First of America Bank-Cent. v. US

• Decision Date: 24 June 1986
• Docket Number: No. G83-949.,G83-949.
• Citation: 639 F. Supp. 446
• Parties: FIRST OF AMERICA BANK-CENTRAL, formerly American Bank & Trust Company, Personal Representative of the Estates of William F. Cole and Wanda J. Cole, Deceased, Plaintiff, v. UNITED STATES of America, and Delta Air Lines, Inc., a Delaware Corporation, Jointly and Severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

639 F. Supp. 446

FIRST OF AMERICA BANK-CENTRAL, formerly American Bank & Trust Company, Personal Representative of the Estates of William F. Cole and Wanda J. Cole, Deceased, Plaintiff, v. UNITED STATES of America, and Delta Air Lines, Inc., a Delaware Corporation, Jointly and Severally, Defendants.

No. G83-949.

United States District Court, W.D. Michigan, S.D.

June 24, 1986.

James F. Graves, Willingham, Coté, Hanslovsky, Griffith & Foresman, East Lansing, Mich., for plaintiff.

C. Barry Wetherington, Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, Detroit, Mich., for Delta Air Lines.

J. Paul McGranth, Asst. Atty. Gen., John A. Smietanka, U.S. Atty., Edith Landman, Asst. U.S. Atty., Richard R. Stone, Sr., U.S. Dept. of Justice, Washington, D.C., for U.S. of America.

OPINION

HILLMAN, Chief Judge.

This litigation stems from a September 19, 1981 crash of a single engine aircraft at Dallas/Fort Worth Regional Airport ("DFW"), which killed the pilot, William F. Cole, and his wife and passenger, Wanda J. Cole. The crash allegedly occurred when the aircraft encountered turbulent air, also known as wake turbulence or wingtip vortices, generated by a Delta Airlines 727 jet making a final approach to runway 17R at DFW. Plaintiff First of America Bank-Central, Personal Representative of the Estates of William and Wanda Cole, contends that the acts and/or omissions of the Delta crew and air traffic controllers at DFW were responsible for the encounter and resulting crash. Plaintiff seeks damages for the alleged wrongful deaths of Mr. and Mrs. Cole, suing defendant United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and asserting a diversity of citizenship negligence claim against defendant Delta Air Lines, Inc.

Plaintiff's claim against Delta was tried to a jury and the claim against the United States was concurrently tried to the court from September 17, 1985 to October 8, 1985. Approximately 96 exhibits were marked and entered during the trial. Deposition testimony of 11 witnesses was read into the record, and 18 witnesses testified in person, including the following experts: for plaintiff, Jack J. Eggspuehler, a pilot expert, Dr. Gerald Gregorek, a wake turbulence expert, and Frank M. McDermott, a tower control expert; for defendant Delta, pilot expert Paul Soderlind; for defendant United States, wake turbulence and pilot expert Joseph Tymczyszym, and controller expert Ray Yeager. On October 8, 1985, the jury returned a verdict of no cause for action on the claim against Delta. The court took the claim against the United States under advisement. This opinion constitutes the court's findings of fact and conclusions of law on that claim as required by Fed.R.Civ.P. 52(a).

On September 19, 1981, William Cole ("Cole") was 40, his wife was 43, and they had two children, a fourteen year old daughter, Penny Lynn, and a twenty-two year old son, William Scott.

Cole received his private pilot certificate with a single engine land rating in December 1980. He had no instrument rating. As of September 19, 1981, Cole had approximately 129 hours total flight experience, only 7.3 of them at night (and all but .3 hours of those night hours had been with an instructor). Only once before had he flown into a large metropolitan area, and then only to an airport, Chicago Meigs Field, where no airliners land, and he was accompanied by an instructor on that flight. It was questionable whether he was legally qualified to fly at night, since his flight records did not document three completed night landings to a full stop within the last ninety days before the flight to Texas, as required by aviation regulations. Notwithstanding his relative inexperience, he had been instructed about terminal control areas ("TCAs"),¹ the operational and equipment requirements for entering them, and he had been shown how TCAs were depicted on aviation charts.

On September 19, 1981, Cole rented a single engine Piper Arrow, Model PA 28RT-201, Registration Mark N2156H, from Miller Aviation of Eagle, Michigan. Cole took off from Grand Ledge, Michigan, early on the morning of September 19, 1981, with his wife as a passenger. His ultimate destination was San Antonio, Texas, where they were to attend a convention. He did not file a flight plan upon leaving Grand Ledge.

Cole flew nonstop from Grand Ledge to Cape Girardeau, Missouri, where he landed after contacting the Cape Girardeau Flight Service Station ("FSS") by radio at 2:02 p.m., Central Daylight Time ("C.D.T."). (All times noted hereafter are C.D.T.). The airplane was refueled with 37 gallons of aviation fuel. Cole departed Cape Girardeau Airport at approximately 3:25 p.m., radioing the Cape Girardeau FSS to notify them of his departure. He did not file a flight plan upon leaving Cape Girardeau.

At approximately 5:53 p.m., Cole radioed the Little Rock, Arkansas FSS requesting and receiving the winds aloft at 6,000 feet. At approximately 7:27 p.m., Cole radioed the Dallas, Texas FSS requesting and receiving the Rockwall, Texas Airport UNI-COM² frequency. FSS also advised Cole of the then current Dallas-Love Field altimeter setting.

At approximately 7:50 p.m., Cole was observed landing at the Rockwall, Texas airport by Gale and Carol Jones, who were working on their own airplane parked at that airport. Cole taxied to the gas pumps and turned off his engine. The Coles deplaned and spoke with the Jones about refueling. The Jones told them that the Rockwall gas pumps were closed for the evening. They advised Cole that the closest refueling point was probably Addison Airport. They offered Cole some gas from their own airplane and also offered to take the Coles to a nearby motel until the Rockwall pumps opened the next morning. The Coles declined both offers. The Jones then gave them instructions to Addison Airport. Cole was warned to be especially careful because Addison was difficult to locate at night and if he overshot Addison, he would be entering the DFW TCA, which they specifically warned him to avoid. They advised Cole to try Dallas-Love Field if Addison was closed. Addison Airport is approximately 20 nautical miles northwest of Rockwall and 11 nautical miles northeast of DFW. Dallas-Love Field is approximately 7½ nautical miles south of Addison and 11 to 12 nautical miles southeast of DFW. At approximately 8:00 p.m., Cole took off from Rockwall to the south, turned east and then turned north toward Addison Airport.

Between 8:00 and 8:15 p.m., Robert Levinson, seated in his parked car beside a roadway paralleling the runway at Addison Airport, saw a plane approaching from the north, descending for a landing. It touched the runway for approximately 5 seconds, suddenly took off again, retracting its wheels and making a right turn in the air to the west. It continued in a westerly direction toward DFW for as long as he continued to watch it. His description of the plane fit the type of aircraft Cole was flying. The Addison Airport tower was closed at the time.

The surface weather conditions at DFW between 8:00 and 8:30 p.m. on September 19, 1981, were clear skies, visibility of 15 miles, winds from 170 degrees at 6 knots. Cole was flying his aircraft under visual flight rules ("VFR"),³ and VFR conditions prevailed at DFW. VFR aircraft arriving at the DFW TCA must contact DFW approach control at a designated radio frequency, state their position, direction of flight and destination, and obtain clearance to enter the TCA.⁴ Additionally, whatever the weather conditions, all pilots prior to operating within the TCA must have an operating code transponder⁵ and a twoway radio capable of communicating with air traffic controllers on appropriate frequencies. Cole entered the DFW TCA on September 19, 1981, without obtaining clearance, without radio communications, and without operating his transponder.

Richard E. Wiggins, an FAA employee, was working as an air traffic controller in DFW's windowless radar room located on the first floor of the DFW tower on the evening of September 19, 1981. He was performing approach control functions at the combined AR1-AR2 position. Runways 17R and 17L at DFW are parallel runways running north and south, with runway 17R being located to the west of runway 17L. Traffic that night was landing from north to south on runway 17R, so the airspace worked by Wiggins' radar position extended approximately 20 miles north of DFW and 5 to 6 miles east of runway 17L's centerline, from the surface up to 5,000 feet. However, since radar is based on line-of-sight, it picks up primary targets⁶ within the controlled airspace up to 17,500 feet and down to the surface, assuming no buildings or other obstructions vary the radar's line of sight.

Once feeder positions in the radar room established radio contact with a plane inbound to DFW, the plane was "handed off" to Wiggins, who generally already had radar contact with the plane on his radarscope. Wiggins was then responsible for assigning the plane a sequence number in the final approach traffic pattern for runway 17R. Once an inbound plane under VFR conditions received a sequence number and its pilot advised Wiggins that he had sight of the runway (if he was not following any traffic) or of the immediate traffic he was following on the approach, Wiggins advised the pilot to contact local control in the tower cab, gave the pilot the local control frequency, and "handed off" the plane to local control for final clearance and landing. On the evening of September 19, 1981, John C. White, an FAA employee, was the air traffic controller working the Local Control West ("LCW") position in the DFW tower cab, controlling landings and takeoffs on runway 17R from the west side of the cab. David P. Medina was the FAA controller working the Local Control East ("LCE") position, controlling landings and takeoffs on runway 17L from the east side of the tower cab. The DFW tower is located directly between runways 17R and 17L.

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