Allegheny Airlines, Inc. v. U.S.

Decision Date26 November 1974
Docket NumberNo. 73-1273,73-1273
Citation504 F.2d 104
PartiesALLEGHENY AIRLINES, INC., and G.E.C.C. Leasing Corporation, Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Walter E. Rutherford, New York City, and Emerson Boyd, Indianapolis, Ind. (Robert L. Alpert, Robert B. Haserot, New York City, and William V. Hutchens, Indianapolis, Ind., on the brief), for Allegheny Airlines, Inc., and GECC Leasing Corp.

R. Stanley Lawton and Arthur P. Kalleres, Indianapolis, Ind., for Brookside Corp.

James E. Rocap, Jr., and Thomas P. Ledgerwood, Indianapolis, Ind., for Forth Corp.

Floyd W. Burns and Richard R. McDowell, Indianapolis, Ind., for Lee LeMay, Administrator.

Irving Jaffe, Acting Asst. Atty. Gen., Washington, D.C., Stanley B. Miller, U.S. Atty., Indianapolis, Ind., Morton Hollander and Michael H. Stein, Washington, D.C., for the United States.

Before SWYGERT, Chief Judge, KILEY, Senior Circuit Judge, 1 and HOFFMAN, Senior District Judge. 2

SWYGERT, Chief Judge.

Plaintiffs, Allegheny Airlines, Inc. (Allegheny) and GECC Leasing Corp. (GECC) appeal from final judgments entered in favor of defendants, Brookside Corporation (Brookside), Forth Corporation (Forth is a wholly-owned subsidiary of Brookside), the United States, and the estate of Robert W. Carey. As a result of a mid-air collision on September 9, 1969 near Fairland, Indiana between an Allegheny aircraft enroute to Indianapolis and a Piper Cherokee aircraft owned by Forth and operated by Carey who was a student pilot, plaintiffs brought suit to recover $3,750,000 for the destruction of Allegheny's DC-9-31 aircraft and to recover $250,000 for a turbojet engine mounted thereon which was owned by GECC.

Pursuant to the Federal Tort Claims Act plaintiffs' claims against the United States were tried to the court while, simultaneously, the plaintiffs' claims against the other defendants were tried to the jury. At the conclusion of plaintiffs' case the district judge entered the following orders which are the subject matter of this appeal: the court granted the Government's motion to dismiss under Rule 41(b) of the Federal Rules of Civil Procedure on the ground that Allegheny was contributorily negligent; on the basis of the court's determination that Allegheny was contributorily negligent, the court applied the doctrine of collateral estoppel to preclude Allegheny from continuing further against the defendants Forth and the estate of Carey; the trial judge granted a directed verdict in favor of Brookside; and dismissed GECC as a party plaintiff on the ground that it was not the real party in interest.

On appeal plaintiffs raise various issues, the most important of which are: (1) whether the district court's findings of fact and conclusions of law that Allegheny was contributorily negligent and thus barred from recovery are supported by substantial evidence and in accord with applicable law, and are not clearly erroneous; (2) whether the trial judge erred in dismissing GECC on the ground that it was not the real party in interest; (3) the propriety of the district court's grant of summary judgment to Forth and the estate of Carey on the ground that Allegheny was collaterally estopped; (4) whether the trial judge erred in entering a directed verdict in favor of Brookside. Plaintiffs also challenge as reversible error certain other rulings of the trial judge which they contend must be corrected in the event a new trial is granted. We reverse and remand for a new trial as to plaintiffs' claims against the United States, Forth, and the estate of Carey but affirm with respect to the defendant Brookside.


The mid-air collision between Allegheny's aircraft, Allegheny Airlines Flight 853 (Flight 853), and the Piper Cherokee aircraft operated by Robert W. Carey occurred at approximately 3:29 p.m. on September 9, 1969 in the airspace northwest of Fairland, Indiana. At the time of the collision Carey, as a student pilot, was engaging in a solo cross-country flight as part of his training for a private pilot's license. The airplane he was operating was owned by Forth Corporation which among other things operated Brookside Airpark and sold, rented, and serviced aircraft as well as provided ground and flight instruction to student pilots such as Carey. Carey had departed from Brookside Airpark, located northeast of Indianapolis, and was heading in a southernly direction, intending to fly to Bakalor Air Force Base located southeast of Indianapolis at Columbus, Indiana. Since Carey possessed only a student pilot's license all his flying was required to be performed in accordance with visual flight rules (VFR) requirements, the most important of which, for purposes of the instant action, was that Carey was prohibited from operating his aircraft closer than 500 feet from the base of any clouds. 14 C.F.R. 91.105 (1968).

Allegheny Flight 853 departed from Cincinnati, Ohio en route to Indianapolis' Weir Cook Airport at 3:16 p.m. Flight 853 was under an instrument flight rules (IFR) clearance and consequently was operating under the jurisdiction of and in communication with the Indianapolis Air Traffic Control Center. Air traffic controller Masen Grant directed Flight 853 to proceed to Shelbyville, Indiana and then on to Indianapolis at an altitude of 10,000 feet mean sea level (MSL). At approximately 3:23 p.m. controller Grant advised Flight 853 that it was in radar contact and directed it to descend to 6,000 feet. Thereafter, since the aircraft was going to land at Indianapolis, controller Grant was required to terminate his jurisdiction over Flight 853 and transfer air traffic control jurisdiction to the Indianapolis Approach Control facility, the Federal Aviation Agency facility that had jurisdiction for landings at Weir Cook Airport. Grant effected a radar handoff of Flight 853 to Merrill T. McCammack, the arrival radar approach controller at Weir Cook.

At 3:27 p.m. Flight 853 contacted controller McCammack and reported that it was in the process of descending to 6,000 feet. Approximately twelve seconds later, McCammack responded by requesting the aircraft to identify itself by use of its transponder to enhance its radar signal. McCammack then directed Flight 853 to fly a heading of 280 degrees and to descend to 2500 feet. Allegheny Flight 853 acknowledged these instructions at approximately 3:27.29 p.m.; this was the last known or recorded transmission of Flight 853.

Subsequent to Allegheny's 3:27.29 p.m. confirmation of instructions, McCammack allegedly watched the aircraft turn to 280 degrees on his radar, scanned his radar to determine if there was any other traffic in the area, and, observing none, he admittedly turned his attention from the radar screen to perform certain routine administrative functions which he described as follows:

'I was observing the target, checking the area in front of the aircraft and to either side to see if there were any aircraft that would be traffic for the flight that I was controlling. I observed no traffic for the aircraft, so then at approximately the time of twenty-nine I looked at the flight progress strip and noticed that I had not marked down the radar handoff time. I looked at the clock and it was approximately twenty-nine and I wrote this time down on the strip. I then coordinated with the departure controller to see if there was any other traffic that he might have that would be a factor for the IFR separation of Allegheny 853, would be following anyone that they might be working that would be landing in Indianapolis ahead of flight 853. I also checked the weather sequence to make sure that the weather was still the same, checked the wind indicators to see what the wind was presently reading, and I also checked the altimeter to see that the information that the pilot had received was current. After doing these coordinating duties, I looked back to the radar scope and noticed that the target on Allegheny 853 was no longer visible.'

While his attention was allegedly diverted, the mid-air collision occurred at 3:29.13 p.m. and the radar target return for Flight 853 disappeared within seconds thereafter.

McCammack did not observe the collision nor the disappearance of Flight 853 on his radar scope. Nor, did he at any time advise Flight 853 of the presence of the Piper Cherokee aircraft.

The collision occurred at an altitute of approximately 3600 feet MSL with the Piper Cherokee striking Flight 853 from the right at an angle of 106 degrees. Both aircraft crashed to the ground with the wreckage strewn over a site approximately twenty nautical miles southeast of Weir Cook Airport. There were no survivors of the collision.


In assessing the propriety of the district court's findings as to Allegheny's asserted contributory negligence, we note that the proper standard for review of such findings is whether they are clearly erroneous and not supported by substantial evidence. 3 The findings of the district court which led to its holding of contributory negligence are:

(1.) The collision occurred . . . five hundred feet (500') or more below the base of the clouds.

'(2.) Allegheny . . . failed to exercise ordinary care . . . under the circumstances in that plaintiff's aircraft was operated by its crew who failed to maintain a lookout for the Piper Cherokee 140 aircraft . . ..

'(3.) Allegheny . . . failed to exercise ordinary care . . . under all circumstances . . . in that its crew conducted the aircraft descent from cruise altitude in an improper manner in that the rate of descent was in excess of five hundred feet (500') per minute . . ..

'(4.) Allegheny . . . failed to exercise ordinary care . . . under all the circumstances . . . in that its crew conducted the aircraft descent from cruise altitude at a descent rate which was excessive under the...

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