Mallen v. United States, Civ. A. No. C-74-1157-A.

• Decision Date: 09 October 1979
• Docket Number: Civ. A. No. C-74-1157-A.
• Citation: 506 F. Supp. 728
• Parties: Brenda MALLEN, as widow of Steven Mallen v. UNITED STATES of America.
• Court: U.S. District Court — Northern District of Georgia

506 F. Supp. 728

Brenda MALLEN, as widow of Steven Mallen v. UNITED STATES of America.

Civ. A. No. C-74-1157-A.

United States District Court, N. D. Georgia, Atlanta Division.

October 9, 1979.

Zimet, Haines, Moss, & Goodkind, New York City, Daniel Donnelly, Garrison, N. Y., for plaintiff.

Douglas P. Roberto, Asst. U. S. Atty., Atlanta, Ga., Robert D. Batson, Civ. Div., Dept. of Justice, Washington, D. C., for defendant.

ORDER

HENDERSON, Circuit Judge, Sitting by Designation.

On March 21, 1972, Steven Mallen was killed when the single engine light aircraft he was piloting crashed near Jasper, Georgia. His widow brings this suit pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., claiming negligence by agents of the United States in furnishing air traffic control services, including weather information.¹ The case was tried before the court without a jury. The parties submitted proposed findings of fact and conclusions of law, and the case is now ready for decision.

At about 5:35 P.M., E.S.T., on March 21, 1972, Steven Mallen departed from Probst Field in Concord, North Carolina, heading toward his home in Chattanooga, Tennessee. Earlier, he called the Hickory, North Carolina Flight Service Station (hereinafter referred to as the "FSS") to obtain weather information for his proposed route of flight and to file a flight plan with the FSS. He was furnished a synopsis of the weather information available to the FSS employee on duty, which included a briefing on the weather the FSS employee felt was pertinent to Mallen's proposed route of flight. The FSS advised him that he could expect generally Visual Flight Rules (VFR) conditions with ceilings and visibilities less than VFR in scattered showers or thundershowers. The FSS told him that the Washington area forecast contained a SIGMET² and an AIRMET³ pertinent to his flight route which warned of thunderstorms, possibly in lines and clusters, developing in advance of a cold front, moderate to locally severe turbulence associated with these thunderstorms, and moderate turbulence below twelve thousand feet. Several PIREPS⁴ were given Mallen which informed him of moderate to severe turbulence, showers and light clear icing in the area of Chattanooga, as well as a current radar report indicating an area of scattered rain showers and thundershowers thirty nautical miles northeast of Chattanooga. The FSS employee also advised of rough flying conditions if he encountered any thunderstorm activity. Mallen replied that he would ask for radar vectors⁵ around the thunderstorms, and would take the southern route around the mountains in an effort to avoid this area. Mallen filed an Instrument Flight Rules (IFR) flight plan with the FSS, but did not provide an alternate route of flight.

At the time of the tragic crash, Mallen was an instrument rated pilot⁶ with a little over forty hours of simulated or actual instrument flying time. This barely exceeded the minimum number of hours required in order to obtain an instrument rating. He had been warned against flying IFR at night. In his instruction for both a private pilot license and an instrument rating, he was taught that he should avoid thunderstorms and that they should be given a wide berth — at least twenty miles; some sources advised twenty to thirty miles for severe thunderstorms. He was instructed that hail and severe turbulence, which could quickly cause a dangerous loss of altitude, were associated with thunderstorm activity. One indicator of thunderstorms, according to his lessons, was lightning. He was advised that air traffic controllers could vector him around an area of bad weather if that weather was not too widespread, but was warned not to depend on their radar, that the air traffic controller's primary function was separation of aircraft, and that providing weather information and vectors around weather was a secondary duty, to be performed only when time and traffic permitted. He was informed that the circular polarization feature of the air traffic controller's radar⁷ eliminated a certain amount of return from weather. He was cautioned that he should take an alternate route if thunderstorms were forecast, and, if that were not possible, that it would be a "nogo" situation.⁸ Mallen also understood that air traffic controllers should solicit PIREPs if thunderstorms were forecast for an area, and that the PIREPs would be passed along to other pilots. However, he was alerted to monitor his radio and listen for discussions of weather conditions by other pilots.

Mallen's anticipated flight path took him through the jurisdiction of the Atlanta Air Route Traffic Control Center. Airspace in this jurisdiction is divided into "sectors." Each sector is monitored by an air traffic controller, who stands at his station and studies a screen depicting the radar return or "echoes" from a beam which scans his sector. His primary duty is to utilize this information to maintain separation of aircraft in his sector. Time and traffic permitting, he may provide weather information to pilots, including vectors around bad weather.⁹

The testimony at the trial centered on communications between the air traffic controllers and various aircraft, including Mallen's, and "interphone" conversations among the air traffic controllers themselves, during the fifty minute period from 6:40 until 7:30 P.M. the night of the crash.¹⁰ Deciphering these transmissions is crucial to a determination of negligence by government employees, and each party called witnesses who gave their interpretations of each transmission and how it was, or should have been, understood by the conversants. Inevitably, there were conflicting opinions, and, hence, the fact-finding function necessarily involves a resolution of whose version of the meaning of these transmissions is the most credible.¹¹

At 6:48:14 P.M., i. e., 48 minutes and 14 seconds after 6 P.M., E.S.T.¹² Mallen was flying east on "V-194."¹³ He was advised by Milton Brogdon, who was operating the Commerce low altitude sector, that in about twenty-five miles he would begin picking up some precipitation on his present course, but that if he made a left turn and headed toward Gainesville and then proceeded west on a vector to be provided to him by the controller, he would go south of the heavy precipitation and come to Chattanooga from the southwest. Mallen responded that he would go any way that would keep him out of the heavy precipitation, and suggested to the controller that he could proceed to the Rome VOR.¹⁴ At 6:51:31 he was given vectors to take him south of the weather, and about four minutes later was warned of light precipitation in his path in four or five miles. Mallen replied that he had just come through an area of very light precipitation, and that "the cells"¹⁵ appeared to be off to his right, which meant that he was seeing thunderstorms to the northwest. At this point Brogdon told James R. Galloway, the Crabapple low altitude sector controller, that he was going to vector Mallen south of the weather. Galloway replied that this would not be a problem.

At 6:58:00, in response to an inquiry from Brogdon, Mallen stated that he was in the clouds and encountering some moderate precipitation. Brogdon informed Mallen that if he made a turn to a heading of 230 degrees, he would go south of the weather, which looked like it was moving south-southeast. Mallen made the suggested turn. At 7:01:47, Mallen told Brogdon that he was in pretty rough turbulence and asked him what he was "painting" ahead, i. e., what Brogdon's radar scope was showing along his flight path. Brogdon relayed that he saw an area of moderate precipitation, and that for another three miles or so he would be on the backside of "this cell here." At 7:02:24, Mallen told Brogdon that he was "breaking through" the weather. Between 7:03:00 and 7:03:52, Brogdon warned Mallen that while it was "pretty good ahead" for about forty miles, there appeared to be an area of "real heavy precip" about fifty miles ahead, and that the controller might have to vector him around the south side of it before he reached Rome. Mallen replied that "it's gotten a little bit rough right here just for a moment" and said that he would proceed direct to Rome. About one minute later, Brogdon told Galloway that Mallen was proceeding direct to Rome and that "we may have to vector him to the south of that big ole good'n over there that's up there by Cartersville." In other words, there was an area of weather, possibly a cell, east of Rome around which Mallen might have to deviate. In response to his inquiry, Mallen was given the Chattanooga weather forecast, which included overcast conditions with very light rain, and a PIREP of severe turbulence and down-drafts from a light aircraft coming from Nashville, northwest of Chattanooga, into Chattanooga.

From approximately 11 minutes after seven until the transcript ends at 7:30, several large commercial aircraft were taking off from Atlanta International Airport. These aircraft were to proceed up J-91, an airway which runs north-northeast from the Atlanta airport. However, at various times during the recited time span, these aircraft requested deviations to the east of J-91 to avoid bad weather, in some cases described as cells.¹⁶ The plaintiff attempted to prove that these reports of thunderstorms were relevant to Mallen's route of flight once he turned back on a northwesterly course, and, hence, should have been reported to Mallen. It was never established to the court's satisfaction that the reports were pertinent to Mallen's flight path. It was not shown where these aircraft were located when they requested deviations, a crucial factor in determining the relevancy of their observations to Mallen's route. Galloway testified that he thought the weather around which they were turning was up around Harris intersection, a point more than thirty miles away from Mallen's route,...