Colorado Flying Academy, Inc. v. U.S., 81-1485

• Decision Date: 04 January 1984
• Docket Number: No. 81-1485,81-1485
• Citation: 724 F.2d 871
• Parties: COLORADO FLYING ACADEMY, INC., a Colorado corporation, Federal Insurance Company, and Associated Aviation Underwriters, Plaintiff-Appellants, v. The UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 871

724 F.2d 871

COLORADO FLYING ACADEMY, INC., a Colorado corporation Federal Insurance Company, and Associated Aviation Underwriters, Plaintiff-Appellants, v. The UNITED STATES of America, Defendant-Appellee.

No. 81-1485.

United States Court of Appeals Tenth Circuit.

Jan. 4, 1984.

L.B. Ullstrom, Denver, Colo. (Edward J. Rau, Denver, Colo., was also on the brief), for plaintiffs-appellants.

Gary W. Allen, Asst. Director, Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C. (Stuart E. Schiffer, Acting Asst. Atty. Gen., and Joseph F. Dolan, U.S. Atty., Denver, Colo., were also on the brief), for defendant-appellee.

Before HOLLOWAY, DOYLE and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

This timely appeal is from a judgment entered for defendant United States of America in an action for damages and indemnification brought under the Federal Tort Claims Act. Colorado Flying Academy, Inc. v. United States of America, 506 F.Supp. 1221 (D.Colo.1981) (C.F.A.). The case arose out of a mid-air collision of two aircraft near Stapleton Airport, Denver, Colorado.

I

The factual background

A.

At about 9:30 a.m. on June 21, 1974--a clear day with visibility of 60 miles--a Piper The Academy operates a flying school and used the Seneca in teaching instrument flight procedures. On the morning of the collision, trainee James Allen was seeking advanced instrument training. ¹ He sat in the left seat and wore a hood, designed to limit his vision to the aircraft's instrument panel. The instructor, Brian Gardner, ² sat in the right hand seat. Mr. Allen was practicing Instrument Landing System (ILS) ³ approaches on runway 8R. ⁴ This particular approach is a published Instrument Approach Procedure, designed by the Federal Aviation Administration (FAA), known as the 8R ILS Back Course Approach. Id. at 1226. The Seneca had requested the air controller, Richard Igel, to position the aircraft on the final approach course, and just prior to the collision the Seneca had been cleared for an 8R ILS back course approach. Id. The instructor, Mr. Gardner, was the pilot in command. Id. at 1223.

Seneca aircraft (Seneca) owned by plaintiff Colorado Flying Academy (Academy), collided with a Beechcraft Bonanza (Bonanza) occupied by four persons. The trainee and instructor inside the Seneca ditched in a nearby lake and received only minor injuries. The Bonanza crash-landed in the Crown Hill Cemetery and the four adult occupants died.

The Bonanza was flown by its owner, George Carter. ⁵ His wife and her parents, the Hoffmans, were passengers. The Carters and Hoffmans were flying from Williams, Arizona, to Boulder, Colorado, under visual flight rules (VFR). ⁶ Their altitude was approximately 7,900 feet above mean sea level (MSL). ⁷ They were not receiving any assistance from air traffic controllers, ⁸ and their plane was not equipped with a transponder. The Bonanza could be seen by radar, although "for a very brief time, it may have been off the screen as a result of tangential loss." C.F.A., 506 F.Supp. at 1227.

The Federal Aviation Act of 1958, 49 U.S.C. Sec. 1348, empowers the FAA to regulate navigable airspace. In carrying out this responsibility, the FAA created terminal control areas (TCAs) in various locations throughout the country. The TCA surrounding Denver's primary airport, Stapleton International Airport, was established as of March 28, 1974 by a Federal Aviation Regulation (FAR). C.F.A. supra, 506 F.Supp. at 1226. The TCA is intended to reduce the danger of midair collisions, in part by separating controlled and uncontrolled air traffic. With minor exceptions Although general guidelines regarding TCA design were given by the FAA from Washington, D.C., the task of tailoring the Denver TCA configuration fell to Gerald Wilson, an FAA Airspace Specialist for the Rocky Mountain Region. After proposals, public comment and revisions, the TCA design in effect at the time of this accident was determined. Generally, the Denver TCA can be visualized as a group of three cylinders, each having its center at Stapleton airport. At the time of the collision, the first cylinder reached from the ground to 8,000 feet MSL and extended radially from Stapleton for a distance of nine miles. The second cylinder was from 8,000 feet to 10,000 feet MSL with a radial distance of fifteen miles. The third cylinder reached from 10,000 feet to 11,000 feet MSL and extended radially for twenty miles. The interiors of these cylinders form the TCA. See Appendix.

                only controlled air traffic is allowed within a TCA.  According to an FAA information release of March 26, 1968 (Plaintiffs' Exhibit 39), the TCA program would "minimize pilot reliance on the 'see and avoid' concept of separation and ... eliminate the unknowns ... so that aircraft landing at the major hub airports not only are segregated from all other aircraft but also are provided with separation by the air traffic control system."    Id. at 2
                

Just prior to the collision, the Seneca was cleared for final approach on the 8R ILS Back Course Approach. The glide slope for this approach caused the Seneca to descend below the floor of the TCA's second cylinder (8,000 MSL) briefly before re-entering the TCA boundary at a distance of nine miles from Stapleton Airport. See Appendix. Meanwhile the Bonanza was passing through Denver without entering the TCA. It was flying just under the floor of the second cylinder (about 7,900 feet MSL) and outside the nine mile radius of the TCA's first cylinder. As the district court noted, traffic avoiding the TCA is compressed by the 8,000 foot MSL shelf of the TCA and the 6,900 foot MSL minimum altitude for flight over Denver. During the brief period as the Seneca dropped out of the TCA on the 8R ILS Back Course Approach, the Bonanza flew toward the Seneca's starboard side. The Bonanza struck the Seneca "at a horizontal angle of approximately 40? to 60? to the right, as measured from straight ahead." Id. at 1227. Mr. Allen and Mr. Gardner, who thought they had struck a bird, see id. at 1224-25 n. 1, received only minor injuries in ditching the Seneca in a nearby lake. All occupants of the Bonanza died in a crash-landing.

B.

Plaintiff Academy and the insurance company plaintiffs brought this action under the Federal Tort Claims Act. 28 U.S.C. Secs. 1346(b), 2671 et seq. They seek $471,000, representing $81,000 for the loss of the Seneca and $390,000 in settlement payments made to heirs of the occupants of the Bonanza, the Carters and the Hoffmans. ⁹

The United States defended primarily on the grounds of the discretionary function and misrepresentation exceptions to the Federal Tort Claims Act, 28 U.S.C. Secs. 2680(a) and (h). The Government also argued that the pilots' negligence barred recovery. I R. 22-29.

The district court denied any relief to plaintiffs concluding, primarily, that negligence on the part of pilots Carter and Gardner as well as the discretionary function exception of 28 U.S.C. Sec. 2680(a) required judgment for the Government. The court found that there was Government negligence in designing, establishing and maintaining the Denver TCA and failing to provide a horizontal and vertical buffer zone for the TCA. C.F.A., 506 F.Supp. at 1227. Such design negligence was "a proximate cause" although not "a primary cause" of the mid-air collision. Id. This negligence was not actionable, however, because it came within the discretionary function exception. Id. at 1229. The policy decision as to which instrument approach procedure should or should not be contained within the TCA is a decision which is incident, or directly related to, the attainment of the objections sought by the creation of the TCA. Id.

Whether the trial court made findings regarding the negligence of the air traffic controller is disputed by plaintiffs on appeal. As we will explain, we believe that the trial court held that there was no air traffic controller negligence, and made sufficient findings on this issue which are not clearly erroneous. Furthermore, we conclude that the trial court correctly applied the discretionary function exception. Accordingly, we affirm.

II

The design of the Denver Traffic Control Area

We consider the discretionary function exception first because overcoming this hurdle is "a jurisdictional prerequisite to suit." Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982). This exception insulates the United States from liability for the performance, or failure to perform, a discretionary function even if the discretion is abused. 28 U.S.C. Sec. 2680(a).

Plaintiffs contend that the Government's negligence in designing, establishing, and maintaining the Denver TCA is not within the scope of the discretionary function exception because the 8R ILS Back Course Approach was not fully contained inside the TCA in contravention of specific guidelines set forth in FAA directives. Brief of Appellants at 7. This, plaintiffs argue, created a mandatory duty to contain the instrument approach within the TCA, and the negligent failure to carry out that duty is not within the exception. See Jackson v. Kelly, 557 F.2d 735, 737-38 (10th Cir.1977) (en banc). If such mandatory guidelines existed and they were violated, then the discretionary function exception would not bar recovery. See Barton v. United States, 609 F.2d 977, 979 (10th Cir.1979); First National Bank in Albuquerque v. United States, 552 F.2d 370, 375-76 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Griffin v. United States, 500 F.2d 1059, 1066-69 (3rd Cir.1974). Thus, our inquiry must begin with the various regulations and directives to determine if they created a mandatory duty to design a TCA in a particular manner.

There is substantial evidence demonstrating that no such mandatory duty existed. Plaintiffs' own evidence supports this conclusion. For example, plaintiffs refer to a...