Kack v. United States, Civ. No. 1-75-386.

• Decision Date: 06 June 1977
• Docket Number: Civ. No. 1-75-386.
• Parties: Ronald David KACK, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Minnesota

432 F. Supp. 633

Ronald David KACK, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 1-75-386.

United States District Court, D. Minnesota, First Division.

June 6, 1977.

Michael J. Kutsko, San Francisco, Cal., and Joe E. Thompson, Willmar, Minn., for plaintiff.

Robert G. Renner, U.S. Atty., Donald F. Paar, Asst. U.S. Atty., Minneapolis, Minn., Kenneth N. Weinstein, Federal Aviation Administration, Washington, D.C., for defendant.

DEVITT, Chief Judge.

In this lawsuit brought under the Federal Tort Claims Act, plaintiff alleges that the crash of the Piper Cherokee 140 he was piloting, FAA No. N1549J, was caused by the negligence of the air traffic controllers, employees of the Federal Aviation Authority, on duty at the Rochester, Minnesota Municipal Airport. He seeks to recover from the government money damages as compensation for the serious personal injuries he suffered in that crash. The government denied liability, contending that the crash was caused by the negligence of plaintiff.

In his complaint, plaintiff named as defendants the government, the flight school he attended and two of its instructors. By an earlier order, the court dismissed all defendants except the government because of a lack of subject matter jurisdiction. Clerk's entry no. 131. The case against the government was bifurcated and the liability phase was tried to the court on April 11-14, 1977. Seven witnesses testified and several depositions were received. Both sides submitted pretrial briefs and, after the close of the evidence, proposed findings of fact and conclusions of law.

The evidence indicates that plaintiff was on a long, low final approach when he encountered wake turbulence generated by a landing Northwest Boeing 707 which was immediately ahead of him in the pattern. Wake turbulence is caused by vortices, which are in effect vertical cyclones, trailing behind each wingtip. Each vortex is caused as the air from the area of relative high pressure under the wing spills up and over the end of the wing to the area of relative low air pressure above the wing. Although this phenomenon is caused by all aircraft under all operating conditions, it is especially dangerous when caused by heavy jet aircraft operating at slow speeds with wings in a "dirty" configuration. This encounter, according to the testimony of witnesses for both sides, was undoubtedly the cause of the crash.

Plaintiff contends that he encountered this wake turbulence because the air traffic controllers on duty negligently (1) failed to give him timely warning of the possibility of an encounter with wake turbulence, (2) failed to provide adequate spacing between the Northwest 707 and the airplane he was piloting, and (3) filed to warn plaintiff of his precariously low altitude. Each of these contentions was supported by one or more of plaintiff's expert witnesses. The government responded by contending that plaintiff had more than adequate warning of the possibility of wake turbulence, that plaintiff, not the controllers, was responsible for maintaining spacing under the prevailing VFR condition and that the accident was caused by plaintiff's failure to properly handle his aircraft under the circumstances. It had each of these contentions bolstered by the testimony of an expert witness.

At the time of the accident in 1973, plaintiff was a 19 year old student pilot with 32 hours of flight time. The accident occurred while he was on his first solo cross country flight from his home field at Winona to Rochester. He was practicing touch and go landings at the Rochester Airport. Roger Glebe, a developmental (student) controller was on duty at Rochester and was supervised by Walter Mayer. Kack crashed while attempting his second touch and go, approximately 2500 feet short of the threshold of the runway.

From all the exhibits and testimony submitted at trial, the court concludes that plaintiff crashed when he encountered wake turbulence because he was too low on final approach to the runway. He negligently failed to stay above the flight path of the Northwest 707. This failure to utilize a standard wake turbulence avoidance technique was the principal cause of the accident.

Plaintiff's contention that air traffic controllers are required to warn pilots of the existence of wake turbulence conditions while correct — See Dickens v....