Ins. Co. of North America v. United States

• Decision Date: 09 December 1981
• Docket Number: No. J-C-78-162.,J-C-78-162.
• Citation: 527 F. Supp. 962
• Parties: INSURANCE COMPANY OF NORTH AMERICA, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

527 F. Supp. 962

INSURANCE COMPANY OF NORTH AMERICA, Plaintiff, v. UNITED STATES of America, Defendant.

No. J-C-78-162.

United States District Court, E. D. Arkansas, Jonesboro Division.

December 9, 1981.

J. Nelson Happy, Happy, House & Cooling, P. C., Kansas City, Mo., Stephen M. Reasoner, Barrett, Wheatley, Smith & Deacon, Jonesboro, Ark., for plaintiff.

Richard M. Pence, Jr., Asst. U. S. Atty., E. D. Ark., Little Rock, Ark., Roy Maurer, Trial Atty., Litigation Div., Federal Aviation Administration, Washington, D. C., for defendant.

MEMORANDUM OPINION

ROY, District Judge.

This action arises out of the crash of a twin-engine Beechcraft Baron aircraft, registration No. N9259Q 59Q, at approximately 10:45 a. m. Central Daylight Time CDT, or 1545 Greenwich Mean Time GMT, on May 17, 1975, in a plowed field approximately 5 miles west of Ripley, Tennessee. The aircraft was owned and operated by Gray Brothers, Inc., of Kansas City, Kansas. The pilot of the aircraft was Walter S. Gray, president of Gray Brothers, Inc. On board the aircraft with Mr. Gray were his wife and one of his daughters. The aircraft was destroyed and all the occupants were killed in the crash.

Mr. Gray was a private pilot with a single and multi-engine airplane rating and was also instrument rated. He had approximately 1,386 hours of flying time as a pilot.

The undisputed evidence establishes the fact that plaintiff Insurance Company of North America paid the sum of $80,000.00 to Gray Brothers, Inc., for the loss of the aircraft and plaintiff is now suing defendant United States of America for the full amount paid plus interest from the date of payment, and costs.

This action is brought pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671, et seq.¹

The plaintiff's complaint alleges that the evidence in this case establishes that defendant's employees were negligent in numerous ways in the handling of Mr. Gray's flight; and, that as a result of this negligence, plaintiff sustained the loss of the sum paid to Gray Brothers, Inc., on its insurance policy. Plaintiff's contentions are as follows:

1. The air traffic controllers in Kansas City and Memphis improperly permitted Mr. Gray to file an area navigation flight plan at 5,000 feet, when the government's equipment was unable to maintain radar surveillance of the aircraft throughout the route. As a result of being assigned too low an altitude, Mr. Gray eventually experienced radio communication difficulty and weather problems which might not have otherwise been encountered by him. Kansas City Air Traffic Control improperly permitted Mr. Gray to stay on their frequency for too long a time, which resulted in communication problems between 59Q and Kansas City Air Traffic Control.

2. Due to lack of familiarity with assigned geographical airspace and altitude jurisdiction, air traffic controllers at Blytheville Approach Control, Memphis Approach Control, and Memphis Center engaged in a jurisdictional dispute as to which was responsible for controlling the Gray flight. As a result of this jurisdictional dispute, the controller of the Blytheville Approach Control improperly delayed Mr. Gray's flight by vectoring him on courses taking him outside of his regular flight path and failing to give proper instructions, as required by the Federal Aviation Administration (FAA) regulations. As a result of this action, the Gray aircraft was delayed, sent off course, and eventually directed into a thunderstorm.

3. The air traffic controller at the Blytheville Approach Control, upon being asked about thunderstorms in the area, negligently failed to inquire of the flight service station nearest the pilot's position and improperly advised the pilot that there were no thunderstorms in the area.

The first issue which the Court must determine is whether the substantive law of Tennessee or Arkansas should be applied in this cause. Thereafter the Court must determine whether the government controllers were negligent, and, if so, whether their negligent acts were the proximate cause of the tragic accident; and whether Mr. Gray was contributorily negligent and, if so, whether his negligence was of such extent as to bar recovery by the plaintiff insurance company.

An overview of the operational aspects of aviation as they relate to this case is necessary to an understanding of the facts of the accident as well as the regulatory environment within which aircraft are supposed to operate in compliance with the Federal Air Regulations (FAR).

All flying can be divided into two categories of operation: flights under the Visual Flight Rules VFR, and flights conducted under the Instrument Flight Rules IFR. Flight under VFR is limited to what can be termed "fair weather flying" because the weather conditions necessary for such flying, while more fully set out in 14 C.F.R. § 91.105, essentially must allow the pilot to visually see the horizon and control his aircraft with reference to what he sees outside the window of his aircraft. Under VFR weather conditions, the pilot will control his aircraft much in the same manner that an automobile driver controls his automobile; i.e., he looks out his windows and visually determines the direction, altitude, and speed that he desires his aircraft to proceed. He is not required to fly any particular route nor even to file a flight plan with the FAA.

Under IFR, however, the pilot is expected to control his aircraft with regard to heading, course, altitude and airspeed by reference to his instrumentation inside the cockpit of the aircraft. IFR flight is possible, assuming the pilot is competent to conduct it, even when the weather conditions make it impractical or impossible to visually see outside the aircraft. The pilot is able to navigate solely by reference to radio navigation equipment installed in the aircraft, in the instant case by area navigation RNAV, as he flies cross-country. Obviously, flight under IFR is more demanding on the pilot and requires a greater degree of skill and proficiency to accomplish it safely. In order to operate under IFR the pilot must have an instrument rating (14 C.F.R. § 61.65) which is current (14 C.F.R. § 61.57) and his aircraft must be equipped with the appropriate instruments and navigational equipment (14 C.F.R. § 91.33).

Because the pilot's outside visibility is obstructed in IFR conditions, he must be aided by air traffic control in maintaining separation from other aircraft. The air traffic control system exists primarily to provide separation between aircraft which are flying under IFR. The pilot is required to file a flight plan stating his intended destination and requested route of flight, and is then issued a clearance by air traffic control to proceed in a certain direction and at a certain altitude. During his flight, the pilot maintains his assigned heading or course and altitude as well as radio communications with air traffic controllers in various air traffic control facilities as he moves along his route of flight. The primary function of the controller is to provide the pilot with both lateral and vertical separation from other aircraft that are operating under IFR. In many cases, air traffic controllers will monitor the aircraft's progress by radar. Some types of radar installations can even provide the controller with a constant readout of the aircraft's altitude, provided the aircraft is equipped to transmit that information. Aircraft 59Q was so equipped as was Memphis Approach Control and Memphis Center on the day of the accident. Blytheville Approach Control was not so equipped. However, because of inherent limitations of radar, particularly at low altitudes, radar contact as well as line-of-sight radio contact cannot always be maintained.

The record herein reflects that on May 17, 1975, Walter S. Gray, the pilot of aircraft 59Q on the fatal flight, obtained a weather briefing, by telephone, from the Kansas City, Missouri, Flight Service Station for a flight from Kansas City, Kansas, to Birmingham, Alabama. After receiving the weather briefing the pilot filed an IFR flight plan for a direct route, RNAV flight to Birmingham.

The flight departed Fairfax Field, Kansas City, Kansas, at about 9:43 a. m. CDT (1443 GMT) and proceeded routinely under the air traffic control of Kansas City Center. Just prior to the hand-off from Kansas City Center to Memphis Center, and while the flight was presently over southeastern Missouri, the Kansas City Center was unable to contact the flight on the last assigned frequency.

Shortly thereafter Memphis Center established radio contact with the flight without incident and subsequently because the direct route filed by the pilot of aircraft 59Q took him through Blytheville AFB Approach Control airspace, Memphis Center coordinated a radar hand-off with Blytheville Approach Control and at 10:14 a. m. CDT (1514 GMT) advised 59Q to contact Blytheville Approach.

Aircraft 59Q did contact Blytheville Approach Control and had been passing through their airspace for approximately 15 minutes when the Blytheville Approach controller began trying to coordinate a radar hand-off with either Memphis Center or Memphis Approach Control. Both of these facilities were reluctant to accept the hand-off because each initially thought the aircraft would enter the other's airspace when it departed the Blytheville Approach airspace. This confusion arose because 59Q was projected to depart Blytheville's airspace very close to the borderline separating Memphis Center from Memphis Approach Control airspace, i.e., an altitude of 5,000 feet.

In order to retain the aircraft in its airspace until he could properly coordinate a radar hand-off, the Blytheville Air Force controller initially instructed the pilot of 59Q to make a left 360-degree turn. Subsequently, but prior to completing the 360-degree turn, the aircraft was instructed to roll-out on a heading of 270 degrees, in order...