Allen v. United States
| Decision Date | 12 December 1973 |
| Docket Number | No. 70 C 440(3),70 C 629(3).,70 C 440(3) |
| Citation | 370 F. Supp. 992 |
| Parties | Frances Ann ALLEN, Individually and as next friend of Jess Cole Allen et al. v. UNITED STATES of America, Third Party Plaintiff and Defendant, v. OZARK AIRLINES, INC., Third Party Defendant. Rosemary WILLIAMS, Individually, et al. v. UNITED STATES of America, Defendant and Third Party Plaintiff, v. OZARK AIRLINES, INC. |
| Court | U.S. District Court — Eastern District of Missouri |
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Gray & Friedman, St. Louis, Mo., for plaintiffs in No. 70C440(3).
Aubuchon & Walsh, St. Louis, Mo., for plaintiffs in No. 70C629(3).
Daniel Bartlett, Jr., U. S. Atty., Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, Mo., for Ozark Airlines.
These actions are before the Court for a decision on the merits following the consolidated trial to the Court sitting without a jury on September 5, 6. 7, 8, 11 and 12, 1972.
Plaintiffs, the surviving spouses and minor children of Bobby Lee Allen and John Brooks, brought their wrongful death actions against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., alleging that the mid-air collision between a Cessna aircraft and a DC-9 aircraft was caused by the negligence of the air traffic controllers, agents of the United States, and seeking money damages in the amount of Fifty Thousand Dollars ($50,000.00) each.
The Allen action was commenced with the filing of suit on August 31, 1970 against the United States. Similarly, the Brooks action began against the United States on December 11, 1970. Subsequently, the United States filed a third party complaint in the Allen case on January 13, 1971, and in the Brooks case on March 2, 1971, for indemnification or in the alternative a right of contribution as against Ozark Air Lines, Inc. Thereafter, the Allen plaintiffs filed an amended complaint joining Ozark Air Lines, Inc., as a party defendant.
The Allen and Brooks cases were consolidated for purposes of trial. The Court being fully apprised of the premises hereby makes the following findings of fact and conclusions of law.
1. On March 27, 1968, at approximately 1757:12 CST (5:57 p. m.) (all times herein shall be CST) a mid-air collision occurred between an Ozark Air Lines DC-9, flight 965, and a Cessna 150 aircraft, registration mark N8669G, approximately one and one half (1½) miles north of the extension of Runway 17 at Lambert-St. Louis Municipal Airport. Consequently, the Cessna crashed and the occupants therein, Bobby Lee Allen and John Brooks, were killed.
2. The collision occurred at an altitude of approximately 1100 feet, mean sea level, during daylight. The U. S. Weather Bureau at St. Louis reported the following meteorological information at the time of the accident: special high thin broken clouds, visibility 15 miles, temperature 69° F., dew point 45° F., wind 170° at 18 knots, gusts 24 knots, altimeter setting 30.06 inches.
3. At the time of the collision, Visual Flight Rules (VFR) were in effect and the active runway at Lambert Field was Runway 17.
4. Ozark Flight 965, N970Z was a regularly scheduled passenger flight which originated in Chicago, Illinois, and terminated at St. Louis, Missouri, with an en route stop at Peoria, Illinois.
5. Ozark Flight 965, was being piloted by Captain R. J. Fitch and First Officer W. C. Oltman. Captain Fitch held an airline transport rating with a type rating in the DC-9 and had accumulated 24,127 total flying hours. First Officer Oltman also held an airline transport rating, was type rated in the DC-9 and had approximately 9,805 flying hours. Captain R. W. Traub, a check pilot for Ozark Air Lines, was occupying the jumpseat, but was not conducting any official check on this flight.
6. Prior to and at the time of the collision, Ozark Flight 965 was being flown by the First Officer, W. C. Oltman, who was seated in the right hand seat of the cockpit.
7. Cessna 150 F, N8669G, was scheduled as an instructor-training flight for one and one half (1½) hours duration. Bobby Lee Allen was the instructor-pilot and John Brooks was instructor-trainee. Allen was a flight instructor, held a commercial pilot certificate with a single engine rating, and has approximately 384 flying hours. Brooks also held a commercial pilot certificate with a single engine rating and had approximately 174 flying hours.
8. Before, during and immediately after the accident, the defendant USA in connection with its prescribed air traffic activities was operating an air traffic control facility at Lambert-St. Louis Municipal Airport through air traffic controllers who were regularly in the service and employ of the Federal Aviation Agency (hereinafter called the FAA) of the defendant USA.
9. Lambert-St. Louis Municipal Airport is an FAA approved airport. Its field elevation is 571 feet M.S.L. (mean sea level). The airport's control tower provides approach and departure as well as local and ground control. Radar is employed by approach control to provide separation between aircraft flying on instruments from the limits of the radar coverage until the aircraft are cleared for an approach to the airport. With such clearance, the aircraft are then turned over to the local controller who directs the descent, direction and separation on final approach. Prior to and at the time of collision there were six FAA controllers in the tower cab.
10. St. Louis-Lambert Municipal Airport at time of the accident had no published VFR traffic pattern procedures.
11. Ozark 965 departed from Peoria at approximately 1731 with 44 passengers and a crew of five. The flight proceeded routinely to the St. Louis area in accordance with its Instrument Flight Rules (IFR) clearance and, at approximately 1749, radar control of the aircraft was transferred from Kansas City Air Route Traffic Control Center to St. Louis Approach Control. Ozark Flight 965 was advised that it was in radar contact and was cleared to descent from 6,000 feet to 2,600 feet on a heading of 190° with radar vectors to the outer marker, for an ILS approach to Runway 12 right.
12. Prior to reaching the outer marker, Ozark Flight 965 reported at 1754:55 that it had the airport in sight. St. Louis Approach Control then advised at 1754:59 "OK, YOU CAN START A LEFT TURN THEN AH FOR ONE SEVEN IF YOU LIKE, YOU'RE CLEARED FOR A ONE TWO RIGHT ILS APPROACH OR A CONTACT APPROACH, CONTACT THE TOWER NOW ONE ONE EIGHT POINT FIVE." Ozark 965 responded at 1755:08 CST "OK, OH NOW RUNWAY'S ONE SEVEN YOU SAY?" Approach control confirmed with "YEAH, THE ACTIVE RUNWAY IS ONE SEVEN, THE WIND IS ONE SEVEN ZERO DEGREES ONE FIVE TO TWO ZERO." Ozark 965 acknowledged that transmission at 1755:20. Thereafter, Approach Control observed the aircraft's target on the radarscope beginning a left turn. Such turn was commenced about 1 mile north of the outer marker.
13. There is no information available concerning the conduct or the whereabouts of the Cessna 150 F, n18669G, until 1754:00 when it reported to St. Louis Tower, "SIX NINE GOLF ST. CHARLES WITH GOLF." But because of tower frequency congestion, the Cessna was told at 1754:04, "SIX NINER GOLF STAND BY I'LL GET TO YOU IN A MOMENT." At 1754:43, the Tower told the Cessna to "REPORT RIGHT DOWNWIND RUNWAY ONE SEVEN . . ." This transmission was not acknowledged by the Cessna. Thereafter, the Cessna headed in a general southeastwardly direction toward the extension of Runway One Seven.
14. At 1756:09, Ozark 965 reported to the St. Louis Local Control with, "OZARK NINE SIXTY FIVE ON A RIGHT BASE." At this point the tower controller visually observed Ozark 965 which was proceeding in an eastwardly direction and sought its identification at 1756:21 with, ". . . AND OZARK NINE SIXTY FIVE THAT YOU ON THE BASE." Ozark 965 replied affirmatively. At 1756:31, St. Louis Local Control gave Ozark 965 not a clearance to land but a sequence to land with, "OK, YOU'RE NUMBER TWO TO FOLLOW A CESSNA ON A REAL SHORT FINAL FOR ONE SEVEN AND TRAFFIC IS A CESSNA LOOKS LIKE AHEAD AND TO YOUR RIGHT MAYBE TO YOUR LEFT THERE NORTHEAST BOUND." From this time prospectively, both Ozark 965 and Cessna N8669G were visible to the controllers in the tower cab. Moreover, for approximately fifty seconds up until the collision, the crew chief observed Cessna N8669G through his binoculars.
15. Ozark 965 crew members heard this traffic advisory, however, they did not locate Cessna N8669G. Passengers aboard Ozark 965 had seen the Cessna for up to 1½ to 2 minutes prior to the collision. The pilot of Ozark 965, Captain Fitch, testified that crew members were able to see aircraft beneath the Ozark equally as well as passengers aboard the plane.
16. The next communication from the local controller to Cessna N8669G was at 1756:43, At the time of this transmission Ozark 965 was at an approximate altitude of 1,600 feet (MSL) at a heading of 112°. Also, at this time the Cessna was at a constant approximate altitude of 800 to 1,000 feet. Cessna N8669G replied at 1756:58, "SIX NINE GOLF ROGER." At the time of this transmission Ozark 965 was at an approximate altitude of 1,350 feet (MSL).
17. The local controller testified that he thought Cessna N8669G was already clear of the extension of Runway 17 and that the Cessna did not deviate from the instructions to proceed straight ahead across the final. Ground witnesses further corroborated the fact that the Cessna maintained a constant southern heading and altitude until an instant before the collision.
18. Because of the high wing structure of Cessna N8669G, the occupants of the Cessna could not...
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