Martin v. U.S., 78-1134

Decision Date29 November 1978
Docket NumberNo. 78-1134,78-1134
Citation586 F.2d 1206
PartiesJoyce H. MARTIN, Executrix of the Estate of Benjamin Wilson Martin, Deceased, Mrs. Georgia G. Hendrickson, Administratrix of the Estate of Homer Hendrickson, Deceased, Sandra Allison, Individually and as next friend of Arthur J. Allison, Jr., and Lawrence Allison, minors, Mrs. Carlene Arnold Smith, Steven Lee Smith, and Ragsdale Aviation, Inc., Appellees, v. UNITED STATES of America, Appellant, v. Joyce H. MARTIN, Executrix of the Estate of Benjamin Wilson Martin, Deceased, Ben W. Martin Enterprises, Inc., Martin Terminals Company and Logicon, Inc., Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Mark N. Mutterperl, Atty., Appellate Section, Civil Div., U. S. Dept. of Justice, Washington, D. C., for appellant; Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., W. H. Dillahunty, U. S. Atty., Little Rock, Ark., and Leonard Schaitman, Atty., Washington, D. C., on brief.

Henry Woods of McMath, Leatherman & Woods, Little Rock, Ark., and John G. Lile III of Colemen, Gantt, Ramsay & Cox, Pine Bluff, Ark., for appellees; Charles B. Roscopf, Helena, Ark., Tom H. Davis and George M. Fleming, Austin, Tex., Silas B. Cooper, Abbeville, La., and William R. Overton, Little Rock, Ark., on brief.

Before HEANEY and STEPHENSON, Circuit Judges, and HANSON, * Senior District Judge.

HEANEY, Circuit Judge.

On December 6, 1974, at approximately 5:24 P.M., a twin-engine Cessna, bearing the registration number N44JG, left New Orleans, Louisiana, enroute to Pine Bluff, Arkansas. The plane was owned by Ragsdale Aviation, Inc. Aboard the plane were Arthur J. Allison, an employee of Ragsdale and a qualified pilot; Benjamin W. Martin, also a qualified pilot; and Homer Hendrickson and Marvin L. Smith, two non-pilots, who were associates of Martin. The aircraft was equipped with dual flight controls and instruments. Shortly after 7:26 P.M., in weather conditions of fog and drizzle, N44JG crashed in a wooded area some 1.3 nautical miles north of Runway 17 at Grider Field in Pine Bluff, Arkansas. The aircraft was a total loss, and all aboard were killed.

Ragsdale Aviation, and the families of the men killed in the crash, brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 Et seq. They claimed that the United States was liable for the negligence of the air traffic controllers at Little Rock and Pine Bluff who communicated with N44JG immediately prior to the crash and who were, at that time, acting within the scope of their employment with the Federal Aviation Administration (F.A.A.). The District Court found that the air traffic controllers were negligent and entered a judgment of $2,926,666.43 against the United States. Martin v. United States, 448 F.Supp. 855 (E.D.Ark.1977). The United States appeals. We affirm in part and reverse in part.

I.

The District Court found the air traffic controllers at the Little Rock and Pine Bluff airfields to have been negligent in several respects. Shortly after 7:16 P.M., both the Pine Bluff and the Little Rock controllers were aware that weather conditions at Grider Field, which were reported to N44JG at 6:55 P.M. and 7:16 P.M., were no longer accurate; however, the decrease in visibility from one mile to three-quarters of a mile was not reported to the plane until 7:25 P.M., approximately one minute before the crash, and the decrease in ceiling from three hundred feet to zero was not reported to the plane until 7:26:27, by which time it was of no use to the pilot. 1 Id. at 866-868. The District Court noted that the vital information regarding the decreased ceiling was withheld from N44JG notwithstanding the fact that, at 7:12 P.M., the pilots of the plane had expressed concern about the ceiling by inquiring as to what ceiling an immediately preceding plane had found when landing at Pine Bluff. Id. at 868. The court found that the failure of the air traffic controllers to immediately warn N44JG of the worsened conditions was a proximate cause of the crash since, as the plaintiffs' expert witness testified, 999 out of 1,000 pilots would not have attempted an approach under the weather conditions as they then existed. Id. at 867.

The District Court also found that an erroneous barometric altimeter setting, given by the Pine Bluff controller to N44JG, contributed to the crash since it caused the pilots to believe that the plane was one hundred feet higher than its actual altitude. 2 The court found that when N44JG made its fatal approach, the pilot sighted the strobe lights at the end of the runway; and at that time, in accordance with F.A.A. regulations, changed from an instrument approach to a visual approach. 3 The plane then passed through the minimum descent altitude (MDA) toward the runway. 4 Id. at 870. The combination of factors that the plane was actually one hundred feet lower than the pilots believed, that the ground and trees below were enshrouded with fog, and that the pilot expected to break through the ceiling at three hundred feet caused the pilots to become spatially disoriented as to their altitude with the result that the plane crashed into trees shortly before the runway. Id.

The United States attacks these findings on several grounds. First, it argues that the controllers had no duty to warn N44JG of the change in visibility prior to when the decreased visibility information was given. It argues that since, under Arkansas law, there is no duty to warn of something that is obvious or of which the deceased or injured person was aware, See Oliver v. Hallett Construction Company, 421 F.2d 365, 370 (8th Cir. 1970), the air controllers were under no duty to report this information to N44JG since the pilots must have observed the visibility conditions in the vicinity of Runway 17 when the plane executed a prior missed approach. 5

This contention is without merit. Between the plane's two approaches to the airfield, the visibility decreased from one mile to three-quarters of a mile, the minimum visibility allowable for landing. The supervisory air traffic controller at Pine Bluff conceded, on cross-examination, that this decrease was significant. Indeed, the significance of this decrease in visibility to the controllers was obvious since a special report containing this information was issued at 7:25 P.M. In Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2d Cir. 1967), a similar decrease in visibility was characterized as follows:

In our view, a drop in visibility of 25%, from one mile to three-quarters of a mile, bringing existing weather conditions dangerously close to landing minimums, is such a critical change that, in the interests of safety, it should have been reported to the crew of EAL 512.

Id. at 235.

Since the decrease in visibility occurred between the two approaches of N44JG, it is difficult to see how the pilot could be charged with knowledge of it.

The government next contends that the Pine Bluff controller was under no duty to report the decrease in visibility until 7:25 P.M., some nine minutes after first becoming aware that visibility had worsened since the pertinent weather manual requires that controllers inform pilots when visibility decreases to less than one mile after such observations are "(t)ake(n) (and) record(ed)." 6 It argues that although the controllers were aware shortly after 7:16 P.M. that visibility had decreased, since the complete special weather observation was not ready until 7:25 P.M., no duty to warn of the change arose prior to that time.

This assertion ignores the realities of the situation. At 7:16 P.M., N44JG was specifically advised by the Little Rock controller that visibility was one mile. At that time, the plane had missed one approach and was preparing to make a second. Both control towers were aware, by 7:18 P.M., that the visibility just given to the pilot was no longer accurate but no mention of this was made until 7:25 P.M., less than two minutes before the crash. The government concedes that there may be situations where the duty of an air traffic controller to impart critical information to those dependent upon it goes beyond the duties imposed by the operations manuals of the F.A.A. Hartz v. United States, 387 F.2d 870, 873 (5th Cir. 1968). See also United Air Lines, Inc. v. Wiener, 335 F.2d 379, 395 (9th Cir. 1964). Under the circumstances here, the controllers were certainly under a duty to immediately correct the visibility information.

The government next contends that the air traffic controllers had no duty to warn the pilots of N44JG of the decreased ceiling prior to 7:26:23, when the plane reported over the VOR. 7 We disagree. The Pine Bluff controller's special weather observation, including the zero ceiling observation, was completed by 7:25 P.M. The controller did not, however, include the new ceiling information in the weather report given to N44JG at that time. The controller waited until almost a minute and a half later to report the change, despite the fact that he was aware that the plane was in the process of making its final approach and that N44JG was the only plane that the Pine Bluff tower was handling. The District Court's finding that the controller was negligent in failing to immediately convey the revised ceiling information is not clearly erroneous.

The government next contends that even if the controllers were negligent in giving the pilots of the plane an erroneous altimeter setting or in failing to immediately convey revised weather information, that negligence was not a proximate cause of the crash. The gist of the government's argument is that although the erroneous altimeter setting and the delay in transmitting current weather conditions might have affected the pilots' decision to land at Grider Field and that decision to land might have been the remote cause of the crash, the actual and...

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