Bibler v. Young
| Decision Date | 27 February 1974 |
| Docket Number | No. 73-1201,73-1202.,73-1201 |
| Citation | 492 F.2d 1351 |
| Parties | Ann E. BIBLER, Admx. of the Estate of Ralph Bibler, Deceased, et al., Plaintiffs-Appellants, v. Berry H. YOUNG, Jr., et al., Defendants-Appellees. UNITED STATES of America, and the Federal Aviation Administration, Third-Party Plaintiffs-Appellants, v. Berry H. YOUNG, Jr., et al., Third-Party Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
COPYRIGHT MATERIAL OMITTED
Harry L. Riggs, Jr., Erlanger, Ky., and Michael Pangia, Washington, D. C., for plaintiffs-appellants; Riggs & Riggs, Erlanger, Ky., Nelson Lancione, Columbus, Ohio, Harlington Wood, Jr., Asst. Atty. Gen., William W. Milligan, U. S. Atty., Leonard Schaitman, Joseph B. Scott, Attys., Dept. of Justice, Washington, D. C., on briefs.
David L. Day, Columbus, Ohio, for defendants-appellees ; Collis Gundy Lane, Lane, Alton & Horst, Columbus, Ohio, on brief.
Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
The widow of a deceased airplane pilot and instructor appeals from the judgment of the United States District Court for the Southern District of Ohio dismissing her complaint. The District Judge who tried this case without a jury found for the defendants on the ground of contributory negligence on the part of her husband who was killed in an airplane crash. The suit was brought under the Federal Tort Claims Act (28 U.S.C. § 1346(b) (1970)), by Ann Bibler, as Administratrix of her husband's estate, on behalf of herself and their minor child against the United States and the Federal Aviation Administration, the operator of the control tower at the Columbus, Ohio, airport where the crash occurred. She also sued the owner and operator of the other aircraft which collided with Bibler's plane. The United States answered denying negligence and claimed indemnification against defendants Young and Ohio Aviation Distributors, Inc., the operator and the owner of the other plane.
By stipulation of the parties, another related state case was submitted to the court wherein Sundin, the owner of the plane in which Bibler was killed, sued all the same defendants for property damage occasioned by their claimed negligence. In turn Ohio Aviation counterclaimed for the damages to its plane.
The cases were heard before Judge Rubin in the United States District Court for the Southern District of Ohio. Judge Rubin held that the plaintiffs' claims were barred by the contributory negligence of the deceased pilot, Bibler, in that "He failed to advise the Local Control that he had passed the outer marker" in making a simulated landing at Port Columbus International Airport, and in that he failed to make and maintain radio contact with the Local Controller while over the airport area. The District Judge held that pilot Young was not guilty of negligence and awarded $17,000 damages to Ohio Aviation for the damage to the plane Young was flying. He also held that the approach controller at the Port Columbus Airport was guilty of negligence for failing to tell pilot Bibler to contact Local Control. But he held that this negligence was not the proximate cause of the accident. The District Judge also held that the Local Controller at the Port Columbus Airport was not guilty of negligence.
There were four parties involved in this air collision which resulted in the death of two people. This record, as we view it, indicates that any one of the four might have prevented the crash. But actionable negligence does not consist of failing to take extraordinary measures which hindsight demonstrates would have been helpful. It consists of doing or failing to do what a reasonable man would do under the circumstances confronting him.
This appeal disputes the interpretation of the applicable rules and regulations and the inferences from the facts drawn by the District Judge. Many of the facts in this case were stipulated and none of them are currently in dispute.
We recite them from the District Judge's findings of fact:
"FINDINGS OF FACT
Finding of Fact (1)
Columbus International Airport, known by pilots as CMH, is located in Franklin County, Ohio, immediately east of the City of Columbus. Its main runways lie in an east-west direction. Airport runways are identified by the first two digits of direction. Accordingly, the two main runways of Port Columbus are 28 left and 28 right, indicating an east to west bearing of approximately 280 degrees. When used west to east the same runways are known as 10 left and 10 right, signifying a heading of approximately 100 degrees. The precise magnetic bearing of 28 left and 28 right is 276 degrees.
Runway 28 left is 10,700 feet long and 150 feet wide. It is equipped for instrument landing and includes an electronic extension in the same compass heading referred to as a `beam.' At a point 5.4 nautical miles (6.2 statute miles) east of runway 28's left threshold is the `outer marker.' An outer marker is an electronic device that advises a pilot when he has passed over it on his way to a landing.
Between the outer marker and the runway threshold there is a middle marker which likewise electronically advises the pilot that he has passed over such marker. A pilot may receive such information by a Beacon Marker Indicator which will cause a light to flash on the instrument panel and an audible radio signal to be given, or by a low frequency ADF receiver which will receive in Morse Code the identifying letters of the marker. The outer marker on runway 28 left is identified by the letters CM and is known by the term `Charlie Mike.'
A plane need not contain such equipment in order to use part of the electronic extension of runway 28 left. A plane can be equipped merely to ascertain its position in relation to the electronic extension or `localizer beam' and be guided onto the localizer for ultimate landing on the runway.
The control of traffic in and around the Columbus Airport is a function of the Federal Aviation Administration. This facility operates from the Columbus control tower. There is a separation of function between Approach Control (APC) which monitors by radar traffic which is outside of a five mile radius from the tower, and Tower Control, also known as Local Control (TWR),1 which has jurisdiction over air traffic within the five mile radius. APC operations extend for approximately forty miles around Port Columbus. Local Control is housed at the top of the control tower. In 1968, when this accident occurred, Local Control did not have radar equipment and relied on visual sightings to identify and direct landing aircraft. The two control departments communicate with pilots on assigned frequencies: APC on 119.0 megahertz and TWR on 121.5. Because their jurisdictions are exclusive, pilots do not customarily communicate with both departments simultaneously.
When a pilot is flying under instrument flight regulations (IFR), he communicates with Approach Control until he reaches the outer marker. At this time he is advised to contact Local Control in the tower on its frequency and report his presence. When a pilot is flying under visual flight regulations (VFR) he is not required to advise Approach Control of his presence, but contacts instead Local Control when he is in the vicinity of the outer marker.
Finding of Fact (2)
Cherokee N42 39J (39 Juliet)2
On April 10, 1968, Ralph D. Bibler, decedent, was a duly qualified and licensed commercial pilot and flight instructor with over 1000 hours of pilot flight time. He was in command of a Piper Cherokee aircraft, Registration No. N4239J. At approximately 3:00 p. m. on that date, he was instructing a student, one David Dunnick, in the procedures for instrument landing at Port Columbus. Mr. Dunnick had logged 123 hours of flight time. The plane was equipped with an omni-converter for localizer guidance. It was not equipped with an ADF radio Beacon Marker Indicator or any other electronic means of establishing position in relation to the outer marker. Prior to 3:00 p.m., 39 Juliet was operating under Instrument Flight Regulations (IFR) procedures with student Dunnick at the controls. Dunnick was wearing a `hood,' a vision limiting device which focused his attention upon the instrument panel. As the operating pilot student Dunnick occupied the left hand seat. Instructor Bibler occupied the right hand seat. Weather conditions at Port Columbus on April 10, 1968, were such that visual flight regulations (VFR) were in effect. Proceeding under IFR conditions in a VFR day placed an obligation upon Bibler to act as `safety pilot' and observe the classical admonition under VFR conditions of `see and be seen.'
Finding of Fact (3)
Bonanza N8318N (18 November)
Defendant Berry D. Young, a retired United States Air Force Lieutenant Colonel, on April 10 was piloting Beechcraft Bonanza No. N8318N. Defendant Young at the time had logged in excess of 7,000 hours of pilot flight time. He was employed as a salesman by defendant Ohio Aviation Company, a distributor of Beechcraft products. The instrument equipment of 18 November is not significant since Young was flying, on the date in question, under VFR conditions. One such instrument, the air speed indicator, was known to be inaccurate in its operation. Mr. Young had taken off at approximately 14:30 (2:30 p.m.) from the Wood County Airport at Parkersburg, West Virginia. At 1500 (3:00 p.m.) he was proceeding in a westerly direction parallel to Interstate 70 and immediately south thereof. His direction would approximate the magnetic heading of runway 28 and he would be approximately 2 miles south of an eastward projection thereof. He first contacted Local Control at 1504 (3:04 p. m.) locating himself `2 miles south of Charlie Mike' (outer marker).
Finding of Fact (4)
Approach Control (APC)
Approach Control at the Port Columbus tower was made aware of the presence of ...
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