite Court further noted,

“[o]ne who loans a car to another when the lender knows or has reason to know

that the borrower is likely to use the car in a manner involving an unreasonable risk

of physical harm, because of the borrower’s youth, inexperience, intoxication,

incompetence, or otherwise, can be held liable to a third party for damage caused

by the borrower.” Id.

We need not rely solely on principles detailing negligent entrustment of

vehicles, as the prevailing concept of negligent entrustment is that, in order “[t]o

prove a claim of negligent entrustment, a plaintiff must show that a lessor had

actual or constructive knowledge that the lessee was incompetent or had an

apparent disability at the time of the lease. “ Cenance, 03-1379, p. 6, 869 So.2d at

917.

In the instant matter, plaintiffs rely on their assertion that “Christiansen

Aviation leased an aircraft to an out-of-state lessee for a period of three-and-a-half

years and did so without learning anything about the lessee’s operation, licensing,

or qualification” as a basis for finding that it negligently entrusted its airplane to

FANO. Plaintiffs do not, however, offer any facts establishing that Christiansen

Aviation knew or should have known that FANO (or Biondo) was incompetent or

otherwise incapable of fulfilling the Lease’s covenant that FANO would “endeavor

to use and operate the Aircraft in accordance with the manufacturer’s operating

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instructions” and “in conformity with the laws, ordinances, rules and regulations,

municipal, state, national or otherwise.” Absent such a showing, plaintiffs cannot

maintain a negligent entrustment claim.

CONCLUSION

Based on the foregoing and our de novo review of the record, we do not find

any genuine issues of material facts in dispute in this matter. The trial court,

therefore, properly granted summary judgment in Christiansen Aviation’s favor.

The trial court’s judgment is affirmed.

AFFIRMED

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