Hartz v. United States

• Decision Date: 11 January 1968
• Docket Number: No. 23647.,23647.
• Citation: 387 F.2d 870
• Parties: Florence Wattles HARTZ, Margaret Elwyn Roth and Globe Indemnity Company, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

387 F.2d 870 (1968)

Florence Wattles HARTZ, Margaret Elwyn Roth and Globe Indemnity Company, Appellants, v. UNITED STATES of America, Appellee.

No. 23647.

United States Court of Appeals Fifth Circuit.

January 11, 1968.

John W. Prewitt, Vicksburg, Miss., George E. Morrow, Memphis, Tenn., Glover McGhee, Albert E. Phillips, Atlanta, Ga., Swift, Currie, McGhee & Hiers, Atlanta, Ga., Martin, Tate & Morrow, Memphis, Tenn., Prewitt & Bullard, Vicksburg, Miss., for appellants.

Morton Hollander, Lawrence R. Schneider, Howard J. Kashner, David L. Rose, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before TUTTLE and AINSWORTH, Circuit Judges, and FULTON, District Judge.

FULTON, District Judge:

These are consolidated actions which were brought under the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2671 et seq.) to recover for the deaths of William B. Hartz and Harold S. Roth and for property damage to a Beechcraft Bonanza airplane. The deaths and damage occurred when the Bonanza crashed on a take-off from the Atlanta Municipal Airport. Hartz was the pilot of the Bonanza. He was certified as a pilot by the Federal Aviation Agency. Roth was his passenger.

After dark, about seven o'clock on the evening of November 10, 1961, an Eastern Air Lines DC-7, Flight No. 131, was awaiting clearance to take off from Runway 27 at said airport. The DC-7 was positioned upon the east end of said runway which is 7,860 feet long and runs in an east-west direction. While the DC-7 was there awaiting clearance for take-off, Hartz radioed the airport control tower seeking permission for the Bonanza to take off upon Runway 27 from an intersecting approach approximately 2,160 feet west of the east end of said runway. Acting upon instructions from the tower, the Bonanza taxied to a point where said approach intersects Runway 27 and then stopped at the entrance to Runway 27 for further instructions for take-off.

John H. Dillworth, who was then the Local Control Operator for the airport, cleared the DC-7 for take-off. Dillworth will hereinafter be referred to as the "controller." The DC-7 began its run down on Runway 27 and passed directly in front of the Bonanza, which was parked upon said approach to Runway 27 awaiting further instructions from the tower. The DC-7 became airborne 25 to 30 seconds after it started down said runway, at a point some 2,500 to 3,000 feet west of the east end thereof. The speed of the DC-7 over the ground at the point where it became airborne was approximately 115 knots per hour. Within five seconds thereafter its air speed was between 130 and 140 knots per hour. This air speed was maintained until it passed over the west end of Runway 27, at which time the DC-7 was at an altitude of between 100 and 300 feet.

About 30 seconds after the DC-7 acknowledged by radio its clearance for take-off, the controller instructed the Bonanza to move into a take-off position upon Runway 27 and then hold. Immediately after the Bonanza was positioned on Runway 27 the controller cleared it for take-off, at which time the controller gave Hartz the following warning:

"November 96 Delta cleared for takeoff, watch the prop wash."

The Bonanza then began to move down the runway and became airborne. Moments later, while the Bonanza was still airborne over Runway 27, it encountered violent turbulence and was thereby thrown into an inverted attitude, whereupon it crashed killing the pilot and his passenger. The turbulence which the Bonanza encountered was a trailing vortex which was shed by the right wing of the departing DC-7. This phenomenon, which was the proximate cause of the crash, is known as wing tip vortex.

In the Federal Tort Claims actions which followed, appellants alleged that the proximate cause of the crash was the negligence of the controller, an employee of the Federal Aviation Agency. The United States contended, and the District Judge found, that the controller had no legal duty, statutory or otherwise, to do anything more than maintain separation between the aircraft sufficient to avoid a collision. The United States further specifically and successfully argued that although the controller had no duty to warn Hartz of turbulence, the warning which the controller gave to Hartz was adequate to apprise Hartz of possible danger from the turbulence created by the departing DC-7. The District Judge concluded and ruled that the controller breached no duty that was owed to plaintiffs' decedents and that the sole proximate cause of the crash was the negligence of Hartz.

Appellants assigned 22 points of error but the controlling issues upon this appeal are the following:

1. Did the controller have a duty to give Hartz a warning which would include possible danger from wing tip vortex?

2. If the controller did owe Hartz such duty, was the warning which he gave Hartz sufficient to discharge that duty?

We hold that there was a duty to so warn and that the warning which the controller gave was insufficient.

The procedures to be followed by an airport controller are set forth in an operations manual which is provided by the Federal Aviation Agency. This manual is designated The Air Traffic Control Procedures Manual (ATM-2-A). A copy thereof was received in evidence and was relied upon by the trial court in resolving liability. At this juncture it is necessary to refer to this manual to ascertain to what extent it bears upon the duty, if any, of the controller to warn Hartz of wing tip vortex from the DC-7. Among other things the manual provides:

1. The authority and responsibility of a pilot in command of aircraft.¹

2. For clearances, instructions and information from the controller to aircraft as to observed or known traffic conditions at or near the airport.²

3. The minimal separation requirements for aircraft departing the airport from the same runway.³

4. The precise phraseology to be employed in warning a departing pilot of possible danger from wing tip vortex.⁴

WAS THERE A DUTY TO WARN OF WING TIP VORTEX?

We recognize that government regulations having the force and effect of law have established that a pilot retains primary responsibility for the movement of his aircraft.⁵ Tilley v. United States, 375 F.2d 678 (4th Cir. 1967); United States v. Schultetus, 277 F.2d 322, 86 A.L.R.2d 375 (5th Cir. 1960), cert. denied 364 U.S. 828, 81 S. Ct. 67, 5 L.Ed.2d 56. See also De Vere v. True-Flite, Inc., 268 F.Supp. 226 (E.D.N.C.1967). This concept is clearly defined in United States v. Miller, 303 F.2d 703 (9th Cir. 1962) cert. denied 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502. Nonetheless, before a pilot can be held legally responsible for the movement of his aircraft he must know, or be held to have known, those facts which were then material to the safe operation of his aircraft.

In connection with the responsibility of the pilot, the following facts are pertinent. The controller was stationed high above the lighted airfield where he had a commanding view of the DC-7 and the Bonanza and all other aircraft upon and in the vicinity of the airport; he was an experienced controller who knew, or by the exercise of reasonable care should have known, that it was hazardous for a small airplane to immediately follow the take-off of a DC-7. In contrast, Hartz was down below on an approach to Runway 27 studying his cockpit instrument panel and awaiting takeoff directions. His ability to judge movement on the field was limited both by his position and his involvement with the operation of his aircraft. Clearly, the controller was the one better qualified by training, experience and vantage position to...