Barber v. U.S.
| Citation | 711 F.2d 128 |
| Decision Date | 19 July 1983 |
| Docket Number | 81-3436,Nos. 81-3412,s. 81-3412 |
| Parties | Janeen BARBER, individually and as Personal Representative for the Estate of, Robert William Barber, Deceased, Lisa Jean Barber, Janeen Barber in her representative capacity as mother of her infant children, Robin Janeen Barber and Robert W. Barber, Jr., Minors and on their behalfs, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, BELLEFONTE INSURANCE COMPANY, A Delaware Corp., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Arlene E. ZELLER, Substituted for Ross Zeller, deceased, and Corvallis Aero Service, Inc., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert J. Neuberger, Burl & Green, Portland, Or., Dan Neal, Eugene, Or., Bruce Bailey, Burlingame, Cal., Jan Kitchel, Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, Or., for plaintiffs-appellants.
J. Paul McGrath, Asst. Atty. Gen., Barbara J. Ballin, Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the District of Oregon.
Before WALLACE, FARRIS, and NELSON, Circuit Judges.
Appellants challenge a district court judgment that appellants were not entitled to recover from the United States in a negligence action arising out of the crash of a private airplane. They contend that the district court's amended findings of fact regarding the comparative negligence of the parties should be set aside because they were made in order to conform to a predetermined outcome. We reverse and remand for a new trial.
This case arises from the crash of a private plane northwest of Medford, Oregon, on January 15, 1978. All six persons on board, the pilot and five passengers, were killed.
The following parties sued the United States under the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1976 & Supp. V 1981): (1) the estates of all five passengers; (2) the estate of the pilot (Barber); (3) the company that employed the pilot and owned the airplane, Arlene Zeller and Corvallis Aero Service, Inc.; and (4) Corvallis' insurance carrier, Bellefonte Insurance Co. The plaintiffs alleged that negligent air traffic controllers were responsible for the crash.
Four of the passengers settled with the United States. The claims of Barber, Corvallis, Bellefonte, and the estate of passenger Sherwood were consolidated for trial. After a bench trial, the district court entered findings of fact and conclusions of law on June 29, 1981. The district court found that the air traffic controllers and the pilot, Barber, were equally negligent.
Applying Oregon law, the court concluded that the passenger, Sherwood, was entitled to recover damages from the United States. The court also concluded, however, that Barber, Corvallis, and Bellefonte were barred from recovering against the United States because of Barber's negligence. This latter conclusion was incorrect under Oregon law, which permits some recovery by a negligent plaintiff so long as the plaintiff's fault is not greater than the combined fault of the persons against whom recovery is sought. O.R.S. § 18.470
On July 1, 1981, Barber and Bellefonte filed a joint notice of appeal. On July 9, 1981, the district court filed amended findings of fact and conclusions of law. In the amended findings, the district court found that Barber's negligence was greater than that of the United States and again concluded that Barber, Bellefonte, and Corvallis could not recover. On July 9, 1981, Corvallis filed its notice of appeal.
We concluded that the district court did not have jurisdiction to amend the findings of fact as to appellants Barber and Bellefonte because they had already filed a notice of appeal. See Hoffman v. Beer Drivers & Salesmen's Local 888, 536 F.2d 1268, 1276 (9th Cir.1976) (). We noted, however, that the district court would have reconsidered its findings of fact and conclusions of law had it been proper to have done so. We therefore remanded to the district court to hold hearings and to consider amendments to the findings and conclusions. We retained jurisdiction over the appeal and gave the parties an opportunity to file new briefs.
On remand the district court amended its findings of fact and found that Barber's negligence was greater than that of the United States. The judge again concluded that Barber, Bellefonte, and Corvallis were not entitled to recover. He indicated that he had amended his findings in order to accomplish the result he desired. In his amended findings and conclusions, the judge stated:
Review of the Findings and Conclusions clearly shows that the result intended by the Court in the original Findings and Conclusions remains the same throughout the Amended Findings and Conclusions. The Court ... was under a misapprehension concerning the Oregon comparative negligence statute.... When the Court learned that the comparative negligence principle applied to reach the result found by the Court was in fact not the Oregon comparative negligence law, the Court immediately filed an Amendment to its Findings and Conclusions to conform them to Oregon law.
Similarly, during a telephone conference between the district court judge and the parties, the judge stated:
I decided in my own mind from listening to the evidence how the matter should come out. I thought I was doing that in interpreting Oregon's comparative negligence law. After it was done, I found that I was in error in doing that so I amended the findings and conclusions to bring the result into conformity with what I thought the result should be.
These statements by the district court judge can be read to support the argument that he amended the...
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