719 F.2d 873 (6th Cir. 1983), 81-3544, Hersch v. United States

Docket Nº:81-3544, 81-3545.
Citation:719 F.2d 873
Party Name:Henry HERSCH, et al., Plaintiffs-Appellants, v. UNITED STATES of America and Rockwell International Corporation, Defendants- Appellees. INSURANCE CO. OF NORTH AMERICA, Plaintiff-Appellant, v. UNITED STATES of America and Rockwell International Corporation, Defendants- Appellees.
Case Date:October 20, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 873

719 F.2d 873 (6th Cir. 1983)

Henry HERSCH, et al., Plaintiffs-Appellants,

v.

UNITED STATES of America and Rockwell International

Corporation, Defendants- Appellees.

INSURANCE CO. OF NORTH AMERICA, Plaintiff-Appellant,

v.

UNITED STATES of America and Rockwell International

Corporation, Defendants- Appellees.

Nos. 81-3544, 81-3545.

United States Court of Appeals, Sixth Circuit

October 20, 1983

Argued May 5, 1983.

Page 874

Ralph F. Mitchell, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, Daniel C. Cathcart, argued, Magana, Cathcart, McCarthy & Pierry, Los Angeles, Cal., for plaintiffs-appellants.

James Q. Doran, Cincinnati, Ohio, Christopher K. Barnes, Asst. U.S. Atty., Nicholas J. Pantel, Cincinnati, Ohio, Barbara O'Malley, argued, Civ. Div., Torts Branch, U.S. Dept. of Justice, Washington, D.C., Michael

Page 875

R. Gallagher, Alton Stephens, argued, Gallagher, Sharp, Fulton, Norman & Mollison, Cleveland, Ohio, for defendants-appellees.

Before KEITH and KRUPANSKY, Circuit Judges, and HORTON, District Judge. [*]

KRUPANSKY, Circuit Judge.

These are consolidated appeals from three cases tried together in the United States District Court for the Southern District of Ohio. Following presentation of the plaintiffs' case, the lower court granted an involuntary dismissal in favor of defendant United States and also a directed verdict in favor of defendant Rockwell International Corporation (Rockwell).

These actions arise out of the crash of a private airplane on February 5, 1974, approximately two miles west of the town of Cynthiana, Kentucky. The catastrophe claimed the lives of the pilot and two passengers.

The record discloses that on the morning of the accident, an Aerocommander Model 680-FP (Aerocommander), piloted by Eugene Nicholas Halmi, Jr., departed from Lunken Airport in Cincinnati, Ohio at 7:44 a.m., en route to Fort Lauderdale, Florida. The Aerocommander proceeded generally south towards Lexington, Kentucky at an altitude of 15,000 feet. At the same time, a Boeing 727 jet airliner, Delta Flight 330 (Delta 330), was proceeding north en route to the Greater Cincinnati Airport. Delta 330 was flying at an altitude of 18,500 feet on a "jet route" referred to a "J-43." A jet route is eight nautical miles wide and, unless specifically authorized to deviate, pilots are required to fly the center of these air corridors. 14 C.F.R. Sec. 91.123 (1983).

During the pertinent time period, both aircraft were communicating with air traffic controller Frederick Peter Feigert (Feigert), at the Indianapolis Control Center. Feigert testified that it was necessary, for reasons neither disputed nor relevant in this case, to direct Delta 330 to descend to an altitude of 10,000 feet. Feigert also testified, and it is undisputed, that controllers' manuals require a controller to maintain a horizontal separation between aircraft of five nautical miles, or, if aircraft are within five nautical miles of each other, to maintain a vertical separation of 1,000 feet.

Because Delta 330 would be descending to 10,000 feet, Feigert testified that it was necessary to insure horizontal separation between the two aircraft. Accordingly, at 7:58:45 a.m., he directed the Aerocommander to turn 20? west. Approximately 40 seconds later Feigert directed Delta 330 to turn 15? east. 1

At 7:59:37, 29 seconds after instructing Delta 330 to turn, Feigert ordered it to commence its descent to 10,000 feet. At 8:01:10 a.m. Feigert cleared the Aerocommander's request to proceed to an altitude of 17,000 feet. Five seconds later the Aerocommander reported that it was climbing to 17,000 feet as authorized by Feigert. This was the last voice contact with the Aerocommander.

The Aerocommander crashed at approximately 8:05 a.m. As indicated, the plane crashed two miles west of Cynthiana, Kentucky, on the ground track of jet route J-43.

In 1975, the representatives of the estates of the pilot and both passengers instituted two separate civil actions. In one action, the representatives purported to state a claim for relief under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), et seq. The theory of that action, as developed by circumstantial evidence, was predicated upon the alleged negligence of air traffic controller Feigert in failing to maintain a safe separation between the Aerocommander and the Delta 330 thereby proximately causing the Aerocommander to encounter the "wing tip vortices"...

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52 practice notes
  • 710 F.Supp. 653 (E.D.Mich. 1987), Civ. A. 84-2431, Empey v. Grand Trunk Western R. Co.
    • United States
    • Federal Cases United States District Courts 6th Circuit
    • 19 Marzo 1987
    ...men could differ." Rockwell Int'l Corp. v. Regional Emer. Med. Services, 688 F.2d 29 (6th Cir.1982); Hersch v. United States, 719 F.2d 873, 877 (6th Cir.1983); Grimm v. Leinart, 705 F.2d at 181, 181 n. 2. Additionally, the Supreme Court has indicated that in a cause of action arising u......
  • 883 F.2d 475 (6th Cir. 1989), 88-3387, Risinger v. Ohio Bureau of Workers' Compensation
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • 24 Agosto 1989
    ...trial.... That is, the appellate court may not disturb the lower court's conclusion unless clearly erroneous. Hersch v. United States, 719 F.2d 873, 877 (6th Cir.1983) (citations omitted); Haskell v. Washington Township, 864 F.2d 1266, 1274 (6th Cir.1988) (same); see also Sullivan v. City o......
  • 373 N.W.2d 859 (N.D. 1985), 10845, Shark v. Thompson
    • United States
    • North Dakota Supreme Court of North Dakota
    • 4 Septiembre 1985
    ...Inc., 712 F.2d 978, 984 n. 12 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2342, 80 L.Ed.2d 816 (1984); Hersch v. United States, 719 F.2d 873, 876-877 (6th Cir.1983); Patterson v. General Motors Corp., 631 F.2d 476, 487 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 6......
  • 823 F.2d 1178 (7th Cir. 1987), 86-3086, Furth v. Inc. Pub. Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 14 Julio 1987
    ...Sanders v. General Services Administration, 707 F.2d 969, 971 (7th Cir.1983) (citation omitted); accord Hersch v. United States, 719 F.2d 873, 876 (6th Cir.1983). The district court should make no special inferences in the plaintiff's favor. Sanders, 707 F.2d at 971. The court must weigh al......
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52 cases
  • 710 F.Supp. 653 (E.D.Mich. 1987), Civ. A. 84-2431, Empey v. Grand Trunk Western R. Co.
    • United States
    • Federal Cases United States District Courts 6th Circuit
    • 19 Marzo 1987
    ...men could differ." Rockwell Int'l Corp. v. Regional Emer. Med. Services, 688 F.2d 29 (6th Cir.1982); Hersch v. United States, 719 F.2d 873, 877 (6th Cir.1983); Grimm v. Leinart, 705 F.2d at 181, 181 n. 2. Additionally, the Supreme Court has indicated that in a cause of action arising u......
  • 883 F.2d 475 (6th Cir. 1989), 88-3387, Risinger v. Ohio Bureau of Workers' Compensation
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • 24 Agosto 1989
    ...trial.... That is, the appellate court may not disturb the lower court's conclusion unless clearly erroneous. Hersch v. United States, 719 F.2d 873, 877 (6th Cir.1983) (citations omitted); Haskell v. Washington Township, 864 F.2d 1266, 1274 (6th Cir.1988) (same); see also Sullivan v. City o......
  • 373 N.W.2d 859 (N.D. 1985), 10845, Shark v. Thompson
    • United States
    • North Dakota Supreme Court of North Dakota
    • 4 Septiembre 1985
    ...Inc., 712 F.2d 978, 984 n. 12 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2342, 80 L.Ed.2d 816 (1984); Hersch v. United States, 719 F.2d 873, 876-877 (6th Cir.1983); Patterson v. General Motors Corp., 631 F.2d 476, 487 (7th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 6......
  • 823 F.2d 1178 (7th Cir. 1987), 86-3086, Furth v. Inc. Pub. Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 14 Julio 1987
    ...Sanders v. General Services Administration, 707 F.2d 969, 971 (7th Cir.1983) (citation omitted); accord Hersch v. United States, 719 F.2d 873, 876 (6th Cir.1983). The district court should make no special inferences in the plaintiff's favor. Sanders, 707 F.2d at 971. The court must weigh al......
  • Free signup to view additional results