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Negligence is the basis of an action for injury to persons and property by air vehicles[i]. Therefore, the ordinary rules of negligence are properly applicable to cases of damage to persons and property caused by aircraft[ii].

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[iii].

Ordinarily, questions of negligence are for determination by the jury[iv].  However, the question of negligence will be for the determination of the trial judge if[v]:

  • the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and
  • no inference except that of negligence or of no negligence can be justly drawn from it.


Except in cases where the evidence is plain, palpable, and undisputed, issues of negligence, contributory negligence, comparative negligence, proximate cause, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, and comparative negligence are questions for the jury[vi].

Thus, the question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusions from them[vii].  A case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish.  If more than one reasonable inference can be drawn from the facts, the question of negligence is for the jury.

In Andor v. United Air Lines, Inc., 79 Ore. App. 311 (Or. Ct. App. 1986), the court held that whether a defendant’s conduct is aggravated or wanton or comes within any of the other characterizations that permit the imposition of punitive damages is for the jury to decide, as long as there is evidence upon which the finding can be based.

The right to a jury trial is not dependent on the character of the overall action but rather is to be determined by looking to the nature of the issue to be tried[viii].  Thus, there is a right to jury trial on an issue if that issue involves the adjudication of traditional legal rights and remedies.

When a case is submitted on special issues, a trial court is under no duty to give instructions upon the law of the case and it is error to do so[ix].   Further, a trial court has no authority to vacate a damage award merely because it thinks the jury erred or because, if the court had been the finder of the fact, it would have awarded a greater or lesser sum[x].  Also, a trial court has no authority to order an additur absent circumstances where the verdict is so contrary to the weight of the evidence or so inadequate, by reference to the law and the facts, that it may not be reasonably explained.

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

[ii] Todd v. Weikle, 36 Md. App. 663 (Md. Ct. Spec. App. 1977).

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

[iv] Arnold v. Reece, 229 Miss. 862 (Miss. 1957).

[v] Greenville v. Laury, 172 Miss. 118 (Miss. 1935).

[vi] Wade v. Polytech Indus., 202 Ga. App. 18 (Ga. Ct. App. 1991).

[vii] Long v. Magnolia Hotel Co., 227 Miss. 625 (Miss. 1956).

[viii] In re N-500L Cases, 691 F.2d 15 (1st Cir. P.R. 1982).

[ix] Liberty Mut. Ins. Co. v. Boggs, 66 S.W.2d 787 (Tex. Civ. App. 1933).

[x] Flight Line, Inc. v. Tanksley, 608 So. 2d 1149 (Miss. 1992).

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