Montellier v. United States

• Decision Date: 22 March 1963
• Docket Number: Cal. No. 201,Docket 27650.
• Citation: 315 F.2d 180
• Parties: Maureen A. MONTELLIER, as Administratrix of the goods, chattels and credits of Norman J. Montellier, deceased, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

315 F.2d 180 (1963)

Maureen A. MONTELLIER, as Administratrix of the goods, chattels and credits of Norman J. Montellier, deceased, Appellee, v. UNITED STATES of America, Appellant.

Cal. No. 201, Docket 27650.

United States Court of Appeals Second Circuit.

Argued January 29, 1963.

Decided March 22, 1963.

Sherman L. Cohn, Department of Justice, Washington, D. C. (Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Joseph P. Hoey, U. S. Atty., Alan S. Rosenthal and Lawrence J. Galardi, Attorneys, Department of Justice, on the brief), for appellant.

John S. Chapman, Jr., of Duer & Taylor, New York City (Arthur E. McInerney, New York City, of counsel), for appellee

Before LUMBARD, Chief Judge, HAYS, Circuit Judge, and DIMOCK, District Judge.

HAYS, Circuit Judge.

Plaintiff, as administratrix, sues under the Federal Tort Claims Act¹ to recover damages for the death of her husband, Norman J. Montellier, who was killed in an airplane crash at Westover Air Force Base in Massachusetts. The district court awarded plaintiff damages in the amount of $168,000 in a judgment from which the United States appeals. We affirm the judgment.

Montellier, who was a correspondent for United Press International, was invited by the Army Air Force to participate, together with a number of other newspaper representatives, in what was planned as a record breaking series of flights to London and return. The plane on which Montellier was a passenger crashed within thirty seconds of takeoff and all aboard were killed instantly.

The district court found that the fatal crash resulted from the negligence of those in charge of the flight, in that (1) the pilot took off with wing flaps set at 40 degrees, (2) an unqualified person occupied one of the pilots' seats in the cockpit and (3) the plane was mishandled after take-off. Since we are persuaded that there is sufficient evidence to support the district court's finding as to the first of these specifications (Fed. R.Civ.P. 52(a)), we find it unnecessary to consider the second and third specifications.

There are a number of principles of aerodynamics which are thought to have a bearing on the causes of the accident. They are ably described and discussed in the opinion of the district court. 202 F.Supp. 384. It is sufficient here to point out briefly the function of the wing flaps of a plane.

Flaps are used to enlarge the area of the wings and thus to provide greater lift capacity at lower speeds. They are used at take-off and landing where lower speeds are required by reason of the limited length of the runways. Once the plane is airborne the flaps create drag and the greater the flap extension the greater the drag. Drag reduces the capacity of the plane to attain altitude and the flaps are therefore retracted as soon after take-off as is safely possible.

There is no dispute that the flaps were set for 40 degrees for the flight in question. The issue is whether this flap extension constituted negligence.

The evidence which we find sufficient to support the district court's determination showed that:

No plane of the type on which Montellier was to fly had ever before taken off from the air field at Westover with flaps at 40 degrees, nor had the use of such flaps ever been tested there.

The manual with which the pilot, Colonel Broutsas, was provided called for the use of 20 degree and 30 degree flaps for take-off and for 40 degree flaps for landings. As the district court said, "Several of the charts in the manual (including climb-out) gave no data for 40 degree flaps." 202 F.Supp. at 410.

The manual warned, however, that high flap settings would reduce climb-out performance. It stated that the "urgency of some missions may demand a reduction in the level of safety during take-off" and thus justify the use of higher flap settings. (There was, of course, no urgency in respect to Colonel Broutsas' mission.) The manual advised that the "smallest flap setting consistent with the available field length should be used".

Colonel Broutsas had never experimented with 40 degree flaps nor had any other flight officer. Broutsas had an understanding with his wing commander that 40 degree flaps would not be used.

One of the government's experts testified that, "pending tests," Broutsas should not have taken off with 40 degree flaps. Broutsas' instructions for the flight in question provided that no new or unusual procedures were to be employed. Safety was to "receive priority above all other considerations".

The pre-flight briefings were all based upon the use of 30 degree flaps. The performance engineer computed all takeoff data on the basis of 30 degree flaps. He testified that he would have been "concerned" if he had known that Broutsas intended to use 40 degree flaps.

About an hour and a half before the time scheduled for take-off Broutsas had a telephone conversation with someone whom he addressed as "Sir". According to Broutsas' account to a fellow officer, this person, apparently a superior officer, sought to persuade him to delay the takeoff an hour, presumably to wait for an anticipated drop in temperature which would have made the take-off easier. Broutsas expressed satisfaction that he had "talked him out of that one." At this point, the other officer who had been present during the telephone conversation asked whether using 40 degree flaps was not "kind of tricky." Broutsas replied that it was not recommended, but that "once he got it off and got it cleaned up and everything it would be okay."

A few minutes later, Broutsas spoke with his Deputy Wing Commander, Colonel Burrell. Burrell expressed concern over the rising temperature and told Broutsas that if the temperature went higher, he should reduce his weight by burning off part of his excess fuel reserve prior to take-off. Broutsas did not request permission to use 40 degree flaps nor inform his superior that he planned to do so.

Some time later Broutsas suggested to Captain McDonald, the pilot of another craft, that McDonald also use 40 degree flaps. McDonald's plane had the same gross weight as Broutsas'. McDonald informed Broutsas that he intended to use 30 degree flap settings.

The two planes which were scheduled to precede Broutsas' flight took off without mishap at midnight and 12:15 a. m. respectively using 30 degree flaps. The gross weight of each of these planes was some 50,000 pounds less than Broutsas' plane. However, unlike these first two flights, Broutsas' plane was equipped with water augmentation. The effect of water augmentation was to render the heavier plane approximately equivalent to the lighter planes in climbing potential. Broutsas was aware that the two earlier flights had taken off safely with flaps set at 30 degrees.

At 12:30 a. m., the time scheduled for Broutsas' take-off, the temperature was still high. There was no urgency requiring that the take-off schedule be rigidly adhered to. One officer had urged Broutsas to wait for the anticipated cold front. Another had told him to burn off part of his unneeded reserve fuel so as to reduce gross weight. Broutsas rejected both suggestions.

Although no flight officer had ever tried 40 degree flaps, although the flight manual did not contain complete calculations based on forty degree flaps, although the briefings specified 30 degree flaps, and the performance engineer's computations were based on that setting, Broutsas, contrary to his agreement with his Wing Commander and to his flight instructions, without informing his superior officers of his intentions, and with full knowledge that two planes had already taken off safely with 30 degree flaps, set his flaps at 40 degrees for his take-off. We cannot say the trial court was in error in reaching the conclusion that in doing so Broutsas was negligent.

Nor do we find error in the trial court's determination that this negligence was a proximate cause of the accident.

The difficulties of take-off with 40 degree flaps were established by Air Force heavy weight take-off performance tests of the same type of plane conducted after the accident. The report of the test results concludes:

"The aircraft can be flown safely at heavy weights using 40 degree flaps, but this setting is not recommended for take-off. The technique required to obtain optimum performance is much more critical than with 30 degree flaps, and a small variation from the recommended technique will considerably increase take-off ground roll. The pilot can initiate gear retraction earlier with 30 degree flaps since it is easier to tell when the aircraft is airborne. In addition, the initial climb performance at heavy gross weight with 40 degree flaps is considerably less than that with 30 degree flaps.

"There is no advantage in using 40 degree flaps for heavy weight take-offs. Take-off distances using the recommended take-off speeds presented in the Flight Handbook can be attained using 30 degree flaps; however, the distance shown for 40 degree flaps are 100 to 500 feet optimistic for weights ranging from 240,000 pounds to 297,000 pounds. The total distances to clear a 50 foot obstacle are optimistic for both flap settings and all gross weights tested. For gross weights ranging from 260,000 to 297,000 pounds, the actual total distances over a 50 foot obstacle corrected to sea level standard day conditions are from 1800 to 2900 feet longer than handbook values for 40 degree flaps and from 500 to 100 feet for 30 degree flaps. The use of 40 degree flaps for take-off at gross weights above 260,000 pounds results in longer ground rolls and total distances to 50 feet than the distances obtained using 30 degree flaps."

The report recommends that:

"1. The aircraft not * * * be flown using 40 degree flaps for take-off and all references in the Flight Handbook to this operation be deleted."

It appears, then, that during take-off, and particularly during the moments immediately following lift-off from the runway, Col. Broutsas' plane could not have...