Miles v. Naval Aviation Museum Foundation, Inc.

• Decision Date: 24 April 2002
• Docket Number: No. 01-11026.,01-11026.
• Citation: 289 F.3d 715
• Parties: William T. MILES, Jr., Plaintiff-Counter-Defendant-Appellee, v. NAVAL AVIATION MUSEUM FOUNDATION, INC., Defendant-Cross-Defendant-Counter-Claimant-Cross-Claimant-Third-Party-Plaintiff, Perkins Smith, Inc., Defendant-Cross-Claimant-Cross-Defendant, United States of America, Defendant-Appellant, Estate of Fred Sorenson, William T. Miles, Sr., et al., Third-Party-Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

289 F.3d 715

William T. MILES, Jr., Plaintiff-Counter-Defendant-Appellee, v. NAVAL AVIATION MUSEUM FOUNDATION, INC., Defendant-Cross-Defendant-Counter-Claimant-Cross-Claimant-Third-Party-Plaintiff Perkins Smith, Inc., Defendant-Cross-Claimant-Cross-Defendant United States of America, Defendant-Appellant Estate of Fred Sorenson, William T. Miles, Sr., et al., Third-Party-Defendants.

No. 01-11026.

United States Court of Appeals, Eleventh Circuit.

April 24, 2002.

Justin Chretien, Barbara O'Malley, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, DC, Pamela A. Moine, Pensacola, FL, for U.S.

Peter F. Burns, Gary W. Fillingim, Burns, Cunningham, Mackey & Fillingim, P.A., Mobile, AL, for Miles.

Appeal from the United States District Court for the Northern District of Florida.

Before ANDERSON, Chief Judge, DUBINA, Circuit Judge, and MILLS,^* District Judge.

DUBINA, Circuit Judge:

This is an appeal from a judgment entered in favor of the Plaintiff after a four-day bench trial. We affirm.

I. BACKGROUND

A. Procedural History

The nose gear of a Beechcraft airplane collapsed during its initial taxi out of Pensacola's Naval Air Station. One of the aircraft's nose gear wheel valves broke off and hit Plaintiff William T. Miles, Jr. ("Plaintiff"), injuring his leg. Following the accident, surgeons amputated Plaintiff's leg above his right knee. Plaintiff sued the United States Army ("Government") under the Federal Tort Claims Act 28 U.S.C. §§ 2671-80, ("FTCA"), asserting that the Government negligently performed mandatory inspections and negligently failed to train and certify its mechanics as required by federal regulations. In a Motion for Summary Judgment, the Government requested that the district court dismiss the case under the FTCA's discretionary function exception or, alternatively, dismiss the case because the Government did not owe Plaintiff a duty under Florida negligence law. The district court denied the Government's motion, and the case proceeded to trial. After a four-day bench trial, the district court entered judgment for Plaintiff in the amount of $436,904.70. The Government timely appealed. After benefitting from the parties' briefs, oral arguments, and an independent review of the record, we affirm the district court's judgment. We hold that, in this case, the FTCA's discretionary function exception does not shield the Government from liability for its negligent inspection and that the Government did owe Plaintiff a duty under Florida negligence law.

B. Facts

In 1984, the Government acquired the aircraft in this case, a Beechcraft Queen Air, Model #A65-B80 ("Queen Air"), through a criminal drug forfeiture. Until 1992, the United States Army operated and maintained the Queen Air at the Naval Air Station in Glenview, Illinois. In 1992, the Government transferred the Queen Air to the National Museum of Naval Aviation ("Museum") in Pensacola, Florida. After the transfer, the Government registered the Queen Air's title in the Navy's name. At the Museum, the Queen Air remained in outdoor storage for two years.

In 1994, Fred Sorenson ("Sorenson"), a Museum volunteer, negotiated with the Museum to purchase the Queen Air, along with seven other aircraft. The Museum transferred the aircraft to the Naval Aviation Museum Foundation ("Foundation") under an "as is/where is" contract.¹ The Foundation agreed to

hold [the Government] harmless from any and all loss or liability (whether in tort or in contract) which might arise from the use of the equipment exchanged under [the] contract and/or results in (1) injury to or parts of² personnel of [the Foundation] or third parties; or (2) damages to or destruction of [the] personal property of [the Foundation] or third parties.

Contract between National Museum of Naval Aviation and Naval Aviation Museum Foundation at 14. (R. at 4-14803). The Foundation transferred the aircraft to Cub Enterprises, a trade name for Sorenson. Sorenson then attempted to transfer the Queen Air to Perkins Smith, Inc., a corporation formed by Dr. James Smith. The Sorenson-Smith contract required that Sorenson deliver the Queen Air to the Pensacola Regional Airport, where mechanics would fully inspect the aircraft for its annual airworthiness inspection. To deliver the aircraft, the Federal Aviation Administration ("FAA") issued Sorenson a special flight permit allowing a pilot to ferry the Queen Air from Pensacola Naval Air Station to the Pensacola Regional Airport, a five-minute flight. Sorenson requested that Bill Miles, Sr., the Plaintiff's father, pilot the Queen Air on this ferry flight.

The accident occurred on May 24, 1994, when the aircraft's nose collapsed during the initial taxi out of the parking area. On that day, Sorenson and Bill Miles, Sr., conducted a pre-flight visual inspection. The Plaintiff was acting as the Queen Air's safety observer, "standing fire watch," during his father's initial taxi out of the parking area. After the Queen Air taxied about forty-five feet, during a left turn, the nose gear collapsed. The nose wheel valves exploded and flew off in opposite directions, one of them hitting Plaintiff. After the accident, doctors surgically amputated Plaintiff's leg above his right knee.

During the time the Government possessed the Queen Air, federal regulations required that the aircraft's owners have trained, certified mechanics perform tests to detect nose fatigue cracks on the aircraft at specified time intervals. The Queen Air's manufacturer, the FAA, and the Department of Defense ("DOD") required this test specifically to prevent accidents similar to that which injured Plaintiff. Although the Government's mechanics did perform this test, the Government failed to meet the FAA and DOD standards because it used untrained, uncertified mechanics. Because these mechanics improperly performed a nondestructive inspection ("NDI"), a crack in the aircraft's nose caused the accident.

In 1986, Beechcraft, the aircraft's manufacturer, issued a mandatory service bulletin³ instructing that the owners of Beechcraft Queen Air aircrafts to inspect the nose landing gear fork for slippage and cracks. The bulletin stated, in pertinent part, the following:

Beech Aircraft Corporation [Beechcraft] considers this to be a mandatory inspection/ modification....

Part II: On all airplanes with 1,000 or more flight hours on the nose landing gear lower shock absorber assembly, an initial fluorescent liquid penetrant inspection for cracks around the weld area on the fork assembly, should be accomplished within the next 25 service hours after receipt of this Service Bulletin, but no later than the next scheduled airplane inspection. A recurring flourescent liquid penetrant inspection for cracks around the weld area on the fork assembly should be performed at the following regularly scheduled 100 or 150 hour (as applicable) airplane inspection and at each 100 or 150 hour inspection thereafter.

IT IS FURTHER RECOMMENDED THAT ONLY QUALIFIED PERSONNEL PERFORM THE FLOURESCENT LIQUID PENETRANT INSPECTION TO REDUCE THE POSSIBILITY OF MISINTERPRETATION OF INDICATIONS.

See Beechcraft Service Bulletin No. 2102, July 1986 (Plaintiff Ex. 96). The flourescent liquid dye penetrant inspection is a form of NDI that tests for tiny cracks in the aircraft's nose. The dye penetrates the crack and "glows" when viewed by flourescent lights. The Beechcraft bulletin also contained "Accomplishment Instructions," which directed the owner to perform this NDI test "as instructed." See Beechcraft Service Bulletin No. 2102.

Following Beechcraft's bulletin, the FAA issued Airworthiness Directive ("AD") 87-22-01, requiring that owners of all Beechcraft airplanes perform the NDI test "in accordance with the instructions in Part II of Beechcraft's bulletin No. 2102." FAA AD 87-22-01, Nov. 16, 1987 (Plaintiff Ex. 100). The FAA required the testing "to prevent failure of the nose landing gear due to undetected fatigue cracking." FAA AD 87-22-01.

Prior to the time that Beechcraft issued its bulletin and the FAA issued its AD, the DOD had issued regulations governing the performance of NDI tests on military aircraft. Military Standard 410D, Nondestructive Testing Personnel Qualification and Certification, July 23, 1974 (Plaintiff Ex. 180). According to Military Standard 410D, the DOD requires that personnel who perform NDI tests be both qualified and certified. MIL-STD-410D. Military Standard 410D's foreword states that "MIL-STD-410D specifies the qualification and certification requirements for nondestructive testing personnel performing eddy current, liquid penetrant, magnetic particle, radiographic and ultrasonic test methods." MIL-STD-410D at iii (emphasis added). Military Standard 410D divides personnel into three levels, according to their qualifications and training. Military Standard 410D also requires that the personnel pass a written examination of "appropriate true-false, multiple choice, fill-in, and mathematical questions, covering the applicable method." MIL-STD-410D § 3.9.4.2. In addition, the employer must certify that the personnel are qualified to perform the NDI test "in accordance with the written procedures." MIL-STD-410D § 4.2. The employer's written procedures must establish a training course outline, define time requirements for each phase of the training, and describe the pertinent examinations each candidate must pass. MIL-STD-410D § 4.2.1.

Military Standard 410D's training and certification requirements also apply to any civilian personnel who performs NDI tests on military aircraft. The NDI technical manual requires that all

civilian Department of Defense personnel and non-Department of Defense personnel performing inspections in accordance with this Technical order: they SHALL be qualified and certified to the current MIL-STD-410.... At a minimum, the local organization shall document its procedure on training and certifying their inspectors per MIL-STD-410.

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