Hartz v. United States
| Decision Date | 11 September 1969 |
| Docket Number | No. 26923.,26923. |
| Citation | 415 F.2d 259 |
| Parties | Florence Wattles HARTZ et al., Plaintiffs-Appellants-Cross-Appellees, v. UNITED STATES of America, Defendant-Appellee-Cross-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Glover McGhee, Albert E. Phillips, Atlanta, Ga., George E. Morrow, Memphis, Tenn., Swift, Currie, McGhee & Hiers, Atlanta, Ga., Martin, Tate & Morrow, Memphis, Tenn., for appellant and cross-appellee Florence Wattles Hartz.
Charles L. Goodson, U. S. Atty., Atlanta, Ga., William D. Ruckelshaus, Asst. Atty. Gen., John C. Eldridge, Reed Johnston, Jr., Robert V. Zener, Attys., Civil Division, Appellate Section, Dept. of Justice, Washington, D. C., for the United States.
Before TUTTLE and GEWIN, Circuit Judges, and COMISKEY, District Judge.
This is the second appearance of this federal tort claim case here. In our first decision, 5 Cir., 1968, 387 F.2d 870, we reversed the judgment of the trial court dismissing the suit because of that court's finding that the sole proximate cause of appellant-decedent's death was his negligence in taking off from the Atlanta airport shortly behind a large jet aircraft whose wing tip vortex, as agreed by all parties, caused his small plane to crash. In the crash William B. Hartz and his passenger, Harold S. Roth, were killed.
The reversal of the first judgment was based on our determination that the conduct of the controller in the Tower at the airport, at the time of Hartz's take-off was negligent and a proximate cause of the crash.1 We also held that none of the other matters raised on the appeal needed consideration in light of our finding of a causal connection between the Tower's negligence and the crash.2
Upon remand, the trial court took testimony as to damages to be awarded to Mrs. Hartz, and to the survivors of the passenger Roth.
The trial court found the value of the decedent pilot's life3 to be $600,000, which, by virtue of the comparative negligence statute of Georgia, the Court reduced by 25%; the court found the defendant's negligence was the greater, but that the decedent's negligence contributed 25% to the accident. This resulted in a final judgment of $450,000 in favor of plaintiff-appellant, Mrs. Hartz.
The court awarded Mrs. Roth a judgment for $300,000, which, of course, represented no diminution in the value of her husband's life, since the negligence of Hartz could not be attributed to him. No appeal is taken in the Roth case.
The Globe Indemnity Company had insured the Bonanza aircraft. It had paid to Hartz's partnership the sum of $17,000 on the agreed amount of the loss. The trial court charged Hartz's negligence to Globe by reason of the privity of Globe with Hartz. See Georgia Code Section 105-205, and Miller, Trustee, v. Smythe, 95 Ga. 288, 22 S.E. 532. The judgment in favor of Globe, therefore, was reduced proportionately.
Mrs. Hartz complains here on several grounds. First, she says that our previous decision, finding the Tower's conduct a proximate cause of the crash, when coupled with our statement that this, in effect, disposed of the liability features of the case,4 foreclosed any further determination by the trial court assigning part of the responsibility for the crash to the decedent. Second, plaintiff-appellant asserts that the basic findings of the trial court, based on undisputed testimony, that Mr. Hartz's income had been in recent years in excess of $65,000 per year, and that he had a life expectancy of 29 years, mathematically precluded a final determination that his life had a value of no more than $600,000. Plaintiff asks that this court accept the basic findings as reflecting present earnings, but increase his prospective earnings and recompute the damages and enter a final judgment for $1,829,778; in the alternative she asks that we accept the $65,000 figure and mathematically apply the proper formula and enter judgment for some $1,300,000.
Globe asks that its judgment be revised upwards to represent its full loss without any reduction for negligence imputed to Hartz.
The United States cross appeals on the grounds, as asserted by it, that under the provisions of the Georgia statutes5 it was error for the trial court to allow any recovery. This is because it is claimed that Hartz's negligence, although less than the government's, occurred at a time and under circumstances that make it clear that Hartz, according to the government's contention, could have "avoided the consequences to himself caused by the defendant's negligence."
The facts are fully set out in the prior decision of this court (see 387 F.2d 870), and they need not be fully repeated here. See also the findings and conclusions of law of the trial court upon the first hearing, Northern Dist. of Ga., 249 F.Supp. 119. Much abbreviated, the facts present the following picture.
Hartz was an experienced pilot whose partnership owned a Beechcraft Bonanza airplane. Hartz, with an employee, Roth, as a passenger, crashed on a takeoff from the Atlanta Municipal Airport on the evening of November 10, 1961. About 7:00 o'clock on this evening, after dark, an Eastern Airlines DC-7 was awaiting clearance to take off from runway 27 at the airport. It was positioned upon the east end of the runway which is 7860 feet long and runs in an eastwest direction. While the DC-7 was there awaiting clearance for takeoff, Hartz radioed the airport control tower seeking permission for the Bonanza to take off upon runway 27 from an intersecting approach approximately 2160 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 takeoff. The DC-7 began its run down runway 27 and passed in front of the Bonanza. It became airborne 25 to 30 seconds after it started down the runway, at a point some 2500 to 3000 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 5 seconds thereafter its air speed was between 130 and 140 knots. This air speed was maintained until it passed over the west end of runway 27, at which time it was at an altitude of between 100 and 300 feet.
About 30 seconds after the DC-7 acknowledged by radio its clearance for takeoff, the controller instructed the Bonanza to move into a takeoff position upon runway 27 and then hold. Immediately after the Bonanza was positioned on runway 27, the controller cleared it for takeoff, at which time the controller gave Hartz the following warning. The Bonanza then began to move down the runway and became airborne. Moments later, while the Bonanaza 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 is known as wing tip vortex.
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 as 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. Among other things the Manual provides the precise phraseology to be employed in warning a departing pilot of possible danger from wing tip vortex.6
It is undisputed that Hartz was an experienced pilot having had more than 2000 hours of flying time, and that he had available to him manuals and other documents which described and cautioned against the dangers of wing tip vortices.
As we have indicated, the trial court found that the crash was attributable to Hartz's negligence in taking off under the circumstances here described. We concluded that the Tower was negligent in its conduct in giving the clearance under the circumstances as it did, and in not following the precise phraseology prescribed in the manual when it was apparent that wing tip vortex would be a dangerous factor in the takeoff of such a plane as that being flown by Hartz. (See footnote 6).
We consider first Mrs. Hartz's contention that, upon remand, there remained nothing for the trial court to do other than to assess damages. This requires an interpretation of our prior opinion in light of the issues raised by that appeal. We conclude that, as we construe the opinion as a whole, it was intended to put to rest finally the question of liability and fault, as well as causation. Viewing the carefully chosen language of that opinion, it is clear that this court determined the combination of actions by the Tower, i. e., the giving of clearance to takeoff immediately in the wake of a large jet aircraft, when the controller, from his position of observation, had the "duty to direct and guide the Bonanza in a manner consistent with its safety," 387 F.2d 870, 873, and the failure to use the prescribed cautionary phraseology, placed the entire responsibility for the crash on the controller, especially when this court found it "unnecessary to consider appellant's other contentions," (including Hartz's negligence) raised on the appeal.
We conclude, therefore, that it was error for the trial court to apply the Georgia Comparative Negligence Statute to the case upon remand.
This, of course, disposes of the cross appeal of the United States, and leads us into a consideration of the question of damages.
The appeal by Mrs. Hartz strongly urges that having found that "Hartz's earnings for a number of years preceding his death were in excess of $65,000 per annum,"7 and that "the record indicates the business of Markwell and Hartz, Contractors (a partnership), was increasing annually and...
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Reilly v. US
...are entitled to no greater benefit than they would have enjoyed had the decedent lived and continued working. Hartz v. United States, 415 F.2d 259 (5th Cir. 1969). A successful plaintiff is entitled to be made as financially secure as he would have been had there been no injury or death, bu......
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