Gill v. United States

• Decision Date: 16 May 1968
• Docket Number: Civ. No. 900,903.
• Citation: 285 F. Supp. 253
• Parties: Gale S. GILL, Individually and as Guardian of her Minor Children v. UNITED STATES of America. Louise B. BARLOW, Indiv. and as Guardian of her Minor Children v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Texas

285 F. Supp. 253

Gale S. GILL, Individually and as Guardian of her Minor Children v. UNITED STATES of America.

Louise B. BARLOW, Indiv. and as Guardian of her Minor Children v. UNITED STATES of America.

Civ. Nos. 900, 903.

United States District Court E. D. Texas, Texarkana Division.

May 16, 1968.

COPYRIGHT MATERIAL OMITTED

J. R. Hubbard, Texarkana, Tex., for plaintiff, Gale S. Gill.

Bun L. Hutchinson, Texarkana, Tex., for plaintiff, Louise B. Barlow.

Richard B. Hardee, First Asst. U. S. Atty., Tyler, Tex., for defendant.

FISHER, Chief Judge.

MEMORANDUM OPINION

Two cases, grounded on the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., arose out of the same plane accident and were consolidated for trial and decision.

A Cessna Model No. 172 aircraft crashed near Easterwood Airport in College Station, Texas, at or shortly after 8:00 P.M. on September 12, 1963. The pilot, Dr. C. V. Bintliff, and his two passengers, Dr. John E. Gill and Mr. George P. Barlow, were killed. The three men had left the Texarkana Airport at 4:18 P.M., intending to fly to San Antonio. The Plaintiffs here, the widows of the two passengers, base their claims and those of their minor children on the Texas Wrongful Death Act, Arts. 4671 et seq., of the Vernon's Ann. Revised Civil Statutes of Texas.

Negligence has been alleged in various particulars which may be briefly combined and summarized as:

(1) Failure of Air Traffic Control at Texarkana, prior to take-off, and at Waco, enroute, to inform the pilot of the existing weather which would be encountered between Texarkana and San Antonio;

(2) Failure of the Waco Radar Approach Control Facility (RAPCON) to relay exactly weather information secured by Waco from Austin;

(3) Suggestion and/or concurrence of Waco RAPCON in proposed flight plan which, it was known or should have been known, would encounter an untenable weather situation;

(4) Failure of Waco and Austin RAPCON to give warning of a recognized peril;

(5) The giving of misleading information by Austin RAPCON;

(6) Delay of personnel at Easterwood Airport in responding to calls from the plane;

(7) Erroneous report of weather conditions in Waco area given by personnel at Easterwood Airport; and,

(8) Failure to have available extra fuses which would have avoided the delay in lighting the runway at Easterwood Airport.

Application of the law to the facts here must be made within the framework of certain well-established legal principles. The primary responsibility for the safe operation of an aircraft is upon the pilot. Smerdon v. United States, 135 F.Supp. 929 (D., Mass., 1955); United States v. Schultetus, 277 F.2d 322 (2nd Cir. 1960) cert. den., 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56; New York Airways, Inc. v. United States, 283 F.2d 496 (2nd Cir. 1960); United States v. Hedburg, 217 F.Supp. 711 (D., So.Dak., 1963); Wenninger v. United States, 234 F.Supp. 499 (D., Dela., 1964), aff'd., 352 F.2d 523 (3rd Cir. 1965); Hartz v. United States, 249 F.Supp. 119 (N.D., Georgia 1965); De Vere v. United States, 268 F.Supp. 226 (E.D., No.Car., 1967).

Nevertheless, it is equally well recognized that the United States can be liable in tort in air crash cases if any negligent act of government personnel is a proximate cause of the injury. Eastern Airlines v. Union Trust Company, 95 U.S.App.D.C. 189, 221 F.2d 62 (C.A., D.C., 1955), aff'd., sub nom. United States v. Union Trust Company, 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955); Air Transport Associates v. United States, 221 F.2d 467 (9th Cir., 1955); Ingham v. Eastern Airlines, 373 F.2d 227 (2nd Cir. 1967); Hartz v. United States, 387 F.2d 870 (5th Cir. 1968).

The Federal Tort Claims Act specifically adopts the law of the place where the accident occurs, as the law in accordance with which liability is to be determined. 28 U.S.C. §§ 1346(b) and 2671. Since the crash occurred in Texas, the Texas law of negligence and proximate cause is applicable. King v. United States, 178 F.2d 320 (5th Cir. 1950); United States v. Schultetus, 277 F.2d 322 (5th Cir. 1960), cert. den., 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56.

In this, as in other negligence cases, and particularly in air crash cases, the sequence of events leading up to the accident is most important. Plaintiffs have shown that prior to the time the plane became airborne at Texarkana, there were in existence two weather reports, San Antonio SIGMET No. 2 and Greater Southwest SIGMET No. 4, both of which indicated turbulent weather conditions in the area which would be encountered in flight from Texarkana to San Antonio. As the Defendant has pointed out, however, it was stipulated not only that certain weather data was provided to the pilot by the Flight Service Station attendant at Texarkana, but also that "there was no other weather information pertinent to his route of flight i. e., Texarkana to San Antonio available at the Texarkana Station at this time."

Between 5:25 and 5:28 p. m., a little more than an hour after take-off, the plane was in radio contact with the Gregg County Airport at Longview, and was not given the Greater Southwest SIGMET No. 4 report, nor was it given the SIGMET No. 2 report. Mr. John F. Dowdy, an employee of the Waco Combined Station/Tower, testified that he was in radio communication with the plane at 6:20 p. m.; that he read to the pilot both the San Antonio SIGMET No. 2 and the Greater Southwest SIGMET No. 4, as well as the Austin and San Antonio Terminal Forecasts; and that he told the pilot the control frequently upon which he could contact the Waco RAPCON if he so desired.

Plaintiffs point to the fact that the testimony with regard to the Dowdy radio communication with the plane was not substantiated with a tape recording, as were all the other in-flight conversations with government personnel, and was not produced by the Defendant pursuant to Plaintiffs' Motion for Discovery and the Court's Order thereon. Even, however, if there is reason to infer that the plane did not receive the communications from Dowdy, there is no doubt that the pilot did contact the Waco RAPCON at about 6:20 or 6:21 P.M., with the request:

"I'd like to know if you have any radar reports on our course. Intend to fly directly to Austin if we can and then direct from Austin to San Antonio. Over."

The Waco operator, Henson, told the pilot to stand by so that he could get information from Austin. The tape shows that at 6:27 P.M., the following dialogue took place beween Ormand, another Waco operator, and the Austin RAPCON:

"#4 Go ahead Waco.

ACT Okay Austin we have a small aircraft uh southweast about thirty-five miles uh we would like to have some information on the precipitation areas say from about Belton on down to Austin.

#4 Is he VFR type?

ACT Yes.

#4 I'd suggest he land at Waco and wait a couple of hours.

ACT It looks pretty sad?

#4 Yes, sir, it's solid. From uh Liberty Hill clear on over east of Taylor.

ACT Okay uh on past Taylor then uh?

#4 Yeah, it's east of Taylor way east of Taylor and uh way west of uh the airway.

ACT Okay we'll advise him. Thank you very much."

Thereafter, Henson, again in communication with the plane, at 6:28 P.M., reported:

"A/C Triple six seven Alfa Waco Approach uh Austin radar advises that they have ah numerous cells extending from Liberty Hill to Taylor, Texas (pause) and (pause) so apparently this precipitation area that starts about Temple extends on down into Austin area and he says that there are numerous cells to the (pause) that would be north and northeast of Austin over."

As Plaintiffs have emphasized, the above obviously was not an exact repetition of the information received in Waco from Austin. Although the pilot was given the information that a precipitation area extended over the Temple-Taylor Liberty Hill-Austin area, he must not have construed the report as indicating weather so severe that he would be well advised to land immediately. He continued his communication with the Waco operator and at 6:29 P.M., the following conversation took place:

"N6667A—Six seven Alfa I think what I'll do I'll fly a southerly course till I intercept the uh victor sixteen radial off of the Austin omni now uh except and then fly that does that seem to be a pretty good course wouldn't you think? Over.

A/C Roger, the Austin omni is out of service, it will be off the air for approximately ten days uh the only facility they have that you could navigate on would be the Austin homing beacon on frequency two eight one kilocycles would you be able to uh navigate off of that?"

At 6:34 P.M., the pilot inquired whether he should go west to Waco and was advised that he should not. The transcript of the tape reads:

"N6667A—Uh six seven Alfa then would you suggest that I fly uh west of Waco? Over.

A/C uh negative sir, that would just get you into the heavier area about the only way that it appears that you would be able to get around it would be to proceed uh south southeast of Waco as you suggested earlier and intercept a radial off of the Bergstrom VOR-TAC and proceed on in that direction. Over.

N6667A—Six seven Alfa that's what I'll do then. Thank you."

Henson testified that, if he had been informed of the Austin operator's recommendation that the plane land at Waco and wait two hours, he would have relayed it to the pilot. That he did not do so, therefore, indicates that he did not know of the recommendation.

The Austin operator was, however, informed that the plane was on the way. The transcribed conversation indicates that both Austin and Waco participants agreed that the pilot was "nuts" to continue the flight. At 6:44 P.M., the Waco operator attempted to reestablish communications with the plane but was unable to do so.

The flight had proceeded toward Austin, and at about 6:33 P.M., the pilot attempted to call the Austin RAPCON. The transmission was unintelligible, and the pilot was told that he would have to make contact after he came closer to the station. Subsequently,...