Ellington v. United States

Decision Date05 December 1975
Docket NumberNo. 74-143-Orl-Civ-R.,74-143-Orl-Civ-R.
PartiesJoseph C. ELLINGTON et al., Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Middle District of Florida

Richard W. Bates, P. A., Orlando, Fla., for plaintiffs.

Harrison T. Slaughter, Jr., Asst. U. S. Atty., Orlando, Fla., Ignazio J. Ruvolo, Trial Atty., U. S. Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT

REED, District Judge.

This negligence action was brought under the Federal Tort Claims Act by Joseph and Joyce Ellington on behalf of their daughter Tina Ellington. Joseph Ellington joined in the action individually to assert a derivative claim. Subject matter jurisdiction is based on 28 U.S.C. § 1346(b).

The claim of Tina Ellington is for her mental pain and suffering allegedly caused by the injuries to and death of her brother Anthony under circumstances hereafter recounted. Mr. Ellington claims individually a right to recover for expenses incurred and to be incurred for the care of Tina and for the loss of Tina's services and society.

The Court finds the following to be the pertinent facts. On 31 March 1972, an Air Force bomber crashed at approximately 11:00 A.M. near McCoy Air Force Base in Orange County, Florida, four hundred thirty feet, more or less, from the plaintiffs' residence. The cause of the crash is admitted by the defendant to have been negligence attributable to it.

Tina Ellington, who was a minor at the time this action was filed, was born on 19 May 1956. At the time of the crash she was slightly less than sixteen. She had a younger sister, Lisa, then fourteen, and an older sister, Joann, who was in her early twenties. Tina's brother Anthony was ten. Tina, Lisa and Anthony lived at their parents' residence.

At the time of the crash Tina and Lisa were in the parental home. When the impact occurred, Tina felt a mild temperature and pressure change and heard the explosion caused by the burning aircraft. Tina and Lisa went immediately from the interior of their house to the carport to look for their brother Anthony. Shortly thereafter Anthony appeared from behind the house badly burned by flames from the aircraft. As he came toward the carport, Tina could see that much of Anthony's clothing was burned off and that his remaining clothing was smoldering; his hair was singed, and he had large red blisters on his head, chest, arms and legs. Tina applied water to the boy's body and clothing. In so doing, Tina touched Anthony's clothes and sustained a minor burn to her hand. This burn healed within a few days without medication or residual scars. Anthony was hospitalized and died within several days of the accident as a result of his burns.

At the time of the event, Tina was a ninth grade student. Her grades and academic achievement were average or slightly below average in comparison to other students in the county school system. Tina completed the ninth grade and started high school in September of 1972. In March of 1973, she dropped out of high school after having skipped approximately seventy-five days of school during that academic year.

Tina then worked for six or seven months and attended an adult high school known as Mid-Florida Tech. She terminated this schooling only to resume it several months later for a brief period. At the time of trial, Tina was living in her parents' home unemployed and not in school. She testified that she has plans to marry a young man from North Carolina, although no date had been set.

Tina's older sister, Joann, quit school after the eleventh grade and married at age seventeen. Tina's younger sister quit school after the tenth grade and married at age sixteen.

Following the tragic death of her brother, Tina has experienced nightmares, trouble sleeping, and thinks frequently of the accident. She experiences fear in the dark and is bothered by small noises, as well as by the sound of aircraft. Despite this experience, Tina is in good mental health, as testified to by the government's psychiatrist who concluded that Tina has no psychiatric impairment. At the instigation of Tina's family, Tina saw a psychologist who did not testify at trial. Her bill for $200.00 is, however, in evidence as plaintiffs' Exhibit 68. This represents the only expense for health care for Tina which has been provided by her father as a result of the accident.

Prior to the accident, Tina was a friendly and outgoing, although quiet, young lady. Subsequent to the accident, Tina became somewhat withdrawn from her peer group.

From the foregoing, the Court concludes: (1) Tina sustained no physical injury as a result of the crash, except the minor burn previously mentioned; (2) her failure to complete school is not proximately related to the accident, but rather to her own indifference to education; (3) Tina did experience mental anguish which was caused by her brother's injuries and death; and (4) Tina will...

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4 cases
  • Zamora v. Columbia Broadcasting System
    • United States
    • U.S. District Court — Southern District of Florida
    • November 19, 1979
    ...the basis (the legal "cause") for mental or emotional injuries, Kirksey v. Jernigan, (Fla.1950) 45 So.2d 188; Ellington v. United States, (M.D.Fla.) 404 F.Supp. 1165, except in limited circumstances;1 the concept that the nature of the claims presented in Ultramares Corp. v. Touche, 255 N.Y......
  • Selfe v. Smith
    • United States
    • Florida District Court of Appeals
    • April 8, 1981
    ...Herlong Aviation, Inc. v. Johnson, 291 So.2d 603 (Fla.1974); Woodman v. Dever, 367 So.2d 1061 (Fla. 1st DCA 1979); Ellington v. United States, 404 F.Supp. 1165 (M.D.Fla.1975). That fact, coupled with the principle that a parent's recovery for injury to his child is limited to pecuniary loss......
  • Simon v. United States, 77-102-Civ-CA.
    • United States
    • U.S. District Court — Southern District of Florida
    • September 27, 1977
    ...upon his wife nor for that resulting from the death of his child, as he suffered no physical injury. Ellington v. United States of America, 404 F.Supp. 1165 (M.D.Fla. 1975). 6. Plaintiff, James Michael Pope, is entitled to recover of and from the defendant the sum of Five Thousand Dollars (......
  • Zell v. Meek
    • United States
    • Florida Supreme Court
    • October 5, 1995
    ...of a plane crash, felt a mild change in the temperature and air pressure when the plane hit the ground. See Ellington v. United States, 404 F.Supp. 1165, 1166, 1167 (M.D.Fla.1975); see also Davis v. Sun First Nat'l Bank of Orlando, 408 So.2d 608, 609-10 (Fla. 5th DCA 1981) (holding bank tel......

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