Maynard v. United States, 23534.
Decision Date | 27 August 1970 |
Docket Number | No. 23534.,23534. |
Citation | 430 F.2d 1264 |
Parties | Marilyn MAYNARD, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
James P. Connelly (argued), Cashatt, Williams, Connelly & Rekofke, Spokane, Wash., for appellant.
Carl Eardley (argued), Alan S. Rosenthal, Fred W. Drogula, Attys., Wm. D. Ruckelshaus, Asst. Atty. Gen., Civil Div., Dept. of Justice, Washington, D. C., Dean C. Smith, U. S. Atty., Spokane, Wash., for appellee.
Before KOELSCH and TRASK, Circuit Judges and BYRNE,* District Judge.
Marilyn Maynard sustained severe personal injuries when a horse she was riding became frightened by the sonic boom created by a U. S. Air Force SR-71 aircraft and threw her to the ground. Invoking the Federal Tort Claims Act (28 U.S.C. §§ 2671-80), she commenced this suit against the United States to recover damages. The gravamen of her complaint was that the aircraft's route was negligently selected. The United States moved for summary judgment on the grounds that the negligent act was one within the discretionary function exception to the Tort Claims Act (28 U.S.C. § 2680(a)). The district court granted the motion and dismissed the action. Plaintiff has appealed. We affirm.
The government's uncontroverted affidavits showed that the decision to conduct operational training flights in the supersonic SR-71 and the order directing such flights was made by General Nazzaro, Commander of the Strategic Air Command; that the SR-71 aircraft was flying such a mission at the time of the accident; that the actual selection of this particular flight route was made by Lt. Col. Caselton, Chief of the Navigation Section of the 9th Strategic Reconnaissance Wing at Beale Air Force Base, to which the aircraft was assigned; and that Col. Caselton laid out this flight in accordance with the requirements of applicable Air Force Regulations 55-34 and 55-34A.
So here, we believe, in agreement with the district court, that Col. Caselton's selection of the route to be taken by the SR-71 was the act of a subordinate in furtherance of governmental policy and under official direction and hence not actionable.2
* Honorable William M. Byrne, United States District Judge, Los Angeles, California, sitting by designation.
1 Plai...
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