MEMORANDUM AND ORDER The illustrious Oxford English Dictionary defines that vulgar though common idiom “sh*t happens” as denoting the unpleasant truth that “bad things often happen unavoidably” and “expressing a resigned attitude [that] these things happen, such is life.” Sh*t, Oxford English Dictionary (3d ed. 2011), https://www.oed.com/view/Entry/178328. One can easily understand plaintiff’s resort to this expression to describe the occurrence that led to this case.1 Factual Background The facts, viewed in light most favorable to plaintiff, are undisputed except where otherwise stated and are as follows. This case involves a personal injury arising out of a unique activity: hand propping2 a vintage 1930 Brunner-Winkle Bird aircraft (the “Bird”). Plaintiff Gino DiNucci (“plaintiff”) and defendant William J. Clifford (“defendant”) are antique aircraft enthusiasts and hobbyists, each of whom owns several vintage aircraft. Docket Entry (“DE”) 25-4 45; DE 25-1, Ex. 1 at 7:9-13; DE 25-1, Ex. 2 at 40:3-7. Though described as a hobbyist and enthusiast, plaintiff is no amateur. He has extraordinary experience in maintaining and repairing aircraft. While serving approximately six years in the United States Army, plaintiff attended helicopter and aircraft maintenance schools, spending 50 percent of his time performing aircraft maintenance on “[e]verything the army had.” DE 25-1, Ex. 2 at 10-12. Outside of the Army, plaintiff earned multiple aviation certifications including private pilot, commercial pilot, instrument pilot, instrument instructor, flight instructor, seaplane instructor, and inspection authorization. DE 25-4 12. Plaintiff also worked for Trans World Airlines as an aircraft mechanic for 10 years and then as a crew chief for over 25 years. Id. 17. All the while, plaintiff performed aircraft maintenance as a sideline, sometimes for compensation but “[t]oo many times” for free. DE 25-1, Ex. 2 at 20:6-12. To maintain good standing with his inspector authorization certificate, plaintiff performed at least ten inspections per year on individual aircraft. DE 25-4
22-23. The parties met at the Bayport Aerodrome3 approximately thirty years ago. Id. 25. Soon after, plaintiff began performing inspections and maintenance on defendant’s vintage aircraft, including the Bird. Id. 27. At the time, the Bird had a Kinner K-5 engine and air starter system, which allowed the Bird to be started without hand propping. DE 25-1, Ex. 1 at 20:11-15. In spring 2002, plaintiff helped defendant install a new Kinner R-55 engine in the aircraft. DE 25-4 29; DE 25-1, Ex. 4 at 7. While a starter system could have been installed with the new engine, defendant testified that he spent years searching for a compatible electric starter but had difficulty obtaining one because “[a]ny time you find one, it’s already sold.” DE 25-1, Ex. 1 at 23-24. So, since 2002, the Bird has lacked a starter system and has needed to be hand propped. Id. at 21:18-21; DE 25-7 9. Like his experience in maintaining aircraft, plaintiff is no stranger to hand propping vintage airplanes. In fact, with respect to hand propping, plaintiff advises that he is the “guy who teaches them how to do it” and that he has “shown them all how to do it.” DE 25-4 37. Plaintiff’s own fleet included a vintage 1946 Piper J-3 aircraft, which plaintiff hand propped himself approximately 500 times before its restoration in 2018. Id. 15. Plaintiff also has considerable experience hand propping the Bird. Proclaiming to be “the more experienced hand propper [of the Bird],” plaintiff hyperbolizes that he has hand propped it — with its new engine — “a million times,” though his actual estimate is “[p]robably 100.” DE 25-5
