Kantlehner v. United States

• Decision Date: 27 June 1967
• Docket Number: Civ. A. No. 65-C-1237.
• Parties: Margaret KANTLEHNER, as Administratrix of the Goods, Chattels and Credits of John Richard Kantlehner, Deceased, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. The BOEING COMPANY and Pan American World Airways, Inc., Third-Party Defendants.
• Court: U.S. District Court — Eastern District of New York

279 F. Supp. 122

Margaret KANTLEHNER, as Administratrix of the Goods, Chattels and Credits of John Richard Kantlehner, Deceased, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. The BOEING COMPANY and Pan American World Airways, Inc., Third-Party Defendants.

Civ. A. No. 65-C-1237.

United States District Court E. D. New York.

June 27, 1967.

Joseph P. Hoey, U. S. Atty., Brooklyn, N. Y., for defendant, and third-party plaintiff, United States.

Haight, Gardner, Poor & Havens, New York City, for third-party defendant, Pan American World Airways, Inc.

Philip J. Ryan, New York City, for plaintiff.

Haller & Small, New York City, for third-party defendant, The Boeing Co.

MISHLER, District Judge.

The third-party defendants move pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for an order dismissing the third-party complaint for failure to state a claim upon which relief can be granted, and for such other relief as may be just. Argument on these motions was originally heard on August 10, 1966, at which time none of the parties raised any problem relating to the choice of the governing law. In a memorandum of decision dated September 14, 1966, the court indicated that it was disposed toward granting the motions, but gave all parties an opportunity to submit additional papers in support of their respective claims. Since that time the parties have submitted affidavits and briefs on several occasions and, therefore, the court treats the motions as requests for summary judgment under Rule 56.

The plaintiff, a New York resident, is the administratrix of the estate of her husband, John Richard Kantlehner, who was killed on December 8, 1963, while performing his duties as flight engineer on Pan American World Airways, Inc.'s (Pan American) flight No. 214. The aircraft had departed Kennedy Airport in the early morning as a ferry flight to Philadelphia, Pennsylvania, and was to terminate back in New York later that same night. Upon arriving in Philadelphia, it took on passengers and proceeded on to Baltimore, Maryland and San Juan, Puerto Rico. On its return trip, the plane again touched down in Baltimore for a short time before proceeding on to Philadelphia. At 8:24 P. M., it departed Friendship International Airport with seventy-three passengers and a crew of eight on board, and at 8:59 P.M. it crashed two miles east of Elkton, Maryland. Apparently, all persons aboard the aircraft were killed instantly.

The plaintiff brings this action under the Federal Tort Claims Act, 28 U.S.C. § 1346 (1964) (FTCA), alleging that the fatal accident was caused solely by the negligence of the United States, and specifying the defendant's wrongful acts as follows:

1) failing to promulgate rules and regulations requiring aircraft operating within the United States to be equipped with static electricity coils;

2) permitting and instructing the aircraft to depart Friendship International Airport at a time when weather conditions were extremely unfavorable and unsafe;

3) failing to compile a complete and accurate survey of the weather conditions;

4) failing to maintain continuous visual observation of the weather conditions in the vicinity of the airport;

5) permitting and directing the aircraft to take a dangerous and unsafe course, knowing such course to be dangerous and unsafe; and

6) failing to direct the aircraft to return to Baltimore or to change to a safer and more proper course.

In its answer, the defendant both denied any negligence on the part of its employees or agents and argued, alternatively, that if it be found to have been negligent, such negligence was merely passive. In addition, it raised the affirmative defenses of contributory negligence and assumption of risk, and instituted a third-party action for indemnity or contribution against the Boeing Company (Boeing), the aircraft's manufacturer, and Pan American, its owner and operator.

In support of its third-party claims, the defendant asserts that the crash was caused solely by the negligence of one or both of the third-party defendants, and that any negligence attributable to the government was of a passive or secondary nature. Both third-party defendants maintain, in turn, that the third-party claims should be dismissed on the grounds that under the applicable law the defendant has no right of indemnity or contribution in this case. Pan American, alone, proffers two additional arguments: first, that the third-party claims are barred by the statute of limitations; and, second, that workmen's compensation benefits constitute the plaintiff's exclusive remedy against the airline.

Right to Indemnity or Contribution

While Rule 14(a) of the Federal Rules permits a defendant to implead any person "* * * who is or may be liable to him for all or part of the plaintiff's claim * * *," it is merely a procedural mechanism, and cannot be utilized unless there is some substantive basis under the applicable law. General Dynamics Corp. v. Adams, 340 F.2d 271, 279 (5th Cir. 1965); Uptagrafft v. United States, 315 F.2d 200, 202-203 (4th Cir.) cert. denied, 375 U.S. 818, 84 S.Ct. 54, 11 L.Ed.2d 52 (1963); Brown v. Cranston, 132 F.2d 631, 633-634 (2d Cir. 1942), cert. denied, 319 U.S. 741, 63 S. Ct. 1028, 87 L.Ed. 1698 (1943); 3 J. Moore, Federal Practice ¶ 14.02, at 472-74 (2d ed. 1966). In this case, however, the question of which law governs presents several complex issues of both law and fact.

Under the FTCA, the United States is made liable for damages for personal injuries or death caused by the negligent acts or omissions of its employees as if it were a private litigant, and "* * * in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b) (1964) (emphasis added). Although the Supreme Court has interpreted this language literally, and has rejected the view that an act or omission occurs where it has its operative effect (i. e., place of injury), it has injected some flexibility into the statute by declaring that the reference should be made to the whole law of the jurisdiction, including its choice-of-law rules. Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L.Ed.2d 492 (1962). In this case, however, one or more causally related negligent acts or omissions may have occurred in any combination of nine different jurisdictions:

1) Maryland: compilation of meteorological data; route clearance given; situs of crash;

2) Delaware: during flight the aircraft received instructions from New Castle;

3) Pennsylvania: compilation of meteorological data; aircraft under supervision of Philadelphia Approach Control at the time of crash;

4) New York: aircraft's home base, where presumably it was checked out before departure;

5) Puerto Rico: weather briefing given to crew;

6) District of Columbia: compilation of meteorological data; failure to prescribe static electricity coils; situs of high level discussions on aircraft's design and construction;

7) Washington: design, manufacture and production of the aircraft;

8) Virginia: compilation of meteorological data; and

9) California: situs of many discussions concerning aircraft's design and production.

Since a factual issue exists as to where the allegedly negligent acts or omissions occurred, it would be impossible to determine the applicable law at this stage of the proceedings unless the need to make such a choice is obviated; i. e., unless the circumstances present a false conflict. The government's failure to respond to the court's direction to state specific theories of liability, or to provide the court with factual information which might have reduced the number of jurisdictions where an operative act or omission may have occurred has only served to make the court's task more difficult.

Claim for Contribution

In this case, there are significant differences among the jurisdictions regarding the third-party plaintiff's right of contribution. For example, two jurisdictions, California¹ and New York² do not recognize a joint tortfeasor's right of contribution unless a joint judgment has been rendered, and one of the tortfeasors has paid more than his pro rata share. A substantive right of contribution without such conditions, however, has been created by statute in Delaware,³ Maryland,⁴ Pennsylvania,⁵ and Virginia⁶ and by judicial decision in the District of Columbia.⁷

Nevertheless, under the Richards case, the first step is to determine the applicable choice of law rule. Here again, the jurisdictions involved are not in full agreement. Seven of them follow the traditional rule that the law of the place of death governs,⁸ while New York and Pennsylvania have adopted a significant contacts approach.⁹ Accordingly, the former group of jurisdictions would follow Maryland law, while the latter group would consider that the occurrence of the crash in Maryland was a fortuitous circumstance, and would apply the law of a jurisdiction having what they considered to be a greater interest in the resolution of the issue in controversy.¹⁰

As noted earlier, Maryland law confers a substantive right of contribution upon joint tortfeasors which may be enforced through the procedural device of impleader.¹¹ Of course, if the same substantive result would be achieved under the more modern conflicts theories, there would be no actual conflict and, therefore, it would be unnecessary, for the purposes of this motion, to determine where the operative acts or omissions occurred.

The particular issue to which the "significant contacts" approach would be applied, is whether under the circumstances in this case the United States may implead both the airline and the aircraft's manufacturer for contribution. This problem's obvious relationship to federal fiscal policies has prompted Professor Moore to argue that the federal courts should fashion a uniform federal rule. 3 J. Moore, supra, at ¶ 14.29. The government's right to seek contribution or indemnity is a...