Nakajima v. U.S.
| Decision Date | 07 July 1992 |
| Docket Number | No. 91-5534,91-5534 |
| Parties | NAKAJIMA, Ishiro, individually and as personal representative of the Estate of Keiji Nakajima, Plaintiff-Appellee, Cross-Appellant, Nakajima, Yoshiko, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Douglas Coleman, Torts Branch Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant-appellant, cross-appellee.
Scott D. Sheftall, Robert C. Levine, Floyd Pearson Richman Greer Weil Zack Brumbaugh & Russomanno, P.A., Miami, Fla., for plaintiff-appellee, cross-appellant.
Appeals from the United States District Court for the Southern District of Florida.
Before FAY and BIRCH, Circuit Judges, and DYER, Senior Circuit Judge.
This is a wrongful death case against the United States, brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. The complaint alleged negligence of the FAA air traffic controller on duty at the Opa Locka airport at the time a Cessna 152 airplane collided in a mid-air crash with a Bell 47G helicopter. The district court found the United States to be 70% at fault and Keiji Nakajima, the helicopter pilot, to be 30% at fault. 759 F.Supp. 1573. The award in favor of the Estate of Keiji Nakajima was reduced based on the district court's finding that Nakajima was contributorily negligent. The Estate and the government cross-appeal.
We conclude (1) that the district court erred in applying the standard of care for avoidance maneuvers based on the "see and avoid" rule against Nakajima; (2) that Nakajima was not contributorily negligent; and (3) that the Nakajima Estate is entitled to full recovery of the damages assessed against the United States under the Federal Tort Claims Act. We therefore REVERSE in part, Affirm the total damage award, and REMAND with instructions to award plaintiff the total amount of damages without a 30% reduction.
Keiji Nakajima, a 27 year-old student pilot, was fatally injured in a mid-air crash involving his helicopter and a Cessna airplane. The accident occurred on August 31, 1987 over the Opa Locka airport in Miami, Florida.
The air traffic controller on duty at the airport was aware that the helicopter and the Cessna were engaged in training and practice exercises. The single engine Cessna, with an instructor and a student pilot on-board, had been cleared for takeoff on runway 9L to enter the downwind position for "touch and go" practice landings. The Cessna was to maintain an essentially rectangular flight pattern during the training exercise. The helicopter had also been cleared by the tower for "touch and go" landings. The helicopter's flight pattern was in "Area Alpha," which is adjacent to runway 9R. On each aircraft's last clearance from the tower, neither was informed that the other was still operating in the area, as they had been on their earlier communications with the tower. The Cessna descended and overtook the helicopter by turning from the base leg to final approach in executing a simulated forced landing. The Cessna collided with the helicopter from above and from the rear on the helicopter's blind side. The accident occurred in mid-air outside the control tower in clear weather conditions.
The Estate contends that the district court erred in applying the "see and avoid" The government contends (1) that the district court erred in not finding the degree of fault of Nakajima to be greater than 30%, and (2) that the district court erred in calculating the amount of damages in reliance on allegedly faulty and speculative assumptions of two expert witnesses.
rule of right-of-way against Nakajima, as a basis for finding breach of a duty, resulting in a 30% reduction in recoverable damages against the United States.
The district court found that Nakajima was contributorily negligent for failing to avoid the oncoming Cessna. The rule of law applied by the district court requires a pilot to exercise the statutory duty to see and avoid other aircraft. That duty "is not excused because [the pilot] may have to maneuver his own aircraft in order to see the area in which another aircraft might be located." United States v. Miller, 303 F.2d 703 (9th Cir.1962), cert. denied, 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502 (1963). Even in light of the fact that the Cessna had initiated an unexpected maneuver and entered into the helicopter's flight pattern in a blind spot without warning, the district court determined that Nakajima was partially at fault.
Nakajima argues that the district court erred as a matter of law in applying this negligence standard under the facts of this case. Our review is de novo to determine whether the correct legal standard, including exceptions to the "see and avoid" rule, was properly applied.
The district court relied on Miller, a case where the pilot was found negligent for a violation of the right-of-way rules upon converging with and overtaking another aircraft. In Miller, the pilot failed "to give way to the Cessna which was in the favored position, or from doing whatever was necessary to clear the area in which the Cessna was flying." Id. at 711.
Since the pilot who was found to be contributorily negligent in Miller was held to a duty to maintain "a reasonable lookout while approaching the point of impact," id. at 707, the facts in Miller are exactly opposite to the facts in Nakajima's case. In the context of interpreting the obligation of a pilot operating under visual flight rules (VFR) to see and avoid other aircraft, the district court misapplied the rule which governs right of way. The rule of Miller is applicable to "the overtaking aircraft, whether climbing, descending, or in horizontal flight." Id. at n. 9 ().
We agree with Nakajima that there was no reason for Keiji Nakajima to take extraordinary measures to search for an unknown and unexpected hazard. We do not interpret the rule to require a pilot under these circumstances to keep a lookout to anticipate another aircraft coming toward his aircraft from behind and above, when the ability to see the oncoming aircraft in a blind spot is an utter impossibility. See Bernard v. Cessna Aircraft Corp., 614 F.2d 1075, 1078 (5th Cir.1980). While the general rule imposes on pilots an independent obligation to operate their aircraft safely and make necessary observations to avoid other aircraft, extraordinary maneuvers by Nakajima would not have brought the Cessna into view as it approached the helicopter. Thus, the duty to scan within or beyond the normal range has no application here. See Rodriguez v. United States, 823 F.2d 735, 744-45 (3rd Cir.1987).
The facts of this case fall within the exception noted in Miller, of a "physical impossibility" which contemplates conditions "beyond the pilot's control". Id. at 709. Because of the helicopter's position in its assigned pattern and the lack of warning or possible visibility relevant to the approaching Cessna, these facts clearly represent a circumstance where the "see and avoid" rule is not applicable to determine liability. For example, in Universal Aviation Underwriters v. United States, 496 F.Supp. 639, 649 (D.Col.1980), the court reasoned that the concept of "see and avoid" is inapplicable where each aircraft was in the blind spot of the other. Also, in We conclude, therefore, that the district court erred in finding Nakajima contributorily negligent for breach of the duty to "see and avoid" the Cessna.
Allen v. United States, 370 F.Supp. 992, 1004 (E.D.Mo.1973), the court held that the pilot could not be found contributorily negligent as a matter of law, where "it was physically impossible to see the above approaching Ozark due to the Cessna's high wing structure."
On cross-appeal, the government contends that the district court's allocation of 30% fault to Nakajima failed to take into account the decedent's additional negligence in deviating from the published traffic pattern. The government argues that the percentage of Nakajima's fault must be increased. We disagree.
The record simply does not support the government's argument that Nakajima...
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