In re Air Crash Disaster Near Silver Plume, Colo., MDL No. 112.

• Decision Date: 06 October 1977
• Docket Number: MDL No. 112.
• Citation: 445 F. Supp. 384
• Parties: In re AIR CRASH DISASTER NEAR SILVER PLUME, COLORADO, ON OCTOBER 2, 1970.
• Court: U.S. District Court — District of Kansas

445 F. Supp. 384

In re AIR CRASH DISASTER NEAR SILVER PLUME, COLORADO, ON OCTOBER 2, 1970.

MDL No. 112.

United States District Court, D. Kansas.

October 6, 1977.

COPYRIGHT MATERIAL OMITTED

Lawrence J. Galardi, Magana & Cathcart, Los Angeles, Cal., Co-liaison Attys., for plaintiffs.

Frank W. Granito, Jr., Speiser, Shumate, Geoghan & Krause, New York City, for plaintiffs.

James P. Buchele, U. S. Atty., Wichita, Kan., Jonathan Hoffman and Michael J. Panjia, U. S. Dept. of Justice, Washington, D. C., for defendants.

Paul K. Swartz, Martin, Pringle, Schell & Fair, Wichita, Kan., for Wichita University.

OPINION OF THE COURT WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

THEIS, District Judge.

Before the Court in this multidistrict action are seventeen cases consolidated for pretrial proceedings and determination as to the legal issue of liability between the parties. All cases, as captioned in Appendix I attached hereto, either were originally filed in this court or were transferred here for consolidated pretrial proceedings by Order of the Judicial Panel for Multidistrict Litigation, entered on December 5, 1972. Subsequently, by stipulation of the parties in the Final Pretrial Order herein, it was agreed the liability issues as concern the liability of the United States and the liability, if any, of Wichita State University and the State of Kansas as an alleged tortfeasor to the United States as an alleged co-tortfeasor under the third-party complaint, be first tried and determined by this Court. Plaintiffs herein are suing the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., for recovery of damages for injuries and deaths resulting from the crash of a Martin 404 aircraft on October 2, 1970, in the vicinity of Silver Plume, Colorado. The United States, while denying any liability to plaintiffs, has also filed a third-party complaint against the State of Kansas and Wichita State University. After considerable delay of several years, due principally to the severe illness of a material witness, discovery was completed so the case could be tried. At trial to the Court, the parties presented evidence as to plaintiffs' two extant causes of action against the United States, and as to defendant's third-party claim against the State of Kansas.

As their first cause of action, plaintiffs allege defendant United States negligently enforced Federal Aviation regulations and negligently investigated possible violations of such regulations, thus proximately causing the injuries and deaths of which plaintiffs here complain. Defendant alleges plaintiffs' claim is barred by the discretionary exemption to the Federal Tort Claims Act, and even were it not so barred, defendant's employees did not behave in a negligent manner. Defendant also contends the Federal Aviation Administration owed no actionable duty to plaintiffs herein under applicable state law.

Plaintiffs also contend as a separate cause of action against the United States that an Authorized Inspector (AI), while acting in the cause and scope of employment for the United States, carelessly and negligently inspected, examined, tested, licensed and certified as airworthy the aircraft, when in fact such aircraft was not airworthy but unfit and unsafe to fly, thus proximately causing plaintiffs' damages. Defendant alleges the Authorized Inspector was not an employee of the United States, that even if he were an employee the cause of action would be barred by the misrepresentation exception to the Federal Tort Claims Act; that such inspector did not behave negligently, and even if he did such negligence was not a proximate cause of the air crash.

Defendant, in its third-party claim, alleges the State of Kansas, through its public corporation, Wichita State University, was actively negligent in the selection of Golden Eagle Aviation, Inc., who supplied the aircraft, crew, and services, and in the conduct of the University's aviation transportation operations, and such negligence was a proximate cause of plaintiffs' damages. Defendant therefore alleges if it is found liable to plaintiffs, such negligence giving rise to liability is merely passive and defendant is entitled to indemnification from third-party defendants. Third-party defendants deny negligence, contend even if they were negligent as alleged, such would be only passive negligence, and assert indemnification in favor of the United States is not rationally justified as a matter of justice, equity or public policy.

After trial of the liability issue of this action and after considering the evidence, the credibility of witnesses, and the excellent briefs of counsel, the Court has made certain Findings of Fact, Conclusions of Law, and Opinion of the Court, as hereinafter set forth. For the purposes of brevity and convenience of composition, certain abbreviations or shortened titles are frequently used herein as follows:

"FAA" means and refers to the Federal Aviation Administration;

"FAR" or "FAR'S" means and refers to Federal Aviation Regulations;

"GADO" means and refers to a General Aviation District Office;

"Golden Eagle" refers to Golden Eagle Aviation, Inc., a corporation;

"Western Electric" refers to Western Electric Company, a corporation.

FINDINGS OF FACT

1. At all times relevant to this case, the Federal Aviation Administration maintained a General Aviation District Office at both Oklahoma City, Oklahoma, and Wichita, Kansas; an Air Carrier District Office at Fort Worth, Texas; offices of Federal Aviation Administration Regional Counsel at Kansas City, Kansas, and Fort Worth, Texas; and an office of Legal Counsel at the Federal Aviation Administration Aeronautical Center, at Oklahoma City, Oklahoma.

2. At all times relevant to events discussed herein, the following persons were employees of the Federal Aviation Administration (FAA) and were acting in the course and scope of their employment: (a) Melvin Hanson; (b) Billie Lee Abram; (c) Norman H. Plummer; (d) F. C. Woodruff.

3. At all times relevant to this case, Billie Lee Abram was the Chief of the General Aviation District Office (hereinafter referred to as "GADO"), of the Federal Aviation Administration, Wichita, Kansas; Melvin Hanson was the Chief of the GADO at Oklahoma City, Oklahoma; Norman H. Plummer was the Regional Counsel of the Federal Aviation Administration, with offices at Fort Worth, Texas; and F. C. Woodruff was a member of the legal staff of the FAA Aeronautical Center in Oklahoma City.

4. Golden Eagle Aviation, Inc. (hereinafter referred to as "Golden Eagle"), was incorporated on November 26, 1969, by John Kennedy, Bruce Danielson, and Ronald Skipper. During the period relevant to the events of this litigation, Skipper was President of Golden Eagle, Danielson was Vice-President and Secretary-Treasurer, and Kennedy was Vice-President of Operations.

5. On November 13, 1969, Golden Eagle applied to the FAA in Oklahoma City for an air taxi/commercial operator certificate under Part 135 of the Federal Aviation Regulations.

6. The FAA approved the Golden Eagle application on November 21, 1969.

7. Golden Eagle's air taxi/commercial operator certificate entitled the company to engage in interstate commerce by furnishing both crew and an aircraft having a maximum gross weight not in excess of 12,500 pounds to another for compensation or hire. In order to engage in interstate commerce by furnishing for hire a crew and a plane in excess of 12,500 pounds, Golden Eagle would have had to qualify for and receive a commercial operator's certificate under Part 121 of the Federal Aviation Regulations. At no time herein did Golden Eagle possess a commercial operator's certificate under Part 121.

8. As individuals, Skipper, Danielson, and Kennedy were each properly certificated and qualified under Part 61 to pilot large aircraft.

9. A large aircraft is defined as any aircraft of more than 12,500 pounds, maximum certificated take-off weight.

10. A person may lease a large aircraft to another without having to comply with Part 121 certification requirements of the Federal Aviation Regulations. Likewise, a pilot who is properly certificated and rated under Part 61 may operate a large aircraft without having to comply with the Part 121 certification requirements of the Federal Aviation Regulations. However, a person who furnishes both the crew and a large aircraft to another for compensation or hire is deemed to be the aircraft operator and must possess a Part 121 commercial operator's certificate.

11. In late 1969 and in 1970, the principals of Golden Eagle were primarily interested in acquiring air mail routes under their air taxi certificate. They placed bids for air mail contracts, but were not awarded a contract until the summer of 1970.

12. While attempting to obtain a lucrative air mail contract under its air taxi certification, Golden Eagle placed an advertisement in the Oklahoma City telephone directory in order to generate some immediate cash flow. Such advertisement stated in part:

"GOLDEN EAGLE AVIATION Aviation Consultants & Commercial Operators Airlines — Travel Clubs — Airtaxi

Aviation Services

Pilots — Stewardess — Maintenance Aviation Insurance Consultants — Air Ambulance Call for Any Aviation Needs."

13. Pursuant to the above advertisement, principals of Golden Eagle at various times acted as "aviation consultants," assisting third parties in locating pilots and aircraft for private or commercial use. The pilots located in most instances before the Court were also principals or employees of Golden Eagle. The aircraft located and flown for third persons by Golden Eagle personnel in all instances proved to the Court were large aircraft.

14. Golden Eagle was not required to hold any FAA certificate in order to engage in consulting services to potential users of large aircraft, or to supply flight crew members to operators of large aircraft.

15. On November 23, 1969, the principals of...