Downs v. United States

• Decision Date: 08 April 1974
• Docket Number: Civ. A. No. 6642.
• Parties: Mrs. Brent Quinton DOWNS for herself as Executrix of the Estate of Brent Quinton Downs, and as guardian and next friend of Andrew Arthur Downs and Brent Q. Downs, II, minors, et al. v. UNITED STATES of America.
• Court: U.S. District Court — Middle District of Tennessee

382 F. Supp. 713

Mrs. Brent Quinton DOWNS for herself as Executrix of the Estate of Brent Quinton Downs, and as guardian and next friend of Andrew Arthur Downs and Brent Q. Downs, II, minors,¹ et al. v. UNITED STATES of America.

Civ. A. No. 6642.

United States District Court, M. D. Tennessee, Nashville Division.

April 8, 1974.

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Gilbert S. Merritt, Jr., Thomas Wardlaw Steele, Jack A. Butler, Fred Thompson, Nashville, Tenn., for plaintiffs.

Charles H. Anderson, U. S. Atty., Martha A. Johnson, Asst. U. S. Atty., Nashville, Tenn., Neil R. Peterson, Trial Atty., Torts Sec., Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM

MORTON, District Judge.

This is a suit against the United States under the Federal Tort Claims Act² arising out of an incident of air piracy which occurred on October 4, 1971. The hijacker commandeered a chartered twin-engined aircraft in Nashville, Tennessee, and holding his estranged wife, a male associate, and two pilots hostage, proceeded towards the Bahamas. The aircraft landed for fuel in Jacksonville, Florida, and was confronted by waiting agents of the Federal Bureau of Investigation. The agents refused the hijacker's demands for fuel and ultimately disabled the aircraft by gunfire to prevent its departure. His plans frustrated, the hijacker took his own life, but not before killing his wife and the pilot. Charging negligence in the manner of FBI intervention, the pilot's wife, hijacker's daughter, and aircraft owner seek damages for wrongful death and injury to the aircraft.

This case poses the important question of whether this tragic event of October 4, 1971, can provide the basis for a damage suit against the United States under the Tort Claims Act. For reasons hereinafter developed, the court holds it can, but that plaintiffs are not entitled to the relief sought.

FACTS

I

During the mid-afternoon of October 3, 1971, George Giffe, Jr. called the office of Big Brother Aircraft, Inc. (here after "BBAI") at Nashville Metropolitan Airport and inquired about chartering a flight to Atlanta, Georgia, later that evening. He received a price quotation for the proposed trip, but made no commitment. At approximately 5:00 p.m. that day, Giffe visited BBAI's office and restated his interest in the charter, telling BBAI employees that he needed to leave Nashville around 1:00 a.m. the following morning with a business associate, drop him off in Atlanta, and pick up another passenger for the return trip to Nashville. While at the office, Giffe discussed his plans over the telephone with Randall Crump, the eventual co-pilot on the trip, and agreed to charter a Hawk Commander Aircraft³ numbered N9058N (hereafter "58 November") for $417. Giffe paid a $200 deposit with two $100 bills and left, but made three additional visits to the BBAI hangar before arriving for departure shortly after 1:30 a.m. on October 4.

During these subsequent trips, Giffe placed three pieces of luggage aboard the chartered aircraft — a small metal box, a black attache case, and a suit bag. In addition, he paid the balance due on the charter of $217, again utilizing $100 bills, asked about the aircraft's range and baggage capacity, and sought to insure that the airplane would be ready for a 1:00 a.m. departure.

After being notified that 58 November had been chartered for the flight to Atlanta, Randall Crump called fellow BBAI pilot Brent Downs and informed him of the charter scheduled for early the next morning. Crump was not pilot-in-command rated on the Hawk Commander and would therefore serve as co-pilot to Downs, who was a regular first pilot on this aircraft.⁴ The two pilots arrived at the airport by midnight and completed their preparations for the flight. An IFR (instrument flight rules) flight plan was filed for the round trip to Atlanta and back to Nashville, and Downs issued fuel instructions to BBAI linemen.

At approximately 1:00 a.m. Giffe drove his late-model Cadillac to a Nashville hotel and picked up his wife, who was just getting off work as cashier in the hotel dining room. With him was a short-time acquaintance, Bobby Wayne Wallace, whom Giffe had solicited to accompany the couple to the airport and drive Giffe's car back to town after they departed on a flight to Atlanta. Susan Lakich Giffe was separated from her husband, as she had been several times before in their often tempestuous marriage, and knew nothing about the upcoming flight. When told of the trip while en route to the airport she protested vigorously and demanded that she be taken home. But Giffe had other plans, and, if all went according to schedule, both he and his wife would be dead in the very near future.⁵

The three reached BBAI a little after 1:30 a.m., and Giffe parked his car a short distance behind the chartered aircraft. Leaving his two passengers in the front seat, he got out and walked to where Downs and Crump were standing. As he approached the pilots, Mrs. Giffe began screaming and was attempting to get out of the car. Giffe, claiming to be a physician, told the pilots that the girl was a patient being transported to Atlanta for hospitalization. Crump expressed concern over flying the woman in her hysterical condition, and told Downs that the flight should wait until the police could check out the situation. Hearing this, Giffe pulled a gun and ordered the pilots, his wife, and Wallace to board the plane. All did so, and by this time Wallace was also holding a pistol. After a brief struggle between them, Giffe and his wife took seats in the rear of the aircraft, and Wallace took up a position directly behind the pilots.

With Downs occupying the left⁶ front seat as first pilot and Crump the right as co-pilot, the aircraft taxied away from BBAI after receiving the flight plan and taxi clearances from airport ground control. While the aircraft taxied towards Runway 31, a BBAI employee who had witnessed the prior events rushed to a telephone and alerted the airport security police dispatcher to the situation. The control tower was notified and told to hold takeoff clearance, and two vehicles carrying security police were dispatched to intercept the aircraft prior to takeoff. As the vehicles converged on the aircraft at the approach end of Runway 31, Giffe ordered the pilots to make an immediate takeoff. Downs complied and, at 1:59 a.m. CDT, 58 November began its ill-fated journey. Once airborne, ground control instructed the pilot to "squawk" the hijack code,⁷ and to contact Memphis Center⁸ on an assigned radio frequency.

The aircraft climbed to and leveled off at 13,000 feet, the cruising altitude specified in the IFR clearance, and headed towards Atlanta. The seating arrangement remained the same, with Giffe in the right rear seat, his wife in the left rear, and Wallace stationed generally behind the co-pilot but close enough to observe the pilots' actions and to hear comments between them and radio transmissions to ground stations. The pilots did not utilize headsets to receive incoming radio transmissions, which meant that radio communications to the aircraft were broadcast through cabin speakers and were thus monitorable by all aboard.⁹ Ground controllers never requested that headsets be used, nor is there any direct evidence that Giffe or Wallace demanded they not be. However, Crump has indicated that Giffe wanted to hear what the pilots said to one another and presumably what was being said during radio communications.

Giffe apparently had very little direct contact with the pilots, but employed Wallace to relay messages back and forth. Before departing Nashville Giffe informed his audience that he had brought on board 12½ pounds of plastic explosives fused with a timing device which required resetting every ten minutes or so to prevent detonation. In referring to the threat of explosion, Giffe pointed to the small metal box which he had placed on the aircraft during one of his visits to the airport several hours before departure. According to Crump, Giffe declared that he was a member of the CIA with orders to carry out and he would destroy the aircraft should anyone attempt to interfere. Wallace apparently spoke rather casually with the pilots during much of the flight about matters other than the hijacking, and placed his pistol in the small of his back between his body and trousers. Giffe, on the other hand, apparently held his gun during most of the trip and also held in his lap the metal box which ostensibly contained the plastic explosives. The men had drunk a few beers together earlier in the evening, and during the flight Wallace drank one more while Giffe consumed a quantity of some other alcoholic beverage he found on the aircraft.

A short while after takeoff, Downs and Crump began to ask whether Atlanta was to be the actual destination. Following one such inquiry, Wallace discussed the matter with Giffe and then asked the pilots what the aircraft's range was with the fuel remaining. When told that sufficient fuel was available for the trip to Atlanta and back to Nashville, Wallace then asked whether the aircraft could make it to Jacksonville, Florida. Crump checked the mileage from the aircraft's position near Chattanooga, Tennessee, and advised Wallace that the aircraft could make Jacksonville, but would have only about thirty minutes fuel remaining upon arrival.¹⁰ Following further discussion with Giffe, Wallace told the pilots to fly towards Jacksonville. Jacksonville weather and clearance to the new destination were received from Atlanta Center, and the aircraft altered course, climbing to a higher en route altitude of 17,000 feet.

It was not until the aircraft was in the vicinity of Atlanta that either Wallace or Giffe expressed any concern over the possibility that ground controllers might be aware that 58 November was being hijacked. At this point, however, Wallace...