832 F.2d 93 (7th Cir. 1987), 87-1096, Walls v. United States

Docket Nº:87-1096.
Citation:832 F.2d 93
Party Name:Alan J. WALLS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:October 22, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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832 F.2d 93 (7th Cir. 1987)

Alan J. WALLS, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

No. 87-1096.

United States Court of Appeals, Seventh Circuit

October 22, 1987

Argued Sept. 9, 1987.

Rehearing and Rehearing En Banc Denied Nov. 23, 1987.

Nicholas Gilman, Smiley, Olson, Filman & Pangia, Washington, D.C., for plaintiff-appellant.

Nicholas S. Zeppos, Asst. U.S. Atty. (John Daniel Tinder, U.S. Atty.) Indianapolis, Ind., for defendant-appellee.

Before CUMMINGS, COFFEY and EASTERBROOK, Circuit Judges.

CUMMINGS, Circuit Judge.

In Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950), the Supreme Court of the United States held that the federal Government is not liable under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680, for "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." See also Cross v. Fiscus, 830 F.2d 755, 756 (7th Cir.1987). Plaintiff Alan J. Walls, an active-duty service member of the United States Army, appeals from the district court's dismissal for lack of subject matter jurisdiction of his action against the United

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States 1 for $813,754 for injuries he suffered in the crash of an Air Force Aero Club airplane. 2 Basically, Walls alleges both that the Aero Club failed to provide sufficient supervision of the pilot of the aircraft, and that he was negligent in flying the plane. We affirm for the reasons that follow.

I.

In reviewing the grant of the motion to dismiss for lack of subject matter jurisdiction, it is necessary to consider as true all of plaintiff's factual allegations. Roman v. U.S. Postal Service, 821 F.2d 382, 385 (7th Cir.1987). Here we deal more extensively with the facts relied on by the district court in its brief opinion reported in 651 F.Supp. 1049, 1051 (S.D.Ind.1987). Walls, a Specialist (4th Class) in the United States Army, served as an air traffic coordinator at Ft. Carson, Colorado. There he met Chief Warrant Officer Daniel J. Spotts, an Army helicopter pilot and a member of the Aero Club at Peterson Air Force Base in Colorado. When Walls learned that Spotts planned to fly to Sacramento, California, a Cessna 172 aircraft on lease to the Aero Club, he asked Spotts for a ride to Salt Lake City to visit his family; Spotts consented to take him.

On September 25, 1980, Spotts left the Peterson base in the Cessna airplane and picked up Walls and two other passengers, an Army private and wife, at Butts Army Airfield at Ft. Carson. Earlier, Spotts had filed a military flight plan with the Aero Club which indicated his ultimate destination as the McClellan Air Force Base in Sacramento. The plane stopped to refuel in Heber City, Utah, and shortly after takeoff, it crashed with all on board surviving. Spotts claimed that when the airplane engine began to run "rough" and could not clear a mountain pass, he attempted to return to the Utah airport but the plane stalled. An Air Force investigation later reported that Spotts had...

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