Himmler v. United States, Civ. A. No. 75-2136.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: TROUTMAN
• Citation: 474 F. Supp. 914
• Docket Number: Civ. A. No. 75-2136.
• Decision Date: 14 August 1979
• Parties: William HIMMLER et al. v. UNITED STATES of America.

474 F. Supp. 914

William HIMMLER et al.
v.
UNITED STATES of America.

Civ. A. No. 75-2136.

United States District Court, E. D. Pennsylvania.

August 14, 1979.

474 F. Supp. 915

COPYRIGHT MATERIAL OMITTED

474 F. Supp. 916

William C. Wickkiser, James B. Martin, Richard F. Stevens, Allentown, Pa., for plaintiffs

Andrew J. Dilk, Jr., Trial Atty., U. S. Dept. of Transp., Federal Aviation Administration, Washington, D. C., William J. McGettigan, Asst. U. S. Atty., Philadelphia, Pa., for defendant.

TROUTMAN, District Judge.

I

INTRODUCTION, PARTIES, JURISDICTION AND BACKGROUND

This case arises out of the crash of an airplane into the home occupied by the plaintiffs in the early morning hours of August 23, 1974, injuring and killing various members of the plaintiffs' family. It is brought pursuant to the terms and provisions of the Federal Tort Claims Act, Title 28 U.S.C. §§ 1346(b), 1402(b) and 2671 et seq. All jurisdictional and notice requirements have been met. Section 1346(b) states in applicable part that the United States shall be liable for personal injury, death or property damage caused by the negligent or wrongful act or omission of a Government employee in accordance with the law of the place where the act or omission occurred. The law of Pennsylvania, therefore, governs this action. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).

The purpose of the Federal Aviation Act of 1958 is to promote aviation safety. Such purpose extends to the safety of persons on the ground. Federal Aviation Act of 1958, §§ 103, 307(c), 49 U.S.C. §§ 1303, 1348(c).

Federal Aviation Act 49 U.S.C. § 1348(c):

"The administrator is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the navigation, protection and identification of aircraft, for the protection of persons and property on the ground, and for the efficient utilization of the navigable airspace, including rules of safe altitudes of flight and rules for the prevention of collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects." (Emphasis added)

Case law likewise establishes a duty to persons on the ground. Starr v. United States of America, 393 F.Supp. 1359 (N.D.Texas 1975).

Plaintiffs assert a claim against the United States contending that the Air Traffic Controller at the Allentown-Bethlehem-Easton Airport, an employee of the United States, acted negligently. His negligent acts allegedly occurred after he had assumed control of a VFR (visual flight rules) pilot who was trapped in IFR (instrument flight rules) weather conditions. Plaintiffs contend that the negligence of the controller was a substantial factor in causing the

474 F. Supp. 917

subsequent crash. The defendant contends otherwise, asserting, inter alia, that the crash was the result of spatial disorientation suffered by the pilot unrelated to the conduct of the controller and that the crash was solely the result of the negligence of the pilot

The burden of proving negligence on the part of the controller and that such negligence was a substantial factor in causing plaintiffs' harm is upon the plaintiffs. Conversely, the burden of proving that the sole cause of the accident was the act or negligence of the pilot is upon the defendant.

On August 23, 1974, a single engine Cessna 172H, with FAA registration mark N8191L (91L) took off from the Queen City Airport, Allentown, Pennsylvania. The plane departed Queen City at approximately 2:30 A.M. It was piloted by Amos Rothschild and occupied by a passenger, Darold Hemphill, both of whom were killed in the crash. Mr. Rothschild held a private single engine land pilot's license. He was not an instrument rated pilot; however, he had received limited, but the required, instructions in instrument flying as part of his training for his private pilot's license. The precise weather existing at Queen City at the time of 91L's take-off is unknown except to the extent that one might assume that the weather at Queen City, located 5.6 miles from Allentown-Bethlehem-Easton Airport was similar. The parties have stipulated that at 2:47 A.M., the weather at Allentown-Bethlehem-Easton Airport was 400 foot ceiling; visibility 2½ miles; with light rain showers and fog; temperature 72 °; dew point 70°; wind 120° at 10 knots; altimeter setting 30.14. A light rain began falling at Allentown-Bethlehem-Easton Airport at 2:45 A.M.

The Allentown-Bethlehem-Easton Airport (ABE) is located northeast of the City of Allentown. ABE has two runways, each of which can be used from two directions. The runways are numbered 6 and 24 for the northeast-southwest traffic, and 13 and 31 for the southeast-northwest traffic. The runway in use on the morning in question was runway 6. That runway has a magnetic compass heading of 60°. It runs in a generally northeast direction. Runway 6 is equipped with facilities to permit instrument landing system (ILS) approaches. An ASR7 radar system was in use at the ABE Airport on the morning in question. The final approach course for runway 6 starts at the outer marker. The outer marker is 6.1 miles from the threshold of runway 6. The middle marker is .6 of a mile from the threshold of runway 6. The Wilkes-Barre Airport, also a factor in this case, is located fifty statute miles or forty-three nautical miles from ABE. It also has an ASR7 radar system, a control tower, controllers and lights.

On August 23, 1974, there were five control positions at ABE to be operated by controllers. Generally, on the day and middle shifts, these positions were staffed by five controllers and a supervisor. However, on the midnight to 8:00 A.M. shift, when this crash occurred, there was only one controller on duty who operated all positions, including that of supervisor. The controller on duty on the morning in question was Karl Gasker. The radar system at ABE was installed in March, 1974. While Gasker was qualified in departure radar services, having received his certification in that service on May 21, 1974, he had not been qualified to handle arriving airplanes on radar. He was not qualified for that service until October 31, 1974, subsequent to the date of the accident. Thus, on August 23, 1974, the radar system at ABE was not effective to monitor or control radar surveillance approaches and the controller was not qualified to perform same. In fact, the record suggests that surveillance approaches are still not published as available at ABE.

For purposes of calculation, the cruising speed of 91L was agreed to be 100 knots, or 1.66 nautical miles per minute. It had an effective altitude range of up to 10,000 feet, and with almost full fuel tanks, had at least three hours of flying time available on August 23, 1974. The plane had no ILS landing instrumentation on board.

474 F. Supp. 918

Two airplanes, in addition to 91L, were in the air in the vicinity of ABE on the morning in question. One was an airplane known as 87L. This was a twin engine Navajo proceeding on a flight from Rochester, New York, through the Wilkes-Barre area to ABE. 87L was leased to the Kodak Corporation on the night in question. The flight path of 87L took it on a direct route from the Wilkes-Barre area to the East Texas VOR. East Texas is north of the ABE outer marker. 87L was cleared from East Texas to the outer marker, and from there for a straight ILS landing on runway 6 at ABE. The other plane was owned by Monmouth Airlines and is referred to as Monmouth 508 (508M). It was a twin-engine Beechcraft 99, weighing about 10,000 pounds. For purposes of calculation, its cruising speed was 210 knots, and its holding pattern speed was 140 knots, or 2.33 nautical miles per minute. It was on an instrument flight plan from Newark, New Jersey, to Allentown, Pennsylvania. The captain and pilot of 508M was Frederick Cruwell. The co-pilot was John Hoffman. 508M was delivering mail for the United States Government. It carried no passengers. The flight path of 508M took it over Solberg, a VOR 32 miles east of ABE and over Spring Intersection, 18.1 miles east of the ABE outer marker. Spring Intersection is a point where two airways intersect. Neither 87L or 508M were receiving radar services from the controller, Gasker, on the morning in question. Both, however, were on instrument flight plans, and were piloted by instrument-rated pilots.

There has been introduced as evidence in this case, as plaintiffs' Exhibit # 9 a typed transcript of the radio transmissions between ABE tower, 87L, 508M, and 91L on the morning in question covering the time period from 0239:28 A.M. to 0321:04 A.M. which was relied upon by the expert witnesses of both parties.

II

PLAINTIFFS' THEORIES

Plaintiffs' theories of liability may, for convenience, be summarized as follows: First, plaintiffs contend that because of the actions and inactions of the controller, Karl Gasker, the pilot, Amos Rothschild, suffered spatial disorientation and crashed as a result thereof. Second, and closely aligned with the theory of spatial disorientation, is plaintiffs' contention that the controller had a duty to vector 91L to Wilkes-Barre, rather than to attempt a landing at Allentown because of the poor weather conditions existing there. Plaintiffs argue that the controller was negligent in failing to warn the pilot of the weather conditions at Allentown, and in failing to instruct the pilot to fly to Wilkes-Barre where much better weather conditions existed. In this respect, plaintiffs contend that the controller lured the pilot of 91L into attempting a landing at ABE and in the process, induced spatial disorientation. Third, plaintiffs argue, in the alternative, that a near-collision ("buzzing") occurred between 91L and 508M, and that this caused the pilot to lose control of the plane and to crash. In the latter case, plaintiffs contend that the controller was negligent in failing to provide for...