Freeman v. U.S., 73--2231

• Decision Date: 24 January 1975
• Docket Number: No. 73--2231,73--2231
• Citation: 509 F.2d 626
• Parties: Ramona FREEMAN, etc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 626

509 F.2d 626

Ramona FREEMAN, etc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 73--2231.

United States Court of Appeals, Sixth Circuit.

Jan. 24, 1975.

Frederick M. Coleman, U.S. Atty., Cleveland, Ohio, Ronald Glancz, Michael Stein, Dept. of Justice, Washington D.C., Carla A. Hills, New York City, Morton Hollander, Washington, D.C., for defendant-appellant.

Norman W. Shibley, Donald P. Traci, Spangenberg, Hasenflue, Shibley, & Traci, Cleveland, Ohio, for plaintiff-appellee.

Before CELEBREZZE and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.

McCREE, Circuit Judge.

This appeal requires us to determine whether the federal government is liable, under the Federal Tort Claims Act, for the deaths of sixteen persons and for injuries to two others who parachuted through a cloud cover into Lake Erie at the direction of their jump master and their pilot who had been misinformed by a federal air traffic controller that his airplane was over the Ohio airport where the parachutists were scheduled to land. The Government does not dispute that the air traffic controller was negligent in ascertaining the airplane's location, nor does it contest the reasonableness of the damage awards. Instead, the Government contends first, that the air controller owed no duty of care to the parachutists; second, that the actions were barred by the contributory negligence of the parachutists in jumping through a cloud cover; and, third, that the pilot and jump master, in directing a jump through a cloud cover were negligent and that their intervening negligence relieved the Government from any liability for the deaths and the injuries of the parachutists. The district court entered a judgment for plaintiffs. Dreyer v. United States, 349 F.Supp. 296 (N.D.Ohio 1972). We affirm.

These consolidated cases arise from the tragic drowning of 16 parachutists and from injuries to two survivors who were participating in a high altitude parachute jump on August 27, 1967. In all, 20 parachutists took off from Ortner Airfield, near Oberlin, Ohio, in a converted World War II B--25 airplane, to make a mass jump over the airport. Eighteen of the parachutists planned to jump together from 20,000 feet in a free fall maneuver, and the remaining two planned to jump from 30,000 feet.

The aircraft took off at 3 p.m. when there was only scattered cloud cover. It took approximately one hour for it to climb to 20,000 feet. During this time, the pilot maintained radio contact with the air traffic controller for the purpose of determining the plane's location and insuring that the jump would take place directly over Ortner Airfield.

At about the same time that the B--25 went aloft, a Cessna airplane took off with a photographer who planned to take motion pictures of the parachutists as they made their descent. The Cessna was flying at 12,000 feet. The district court found that the air traffic controller confused the Cessna with the B--25 on his radarscope and gave flight directions to the B--25 based on his observation of the flight path of the Cessna.

Shortly before the B--25 pilot, Karns, made his final preparation to drop the jumpers, he called the traffic controller for final verification of his heading and location. The traffic controller informed Karns that he was headed in the right direction and was only three miles from Ortner. In fact, the B--25 was headed in a northeasterly direction away from Ortner and over Lake Erie. Neither the pilot nor the passengers were aware that the plane was over water because there was a solid cloud cover below the plane.

Inside the plane, the jumpers, sitting on benches in the cargo section of the plane or in the bomb bays, were squeezed together in nearly total darkness. There were no windows permitting them to see below the aircraft. Shortly before the jump, the pilot throttled back the engines, thus giving the jumpers their first indication that it was nearly time to jump. When the time for the jump came, the bomb bay doors opened and the inside of the plane was flooded with light. The jumpers experienced difficulty adjusting their eyes to this intense light and because of temporary blindness were unaware of the clouds beneath them and the lake below the clouds. At approximately the same time that the doors were opened, Karns relayed a hand signal to the jump master, Hartman, that they were over the target. Hartman then gave the signal for the jump and 18 parachutists evacuated the plane as quickly as they could. In fact, the district court found that they were all out of the plane within 30 seconds. It was only after they had jumped that they discovered the clouds beneath them. At 4,000 feet, when they broke through the cloud cover, they realized they were over Lake Erie approximately four miles offshore instead of over Ortner Airfield. Although a valiant rescue effort was made at the initiative of an off-duty Coast Guardsman, only two of the 18 parachutists were saved from drowning.

These negligence actions were brought against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), by the two survivors and by the estates of the 16 deceased jumpers for the negligence of the federal government air traffic controller. The district court, applying the law of Ohio where the negligent act occurred, Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), found that the proximate cause of the deaths and the injuries was the negligent misidentification of the B--25 by the traffic controller.

Although the district court did not determine whether the pilot and the jump master were negligent in directing the jumpers to leave the plane without ascertaining that the plane was above a cloud cover, it ruled that any negligence on their part would not be imputed to the parachutists. The district court also rejected the Government's contention that the jumpers were contributorily negligent because they jumped into a cloud cover in violation of a federal aviation regulation.

The first issue we consider is whether the air traffic controller owed a duty to parachutists. The appellant, citing no authority, claims that an air traffic controller's duty is limited to regulating air traffic and to advising planes of their location in order to avoid aircraft crashes, but that the duty does not extend to advising parachutists whether it is safe to jump.

Although we have found no cases concerning the duty of controllers to parachutists, other courts have concluded that a controller's duty to exercise reasonable care extends to the aircraft, passengers, crews and cargoes. Stork v. United States, 430 F.2d 1104 (9th Cir. 1970); Ingham v. Eastern Air Lines, 373 F.2d 227 (2d Cir.), cert. denied, 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967); Hennessey v. United States, 12 Av.Rep. 17410 (N.D.Cal.1971). We see no reason here to exclude parachutists who are only a special kind of passenger.

The law of Ohio is that actionable negligence occurs when an injury results from conduct that a reasonably prudent and careful person should anticipate would cause injury to the plaintiff or to those in a similar situation. Gedeon, Administrator v. East Ohio Gas Co., 128 Ohio St. 335, 190 N.E. 924 (1934). Here, because the air traffic control center had been advised of the high altitude mass jump, the controller knew or should have known of the purpose of the flight, and he should have anticipated that any mistake with respect to the plane's position could lead to disastrous consequences for the jumpers. Accordingly, we hold that the controller owed a duty to the jumpers to exercise due care.

The second issue we consider is whether the parachutists were guilty of contributory negligence. Ohio law bars recovery to any plaintiff whose negligence contributed as a proximate cause to the occurrence of the accident. Bahm v. Pittsburgh & Lake Erie R.R., 6 Ohio St.2d 192, 217 N.E.2d 217 (1966). The district court found that the skydivers aboard the B--25 were not contributorily negligent because they had no reason to suspect that the jump master would signal them to jump into solid cloud cover and because they had no reasonable means for making an independent observation of the cloud conditions below the plane.

The appellant contends, however, that the jumpers were guilty of negligence per se because they violated a federal aviation regulation, 14 C.F.R. § 105.29, that forbids parachute jumping through clouds. The regulation in effect at the time of the accident provided:

§ 105.29 Clearance from clouds requirements.

(a) No person may make a parachute jump into or through a cloud and no person may make a parachute jump--

(1) Within the continental control area, at a distance of less than 1,000 feet under, 1,000 feet over, or one mile horizontally from any cloud formation; or

(2) Outside the continental control area, at a distance less than 500 feet under, 1,000 feet over, or 2,000 feet horizontally from any cloud formation.

(b) No pilot in command of an aircraft may allow any person to make a parachute jump from that aircraft unless cloud conditions allow that person to comply with the requirements of paragraph (a) of this section. (Doc. 1491, 27 F.R. 11636, Nov. 27, 1962, as amended by document 4057, Amdt. 105--1, 29 F.R. 14920, Nov. 4, 1964.)

Appellees contend that the district court was correct because the violation of the administrative regulation was not negligence under the circumstances. It was intended to provide protection only for persons, objects or other aircraft from injury caused by parchutists jumping through clouds. It was not intended to insure the safety of parachutists as a class. Accordingly, it is argued, the violation of the administrative regulation is not negligence per se.

We observe that the federal air regulations have been adopted by the State of Ohio as its own. Ohio Rev.Code §§ 4561.05, 4561.14 (1973). Thus, violation of a federal air...