265 F.Supp. 210 (D.Minn. 1967), 3-64-Civil 149, Neher v. United States

Docket Nº:3-64-Civil 149.
Citation:265 F.Supp. 210
Party Name:Arlene A. NEHER, Plaintiff, v. UNITED STATES of America, Defendant.
Case Date:January 13, 1967
Court:United States District Courts, 8th Circuit, District of Minnesota

Page 210

265 F.Supp. 210 (D.Minn. 1967)

Arlene A. NEHER, Plaintiff,

v.

UNITED STATES of America, Defendant.

No. 3-64-Civil 149.

United States District Court, D. Minnesota

Jan. 13, 1967

Page 211

Johnson, Essling & Malone, St. Paul, Minn., for plaintiff.

At the trial William W. Essling and Charles H. Williams, Jr., St. Paul, Minn., appeared for plaintiff.

Page 212

Patrick J. Foley, U.S. Atty., Minneapolis, Minn., for defendant.

At the trial J. Charles Kruse, Washington, D.C., and Lt. Col. Fielding Washington appeared for defendant.

MEMORANDUM DECISION

LARSON, District Judge.

This is an action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), §§ 2671-2680, and the Tucker Act, 28 U.S.C. § 1346(a), in which plaintiff seeks recovery from defendant United States for alleged damage to property caused by sonic booms generated by Air Force B-28 planes. The case was tried to the Court without a jury on August 11 and August 12, 1966. William W. Essling, St. Paul, and Charles H. Williams, Jr., appeared for plaintiff. J. Charles Kruse of the Department of Justice, Civil Division, and Lieutenant Colonel Fielding Washington of the Office of Judge Advocate General, Air Force, appeared for defendant.

FACTS

Plaintiff Arlene Neher is the owner of a four story apartment building in St. Paul, Minnesota, located at 61 South St. Albans, a neighborhood composed primarily of apartment buildings. The Neher building is approximately sixty-five years old, constructed to brick and stone facing. There are eight apartments in the building, two on each floor. The interior walls are plaster on top of wood lathing, and the floors and main stairway are oak wood.

In September, 1960, plaintiff Arlene Neher moved into Apartment F of this building. Prior thereto the apartment was completely redecorated, including patching and filling plaster cracks, painting, and wall papering in some rooms of the apartment. Two other apartments-- D and G-- were also redecorated, sometime from November, 1960, to January, 1961, including repair of plaster cracks. Plaintiff inspected Apartment H, but no replastering was done. No structural repairs were made to the building but plaintiff did replace all broken and cracked windows at the time she took up residence in the building.

From April 5, 1962, through August 6, 1962, B-58 Air Force planes operating out of the United States Air Force Base at Bunker Hill, Indiana, made forty-one supersonic flights over the Minneapolis-St. Paul area. A supersonic flight is one in which the aircraft travels at speeds in excess of the speed of sound. Mach I designates the speed of sound, which varies depending upon factors such as altitude. At 40,000 feet it is approximately 600 miles per hour. Most of the flights in question were at Mach II or twice the speed of sound. In general, that would be 1,200 miles per hour. Altitudes of the flights in question, as recorded in Exhibit D-- the Sonic Boom Log from Bunker Hill--ranged from 30,000 to 50,000 feet.

The supersonic flights over the Minneapolis-St. Paul area generated sonic booms. These are the shocks, pressures and noises caused by the dispersion of air when a plane travels at supersonic speeds. Since air travels only at the speed of sound, it cannot move quickly enough to avoid the path of a plane traveling in excess of the speed of sound. Thus the air piles up in a 'shock front' preceding a plane traveling at supersonic speeds and is then dispersed, traveling continuously behind the plane while it is proceeding supersonically. The strength of a sonic boom varies, depending upon such factors as design of the aircraft, its speed and altitude, among other factors. Computation of a boom's strength can be accomplished by applying the Free Field Equation (Exhibit H, p. 23), and is expressed in terms of pounds per square foot (p. s. f.).

In 1962 Bunker Hill Air Force Base was training crews to become combat ready with the B-58 plane. The training included flying missions during which supersonic runs were made, lasting from five to eight minutes. During the supersonic run a simulated bomb release was performed in which a ground radio site determined whether the theoretical

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target had been hit. Supersonic training missions from Bunker Hill were conducted to meet the requirements in the Strategic Air Command Training Manual for supersonic missions and supersonic simulated bomb releases. The manuals are issued from Strategic Air Command Headquarters and the missions are planned on the base level to accomplish the items outlined in the manual. Colonel Frank Scurlock, Director of the Programs and Scheduling Branch of the 305th Bomb Wing at Bunker Hill in 1962, testified that all the supersonic flights in question were routine missions with the supersonic activity confined to a designated corridor, the aircraft flying straight and level.

A supersonic corridor is a theoretical avenue in the air, normally twenty nautical miles wide and from 300 to 600 nautical miles long. Such corridors are adopted by the Strategic Air Command in conjunction with the United States Air Force. Colonel Scurlock testified that the corridors could be laid out almost anywhere, including over the ocean or other unpopulated areas. During the spring and summer of 1962 one such corridor was located over the Twin City area, known as the Minneapolis corridor (Exhibit B). It began in Minot, North Dakota, and terminated just beyond Minneapolis, with an extension that continued into the Milwaukee corridor (Exhibit C). Plaintiff's building is located from eight to ten miles west of the center line of the Minneapolis corridor.

On several days during the summer of 1962 (June 5 and 6; July 6, 12, 13, 16, 25 and 26), plaintiff specifically noted the occurrence of sonic booms over the property, marking the dates on a calendar (Exhibit 5). During this period tenants in the building, including plaintiff, noticed the appearance of plaster cracks and broken windows. Subsequently plaintiff became aware of squeakiness in the floors and stairway that had not existed prior to the booms. One tenant testified to noticing squeaky floors immediately after the...

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