Federal Exp. Corp. v. State of R. I., Dept. of Transp., Airports Division

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before COFFIN, Chief Judge, ALDRICH and BREYER; BREYER
• Citation: Federal Exp. Corp. v. State of R. I., Dept. of Transp., Airports Division, 664 F.2d 830 (1st Cir. 1981)
• Decision Date: 28 September 1981
• Docket Number: 81-1058,Nos. 81-1033,s. 81-1033
• Parties: FEDERAL EXPRESS CORPORATION, et al., Plaintiffs, Appellants, v. STATE OF RHODE ISLAND, DEPARTMENT OF TRANSPORTATION, AIRPORTS DIVISION, et al., Defendants, Appellees. FEDERAL EXPRESS CORPORATION, et al., Plaintiffs, Appellees, v. STATE OF RHODE ISLAND, DEPARTMENT OF TRANSPORTATION, AIRPORTS DIVISION, Defendant, Appellant, and The United States of America, Defendant, Appellee.

Page 830

664 F.2d 830

FEDERAL EXPRESS CORPORATION, et al., Plaintiffs, Appellants, v. STATE OF RHODE ISLAND, DEPARTMENT OF TRANSPORTATION, AIRPORTS DIVISION, et al., Defendants, Appellees.

FEDERAL EXPRESS CORPORATION, et al., Plaintiffs, Appellees, v. STATE OF RHODE ISLAND, DEPARTMENT OF TRANSPORTATION, AIRPORTS DIVISION, Defendant, Appellant, and The United States of America, Defendant, Appellee.

Nos. 81-1033, 81-1058.

United States Court of Appeals First Circuit.

Argued June 5, 1981.

Decided Sept. 28, 1981.

James J. Sentner, Jr., New York City, with whom Joseph E. Rendini, Haight, Gardner, Poor & Havens, New York City, James V. Aukerman, and Kenyon & Aukerman, Wakefield, R. I., were on brief, for Federal Express Corp. and United States Aviation Underwriters, Inc.

Daniel J. Schatz, Sp. Asst. Atty. Gen., Providence, R. I., with whom Dennis J. Roberts, II, Atty. Gen., Providence, R. I., was on brief, for the State of Rhode Island.

Kathlynn G. Fadely, Trial Atty., Civ. Div., Torts Branch, U. S. Dept. of Justice, Washington, D.C., with whom Paul F. Murray, U. S. Atty., Providence, R. I., and Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D.C., were on brief, for the United States of America.

Before COFFIN, Chief Judge, ALDRICH and BREYER, Circuit Judges.

BREYER, Circuit Judge.

At about two o'clock in the morning on September 27, 1975, at Theodore F. Green State Airport outside Providence, Rhode Island, a Dassault Falcon 20-D jet aircraft mistakenly attempted to take off on an illuminated but inactive runway on which four aircraft had been parked. The ensuing collision happily caused no loss of life, but it did produce substantial property damage, including the destruction of the Falcon jet. Federal Express Corporation, the owner of the Falcon, subsequently brought the present action against both the United States and the State of Rhode Island, alleging negligence by the former in its provision of air traffic control services and by the latter in its operation of the airport. At the end of a six-day trial, the district judge, sitting without a jury, issued a decision from the bench in which he found that plaintiff's negligence constituted the sole proximate cause of the accident-a determination from which plaintiff now appeals. The state of Rhode Island lodges a separate appeal from an earlier ruling, issued in response to a motion to dismiss, that R.I.G.L. § 9-31-1 (1969) effected a general waiver of the state's eleventh amendment immunity from suit in federal court in tort cases. We affirm the district court's determination that neither defendant is liable.

I.

The flight of the Falcon, with a crew consisting of Captain John Soltow and First Officer Jack Miller, originated at plaintiff's home base in Memphis, Tennessee. Following a twelve-hour layover in Hartford, Connecticut, the aircraft departed for Bedford, Massachusetts with Boston's Logan Airport listed as an alternative. But bad weather intervened, and the Falcon was diverted to Green Airport-a location to which Federal Express did not customarily fly. Since neither crew member was familiar with the airport, Captain Soltow consulted a Jeppesen Navigation and Airport Chart prior to landing, which contained pertinent information and a diagram depicting the airport configuration. (The airport diagram is attached as an appendix to this opinion.) Approaching from the southwest, the Falcon received clearance, and at approximately 11:00 p. m. it landed at runway 5R, the reciprocal of 23L. As the diagram indicates, runway 23L/5R (hereinafter "23L") is the longest runway at Green Airport, running parallel to, and to the east of, runway 23R/5L (hereinafter "23R").

Confusion arose shortly after the Falcon's touchdown. Captain Soltow stopped the aircraft at the intersection with runway 16/34 and asked the controller for directions to a refueling location. The controller, intending that the Falcon park on the north ramp between the head of 16/34 and that of 23R, offered Soltow a choice of routes: either taxiing to the end of 16/34 and turning right or making an earlier right turn onto 23R and entering the ramp area from the opposite direction. The Captain in fact followed the first option; he proceeded to the end of runway 16/34, turned right and parked the Falcon-at the correct location-on the ramp's edge. But both crew members, apparently confused due to a circular turn mistakenly executed by Soltow, believed they had chosen the second option. Thus, when Soltow and Miller stepped off the parked Falcon to await the arrival of cargo, they believed it was positioned between 23R and 23L when in fact it was between 23R and 16/34. During their three-hour sojourn, neither crew member sought to verify this belief.

Some three and one-half hours before the Falcon's arrival, and in accordance with long-established practice, runway 23R was temporarily closed for all takeoffs and landings so that diverted aircraft could be parked and serviced. Shortly thereafter, four aircraft were parked on the lower half of 23R, immediately south of the intersection with taxiway 9. The runway was kept illuminated, the defendants explained, to facilitate parking of the aircraft and because the northern half remained in use as a taxiway. Notice of the runway closing was disseminated through customary channels: the airport operator issued a report by telewriter to the controller, who in turn transmitted a Notice to Airmen (NOTAM) to Boston Flight Service. The controller also included the NOTAM in the Providence Automatic Terminal Information Service (ATIS), a continuous radio broadcast of recorded information concerning weather and airport conditions. Over Captain Soltow's denial, the district court found that the crew had learned of 23R's closing prior to their attempted departure. ¹ In any event, 23R was permanently closed to aircraft weighing over 12,500 pounds, such as the Falcon-a restriction which was noted on the Jeppesen chart and of which the crew was indisputably aware.

At 1:57 a.m., with the cargo loaded and a third Federal Express employee aboard as a passenger, Soltow and Miller were ready for the return flight to Memphis. They initially requested runway 5R for departure but changed their request to 23L upon learning the wind speed and direction from Warren Prosser, who started work at midnight as the sole controller on duty. After granting this request, Prosser engaged in the following exchange with the crew:

Tower: All right, taxi through the Guard ramp with caution.

Falcon: Okay and that would be a right turn the way we're faced and straight down?

Tower: What are you facing, the buildings on the ramp?

Falcon: Yes sir.

Tower: That's correct, it would be a right turn.

Falcon: Okay.

Prosser's statement concerning the "Guard ramp" referred to the National Guard facility located on the north ramp between runways 23R and 23L. Repaving and construction work at the airport had necessitated the temporary installation of a taxi route through the National Guard area to afford access to the head of 23L. Because of the Guard aircraft normally parked immediately below this ramp, William McCarthy, chief of the Providence tower, had instructed his personnel to advise aircraft "to use extreme caution while taxiing via this route."

Six minutes later, Prosser cleared the Falcon to taxi to 23L and "hold for departure release." ² At that time, Prosser harbored an accurate belief as to the aircraft's location. ³ The crew, having reexamined the Jeppesen chart but still mistaken as to their position, taxied along the north ramp until they reached an illuminated runway, which they assumed to be 23L. They then turned left, travelled to the head of the runway-which was in fact 23R-and reversed direction. Although the Falcon never traversed the Guard ramp (which was located between 23R and 23L), both crew members explained that they had understood Prosser as speaking of a "guarded ramp," which they had interpreted as a reference to construction barricades located to the west of 23R. The crew sat at the head of 23R for approximately thirty seconds. Although the visibility in light rain was then three miles, and despite their vantage point some nine to twelve feet above the ground, ⁴ Soltow and Miller failed to observe the four aircraft parked on the runway. ⁵ They failed to observe three flashing colored lights, each approximately eight inches in diameter and two feet off the ground, which had been placed across 23R immediately north of the diverted aircraft. ⁶ They failed to observe an illuminated runway-identification sign, reading "23R," located on the northwestern edge of the runway. And they failed to observe unobscured, sixty-foot-long numerals and letters, also reading "23R," painted in white on the runway pavement. ⁷

At approximately 2:06 a.m., Prosser cleared the Falcon for takeoff. ⁸ At that time, the aircraft was displaying a white taxi light similar to an automobile headlight on its nose gear strut, a rotating red beacon on its roof, and both white strobe lights and standard red and green lights on its wingtips. The view from the tower, located just north of the main terminal, to the head of 23R was unobstructed. Prosser, since his initial contact with the Falcon nine minutes earlier, had been communicating with only one other, parked aircraft; the Falcon had been the sole aircraft moving on the airport. Nonetheless, Prosser did not monitor the aircraft's taxiing and, at the time when takeoff clearance was granted, he did not hold an accurate belief as to where the plane was located. The Falcon of course never took off. After attaining a speed of 110 knots, the crew spotted the planes at the same time that Prosser, apparently looking out the window for the first time, instructed them to abort. The crew tried to veer right, but the Falcon struck an Allegheny DC-9 with its left wingtip, collided with a service vehicle which exploded in flames, struck an American...