Hersch v. U.S.

• Decision Date: 20 October 1983
• Docket Number: 81-3545,Nos. 81-3544,s. 81-3544
• Citation: 719 F.2d 873
• Parties: Henry HERSCH, et al., Plaintiffs-Appellants, v. UNITED STATES of America and Rockwell International Corporation, Defendants- Appellees. INSURANCE CO. OF NORTH AMERICA, Plaintiff-Appellant, v. UNITED STATES of America and Rockwell International Corporation, Defendants- Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 873

719 F.2d 873

Henry HERSCH, et al., Plaintiffs-Appellants, v. UNITED STATES of America and Rockwell International

Corporation, Defendants- Appellees.

INSURANCE CO. OF NORTH AMERICA, Plaintiff-Appellant, v. UNITED STATES of America and Rockwell International

Corporation, Defendants- Appellees.

Nos. 81-3544, 81-3545.

United States Court of Appeals Sixth Circuit.

Argued May 5, 1983.

Decided Oct. 20, 1983.

Ralph F. Mitchell, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, Daniel C. Cathcart, argued, Magana, Cathcart, McCarthy & Pierry, Los Angeles, Cal., for plaintiffs-appellants.

James Q. Doran, Cincinnati, Ohio, Christopher K. Barnes, Asst. U.S. Atty., Nicholas J. Pantel, Cincinnati, Ohio, Barbara O'Malley, argued, Civ. Div., Torts Branch, U.S. Dept. of Justice, Washington, D.C., Michael R. Gallagher, Alton Stephens, argued, Gallagher, Sharp, Fulton, Norman & Mollison, Cleveland, Ohio, for defendants-appellees.

Before KEITH and KRUPANSKY, Circuit Judges, and HORTON, District Judge. ^*

KRUPANSKY, Circuit Judge.

These are consolidated appeals from three cases tried together in the United States District Court for the Southern District of Ohio. Following presentation of the plaintiffs' case, the lower court granted an involuntary dismissal in favor of defendant United States and also a directed verdict in favor of defendant Rockwell International Corporation (Rockwell).

These actions arise out of the crash of a private airplane on February 5, 1974, approximately two miles west of the town of Cynthiana, Kentucky. The catastrophe claimed the lives of the pilot and two passengers.

The record discloses that on the morning of the accident, an Aerocommander Model 680-FP (Aerocommander), piloted by Eugene Nicholas Halmi, Jr., departed from Lunken Airport in Cincinnati, Ohio at 7:44 a.m., en route to Fort Lauderdale, Florida. The Aerocommander proceeded generally south towards Lexington, Kentucky at an altitude of 15,000 feet. At the same time, a Boeing 727 jet airliner, Delta Flight 330 (Delta 330), was proceeding north en route to the Greater Cincinnati Airport. Delta 330 was flying at an altitude of 18,500 feet on a "jet route" referred to a "J-43." A jet route is eight nautical miles wide and, unless specifically authorized to deviate, pilots are required to fly the center of these air corridors. 14 C.F.R. Sec. 91.123 (1983).

During the pertinent time period, both aircraft were communicating with air traffic controller Frederick Peter Feigert (Feigert), at the Indianapolis Control Center. Feigert testified that it was necessary, for reasons neither disputed nor relevant in this case, to direct Delta 330 to descend to an altitude of 10,000 feet. Feigert also testified, and it is undisputed, that controllers' manuals require a controller to maintain a horizontal separation between aircraft of five nautical miles, or, if aircraft are within five nautical miles of each other, to maintain a vertical separation of 1,000 feet.

Because Delta 330 would be descending to 10,000 feet, Feigert testified that it was necessary to insure horizontal separation between the two aircraft. Accordingly, at 7:58:45 a.m., he directed the Aerocommander to turn 20? west. Approximately 40 seconds later Feigert directed Delta 330 to turn 15? east. ¹

At 7:59:37, 29 seconds after instructing Delta 330 to turn, Feigert ordered it to commence its descent to 10,000 feet. At 8:01:10 a.m. Feigert cleared the Aerocommander's request to proceed to an altitude of 17,000 feet. Five seconds later the Aerocommander reported that it was climbing to 17,000 feet as authorized by Feigert. This was the last voice contact with the Aerocommander.

The Aerocommander crashed at approximately 8:05 a.m. As indicated, the plane crashed two miles west of Cynthiana, Kentucky, on the ground track of jet route J-43.

In 1975, the representatives of the estates of the pilot and both passengers instituted two separate civil actions. In one action, the representatives purported to state a claim for relief under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), et seq. The theory of that action, as developed by circumstantial evidence, was predicated upon the alleged negligence of air traffic controller Feigert in failing to maintain a safe separation between the Aerocommander and the Delta 330 thereby proximately causing the Aerocommander to encounter the "wing tip vortices" (sometimes referred to as wake turbulence) of the Delta 330. ² This encounter, according to plaintiffs' theory, caused the Aerocommander to roll and enter into a spin resulting in the crash.

The other action initiated by the legal representatives named, as defendant, Rockwell, the company that designed and manufactured the Aerocommander. Jurisdiction in this second action was founded on diversity of citizenship. The thrust of the action was product liability, charging that a design defect in the Aerocommander limited its ability to recover from a spin.

Following the filing of the above complaints, the Insurance Company of North America filed a subrogation action against both the United States and Rockwell, essentially restating the allegations incorporated in the initial actions. ³

The three actions were consolidated for trial in the Southern District of Ohio. The Federal Tort Claim was tried to the judge sitting as a finder of fact, while a jury was seated to hear the diversity action against Rockwell.

Plaintiffs presented evidence in their case in chief for 14 days following which the United States moved for involuntary dismissal and Rockwell moved for a directed verdict. The trial court issued oral findings of fact and conclusions of law granting the motion of the United States and took Rockwell's motion under advisement. Subsequently, the trial court issued a written opinion granting Rockwell's motion for a directed verdict thereby disposing of the matter in its entirety. These appeals ensued and were consolidated.

As indicated, the district judge was acting as trier of fact in the Tort Claim lodged against the United States while a jury was seated to find the facts in the action against Rockwell. At the close of the plaintiffs' case the United States advanced, and was granted, a motion for involuntary dismissal under Rule 41(b), Fed.R.Civ.P. Rockwell's motion for a directed verdict, however, was made, and granted, pursuant to Rule 50(a), Fed.R.Civ.P. The distinction is crucial for "[a]lthough [Rule 41(b) ] somewhat fulfills for a nonjury case the function of a motion for a directed verdict in a jury case, the standard by which the court passes on the two kinds of motions is very different...." 9 C. Wright and A. Miller, Federal Practice and Procedure Sec. 2371 (1971).

Rule 41(b), provides, in pertinent part:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).

As the Rule indicates, "[w]hen the defendant makes a Rule 41(b) motion to dismiss for insufficiency of the plaintiff's evidence it becomes the duty of the court to weigh and evaluate the evidence." Weissinger v. United States, 423 F.2d 795, 798 (5th Cir.1970). Moreover, in evaluating the evidence, the judge makes no special inferences in favor of the plaintiff. Emerson Electric Co. v. Farmer, 427 F.2d 1082, 1086 (5th Cir.1970).

A motion for a directed verdict under Rule 50(a), of course, invokes a very different standard. The trial judge does not weigh the evidence. Rather, the judge views the evidence, and inferences therefrom in the light most favorable to the nonmoving party. Grim v. Leinart, 705 F.2d 179, 181 (6th Cir.1983); Rockwell International Corp. v. Regional Emergency Medical Services of Northwest Ohio, Inc., 688 F.2d 29, 31 (6th Cir.1982); Milstead v. International Brotherhood of Teamsters Local 957, 580 F.2d 232, 235 (6th Cir.1978), cert. denied, 454 U.S. 896, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981). The trial court may only grant the directed verdict "if there is a complete absence of pleading or proof on an issue or issues material to the cause of action or where there are no controverted issues of fact upon which reasonable men could differ." Rockwell International Corp., supra at 31.

Furthermore, on appeal, the standards this Court must apply to review involuntary dismissals and directed verdicts are markedly different. Upon review from the grant of a directed verdict, the appellate court must apply the same standard, set forth above, as the district court. Milstead v. International Brotherhood of Teamsters, supra at 235; O'Neil v. Kiledjian, 511 F.2d 511 (6th Cir.1975). In reviewing a Rule 41(b), dismissal in which the lower court has made findings of fact, however, the standard is the same as that for reviewing findings of fact by a court following a full trial. Simpson v. United States, 454 F.2d 691, 692 (6th Cir.1972). That is, the appellate court may not disturb the lower court's conclusion unless clearly erroneous. See, e.g., Maykuth v. Adolph Coors Co., 690 F.2d 689, 695 (9th Cir.1982); Reimer v. Smith, 663 F.2d 1316, 1321 (5th Cir.1981).

In the action against the United States the district court concluded, as a matter of fact, that the Aerocommander and Delta 330 were never close enough to cause the smaller aircraft to roll and/or spin. The trial court supported this conclusion by reference to the evidence...