Lynne D. Panting, Personal Representative of the Estate of Ronald B. Panting, Deceased v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 24-3426
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Lynne D. Panting, Personal Representative of the Estate of Ronald B. Panting,
Deceased
Plaintiff - Appellee
v.
United States of America
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 19, 2025
Filed: December 22, 2025
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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BENTON, Circuit Judge.
Ronald B. Panting was conducting an FAA “Checkride” for Michael Trubilla.
The plane crashed, killing both of them. Lynne D. Panting, Ronald’s spouse, sued.
She alleged that the government negligently maintained the plane, causing the crash.
The government moved for summary judgment, invoking Ronald’s covenant not to
sue. The district court invalidated it as against public policy. The government

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appeals the denial of summary judgment. Having jurisdiction under 28 U.S.C.
§ 1291, this court reverses and remands.
I.
Ronald, an independent contractor, worked as an FAA Designated Pilot
Examiner (“DPE”). DPEs are “private individuals” designated by the FAA to
provide certification services to the public, including Checkrides. According to the
FAA, DPEs are “vital to enhancing the FAA’s public service role and enhancing
overall safety” in the national airspace. As a DPE, Ronald was not an FAA
employee. He earned money by charging exam fees to pilot applicants.
Ronald was also a member of the LeMay Aero Club, an instrumentality of the
federal government located at Offutt Air Force Base. Before becoming a DPE, he
was the Aero Club’s chief flight instructor. After becoming a DPE, he conducted
Checkrides in Aero Club planes, while remaining a part-time flight instructor. On
July 24, 2016, Trubilla, a pilot applicant, rented an Aero Club plane and hired Ronald
to do a Checkride. The plane crashed during the Checkride, killing both of them.
Five days before the crash, Ronald signed a covenant not to sue the
government in exchange for using Aero Club planes. The covenant read, in part:
I, Ronald Panting am about to voluntarily participate in various
activities, including flying activities, of the LeMay Aero Club as a pilot,
student pilot, copilot, instructor, or passenger. In consideration of the
Aero Club permitting me to participate in these activities, I, for myself,
my heirs, administrators, executors, and assigns, hereby covenant and
agree that I will never institute, prosecute, or in any way aid in the
institution or prosecution of, any demand, claim, or suit against the US
Government for any destruction, loss, damage, or injury (including
death) to my person or property which may occur from any cause
whatsoever as a result of my participation in the activities of the Aero
Club.
. . . .

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I know, understand, and agree that I am freely assuming the risk of my
personal injury, death, or property damage, loss or destruction that may
result while participating in Aero Club activities, including such
injuries, death, damage, loss or destruction as may be caused by the
negligence of the US Government.
Air Force policy requires anyone participating in Aero Club activities—including
DPEs and flight instructors—to sign the covenant at least annually. It exempts only
FAA inspectors directly employed by the government.
Under the Federal Tort Claims Act, Lynne sued, arguing that the government
negligently maintained the plane, causing the crash. The government moved for
summary judgment, invoking the covenant. Lynne attacked the covenant as against
public policy. She argued alternatively that it applied only when Ronald worked as
a flight instructor, not when he worked as a DPE—as on the day of the crash. The
district court denied summary judgment, ruling that the Nebraska Supreme Court
would invalidate the covenant as against public policy. The district court did not
decide the alternative theory that the covenant did not apply to Ronald in his DPE
capacity.
After a bench trial, the district court ruled in favor of Lynne, finding that the
government had negligently maintained the plane, causing the crash. It awarded a
judgment of $5,806,381.57. The government did not challenge the district court’s
denial of summary judgment either at trial or in a post-trial motion.
The government appeals the denial of summary judgment, arguing the
covenant is not against public policy. Lynne responds: (1) this court lacks
jurisdiction to hear the appeal; and (2) the district court correctly ruled that the
covenant is against public policy. This court reviews de novo a district court’s denial
of summary judgment and its determination of state law. See Yang v. Farmers New
World Life Ins. Co., 898 F.3d 825, 827 (8th Cir. 2018) (reviewing de novo a district
court’s denial of summary judgment based on contract interpretation and state law);
Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991) (“[A] court of appeals
should review de novo a district court’s determination of state law.”).

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II.
Lynne argues that this court lacks jurisdiction to review the denial of summary
judgment because the government did not renew its argument at trial or in a post-
trial motion. But “if a motion for summary judgment raises purely legal issues, it is
reviewable on appeal even if the arguments were not revisited during trial.” Dupree
v. Younger, 598 U.S. 729, 736 (2023). And “a post-trial motion . . . is not required
to preserve for appellate review a purely legal issue resolved at summary judgment.”
Id.
A district court’s determination whether a contract offends public policy is a
purely legal issue. See Kelley as Tr. for PCI Liquidating Tr. v. Boosalis, 974 F.3d
884, 894 (8th Cir. 2020) (“Whether a contract is void as against public policy is an
issue of law.”); Bruce Lavalleur, PC v. Guarantee Grp., LLC, 992 N.W.2d 736,
741 (Neb. 2023) (“The determination of whether a contract violates public policy
presents a question of law.”).
Here, the district court denied summary judgment because it believed the
Nebraska Supreme Court would hold the covenant void as against public policy.
The district court’s ruling was not based on any factual dispute, or a need for factual
development at trial. See Fort Worth Partners, LLC v. Nilfisk, Inc., 155 F.4th 989,
996 (8th Cir. 2025) (declining to review a denial of summary judgment where the
ruling “specifically left [the issue] open for further factual development at trial”).
This court has jurisdiction to review the district court’s ruling on a purely legal issue.
III.
The FTCA permits “persons injured by federal employees to sue the United
States for tort claims in federal district court.” King v. United States, 3 F.4th 996,
998-99 (8th Cir. 2021). “When analyzing actions brought under the FTCA, courts
apply the substantive law of the state in which the events giving rise to the complaint
occurred.” Shanner v. United States, 998 F.3d 822, 824 (8th Cir. 2021); 28 U.S.C.
§ 1346(b)(1). If a state supreme court has not resolved an issue, this court determines
how that court would rule if faced with the same issue. Myers v. Lutsen Mountains

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Corp., 587 F.3d 891, 896 (8th Cir. 2009). This court considers “relevant state court
decisions, analogous decisions, considered dicta, and any other reliable data.” Id.
(cleaned up).
The Nebraska Supreme Court steadfastly holds that “the power of courts to
invalidate contracts for being in contravention of public policy is a very delicate and
undefined power which should be exercised only in cases free from doubt.” Sinu v.
Concordia Univ., 983 N.W.2d 511, 522 (Neb. 2023); Bedrosky v. Hiner, 430
N.W.2d 535, 540–41 (Neb. 1988) (“[T]he court should act cautiously and not hold
contracts void as being contrary to public policy unless they are clearly and
unmistakably so.”); Cass Cnty. Bank v. Bricker, 52 N.W. 575, 575–76 (Neb. 1892)
(same). A case is free from doubt where enforcing a covenant not to sue is “clearly
and unmistakably repugnant to the public interest.” Hearst-Argyle Props., Inc. v.
Entrex Commc’n Servs., Inc., 778 N.W.2d 465, 472 (Neb. 2010). See Bruce
Lavalleur, 992 N.W.2d at 745 (holding that “a contract is void against public policy
only when it is quite clearly repugnant to the public conscience”) (citation and
internal quotation marks omitted).
The district court focused on two factors to determine whether the covenant
violated public policy: (1) whether there was a disparity of bargaining power
between the parties; and (2) whether the services offered were public or essential.
See Sinu, 983 N.W.2d at 523 (applying the two-prong test of other jurisdictions).
A.
To determine whether there is a bargaining power disparity in the context of
covenants not to sue, the Nebraska Supreme Court considers whether the party had
a reasonable opportunity to understand the subject matter, and whether they could
have procured the services elsewhere. See Bedrosky, 430 N.W.2d at 541 (no
bargaining power disparity where the covenant was clear and the plaintiff had an
opportunity to “shop around”); Sinu, 983 N.W.2d at 523 (no bargaining power
disparity where a student athlete had a reasonable opportunity to understand the
covenant and could have attended another university).

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Ronald had a reasonable opportunity to understand the covenant. The
Eleventh Circuit held that a nearly identical Aero Club covenant was clear and
unequivocal. See Torjagbo v. United States, 285 Fed. Appx. 615, 621 (11th Cir.
2008) (per curiam). And Ronald had experience with this covenant. He was the
chief flight instructor for the Aero Club and then a part-time instructor. Air Force
policy required him to sign it every year. See Keenan Packaging Supply, Inc. v.
McDermott, 700 N.W.2d 645, 654 (Neb. Ct. App. 2005) (holding that experience
with similar contracts shows a lack of bargaining power disparity).
As a private party and an independent contractor, Ronald was not obligated to
use Aero Club planes. See 49 U.S.C. § 44702(d) (describing a DPE as a “private
person”). See also Ray Tucker & Sons, Inc. v. GTE Directories Sales Corp., 571
N.W.2d 64, 70 (Neb. 1997) (emphasizing that a bargaining power disparity depends
on whether the affected party had other options at the time they signed the contract);
Munoz v. Nucor Steel Kankakee, Inc., 44 F.4th 595, 600 (7th Cir. 2022) (holding
that there was no bargaining power disparity where an independent contractor could
choose what jobs he wanted to take). Ronald had other options. He was not a victim
of disparate bargaining power.
Despite acknowledging that Ronald was not a government employee, the
district court tried to analogize to an against-public-policy contract releasing an
employer’s liability to an employee, claiming that here, “similar public policy
concerns exist when the government is allowed to designate citizens to carry out
vital government functions while simultaneously limiting its liability for any injuries
the designee sustains while carrying out this role in a government aircraft.” See
Panting v. United States, 652 F. Supp. 3d 1064, 1072 (D. Neb. 2023), citing
Maucher v. Chicago, Rock Island & Pac. Ry. Co., 159 N.W. 422, 427 (Neb. 1916).
Even assuming the Nebraska Supreme Court would extend this reasoning beyond
employer-employee relationships, it is not implicated here. DPEs like Ronald set
their own rates and schedules, are paid by pilot applicants, may conduct Checkrides
out of any airport, and need not use the government’s planes—working conditions
beyond the government’s control. The Nebraska Supreme Court would not extend
any employer-employee logic to Ronald, an independent contractor.

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B.
The Aero Club did not provide a public or essential service by renting the
plane to Trubilla.
A “public service” is a “service provided or facilitated by the government for
the general public’s convenience and benefit.” Black’s Law Dictionary 1490 (12th
ed. 2024). See State v. Dailey, 990 N.W.2d 523, 529 (Neb. 2023) (“[The Nebraska
Supreme Court] often turn[s] to dictionaries to ascertain . . . plain and ordinary
meaning.”). The Aero Club is a private, not a public service. It sits on a military
installation. And it allows only authorized members like Trubilla and Ronald to
participate in flying activities. See Sinu, 983 N.W.2d at 523 (holding that a private
university sports team did not provide a public service).
An “essential” service is of “the utmost importance; basic and necessary.”
Black’s Law Dictionary at 686. “[O]rdinary negligence claims may generally be
barred where [a decedent] voluntarily executes [a covenant not to sue] in order to
participate in recreational or nonessential activities.” Sinu, 983 N.W.2d at 523.
Aero Clubs are “recreational activities established to promote morale.” Dep’t of the
Air Force, AFI 34-117, Air Force Aero Club Program 5 (2014). The Aero Club
allowed Trubilla to “[e]njoy [a] low-cost aircraft option[],” “[d]evelop [his]
aeronautical skills,” and advance his career by hiring Ronald to do the Checkride.
See id. And it allowed Ronald to use that same “low-cost aircraft option[]” to
conduct private business. See id. It allowed both of them to “[e]njoy a social
activity.” See id. Those services are not “basic and necessary” to the public interest.
See Black’s Law Dictionary at 686. Cf. Custer Pub. Power Dist. v. Loup River
Pub. Power Dist., 75 N.W.2d 619, 629 (Neb. 1956) (holding that a contract
restricting the flow of electricity to the public was void as against public policy);
Montana-Dakota Util. Co. v. Williams Elec. Co-op., Inc., 263 F.2d 431, 433 (8th
Cir. 1959) (“[A] contract which unreasonably restrains trade is contrary to public
policy and void.”).
The district court ruled that the covenant was against public policy because
the government “implicitly agree[d] to provide an aircraft on which a government

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designee would complete an essential government function.” See Panting, 652 F.
Supp. 3d at 1071. Assuming without deciding that Checkrides may be a public or
essential service, by providing rental planes to its members the Aero Club facilitates
that service; the Club doesn’t provide it. See Sinu, 983 N.W.2d at 523 (focusing on
a university’s provision of services in the context of a covenant not to sue between
it and a student athlete). See also Baltimore & Ohio S. Ry. Co. v. Voigt, 176 U.S.
498, 520 (1900) (upholding a covenant not to sue between a railroad company and
an express messenger even though the express messenger used railroads to provide
an essential public service); Santa Fe, Prescott, & Phx. Ry. Co. v. Grant Bros.
Const. Co., 228 U.S. 177, 185 (1913) (covenants not to sue may be upheld even if a
contractual relationship “incidentally involve[s]” provision of a public service).
The Nebraska Supreme Court would not hold that the covenant violates public
policy. It is at least not “clearly and unmistakably repugnant to the public interest.”
See Hearst-Argyle Props., 778 N.W.2d at 472.
IV.
Lynne asks this court to hold that the plain language of the covenant did not
cover Ronald’s activities on the day of the crash. The district court ruled that it
“need not consider [Lynne’s] alternative theory that [Ronald] never signed the
covenant in his capacity as a DPE.” “When a district court fails to address a matter
properly presented to it, [this court] ordinarily remand[s] to give the [district] court
an opportunity to rule in the first instance.” GEICO Cas. Co. v. Isaacson, 932 F.3d
721, 724 (8th Cir. 2019). See Dreith v. City of St. Louis, 55 F.4th 1145, 1150 (8th
Cir. 2022) (reversing a denial of summary judgment and remanding with instructions
to consider an issue on which the district court reserved ruling).
This court remands to the district court for consideration whether the covenant
applied to Ronald in his DPE capacity, and for such other proceedings as the district
court deems appropriate. See Banuelos v. Construction Laborers’ Tr. Funds for S.
Cal., 382 F.3d 897, 905 (9th Cir. 2004) (reversing a pretrial denial of summary
judgment after a bench trial and remanding); Lindquist Ford, Inc. v. Middleton
Motors, Inc., 557 F.3d 469, 483 (7th Cir. 2009) (same).

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* * * * * * *
The judgment is reversed and the case remanded for proceedings consistent
with this opinion.
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