543 F.2d 657 (9th Cir. 1976), 75-1267, Felder v. United States

Docket Nº:75-1267, 75-1455.
Citation:543 F.2d 657
Party Name:Gloria FELDER, Individually and as personal representative of the Estate of Harry Felder, Jr., Deceased, et al., Plaintiffs-Appellees, v. The UNITED STATES of America, Defendant-Appellant. Gloria FELDER, etc., et al., Betty Ann Henschen, etc., et al., and Lynda M. Burns, etc., et al., Plaintiffs-Cross-Appellants, v. The UNITED STATES of America, De
Case Date:September 09, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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543 F.2d 657 (9th Cir. 1976)

Gloria FELDER, Individually and as personal representative

of the Estate of Harry Felder, Jr., Deceased, et

al., Plaintiffs-Appellees,


The UNITED STATES of America, Defendant-Appellant.

Gloria FELDER, etc., et al., Betty Ann Henschen, etc., et

al., and Lynda M. Burns, etc., et al.,



The UNITED STATES of America, Defendant-Cross-Appellee.

Nos. 75-1267, 75-1455.

United States Court of Appeals, Ninth Circuit

September 9, 1976

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Eloise Davies, Asst. Atty. Gen. (argued), App. Section, Civil Div., Dept. of Justice, Washington, D.C., for appellant in No. 75-1267 and appellee in No. 75-1455.

Charles M. Brewer (argued), of Lewis & Roca, Phoenix, Ariz., for appellant in No. 74-1455 and appellees in No. 75-1267.

Before BARNES and ELY, Circuit Judges, and PALMIERI, [*] District Judge.

PALMIERI, District Judge.

The Government has appealed from judgments for over two and a quarter million dollars awarded under the Federal Tort Claims Act (28 U.S.C. §§ 1346(b) and 2674) as a result of three wrongful death claims in the fatal crash of a Piper Comanche airplane at Tucson International Airport (the airport) on May 12, 1969. The pilot and two passengers in the plane were killed, and the plane (for which $9,000.00 was awarded) totally destroyed. These appeals present issues both with respect to liability and damages. Plaintiffs have cross-appealed, contending that the district judge erred as a matter of law in subtracting from their awards estimated income taxes that would have been paid on lost income.

I. The Issue of Liability

The trial court was amply supported by the record in concluding that the actions of the control tower personnel were the proximate cause of the crash, the consequent destruction of the airplane, and the death of the three occupants. Viewing the evidence in the light most favorable to the plaintiffs, the facts which follow appear to have been sufficiently established. The accident took place in daylight and in clear weather, with a visibility of 50 miles, and with visual flight rules in effect. The control tower was utilized for the control of air traffic at the airport and was being operated

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by employees of the Federal Aeronautics Administration (FAA). The primary concern of this traffic control was to insure the orderly movement of arriving and departing aircraft in the zone of control. One of the primary duties of the air traffic controllers was to advise pilots of any unsafe conditions that might affect the operation of their aircraft.

On May 12, 1969, Lufthansa German Airlines was engaged in performing "touch and go" landings for training purposes at the airport, utilizing a Boeing 707 aircraft. These landings involved a touch down by the aircraft followed by a take-off before the aircraft came to a complete stop. This type of training activity had been conducted at the airport on numerous prior occasions and for a number of years. The tower personnel at the airport were aware that touch and go landings by a plane of the size, speed, and weight of a Boeing 707 would expose a following light plane to wake turbulence caused by wing tip vorti- ces. It is common knowledge that the passage of the wing of a heavy aircraft like a Boeing 707 through the air causes a rapid swirl of air at the tip of each wing in substantially the same manner as a tornado, except that its position in the air is horizontal. Such air turbulence when encountered by a light aircraft of the Piper Comanche type could subject it to forces exceeding its control capabilities.

Harry Felder, the deceased pilot, was competent and experienced. He was inbound from Nogales, Mexico, landed at the airport and taxied to the Customs area for clearance. He intended to resume his flight to Phoenix, Arizona, after clearing Customs. Captain Emil Kuhnl of the Boeing 707 was an experienced pilot and bears no responsibility for the accident which was shortly to occur. The Boeing 707 had just taken off on its touch and go landing maneuver when the Piper Comanche was cleared for take-off. Felder was not given any cautionary warning concerning the take-off of the Boeing 707 and it was reasonable to infer from the evidence that he did not know that this had occurred. The Customs area was located behind the southeast corner of the Tucson terminal, and by the time the Piper Comanche had reached the point at which it was to initiate its take-off, the Boeing 707 was already airborne and sufficiently advanced in its flight pattern so that it was not readily visible to the pilot of the small plane. When Felder requested and received clearance for his departure it is clear that the FAA controller knew of the touch and go maneuver of the large plane and was chargeable with knowledge of the imminent exposure of the smaller plane to the danger of wake turbulence. He did not, however, issue any cautionary warning nor did he advise Felder of the take-off of the Boeing 707 which had occurred shortly before. The controller could have delayed the departure of the Pipe Comanche for a sufficient length of time so as to avoid the risk of any encounter with the wing tip vortices of the larger plane, but he did not do so. There is persuasive evidence that when the Piper Comanche reached a point approximately 150 to 250 feet above the runway, pilot Felder lost control of his Piper Comanche because it encountered wake turbulence created by the recently departed Boeing 707. Felder's plane flipped on its back abruptly, spiralled nose-down, and crashed without any possibility of pilot control. The district court was justified in rejecting the contention of the Government that the Piper Comanche had crashed because of a stall. The encounter with wake turbulence was the proximate cause of the crash, the ensuing deaths of the pilot, Harry Felder, and the two passengers, Wilbur G. Henschen and Peter P. Burns, and the destruction of the aircraft.

II. The issue of Damages

The Government also challenges on this appeal the damages awarded by the district court. It objects to numerous aspects of the trial judge's calculations and attacks the total amount as so excessive as to be punitive in contravention of the applicable statute. The plaintiffs have cross-appealed arguing that the trial judge committed reversible error by deducting estimated income

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taxes each decedent would have paid on his future earnings. Wishing further illumination of the damages issues, we requested supplemental briefs on all aspects of damages.

We approach the issue of damages raised in this case cautiously because it was substantially uncontested at the trial level. The Government offered no affirmative evidence of its own by way of expert testimony or otherwise. The Government made no motion to amend the findings of the district court or the judgment entered by that court, nor did it move for a new trial or otherwise raise the issue of damages before that court after its decision.

  1. The Standard of Review

    We are faced at the outset with the proper standard of review of a trial court's damage award under the Federal Tort Claims Act (FTCA, or the Act). The district judge gave careful and conscientious attention to the evidence before him and deference must be given to his judgment. On questions of law, such as the proper elements of an award of damages, we, of course, have a free hand in scrutinizing the district judge's decisions. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961). But there is some confusion in the briefs as to the standard of review we should apply to the district court's findings of fact on the issue of damages.

    After a non-jury federal trial the standard of federal appellate review of a finding of fact such as the calculation of damages is the clearly erroneous standard of Rule 52(a). Fed.R.Civ.P. Rule 52(a) states in relevant part:

    Findings by the Court

    (a) Effect. * * * Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

    The Supreme Court has supplied us with a definition of this standard of review:

    A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

    United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Accord, Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Guzman v. Ruiz Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962).

    The case we review today, however, is complicated by the fact that it is not concerned exclusively with federal law. Although it involves a non-jury case tried in a federal district court, the measure of damages under the Federal Tort Claims Act is based on state law. 28 U.S.C. § 2674. The question thus arises whether we should apply the state or the federal standard in reviewing the district court's calculation of damages.

    The plaintiffs urge us to adopt the Arizona test as stated in Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 370, 372 P.2d 703, 707 (1962):

    The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant . . . .

    The Government argues that the damages are excessive by any standard. 1

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    In three cases, we have applied...

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