Allnutt v. United States

Decision Date07 October 1980
Docket NumberNo. 76-CV-153-C.,76-CV-153-C.
Citation498 F. Supp. 832
PartiesLula Mae ALLNUTT et al., Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Western District of Missouri

COPYRIGHT MATERIAL OMITTED

Richard S. Brownlee, III, Jefferson City, Mo., for plaintiffs.

Robert E. Larson, Asst. U. S. Atty., Kansas City, Mo., for defendant.

OPINION AND ORDER

ELMO B. HUNTER, District Judge.

This is an action for wrongful death. Plaintiffs are Lula Mae Allnutt and her children. They are the survivors of Lloyd E. Allnutt, Jr., who was killed when the small airplane he was piloting struck power transmission lines over the Osage River in central Missouri. Plaintiffs are seeking approximately $500,000 in damages. Defendant is the United States. Federal jurisdiction is premised upon the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. and 28 U.S.C. § 1346(b). The complaint was timely filed pursuant to 28 U.S.C. § 2401.

Full trial of this matter was held in Kansas City, Missouri, from July 21, 1980 through July 23, 1980.

I.

In order to fully develop the issues presented in this complex action, it is necessary to explore the relevant factual posture of this case as revealed by the joint stipulation of facts, the testimony and the documentary evidence that compose the record before this Court.

On February 10, 1975, the decedent was hired to pilot a 1974 model Piper aircraft in the mid-Missouri region. His services had been retained by the "Eagle Project" which was an on-going study funded by the United States Government to research the ecology of eagles wintering in Missouri with an emphasis on eagle-waterfowl relationships. The Eagle Project was being carried out by a team composed of representatives from the University of Missouri, the Bureau of Sport Fisheries and Wildlife of the Fish and Wildlife Service, U.S. Department of the Interior, and the Missouri State Conservation Commission. With decedent on February 10, 1975, was Ms. Judith Southern who was a Ph.D. candidate at the University of Missouri and Mr. Terry G. Wilson who was a temporary employee of the Missouri Conservation Commission.

The purpose for the flight was to track the movement of bald eagles which had previously been equipped with electronic transmittors. Prior to February 10, 1975, Ms. Southern had made three such flights with the decedent. On the morning of February 10, 1975, Ms. Southern, Mr. Wilson and the decedent flew from the municipal airport at Chillicothe, Missouri, to the E. W. "Cotton" Woods Memorial Airport at Columbia, Missouri. Next, the threesome flew to Memorial Airport at Jefferson City, Missouri. Following lunch, the three reboarded the airplane and flew to the Osage River. The pilot was conducting low level "contact" flying up the Osage at an altitude of approximately 100 feet at approximately 100 miles per hour. At mile 23.2 of the Osage River, the aircraft struck four power lines owned by the Three Rivers Electric Cooperative, Inc. ("Three Rivers power line"), that crossed the river at that point.1 The aircraft crashed into the water and all aboard were killed.

The evidence established that it was the decedent's usual practice to review aeronautical charts prior to piloting an aircraft and to use such charts during flight. See test. of Lula Mae Allnutt and Mr. Blackie Reed, who was the operator of decedent's employer—Reed Aviation—and a pilot. The chart that the decedent used on February 10, 1975 was entitled "Kansas City Sectional Aeronautical Chart, Lambert Conformed Conic Projection, Standard Parallels 33° 20' and 38° 40' topographic date corrected to October 1974-13th Edition." ("Chart 13"). See test. of Mr. Reed. The parties stipulated and the evidence clearly established that the Three Rivers power line that the decedent struck was not depicted on Chart 13.

Plaintiffs' theory of liability in this case is relatively simple. They contend that the United States, acting through the Commerce Department, and its sub-agency, the National Oceanic and Atmospheric Administration, Office of Aeronautical Charting and Cartography, Aeronautical Chart Division ("ACD"), was negligent in failing to depict the power transmission line on Chart 13 thereby causing decedent to rely to his detriment on said chart.

The defendant argues that plaintiffs' theory fails on a number of grounds. First, defendant contends that the acts of the officials of the ACD fall within the discretionary function exception to the Federal Tort Claims Act, and are, therefore, immune from suit. Second, even if the discretionary function exception does not apply, defendant maintains that it was in complete conformity with the established specifications for inclusion of obstacles on sectional aeronautical charts, and as such, was not negligent in the preparation of Chart 13. Third, defendant asserts that its acts in omitting the power line were not the proximate cause of decedent's accident because decedent could not have been relying on Chart 13 while flying at the 100 foot altitude. And fourth, even if defendant was negligent in failing to include the Three Rivers power line, decedent was contributorily negligent in operating the aircraft in a careless and negligent manner.

II. THE DISCRETIONARY FUNCTION EXCEPTION

The threshold question that this action presents is whether the discretionary function exception to the Federal Tort Claims Act bars suit against the defendant.2

There is a substantial body of case law interpreting the discretionary function exception. See, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Downs v. United States, 522 F.2d 990 (6th Cir. 1975); Griffin v. United States, 500 F.2d 1059 (3rd Cir. 1974); Dahlstrom v. United States, 228 F.2d 819 (8th Cir. 1956); Reminga v. United States, 448 F.Supp. 445 (W.D.Mich.1978). The traditional inquiry for determining if the discretionary function exception applies is an analysis of whether the particular act of a government agent is one involving the formulation of government policy or whether the act in question occurs in implementing a policy at an "operational" level. See, e. g., Dahlstrom v. United States, supra, 228 F.2d at 822-23; and Downs v. United States, supra, 522 F.2d at 996-97. The judicial interpretations of this distinction provide no clear standards for determination of the applicability of the discretionary function exception. Rather, the judicial constructions of 28 U.S.C. § 2680(a) have tended to examine all relevant factors in an assessment of whether the act in question was at a policy making level which Congress intended to place beyond judicial review or at the functionary or operational level which was intended to be reviewable. See, Downs v. United States, id., 522 F.2d at 997; and Sami v. United States, 617 F.2d 755, 765-68 (D.C.Cir.1979).3

Neither party to this action maintains that the government had no policy for the inclusion of power transmission lines on Chart 13.4 Indeed, the evidence adduced at trial clearly demonstrated the existence of established specifications for the production of sectional aeronautical charts. While the evidence established the existence of specifications, there was some controversy over what specifications were in use when Chart 13 was prepared.5

Plaintiffs argue that the standards for inclusion of power transmission lines are derived from many sources. Specifically, plaintiffs identified numerous policy sources that they claim controlled the production of Chart 13:

1.) "United States Government Specifications for Sectional/Tactical Pilotage Aero-nautical Charts" prepared by the Inter-Agency Air Cartographic Committee ("IACC Specifications"), see defendant's exhibit 12;

2.) Guidelines and Policy for Transmission Line Depiction on Aeronautical Charts ("Transmission Line Guidelines"), see plaintiffs' exhibit 9;

3.) Chapter 3A5 of the United States Geological Survey's Topographic Instructions, Book No. 3 ("U.S.G.S. Topographic Instructions"), see plaintiffs' exhibit 10;

4.) Army Map Service Technical Manual 45, Chapter 9, ("Army Map Service Manual"), see plaintiffs' exhibit 11.

5.) United States Department of Agriculture Photo Index,6 see plaintiffs' exhibit 29.

While substantial confusion arose during discovery in this action over the applicable standards,7 the overwhelming weight of highly credible testimony produced at trial leads this Court to the conclusion that only the IACC specifications governed the production of Chart 13. See test. of Messrs. Chappas, Feldman, Yachmetz, and McDermott.8 Further, Chart 13 itself lends credibility to the defendant's position inasmuch as the face of the document reads as follows:

"Published in Accordance with Inter-Agency Air Cartographic Committee Specifications and Agreement." See, Plaintiffs' exhibit 1.

As well, it was revealed that the Transmission Line Guidelines document was prepared by a Mr. Rexford Anderson following a meeting of ACD staff personnel on September 6, 1974. See defendant's exhibit 6D. Mr. Anderson testified that the Transmission Lines Guidelines was just an "idea" paper that he prepared in an effort to seek out new methods of approving the charting of power transmission lines. He testified that the only recommendation contained within Transmission Lines Guidelines that was adopted was the recommendation to change the color of powerlines on aeronautical charts from blue to black. According to Mr. Anderson, the references in the paper to the U.S.G.S. Topographic Instructions and to the Army Map Service Manual were merely suggested improvements that were never implemented.

Lastly, this Court notes that the IACC was formed in May, 1965, through a "Memorandum of Agreement" between the Federal Aviation Agency, the Department of Defense, and the Department of Commerce with the...

To continue reading

Request your trial
11 cases
  • Petznick v. United States
    • United States
    • U.S. District Court — District of Nebraska
    • December 5, 1983
    ...rules has been regarded as operational level conduct for which the United States may be sued. Id. See also, Allnut v. United States, 498 F.Supp. 832, 835-38 (W.D.Mo.1980). In the present case, certain policies of the United States Air Force with respect to the performance of electrical work......
  • Baird v. U.S.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 29, 1981
    ...too long in the quagmire of what makes a governmental function discretionary or nondiscretionary, see generally Allnutt v. United States, 498 F.Supp. 832, 835-36 (W.D.Mo.1980); Blessing v. United States, 447 F.Supp. 1160, 1167-85 (E.D.Pa.1978), for we believe plaintiffs' claim falls squarel......
  • Beattie v. United States, Civ. A. No. 82-3520.
    • United States
    • U.S. District Court — District of Columbia
    • June 25, 1984
    ...Inc. v. United States, 445 F.2d 876 (10th Cir.1971); Reminga v. United States, 631 F.2d 449 (6th Cir.1980); and Allnutt v. United States, 498 F.Supp. 832 (W.D.Mo.1980) — to the extent that they support the government's position at all (Allnutt does not), involved either typical discretionar......
  • Medley v. United States, C-79-2832 RPA
    • United States
    • U.S. District Court — Northern District of California
    • June 30, 1982
    ...for negligence in the preparation, publication and circulation of an erroneous or misleading sectional chart. Allnutt v. United States, 498 F.Supp. 832, 837 (W.D.Mo. 1980); Sullivan v. United States, 299 F.Supp. 621, 625-26 (N.D.Ala.1968), aff'd. 411 F.2d 794 (11 Cir. 1969). Thus, the gover......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT