Impact (44 page)

“That's true. But had the plane been designed properly, there would have been two
additional
doors in mid-fuselage of the H-11, in areas that experienced far less stress.”

“You're not saying the failure to add those doors was a violation of federal regulations, are you?”

Livingood is equal to the challenge. “I'm saying that anyone with a reasonable regard for safety would have put them in.”

Chambers gestures grandly toward the jury. “Fortunately, what is or is not reasonable is for
these
good people to decide.”

“If Hastings and SurfAir had done their jobs properly, these good people wouldn't have to
be
here today.”

“Move to strike, Your Honor.”

“Sustained. The jury will disregard it.”

“I … no more questions.”

“Redirect, Mr. Tollison?” the judge inquires as Hawley Chambers sits down amid a retinue of nervous frowns.

Tollison stands. “One item, Your Honor. Is it your understanding, Mr. Livingood, that the Hastings H-11
can
be built with two additional exit doors?”

“Definitely, In fact it has been. All-Europe Airways ordered a dozen H-11s last year, each with two exits in the fuselage as well as the two wing exits and the exits in the front and rear.”

“And SurfAir could have ordered that version as well.”

“Certainly.”

“That's all I have, Your Honor.”

Judge Powell addresses the jury. “Ladies and gentlemen, court is in recess till nine
A
.
M
. You are not to discuss the case among yourselves or with anyone during that time.”

DUTY OF COMMON CARRIER

A common carrier of persons for hire must use the utmost care and diligence for their safe carriage and must exercise a reasonable degree of skill to provide everything necessary for that purpose. A common carrier is bound to provide a vehicle which is safe and fit for the purpose to which it is put, and is not excused for default in this respect by any degree of care. The care required of a common carrier is the highest that reasonably can be exercised consistent with the mode of transportation used and the practical operation of its business as a carrier. This requirement must be measured in the light of the best precautions which, at the time of the accident in question, were in common, practical use in the same business and had been proved to be effective. Failure on the part of such carrier to meet the foregoing standard of conduct is negligence.

A common carrier does not guarantee the safety of its passengers. Its responsibility is not to use the most effective methods for safety that the human mind can imagine or that the best scientific skill might suggest. However, a common carrier and an aircraft manufacturer must take accidents into consideration as reasonably foreseeable occurrences involving their aircraft. They must evaluate the crashworthiness of the product and take such steps as may be reasonable and practical to avoid crash injuries and to minimize their seriousness.

THIRTEEN

Sprinting out of the building before the courtroom emptied of anyone who knew him, Alec Hawthorne hailed a cab to Martha's, where he had arranged to change into something he could wear home to Belvedere without being booked as a vagrant. Mired in the rush hour, the cab inched its way along Van Ness and through the early-evening revelers on Union until it finally deposited him beneath Martha's austere flat.

As he prepared to use his key, Martha opened the door. Obviously awakened from a nap and furious at being caught, she buttoned her blouse over her bare chest and backed away to let him enter. He considered but withheld a comment on her somnolence. Martha brooked no jests about her efficiency—she would have Hawthorne believe she never closed her eyes.

“Any luck down south?” he asked instead.

She shook her head “I located the crew that hauled him to the hospital, but all they remember is that someone brought Donahue to their unit and they hit the siren and took off. I talked to the first deputy on the scene, and he said there were at least twenty people out there rescuing survivors—claimed it was the first time he'd ever been in a situation where there were too many heroes. The deputy, by the way, is still in therapy because of what he saw that night.”

Hawthorne frowned. “After all this work, I'd hate to see Tollison get bounced on proximate cause. Let's put an ad in the papers—
Chronicle, Mercury-News
, whatever else they read down there—asking people to call us if they pulled victims from the crash. Offer a grand—we don't have much time.”

“What if you don't find him?”

Hawthorne shrugged. “Then we try Donahue.”

“His wife says he can't remember.”

Hawthorne winked. “Maybe we teach him to fib. Apparently, he did it rather well before the crash.”

They exchanged dark looks. Martha did not like jokes that implied her profession was akin to selling door-to-door. “Have you told Tollison about the proximate-cause thing yet?”

Hawthorne shook his head. “He has enough to do without worrying about getting nonsuited.”

“He might come up with an answer, you know. He's not stupid.”

From Martha, the comment was a ringing testimonial. Because as usual she knew what he was thinking, she stuck out her tongue.

He bent to kiss her. “Drink?” she asked when he was finished. He nodded

To the tune of rattled ice, Hawthorne went to the guest room and changed into a sport coat and slacks. By the time he returned, there was a tumbler of Scotch beside his favorite chair. “What's on tap tonight?” Martha asked after a sip of vodka-rocks, her feet in ankle boots, her legs in leather slacks, her blouse a shimmering bib.

“Tollison's coming to the office at eight to go over the evacuation tests and the Mistite evidence.”

“How'd our boy do today?”

“Not bad,” he said. “He's still nervous, so the jury's nervous, too; they're not quite sure they can trust him not to lie to them. But he's getting there. Chambers is doing us a favor by being as pompous as a law professor, but we could use some breaks, like finding the guy who hauled Donahue from the wreck and getting the treatment tape admitted.”

“How's the Mrs. holding up?”

He shrugged. “She looks good enough to put in Gumps' at Christmas, but she and Tollison are going through some kind of psychodrama, it looks like. He's in love with her or used to be, but I'm not sure it's reciprocated.”

Martha's look was pained. “When is it ever?”

Because he was no longer current with the sources of her anguish, Hawthorne evaded meekly. “Want to come check it out in the morning? Maybe you'll see something I've missed.”

She shook her head. “Mike and I are doing the response in the Reno crash tonight, then I'm going back down the peninsula in the morning. But if I don't come up with Donahue's savior tomorrow, I'll have to hire an investigator to take over—things are stacking up.”

“Get Tanner if you can—he's the only one we don't have to double-check.” Hawthorne looked at his watch, then asked what she was doing for supper.

“Turning on the microwave.”

“Enough for me?”

“I'll do two.”

“Two what?”

She shrugged. “I buy them by the gross and take off the wrappers and stuff them in the freezer. When I get home, I close my eyes and grab one. It's a real rush to see what comes out that little door.”

“Tomorrow we eat out.”

“Unless I get a better offer,” she said sourly, and brought him a second drink.

“Have you bothered to tell Tollison that your leap at immortality has made his job impossible?” she asked when she returned.

“What do you mean?”

“You know damn well what I mean. There's no need to get into crashworthiness at all in this case; he could win on common-carrier liability by itself.”

Hawthorne eyed the arch of her brow. “Like I said, Keith's got enough to worry about. And I've got ways to keep him too busy to find out on his own.”

Martha smiled enigmatically. “I can think of a few myself.” She paused. “You don't think you may have jeopardized a few too many people to get your reputation cast in gold?”

“You mean is the wrong lawyer trying the wrong case under the wrong theory of recovery?” Hawthorne's look was barren. “No. That hasn't occurred to me at all.”

By the time the gavel banged the room to order the following morning, Hawthorne was convinced not only that Martha was no longer in love with him, but that the evaporation of her affections was causing her to reconsider her decision not to jump to another firm.

“Plaintiff calls Charles Bledsoe,” Tollison announced, the tug of glumness in his face a byproduct of the drudgery of the night before. Meeting at the office at 8, they had not knocked off till 3
A
.
M
., when Tollison took Hawthorne's ten-page outline of the next day's testimony back to the hotel to study. Hawthorne frowned as Tollison rubbed his eyes. Exhaustion had felled more than one lawyer in this business.

An officer of SurfAir, Charles Bledsoe was from the enemy camp and would thus be Tollison's first test. Although some attorneys hesitate to use the opposition to make their case, Hawthorne liked to call as many as he could, because in his experience the corporate types seldom helped their cause. More often than not, they came across as arrogant and unimaginative, so fearful of losing their jobs they hewed to the party line no matter how powerfully the evidence suggested the party line was crooked.

“What is your job, Mr. Bledsoe?” Tollison asked easily.

Bledsoe leaned forward. His power tie swung away from his stomach and his hands were clasped loosely on the rail guarding the witness chair. Chambers's clients always assumed a pious pose, until the shooting started.

“I'm vice-president of operations for SurfAir Coastal Airways,” Bledsoe intoned.

“SurfAir is one of the defendants in this case?”

His smile was briefly homicidal. “Unfortunately, yes.”

“What are your duties, Mr. Bledsoe?”

“I'm in charge of acquiring aircraft for SurfAir from various airframe manufacturers.”

“Do your responsibilities include overseeing the specifications of the purchase orders for those aircraft?”

“Yes, they do.”

“Did you in fact prepare the order for the H-11 that is the subject of this lawsuit?”

“I supervised the preparation, yes.”

“That plane was ordered by SurfAir in early 1985, was it not?”

“Yes.”

“And it was delivered in April of that year?”

“Yes.”

“Directing your attention to the actual order for that aircraft, which has been marked as Plaintiff's Exhibit Six, can you tell me what exit configuration was specified?”

“The order specified model H-11A2, which included exits over both wings, as well as the main exit in the front and an emergency exit in the rear.”

“At that time was it possible for you to order a plane with two
additional
exits, located in mid-fuselage, approximately halfway between the wing exits and the rear exit?”

“Yes. That was model H-11A4. We chose not to order that model.”

“Why?”

His answer ready, Bledsoe blossomed with good will. “It cost four hundred thousand dollars more per unit.”

Pleased with himself, Bledsoe looked at Hawley Chambers, who frowned a caution that made his client squirm. “Also,” he amended quickly, “our testing indicated there was no need for it—we could comply with federal regulations without the additional exits.”

“Thank you, Mr. Bledsoe. No more questions.”

“Mr. Chambers?”

Chambers shook his head.

Tollison nodded. “Plaintiff calls Polly Janklow.”

The courtroom stirred as a woman in a bright blue suit rose from the third row, pushed her way through the bar of the court, and stood behind the witness chair on heels as long as fingers. After swearing to tell the truth she took her seat, set her jaw, crossed her legs, and trained her ornamented eyes on Tollison, impatient to assert her truth.

“What is your current employment, Miss Janklow?”

“I'm a face model for a line of cosmetics.”

“Locally?”

She nodded. “I work primarily at a department store downtown. At this point it's only part-time.”

“Have you ever been employed by SurfAir?”

“From June of '82 to January of '87.”

“In what capacity were you employed?”

“Flight attendant. Ultimately,
senior
attendant.”

“As a stewardess for—”

“Flight attendant,” she corrected quickly.

“Sorry. As a
flight attendant
for SurfAir, did you ever have occasion to fly in a Hastings H-11 aircraft?”

“Many times.”

“I show you a model marked Plaintiff's Exhibit One and ask you if that represents a model of the aircraft you know as the H-11 as flown by SurfAir at the time you worked for them.”

“It appears to.”

“Can you tell me where the exits are located on that aircraft?”

She pawed at her hair and offered a grimace. “I should hope so—I used to point them out six times a day, not that anyone paid attention. There's one here, just behind the flight deck. One in the rear. And one over each wing.”

“Did SurfAir ever conduct tests to determine whether the number of exits in the H-11 was adequate to meet the needs of passengers in a crash landing or other emergency situation?”

She nodded. “Twice, that I know of.”

“What was the purpose of those tests, if you know?”

“They told us regulations required that in the event of an emergency, all passengers had to be able to escape through fifty percent of the exits in ninety seconds or less.”

“There are a hundred twenty passengers on that plane when full?”