Bowen v. U.S.

Decision Date09 February 1978
Docket NumberNo. 77-1009,77-1009
PartiesThomas E. BOWEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

George M. Fleming, Tom Davis, Austin, Tex., Wallace Craig, Hurst, Tex., for plaintiff-appellant.

Morton Hollander, Michael H. Stein, Attys., Dept. of Justice, Washington, D. C., for defendant-appellee.

Before CASTLE, Senior Circuit Judge, and PELL and TONE, Circuit Judges.

TONE, Circuit Judge.

In this action under the Federal Tort Claims Act, the pilot of a private aircraft alleges that, during his flight from Texas to Indiana, which included a stop in Arkansas, air traffic control personnel employed by the United States at airports in various states negligently failed to warn him of icing conditions that ultimately caused the aircraft to crash while he was attempting to land at an airport in Indiana. 1 The controlling issue is whether a determination in a license suspension proceeding by the National Transportation Safety Board that he violated Federal Aviation Rules by flying an aircraft without deicing equipment into known icing conditions establishes contributory negligence by collateral estoppel and precludes recovery. To decide this issue we must determine whether federal common law or state law controls, and, if the latter, which state law. We hold that Indiana law controls, and that under that law, the District Court's summary judgment for the United States based on collateral estoppel was correct.

Although the district judge conducted a trial, he disposed of the case after the trial by granting the motion of the United States for summary judgment, which he had taken under advisement before hearing the evidence. The uncontested facts upon which the summary judgment was based were stated in his unpublished decision and order as follows:

. . . On December 22, 1972, plaintiff was the pilot and sole occupant of a Bellanca Viking aircraft on a flight from Mineral Wells, Texas, to Marion, Indiana, with an intermediate fuel stop at Flippen, Arkansas. He was then the holder of an FAA pilot's license, with commercial pilot privileges.

Prior to his departure from Mineral Wells, plaintiff did receive and record for his use in the flight certain weather information. The segment of flight to Flippen, Arkansas, was conducted under Visual Flight Rules. While at Flippen, plaintiff contacted an FAA Flight Service Station and obtained a weather briefing for the segment of his flight to Marion. Thereafter he filed an Instrument Flight Rules Plan and received clearance from the Memphis Air Traffic Control Center for his flight to Marion at an assigned altitude of 5000 feet. ( 2) Throughout substantially all of the Flippen-Marion flight segment, plaintiff was flying above cloud cover, extending upward to about 3000 feet above mean sea level. During the course of that segment of his flight, plaintiff was in radio contact with various air traffic control facilities at Memphis, Kansas City and Indianapolis, and air approach control at Grissom Air Force Base for his attempted landing at Marion. He also made contact with Vandalia, Illinois, radio and Terre Haute, Indiana, radio requesting weather information. Plaintiff did receive weather information from certain of those government facilities.

As he neared the termination of the Flippen-Marion IFR segment of his flight, plaintiff contacted Grissom Flight Control for clearance to land at Marion. He was given a summary of the Grissom weather conditions,( 3) as no "landing" information for Marion was available. Plaintiff was given clearance for an instrument landing at Marion. Because of the failure of an essential instrument on the aircraft, plaintiff's first approach to Marion was unsuccessful. Thereafter, he requested and received from Grissom orientation as to his position, after which he attempted a second approach. The second approach terminated about 500 feet to the west from the assigned runway when the aircraft crashed because of ice accumulated thereon.

The aircraft was not equipped with deicing equipment, and operation of the aircraft in "known icing conditions" was prohibited by the approved flight manual therefor.

The complaint is grounded upon the theory that the crash and plaintiff's injuries sustained therein proximately resulted from the negligent failure of FAA agents and Air Force personnel to advise plaintiff of icing conditions existing in the vicinity of Marion.

On August 10, 1973, the FAA suspended plaintiff's pilot's license for a period of thirty days. Upon an appeal from that determination, a hearing was held before an Administrative Law Judge of the NTSB, commencing on December 11, 1973. That hearing was concluded by an order finding that plaintiff had been aware of the possibility of icing conditions before he departed from Mineral Wells, and was further advised thereof in his weather briefing at Flippen, Arkansas, and that he had violated FAA regulations in operating the aircraft in violation of flight limitations placed upon the craft itself and in operating the craft in a careless manner. The order modified the FAA determination by reducing the period of suspension to fifteen days.

An appeal taken to the NTSB was terminated on May 22, 1974 by an order affirming the suspension, and an order on September 5, 1974 denying a petition for reconsideration. . . .

On conflicting testimony, NTSB found that plaintiff had information as to the possibility of icing in a multistate area including Indiana prior to his departure from Mineral Wells; that plaintiff was advised at Flippen of the substance of the then current Chicago weather forecast of occasional moderate and chance of severe mixed icing in clouds in the lower Ohio Valley region, and advisement that the freezing level would be at or near the surface in the Great Lakes states; that he was then advised of the substance of a Chicago aviation warning forecast of isolated severe and mixed icing in clouds in the Indiana area, among others, from 10 a. m. to 3 p. m.; that plaintiff did not receive from any source a Chicago advisory issued at about the time he left Flippen, which contained further and extended information regarding possible icing; that, notwithstanding that omission, plaintiff was in possession of weather information which put him on notice that he could expect to encounter icing conditions upon his intended flight path; and that, in the light of that knowledge available to him, plaintiff did violate FAR § 91.9 by operating his aircraft "in a careless or reckless manner," and FAR § 91.3(a) by entering into the cloud cover when there was known to him the possibility of icing, in violation of FAA operating limitations for his aircraft.

In the context of the latter rule, the Board refused to limit the phrase, "known icing conditions," to knowledge that icing had, in fact, been encountered. It held that the phrase included a pilot's knowledge of facts from either reported or forecast conditions which would reasonably lead a prudent person to expect that icing conditions did exist.

Thus the administrative determination rests upon the factual determination that plaintiff had been provided with sufficient information to lead him to anticipate that he would encounter icing conditions in clouds at Marion, and that he did enter into clouds at an altitude of some 3400 feet for his approach to Marion, despite his possession of such information and despite his knowledge that his craft was neither equipped nor approved for operation in icing conditions.

Plaintiff having failed to pursue his statutory right to judicial review of the suspension order under 49 U.S.C. § 1486(a), the NTSB adjudication that the plaintiff had violated the regulations was a final administrative order.

The District Court reasoned that the doctrine of collateral estoppel precluded plaintiff from relitigating the issue of whether he violated the safety regulations by flying his aircraft into known icing conditions, an issue that had been finally determined adversely to him in the administrative proceeding; that the violation amounted to contributory negligence as a matter of law; and that, because under Indiana law, which the court found to be controlling, contributory negligence was an absolute defense, the United States was entitled to summary judgment.


The Federal Tort Claims Act makes the United States liable for injury "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); see also, 28 U.S.C. §§ 2672 and 2674. The Supreme Court, in Richards v. United States, 369 U.S. 1, 8-10, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), rejected the argument that the applicable law is that of the state where the operative effect of the act or omission occurred, 4 and applied the statutory language literally. Richards also held that the whole law, including choice-of-law rules, of the state where the act or omission occurred was to be applied. Id. at 10-15.


Notwithstanding Richards, plaintiff argues that the federal government's massive regulation of the nation's airways has preempted the field of aviation law, and that therefore federal common law, which should include the doctrine of comparative negligence, should be applied. Reliance is placed upon Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975). This argument was concededly not presented to the District Court and therefore need not be considered by us. 5 Youker v. Gulley, 536 F.2d 184, 186-187 (7th Cir. 1976).

We do not rest our rejection of the argument on that ground alone, however. Although Kohr...

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