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Evidence refers to everything that is used to determine or demonstrate the truth of an assertion.  Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence[i].

Presumptions are also used by the courts to find out the truth.  A presumption is a procedural device which is resorted to in the absence of evidence by the party in whose favor a presumption would otherwise operate[ii].

When a person, object, relation, or state of things is shown to have existed at a given time, its continuance is presumed[iii].  The rule is a general and a reasonable one – that things shown once to have existed must be presumed to continue in that state until the contrary is established by evidence either direct or presumptive[iv].

Further, the courts will take judicial notice of laws, rules, regulations, and conventions.  Federal aviation laws and regulations are binding on state courts and the courts are to take judicial notice of such laws and regulations[v].  The documents codified in the code of federal regulations are prima facie evidence of the original text of the regulations and are required to be judicially noticed[vi].

In Salis v. Ghana Airways, 9 A.D.3d 421 (N.Y. App. Div. 2d Dep’t 2004), the court held that the Warsaw Convention, which limits the liability of carriers to a specified amount per kilogram, is the supreme law of the land, of which state courts will take notice.

The courts will also take judicial notice of rules adopted by departments of the U.S[vii].  In Smith v. Industrial Com., 32 N.E.2d 56 (Ohio Ct. App., Hamilton County 1936), the court held that judicial notice may be taken to the fact that no rational person would attempt to take off and land an airplane safely within 200 yards, a near impossibility.

Negligence is the basis of the action for injury to persons and property by air vehicles[viii].  In order to prove negligence, the plaintiffs must show by a preponderance of the evidence that[ix]:

  • the defendants owed them a duty,
  • it breached that duty, and
  • the breach of that duty was a substantial cause of the damages incurred by them.


Federal Aviation Regulations have the force and effect of law and their violation constitutes some evidence of negligence[x].  Even if a violation of a regulation does not constitute negligence per se, failure to comply with a regulation may still provide evidence that the defendant deviated from the applicable standard of care[xi].

In the field of airplane crash litigation, even in the absence of evidence of specific acts of negligence, an inference of negligence may properly be drawn from facts and circumstances which are suggestive of and not inconsistent with negligence[xii].

Negligence may be established by circumstantial evidence[xiii].  However, such evidence must be reasonable and not merely speculative in nature[xiv].  Proof that raises mere speculation, suspicion, surmise, guess, or conjecture is not enough to sustain the plaintiff’s burden[xv].

Thus, apart from the doctrine of res ipsa loquitur, negligence will not be presumed or inferred from the mere occurrence of an airplane accident, or from the fact of injury, and this principle is not altered by the fact that the defendant is a common carrier of passengers.  The mere fact of a plane accident or of injury to a passenger is not sufficient to raise a presumption that the carrier was negligent[xvi].

The moving party has the initial burden to prove by uncontradicted facts that there is no genuine issue of material fact.  Once the moving party has met its burden, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial[xvii].

Thus, in an action for personal injuries received in an airplane accident, the plaintiff has the burden of proving that the operator or the aviator was negligent in the operation of the airplane and of showing that such negligence was the proximate cause of the injury complained of[xviii].

The party asserting an affirmative defense generally bears the burden of proof on that issue[xix].  In Manion v. Pan American World Airways, Inc., 55 N.Y.2d 398 (N.Y. 1982), the court held that in an action by the passenger for injuries sustained during air travel, the burden of proving timely delivery of a ticket containing the contractual limitation of liability rests with the airline.

[i] Campbell v. Keystone Aerial Surveys, 138 F.3d 996 (5th Cir. Tex. 1998).

[ii] Forbes v. Midwest Air Charter, Inc., 86 Ohio St. 3d 83 (Ohio 1999).

[iii] Schumacher v. Swartz, 1948 Pa. Dist. & Cnty. Dec. LEXIS 14 (Pa. C.P. 1948).

[iv] Id.

[v] Associated East Mortg. Co. v. Young, 163 N.J. Super. 315 (Ch.Div. 1978).

[vi] Cresap v. Pac. Inland Navigation Co., 78 Wn.2d 563 (Wash. 1970).

[vii] Strother v. Pacific Gas & Electric Co., 94 Cal. App. 2d 525 (Cal. App. 1949).

[viii] Brunt v. Chicago Mill & Lumber Co., 243 Miss. 607 (Miss. 1962).

[ix] Dyer v. United States, 633 F. Supp. 750 (D. Or. 1985).

[x] Campbell v. Keystone Aerial Surveys, 138 F.3d 996 (5th Cir. Tex. 1998).

[xi] Id.

[xii] Lange v. Nelson-Ryan Flight Service, Inc., 259 Minn. 460 (Minn. 1961).

[xiii] Brunt v. Chicago Mill & Lumber Co., 243 Miss. 607 (Miss. 1962).

[xiv] Van Steemburg v. General Aviation, Inc., 243 Ill. App. 3d 299 (Ill. App. Ct. 1st Dist. 1993).

[xv] Gradus v. Hanson Aviation, 158 Cal. App. 3d 1038 (Cal. App. 2d Dist. 1984).

[xvi] Rathvon v. Columbia Pac. Airlines, 30 Wn. App. 193 (Wash. Ct. App. 1981).

[xvii] Id.

[xviii] Brunt v. Chicago Mill & Lumber Co., 243 Miss. 607 (Miss. 1962).

[xix] Manion v. Pan American World Airways, Inc., 55 N.Y.2d 398 (N.Y. 1982).

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