Godfrey | Johnson Wins Supreme Court Reinstatement of Defense Jury Verdict in Fatal Air Crash Case

Consecutive Successes In Two Separate Appeals

June 25, 2018

Following a successful trial in which Godfrey | Johnson won a defense verdict in a case arising out of an airplane crash resulting in the death of five people, the trial court entered two orders setting aside the verdict and granting a new trial. The Pilot’s estate was represented by Brett Godfrey and Karen Porter.  Read details of trial →

After the trial, plaintiffs’ counsel, Bruce Lampert, filed a motion for a new trial, asserting that the verdict was a “miscarriage of justice.” The trial court agreed and set aside the verdict, granting the motion for a new trial. Before the case could be re-tried, Karen Porter of Godfrey | Johnson filed an interlocutory appeal in the form of a petition for an original writ to the Colorado Supreme Court, and won that appeal. 

The Supreme Court vacated the order granting a new trial and remanded the matter back to the trial court for further proceedings, at which time the plaintiffs filed a second motion for a new trial, which the trial court promptly granted, finding that the verdict was a miscarriage of justice and was not supported by the evidence. 

Godfrey | Johnson returned to the Supreme Court, filing a second interlocutory appeal in an effort to preserve the verdict in favor of its client, arguing that the trial court did not properly apply the requirements of Colorado Rule of Civil Procedure 59(d) and that it did not properly evaluate the evidence supporting the verdict. At issue was the effect of expert testimony from aircraft accident recinstructionists and the the trial court’s  instructions to the jury.

At the core of the plaintiffs’ motions for a new trial and the trial court orders granting those motions was the assertion that in an airplane crash, someone must be at fault. In this regard, plaintiffs had argued for—and—a res ipsa loquitur instruction, which in Colorado does not require a jury to find in favor of a plaintiff on the issue of liability but creates a rebuttable presumption that the accident was the result of negligence. 

“While we recognize the trial court’s frustration with the verdict, that reason alone is insufficient to constitute an irregularity warranting a new trial. Additionally, as noted above, a verdict of no negligence was one of the options available to the jury.” —Supreme Court

To rebut that presumption, Godfrey | Johnson offered evidence that the crash was the result of a near-miss that occurred when an airplane passed very close to the airplane that crashed, which upset the flight profile of the landing aircraft on “short-final,” seconds before landing. Godfrey | Johnson introduced expert testimony that the psychological and physiological effects of an unexpected emergency during the most sensitive phase of the flight—landing—was sufficient to cause an accident without negligence or fault on the part of the pilot. During closing argument, Brett Godfrey argued that the pilot was “guilty of being human, but not guilty of negligence,” and the jury agreed.

After reviewing the trial record, the Supreme Court found that the trial court had improperly applied the rule upon which it relied in granting a new trial—pertaining to an irregularity in the proceedings—and found that the verdict itself could not constitute such an irregularity. The Supreme Court further addressed the fact that the trial court had sustained a defense objection to certain parts of plaintiffs’ expert testimony, noting that the trial court’s instructions to the jury sufficiently eliminated any confusion on the part of the jury. The order granting a new trial was vacated, and the case was remanded to the district court.