Black Hills Aviation, Inc. v. U.S., 92-2290

• Decision Date: 06 September 1994
• Docket Number: No. 92-2290,92-2290
• Citation: 34 F.3d 968
• Parties: BLACK HILLS AVIATION, INC., a New Mexico Corporation, Arnold A. Kolb & Florence A. Kolb, individually, and Florence A. Kolb, Personal Representative of the Estate of Nathan H. Kolb, deceased, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 968

34 F.3d 968

BLACK HILLS AVIATION, INC., a New Mexico Corporation, Arnold A. Kolb & Florence A. Kolb, individually, and Florence A Kolb, Personal Representative of the Estate of Nathan H Kolb, deceased, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 92-2290.

United States Court of Appeals Tenth Circuit.

Sept. 6, 1994.

H. Vern Payne of the Payne Law Firm, Albuquerque, NM (David B. Hartvigsen, Harold A. Ranquist, and J. Craig Smith of Nielsen & Senior, Salt Lake City, UT, with him on the briefs), for appellants.

Thomas K. Pfister, U.S. Dept. of Justice, Washington, DC (Acting Asst. Atty. Gen. Stuart E. Schiffer, U.S. Attys. Don J. Svet, Ronald F. Ross, and Ford C. Ladd, U.S Dept. of Justice, with him on the briefs), for appellee.

Before MOORE and KELLY, Circuit Judges, and VAN BEBBER, District Judge. ^*

VAN BEBBER, District Judge.

This case arises out of the September 10, 1987, crash of a civilian aircraft on the White Sands Missile Base in White Sands, New Mexico. An aircraft generally referred to as Tanker 07, owned by Black Hills Aviation, crashed while performing a contract air fire suppression support mission on the White Sands Base. Pilot Nathan Kolb and co-pilot Woodard Miller were killed instantly, and the plane was destroyed. The plane crashed into a mountain in the Red Rio/Oscura area of the missile base; this area was also the testing site for the nondevelopmental evaluation of the Army's Line of Sight Forward Heavy [Missile] System phase of the Forward Area Air Defense System [FAADS Project].

Appellants brought this action against the United States under the Federal Tort Claims Act [FTCA], 28 U.S.C. Sec. 1346(b), seeking to recover damages for the wrongful death of Nathan Kolb and for the negligent destruction of the aircraft. Appellants also claim that the government tortiously failed to investigate the cause of the crash, tortiously spoiled and destroyed evidence in the case, committed the tort of trespass to chattel or conversion with regard to the wreckage of the plane, and committed a prima facie tort under New Mexico law. ¹ The district court concluded that plaintiff's four claims relating to the investigation and recovery of crash debris were barred by the doctrine of sovereign immunity in that they fell under the exception for discretionary functions in the Federal Tort Claims Act, and concluded that summary judgment in favor of the government was warranted on appellants' wrongful death and negligence claims.

The plaintiff-appellants appeal from the district court's order of October 26, 1992, dismissing all causes of action brought against the defendants. Appellants argue that the district court erred in dismissing their first four causes of action pursuant to the discretionary function exception of the Federal Tort Claims Act, and that the district court erred in finding there were no genuine issues of material fact which precluded summary judgment in favor of the defendants on the remaining two causes of action for negligence and wrongful death. Appellants also raise a secondary issue concerning whether a presumption of unfavorability should have been imposed against the government by the district court based upon the alleged spoliation of evidence. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

I. Background

The United States Army White Sands Missile Range is a restricted military installation approximately 135 miles long and forty miles wide located in New Mexico. The missile range, its air space, and activities conducted there are highly controlled and secured. Civilians do not have access to it except as the Army permits on a case-by-case basis. Between August 1, 1987, and October 10, 1987, the Army and the Department of Defense conducted a series of ground-to-air missile tests for the Forward Area Air Defense System [FAADS Shoot-Off].

As a part of the FAADS Shoot-Off, the Department of Defense contracted with Black Hills Aviation on August 26, 1987, for aerial fire suppression services. Black Hills Aviation is a privately-owned, civilian aviation company.

At approximately 3:00 p.m. on September 10, 1987, the Army called Black Hills Aviation to suppress a fire started by a FAADS missile. The missile was fired more than two hours before the crash. A P2V aircraft, Forest Service Number N96271 ["Tanker 07"], owned by Black Hills, was dispatched in response to the request for aerial fire suppression. Tanker 07 was piloted by Nathan Kolb and co-piloted by Woodard Miller, employees of Black Hills Aviation who were not Department of Defense personnel.

Nathan Kolb had been licensed by the FAA as an Instrument Rated Commercial Pilot since September 23, 1983, and as a Multi-Engine Instrument Rated Commercial Pilot since July 18, 1985. The September 10, 1987, flight was Nathan Kolb's first fire suppression drop as a pilot-in-command of a slurry bomber such as Tanker 07 without an instructor on board the aircraft. Co-pilot Woodard Miller was an experienced pilot of over forty years and had been an FAA Type Rated Pilot-in-Command for retardant tankers for more than thirteen years. He was an FAA licensed flight instructor for nearly thirty years.

Tanker 07 obtained authorization to enter the missile range's airspace from the missile range air controller. During the flight, Tanker 07 crashed on the missile range and both pilots were killed. The crash site was located approximately fifteen miles into the interior of the missile range, and was inside the testing site for the FAADS Project.

Following the crash, an attorney from the Army Judge Advocate General's [JAG] Office at the missile range ordered markers to be placed at the crash site, and aerial photographs were taken. At that time, the Army JAG Officer anticipated litigation regarding the crash. Personnel at the missile range contacted the National Transportation Safety Board [NTSB] and the Army Safety Center in Fort Rucker, Alabama, and inquired whether either of these entities wished to investigate the crash. The NTSB replied that it was not interested in investigating, but would do so if specifically requested to do so by the missile range. Neither entity actually investigated the crash.

Colonel Gary Epperson of the missile range was appointed to conduct an Army Regulation 15-6 Collateral Investigation into the facts and circumstances of the crash. The scope of the AR 15-6 investigation encompassed only the activities of the Army in regard to the crash of Tanker 07, and did not seek to determine the precise cause of the crash. Colonel Epperson's investigation consisted of viewing the crash scene, meeting with eyewitnesses to the crash, and asking for written statements.

Arnold Kolb, father of Nathan Kolb and owner of Tanker 07, requested access to the crash site and was allowed the following: (1) an overflight of the crash site on September 11, 1987; (2) a visit to the crash site in its undisturbed state with Colonel Edgar Williams, the Public Affairs Officer at the missile range, on September 23, 1987; (3) a visit to the crash site in late February, 1988, to disassemble the landing gear of Tanker 07; and (4) a visit to the crash site area in late March, 1988, to pick up the wreckage of tanker 07 that had been airlifted to a range road. In addition, Mr. Kolb made a visit to the crash site in early December, 1987, as a guest on a missile range hunting pass. Missile range officials were not aware of this visit.

During his September, 1987, visit to the crash site, Arnold Kolb was told that the Army was conducting an investigation. On September 14, 1987, Colonel Epperson released the crash site to allow the FAADS Shoot-Off to resume. Appellants contend that a clean-up of the crash site began sometime between September, 1987, and December, 1987, and appellees contend that the crash wreckage remained at the crash site until February, 1988.

In February, 1988, after allowing Arnold Kolb access to the crash site to disassemble the landing gear, and after obtaining Arnold Kolb's consent, the Army used explosives to break the wreckage into smaller pieces so that it could be sling-loaded under a helicopter and brought down to a road for Arnold Kolb to recover. The Army did not allow the Kolbs to perform their own investigation of the undisturbed crash site or participate in the Army's investigation. The Kolbs did not learn that the Army's investigation had not sought to determine the cause of the crash until after the Kolbs received the AR 15-6 investigation report, which was completed on December 7, 1987.

The Kolbs personally retained a team of aircraft accident investigation experts to conduct an analysis of the crash debris. The experts found some evidence that an external force had affected Tanker 07 prior to the aircraft's crash. The evidence included a conical shaped piece of metal found in the lower right side of the co-pilot's back during the autopsy. No part of Tanker 07 matched the conical shaped piece of metal. Additionally, there were markings on a turbine blade in the right jet engine of Tanker 07 which were indicative of an event occurring on the right side of Tanker 07 just prior to the crash.

During the course of this litigation, appellants took depositions from numerous eyewitnesses to the crash, as well as others. One eyewitness stated that the right wing of Tanker 07 fell apart shortly before the crash. Another testified that Tanker 07 tilted slightly up, as if trying to climb, prior to the crash. A third eyewitness stated that Tanker 07 lost 200 to 300 feet of altitude just prior to the crash. Discovery in the case disclosed that the area in which Tanker 07 crashed had no scheduled or actual missile launches, that the airspace was protected, that there were no activities taking place in areas adjacent to the crash site involving the firing of live ordnances or missiles, and no witnesses saw any indication that a projectile or missile struck Tanker 07...