Mittelman v. Seifert

• Citation: 17 Cal.App.3d 51,94 Cal.Rptr. 654
• Court: California Court of Appeals
• Decision Date: 23 April 1971
• Parties: Linda D. MITTELMAN, et al., Plaintiffs and Appellants, v. Lee D. SEIFERT, as Administratrix of the Estate of Charles J. Seifert, Jr., Defendant and Respondent. Civ. 26494.

Page 654

94 Cal.Rptr. 654

17 Cal.App.3d 51

Linda D. MITTELMAN, et al., Plaintiffs and Appellants, v. Lee D. SEIFERT, as Administratrix of the Estate of Charles J. Seifert, Jr., Defendant and Respondent.

Civ. 26494.

Court of Appeal, First District, Division 2, California.

April 23, 1971.

Rehearing Denied May 21, 1971.

Hearing Denied June 23, 1971.

Demanes & Sanders, Burlingame, for plaintiffs and appellants.

Costello, Johnson & Kemp, Palo Alto, for defendant and respondent; Cyril Viadro, San Francisco, of counsel.

Edward I. Pollock, Los Angeles, Robert E. Cartwright, San Francisco, Theodore A. Horn, Los Angeles, Marvin E. Lewis, San Francisco, William H. Lally, Sacramento, Ned Good, Los Angeles, Leonard Sacks, Pico Rivera, for amici curiae in support of appellants.

DAVID, ^* Associate Justice.

I

Minor plaintiffs (Linda D., Paul B., and Kirk E. Mittelman) by their guardian ad litem (Florence C. Hind) appeal from a judgment in a wrongful death action, on a 9--3 verdict, denying recovery based on the death of their parents, Joseph and Edna Mittelman. They were killed, along with the pilot, Charles J. Seifert, Jr., about 2:50 a.m. March 19, 1966, when 10 days after he acquired it Seifert's twin engine Apache airplane crashed one-quarter to one-half mile northeasterly of the end of the runway of the Half Moon Bay Airport; from whence they were returning on the 20--25 mile flight to Palo Alto Airport. The evidence established that Seifert was the pilot at the moment of impact.

The crash was at high speed, ¹ on a 10 percent slope near the adjacent hilltop resulting in complete disintegration of the plane and its riders. Human body parts were strewn over the path of collision from one and a half to two blocks.

It was stipulated that at the time of the impact, the Apache aircraft was traveling with the right wing in a near vertical downward position and the nose of the plane down. The magnetic heading of its course, as shown by the distribution of the wreckage was in an east, northeasterly direction. There was no evidence of preimpact failure or malfunction of the aircraft's two engines, spark plugs or magnetos, nor any physical evidence of lack of structural integrity of the plane prior to the accident. Adequate fuel was present. Recovered from the crash site, the aircraft clock read '2:50.'

The Half Moon Bay Airport is located on the coast of the Pacific Ocean 64 feet above sea level. It is separated from the Palo Alto Airport by a ridge of the Coast Range Mountains. These vary in elevation from about 1,900 feet at the highest, to a minimum 1,000 feet at the lowest pass, the San Mateo Canyon Road. Safe flight in daytime requires these elevations be cleared by 1,000 feet; and at night one expert testified 2,000-foot clearance was necessary for safety. Though one might cross to the south, at the Saratoga Gap, or follow a hairpin course, north through the Golden Gate and then south to Palo Alto, the most practical route between these two airports necessitates crossing this coastal range.

Mr. Silvestri, ² aviation expert and manager of the Half Moon Bay Airport, testified that even through the San Mateo Canyon pass, the minimum safe crossing altitude would be 2,500 feet. For safety at night, expert Cutter ³ who was familiar with these airports testified pilots should clear the top of the Coast Range by 2,000 feet.

The first hill adjacent to the airport on the east slopes upward to an altitude of 400 feet. The crash site as shown by Exhibit 28, was at a considerably less elevation.

Planes departing from the airport are required to follow the Federal Aviation Agency (hereafter FAA) flight pattern. At night, a plane takes off to the north and at an elevation of 800 feet is to make a right turn easterly toward the hills, as indicated by the lighted tetrahedron. The 800- foot altitude is measured from sea level rather than from the base elevation of the airport, because of the frequent low overcast.

The Half Moon Bay Airport is not well lighted at night. Only the lighted outline of the single runway can be seen, not the surface.

Dr. Cutter, himself an expert flyer, testified that the few lights at Half Moon Bay Airport are confusing for night flight. The pilot may line them up as horizon when in fact they are on the ground.

On March 19, John Preuss, United Air Lines employee and former flight engineer, left the San Francisco Airport at 12:30 a.m. and after stopping to eat, returned to his home at Moss Beach, about three-quarters of a mile north of the crash site. Outside his home, while attending to his dog, he heard a twin engine plane and saw its lights, recalling its red light rising above the blue. ⁴ The lights disappeared into the cloud bank or fog. He couldn't give the flight level, everything was on the ground. The aircraft appeared to come from the direction of the airport, was above the trees, perhaps 150 feet above ground, was gaining altitude, slow gain. At that time it was pitch black, the weather bad, no visibility of any kind; there was rain, heavy fog and clouds.

On his way home, he had passed through fog, and rain so hard that his single speed windshield wipers could not clear the water away.

At the time he saw the plane there was ground fog from Montara north; he could see the dull mass of trees 150 yards away. The plane did not appear in difficulty, though he noted an engine was running rough, spluttering, like out of gas. ⁵ His observation was for about 10 seconds, and he paid no attention after the plane was out of sight and did not hear any crash. He stated the occasion was very unusual; because planes don't fly out of Half Moon Bay Airport at night. He thought, 'today is a hell of a night to be up there on a plane or either running out of gas and or anything else.'

According to his deposition taken two years after the crash, on May 18, 1968, defense witness Donald Hadding was on duty as a night watchman at the candle factory to the west of the landing strip of the Half Moon Bay Airport. He stated that on March 19, 1966 he saw an aircraft headed north land or take off about 1:00 a.m. not very high. The plane about 1:05 a.m. came in south to north, touched down, bounced-like and took off; about 1:35 a.m. made another touchdown; back again, it touched down about 2:05 a.m.; it was going too fast to land. On the third pass, it turned to the right instead of the left and gradually turned east toward the hills. He was sure this was a one-engine plane and that it was the plane that crashed.

Hadding stated that between 1 and 2 a.m., the weather was clear and he could see stars. About an hour earlier, at midnight, there had been fog. It was raining before 10 p.m., fog, 10:30 p.m. to 12:00 midnight.

The expert testimony of Captain Paul T. Adams ⁶ was that during the climbing portion of the flight from the airport at night in the type of aircraft here involved, the structure of the cockpit and the nose of the aircraft would tend to obscure the runway lights on the ground and any lights in front of the aircraft. When the aircraft is in a nose-up position, this obscured visibility is increased. The wing on the left-hand side of the aircraft interferes with the pilot's ability to see the ground on his left side, particularly while the aircraft is in a right turn where the left wing is up and the right wing is down.

Loss of horizon in flying blind, whether because of darkness or flight into clouds, produces spatial disorientation and vertigo in a pilot rapidly, and usually leads to disaster.

Since an aircraft operates in a three-axial plane and travels at a great speed, spatial disorientation and vertigo can be serious impairments to safe aircraft operation. Spatial disorientation occurs when a person has lost his reference to the horizon, 'flying blind.' Vertigo is the sense of dizziness that can develop from spatial disorientation and is very likely to occur in a person suffering from fatigue.

Expert Captain Adams described what could occur from loss of horizon. At night without stars or ground lights a pilot could not get by without instrument flight. A pilot penetrating a cloud could not remain level without instruments. If he lost the horizon, he would go into a steep turn, drop the nose of the plane, speed increasing. Trying to correct this, probably he would try to pull back on the yoke to raise the nose, pull up too much, and stall. This would initiate the 'graveyard spiral,' the 'dead man's spiral.'

Defense expert Roger D. Goetz ⁷ said vertigo was common under conditions of blind flying and testified that if one runs into a cloud flying visually, not flying by instrument reference, he tends to have vertigo in from 30 seconds to 5 to 7 minutes. It can be of such duration and intensity as to cause the pilot to lose control of the aircraft.

The purpose of instrument flight discipline is to train a pilot to rely on instruments despite false senses as to his position in space and the dizziness or vertigo. This takes considerable time and continual practice. To stay proficient, recurrent training of at least six hours every six months is required. Carrying passengers under instrument flight conditions without having the rating clearly violates the regulations prohibiting such flights. Seifert had not qualified for instrument flight.

Dr. Albert W. Cutter, an expert aviator, testified that spatial disorientation from loss of horizon, and vertigo, result from blind flying, and that it takes a great deal of time and practice to evaluate and coordinate instrument readings. A pilot with no recent experience probably would lose 100 percent control within one minute.

Even without complications imposed by clouds and bad weather, it is evident that one may be flying blind at night. '(A) night flight is practically an instrument flight, whether you penetrate clouds or not, and this would be a very variable factor as to how much visibility there was, but if there was just three miles...