Kropp v. Douglas Aircraft Co., 66-C-562.

• Citation: 329 F. Supp. 447
• Decision Date: 25 June 1971
• Docket Number: No. 66-C-562.,66-C-562.
• Parties: Dorothy KROPP, as Administratrix of the Estate of Charles R. Kropp, Deceased, Plaintiff, v. DOUGLAS AIRCRAFT CO., Inc. and the United States of America, Defendants.
• Court: U.S. District Court — Eastern District of New York

329 F. Supp. 447

Dorothy KROPP, as Administratrix of the Estate of Charles R. Kropp, Deceased, Plaintiff, v. DOUGLAS AIRCRAFT CO., Inc. and the United States of America, Defendants.

No. 66-C-562.

United States District Court, E. D. New York.

June 25, 1971.

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Theodore E. Wolcott, New York City, for plaintiff; Howard G. Law, Jr., New York City, of counsel.

Crowe, McCoy & Agoglia, Garden City, N. Y., for Douglas Aircraft Co., Inc.; Harold V. McCoy, Morris Zweibel, New York City, of counsel.

Edward R. Neaher, U. S. Atty., Eastern Dist. of New York, for the United States; by Philip Silverman, Trial Atty., U. S. Dept. of Justice.

ZAVATT, District Judge.

This is an action to recover damages for the death of Charles R. Kropp (Kropp), an employee of Grumman Aircraft Engineering Corporation (Grumman), which occurred over the high seas (approximately fifty miles East of Montauk Point, Long Island, New York) when he exited an A3A aircraft, manufactured by the defendant Douglas Aircraft Co., Inc. (Douglas), owned by the defendant United States of America (the Government) and piloted by one Donald Runyon (Runyon), another Grumman employee. The several claims against the Government are grounded in the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671 et seq., and the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 761-768. The claim against Douglas is based upon claims of negligence in design and construction and breach of warranty. Plaintiff alleges in its amended complaint that the aircraft was not only owned by the Government but was also operated and controlled by it at the time of the fatal accident and throughout all of the period prior thereto, during which the said aircraft was based at the airfield at Calverton, Long Island, New York, (hereinafter referred to as Peconic), owned by the Government and leased to Grumman.

The Navy and Grumman entered into Contract No. w 63-0540-b (the contract) on June 27, 1963 for the term July 1, 1963 through June 30, 1966 (Ex. 1), pursuant to which the Navy delivered 31 of its aircraft to Grumman, none of which was an A3A aircraft. By memorandum dated February 6, 1964 (Ex. 4-A), the subject A3A was furnished by the Navy to Grumman for the period ending April 1, 1964 pursuant to the terms of the contract. The contract refers to "the Contractor's possession and prospective use of such aircraft." The contractor agreed to "provide adequate storage for Government Furnished Property in the custody of the Contractor * * *"; to maintain the aircraft and equipment "in accordance with the standard Naval Aircraft Maintenance Program, as administered and directed by the cognizant reporting custodian" and to return said property "to the Government in the same condition as when received by the Contractor; except for (i) normal wear and tear * * * No costs incurred in the performance of this bailment contract shall be reimbursed to the Contractor hereunder" (Ex. 1, sections 2, 3, 5).

The aircraft so furnished to Grumman were to be used by it to "perform the services which are called for in the projects agreed to between the Contractor and the Government," which projects, "may be in the form of formal contract, or by exchange of letters or telegrams" (Ex. 1, section 4). "Upon delivery into the custody of the Contractor, Government Furnished Property hereunder shall be governed by the terms and conditions of this contract while and so long as it is in the custody of the Contractor * * *" (Ex. 1, section 5(c)). The bailment of the A3A to Grumman pursuant to the contract was extended to May 15, 1965 (Exs. 4-B, 4-D). The contract's projects related to the development and evaluation of "the E-2A AEW System," i. e., the radar and long range tracking system being tested by Grumman for use in the E-2A aircraft (Ex. 4; 297^*). The A3A was being used, pursuant to the contract, as a target for the evaluation of said radar equipment (Ex. 4-B). It was hangared by Grumman at Peconic. Prior to the fatal accident, it had made thirty flights out of Peconic, all piloted by various employees of Grumman, including Runyon (Ex. HH).

Runyon was a retired Navy Commander with extensive experience as a flight engineer and pilot of military aircraft. During his naval career, spanning thirty years, he first served as a plane captain (mechanic); then as a pilot serving aboard aircraft carriers, including the Enterprise, Yorktown, Lexington, Saratoga and Bunker Hill during World War II; a test pilot at the Naval Air Test Center, Patuxent River, Maryland; a test pilot at the Naval Advisory Committee of Aeronautics, Moffet Field, California; a pilot at a development squadron at Atlantic City, New Jersey. When he retired in July 1963, he had accumulated 7,000 hours of flight time in virtually every type of naval aircraft, including 75 to 80 hours in the A3A.

In August 1964 he became assistant to the head of the Grumman flight testing department and was designated as a test pilot a few months thereafter (276), in which capacity he was serving on the date of the accident. During employment by Grumman he had re-qualified as an A3A pilot and it is not disputed that he was qualified and Navy approved to pilot the A3A (Exs. 9, 10, 11).

The Fatal Flight.

On the morning of January 27, 1965, the A3A was to be piloted by Runyon and flown as the target for a radar test to be conducted by Grumman personnel aboard an E-2A. The E-2A is a highly sophisticated craft, designed to accommodate a 15-man crew and to be used as a central intelligence center (CIC) to detect airborne aircraft. The A3A was to be the target because its surface area approximated that of planes which the E-2A radar equipment would hopefully detect (1122). The courses, positions and altitudes of the A3A were to be as directed from the E-2A. The flight plan called for the A3A to take off from Peconic and the E-2A to take off from Bethpage. For this non-tactical A3A flight, a minimum of two "flight crew" members is required (Exs. 12-C, 19). (There will be further reference infra to "flight crew" members.)

The only plane captain of this A3A, approved by the Navy as of January 27, 1965, was John Young (Young). It was not disputed at the trial that Young was qualified and approved by the Navy as a flight crew member of the A3A. Grumman was training Kropp to become a plane captain. Young was to accompany Runyon on the flight. In fact, he was on his way to "suit up" after having met Runyon in the vicinity of the craft. While Runyon was signing requisite forms and filing a Flight Plan with Grumman's Flight Operations at Peconic, Young went to "suit up." On his way, his foreman, Mr. Schick (a Grumman employee) called him to his office. Following a conversation, Young did not go on the flight (2051-52) although he was at the flight line prior to the plane being boarded.

When Runyon was ready to board the A3A, Kropp was at the plane. Runyon knew Kropp as a Grumman maintenance employee who had been aboard the A3A with Young as part of his training as a plane captain on two occasions when Runyon piloted the plane (330-333). Although there is no testimony in the record, it is reasonable to infer that Runyon learned that Young was not to accompany him on this flight; that Kropp was being substituted for Young.

Runyon was the first to enter the plane. He proceeded to the pilot's seat and strapped himself in. In this position he could not close either hatch door or have personal knowledge as to whether they were properly secured. Nor did the instrument panel contain any device to indicate whether the lower hatch was locked. Before taxiing for take off, Runyon was required to fill out a check-off list on which one item is the position of the lower door. It was Kropp's duty to close and lock both hatches. The man who directs the taxiing of a plane from its standing position is called "the plane director" (527). When he signals the pilot of an A3A that the plane is ready to go, that signal means to the pilot (as it did to Runyon on this flight) that the lower door is in place and locked (524). Runyon did not remember what he saw Kropp do prior to takeoff (520). He did testify as to the normal procedure preceding takeoff, as far as the check list and hatches are concerned. The other person aboard assists the pilot with the check list and indicates to him that the lower door is closed and locked. Runyon testified that Kropp "indicated to me * * * that the hatches were up, locked and closed" and that this was part of the normal procedure (541).

Young testified that, from outside the plane, he "closed" the lower door (607). It "was half latched and it dropped at the trailing edge approximately an inch * * * or an inch and a half." "The door dropped down a little from the external skin," i. e., it was not flush with the under part of the fuselage. In order to be raised and flush it has to be locked (608). Young could have locked it from the outside by means of the "external handle" (the operation of which is explained infra). He did not do so because the regular procedure was to leave it "up to the plane captain in the aircraft to secure his aircraft" (608, 609, 1875). He saw the door go up and fair with the fuselage. From the outside he could not tell whether the door went into the final locked position (1876).

The A3A took off from Peconic at approximately 10 A.M. with Runyon seated in the forward left or pilot's seat and Kropp seated to his right in the bombardier-navigator's or flight crewman's seat (359). Runyon proceeded in an eastwardly direction and was climbing to attain an ultimate altitude of 40,000 feet (1139). His air speed was approximately 300 knots (360 M.P.H.). At from 5,000 to 7,000 feet, the pressurization system was turned on but failed to function, at first. Runyon "recycled" the switch (turned it off and on) as a result of which the pressurization...