Davis v. U.S., 86-1244

• Decision Date: 16 July 1987
• Docket Number: No. 86-1244,86-1244
• Citation: 824 F.2d 549
• Parties: 23 Fed. R. Evid. Serv. 772 Pearl DAVIS, Executrix of the Estate of Raymond E. Davis, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 549

824 F.2d 549

23 Fed. R. Evid. Serv. 772

Pearl DAVIS, Executrix of the Estate of Raymond E. Davis Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 86-1244.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1986.

Decided July 6, 1987.

As Amended July 16, 1987.

William J. Harte, Chicago, Ill., for plaintiff-appellant.

Anton R. Valukas, U.S. Atty., Chicago, Ill., David V. Hutchinson, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Before BAUER, Circuit Judge, WOOD, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

William J. CAMPBELL, Senior District Judge.

On the morning of October 25, 1978, Raymond Davis (Davis), the husband of plaintiff-appellant Pearl Davis (Pearl), departed in his Piper Comanche airplane from an airport in Dixon, Illinois. The airplane crashed and Davis was killed. There were deteriorating weather conditions in Dixon and the surrounding area that morning. The primary issue in this case, brought by plaintiff Pearl in her capacity as executrix of the estate of her deceased husband under the Federal Tort Claims Act (28 U.S.C. Sec. 2671 et seq.), is whether Federal Aviation Administration (FAA) officials were negligent by inadequately briefing Davis about the unsettled weather conditions. After a bench trial the district court held that the FAA officials had breached no duty to Davis. Pearl appeals, 643 F.Supp. 67. We affirm.

We first address the controlling legal principles in this case. Spaulding v. United States, 455 F.2d 222 (9th Cir.1972) has become an influential, oft-cited case in the area of airplane tort cases. The language from Spaulding is very instructive for our purposes in establishing the duty of care FAA officials owe to pilots such as Raymond Davis:

While general negligence law applies to airplane tort cases, ... the standard of due care is concurrent, resting upon both the airplane pilot and ground aviation personnel. Both are responsible for the safe conduct of the aircraft.... The pilot is in command of his aircraft. He is directly responsible and has final authority for its operation. See 14 C.F.R. Sec. 91.3(a). However, before the pilot is held legally responsible for his aircraft, he must know those facts which are material to the operation of his plane.

An important source of this information is tower personnel, air traffic controllers, and service station personnel. The air traffic controller is required to give all information and warnings specified in his manuals, and in certain situations he must give warnings beyond the manuals. (When danger is immediate, extreme, or known only to federal personnel; when the controller is better qualified than the pilot to evaluate a given situation or make more accurate observations than the pilot). This duty to warn is based on the simple tort principle that once the Government has assumed a function or service, it is liable for negligent performance.

The controller's duty to warn does not, however, relieve the pilot of his primary duty and responsibility. The pilot has a continuing duty to be aware of danger when he can gather adequate information with his own eyes and instruments.... A pilot cannot ignore the weather information he has been given or disregard the weather conditions he sees around him.

Within this legal context, appellants argue that the federal employees in the "air traffic control service [have] a continuing duty not only to communicate weather information ... but have a continuing duty both to restrain a pilot from taking off into a hazardous weather condition" and ... to urge the pilot not to take off ... before ... the flight. These personnel had no duty to quiz the pilot on his qualifications and flight plan, or to offer a gratuitous opinion that he should delay his flight. In situations where judgment is exercisable, the "judgment as to whether and when weather conditions permit take-off is for the pilot ..." (footnotes and citations omitted) (parenthesis added).

455 F.2d at 226-27.

We also note the following passage from Redhead v. United States, 686 F.2d 178, 182 (3rd Cir.1982), "The pilot is in command of the aircraft ... [and] must be aware of those facts which are material to its proper operation and is charged with that which he should have known in the exercise of the highest degree of care." (See also American Airlines, Inc. v. United States, 418 F.2d 180 (5th Cir.1969)).

We note Raymond Davis was a VFRs-certified pilot, certified to fly a private airplane only under visual flight rules, i.e. "see and avoid" type of weather conditions. An explanation of these conditions can be found at 14 C.F.R. Sec. 91.105(a). ¹ Generally, a VFRs pilot cannot fly if the cloud ceiling is less than 1,000 feet from the earth's surface. Broken clouds, if obscuring, fall within the definition of ceiling (14 C.F.R. Sec. 1.1) but thin or partial clouds do not. Visibility must be at least three miles. A VFRs pilot is to be contrasted with an Instrument Flight Rule (IFR) pilot who, unlike the VFRs pilot, can fly among clouds and guide the aircraft by referring to instrumentation rather than eyesight.

Finally, in a claim as this one under the Federal Tort Claims Act, the law of the state where the action arose applies. 28 U.S.C. Sec. 1346(b). It is undisputed that this action arose in Illinois. At the time of the crash of Davis' airplane, the common law doctrine of contributory negligence was the law in Illinois. During the time period when this trial was held, Illinois had adopted, via Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886 (1981), the "pure" form of comparative negligence stating it to be, "... the only system which truly apportions damages according to the relative fault of the parties and, thus, achieves total justice ... the plaintiff's damages are simply reduced by the percentage of fault attributed to him ... the 10% negligent defendant will be made to bear 10% of his own damages as well as 10% of plaintiff's." Id. 52 Ill.Dec. at 34-35, 421 N.E.2d at 897-98. In Alvis the Illinois Supreme Court stated, "We hold that this opinion shall be applied to ... all cases in which trial commences on or after June 8, 1981." Id. In 1986, the Illinois State Legislature modified its "purist position" on the negligence issue. During the 1986 session of the Illinois State Legislature, a tort reform act was passed. The new Ill.Rev.Stat. ch. 110, Secs. 2-1107.1 and 2-1116 represents a modified form of comparative negligence for Illinois. Effective November 25, 1986, if a jury finds the contributory fault of a plaintiff is more than 50% of the proximate cause of the injury, the defendant must be found not liable for any negligent conduct on his behalf, even if a jury believes he was a 49% negligent defendant. In the instant case, since we are prepared to affirm the district court ruling that defendant was not at all negligent, the various forms of negligence law and their operative time periods in Illinois are of little relevance to us. However we feel compelled to note the important recent changes in Illinois negligence law in these pages at this point.

On October 25, 1978 at approximately 5:51 a.m. Raymond Davis called FAA weather briefer Robert Knize for weather information. Knize was located at an FAA flight service station in Rockford, Illinois. As an FAA weather briefer Knize provided pilots with weather summaries received from the National Weather Service (NWS). Davis was planning a flight from Dixon to Decatur, Illinois and, as is the routine procedure, he contacted the Rockford service station for a weather briefing. Weather briefers are middlemen, of sorts, transmitting weather information from various sources to pilots. Nonetheless, they are not robotic relayers. At the time pertinent to this lawsuit the FAA Handbook, Flight Services 7110.10D, stated the following duties for weather briefers:

166. REQUESTING WSO/WSFO ASSISTANCE

Do not issue weather forecasts, warnings, or advisories unless issued by an NWS office. When a forecast is inaccurate, request assistance from the appropriate WSO or WSFO....

168. CONDUCT OF PREFLIGHT BRIEFING

a. The object of a preflight briefing is to communicate to a pilot meterological and aeronautical information necessary for the conduct of a safe and efficient flight. Do not brief by reading weather reports and forecasts verbatim unless specifically requested by the pilot....

(b) Using all available weather and aeronautical information, provide the following data in the following sequence when it is applicable to the proposed flight:

Note: Specifically emphasize reports of temperature inversions, low level wind shear, thunderstorms, and/or frontal zones within 50 NM of the departure and arrival terminals....

(2) VFR Flight Not Recommended (VNR)--When VFR flight is proposed and the actual or forecast conditions, surface based or aloft, are such as to make visual flight (VFR) doubtful, advise the pilot by describing the condition(s) followed by the phrase "V-F-R flight not recommended."

Importantly, weather briefers are not weather forecasters. Further, they do not have any power to prohibit a pilot from flying his craft. The pilot, as Spaulding reveals and Pearl admits, is the ultimate master of his craft (see appellant's brief p. 23).

When Davis called Knize, Knize had various terminal forecasts and observation reports available to him for the briefing. A NWS forecast for 8:00 p.m. on October 24 (the previous day) to 2:00 p.m. October 25 warned of a low pressure center and associated cold front moving northeastward, affecting northwestern Illinois:

Minnesota, Iowa, Missouri, Wisconsin, Illinois, Michigan, Indiana, Kentucky, Lake Michigan, United States portions Lakes Superior andd [sic] Huron....

Synopsis. Low north-central border Minnesota with cold front trailing southward and high pressure ridging to Texas. Low will move northeastward with cold front swinging to...