North American Airlines, Inc. v. Virgin Atlantic Airways, Ltd. (E.D.N.Y. Dec. 22, 2006). During towing by a tug driver from a hardstand to a terminal departure gate, a wing tip of a Virgin A340 aircraft collided with the tail of a parked North American Airlines aircraft.
NAA sued Virgin, which filed third-party complaints against ASI, which had provided the tug driver and the “wing walker,” and Mach II, which had provided the cockpit-based “brake rider.” ASI and Mach II filed cross-claims against each other. NAA moved for summary judgment against Virgin, Virgin moved for summary judgment against ASI, and Mach II moved for summary judgment against ASI.
The court held that Virgin is not liable to NAA under New York Business Law sec. 251 because the phrase “use or operation” in that statute (which was intended to make aircraft owners liable to crash victims) does not cover situations involving aircraft being towed. The court ruled that Virgin is not liable to NAA under the principle of vicarious liability because a jury could conclude that ASI and Mach II were Virgin’s independent contractors, not its agents. The court held that ASI is liable to Virgin for the actual damages to its aircraft because “ASI’s employee clearly operated the tug in a negligent manner.” Finally, the court declined to grant Mach II’s summary judgment motion against ASI because questions of fact exist as to whether Mach II was partially responsible for the collision.