Nakajima v. US

• Decision Date: 12 March 1991
• Docket Number: No. 89-944-Civ.,89-944-Civ.
• Citation: 759 F. Supp. 1573
• Parties: Ishiro NAKAJIMA, as Personal Representative of the Estate of Keiji Nakajima, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Florida

759 F. Supp. 1573

Ishiro NAKAJIMA, as Personal Representative of the Estate of Keiji Nakajima, Plaintiff, v. UNITED STATES of America, Defendant.

No. 89-944-Civ.

United States District Court, S.D. Florida.

March 12, 1991.

Scott D. Sheftall and Robert C. Levine, Floyd, Pearson, Richman, Greer, Weil, Beumbaugh & Russomanno, P.A., Miami, Fla., for plaintiff.

Douglas Coleman, Trial Atty., Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C. (John Knudsen, Trial Atty., Litigation Div., F.A.A., of counsel), for defendant.

MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW

ARONOVITZ, District Judge.

This wrongful death action brought pursuant to the Federal Tort Claims Act, Title 28 United States Code Sections 1346(b), 2671 et seq., was tried five (5) days to the Court. The Court has considered all of the testimony offered, exhibits including, but not limited to the National Transportation Safety Board Report (Plaintiff's exhibit 27) and all exhibits offered by the parties, each respectively, at trial, memoranda of law, and having reviewed proposed post-trial findings of fact and conclusions of law submitted, each respectively, by plaintiff and defendant, and being otherwise fully advised in the premises, the Court herewith makes and enters its Findings of Fact and Conclusions of Law as follows:

FINDINGS OF FACT

1. This wrongful death action is brought against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

2. The accident giving rise to this litigation occurred at the Opa Locka Airport, Opa Locka, Florida, on August 31, 1987 Stipulated Fact.

3. The accident resulted from a mid-air collision between a Bell 47G helicopter, piloted by KEIJA NAKAJIMA, and a Cessna 152 Stipulated Fact.

4. The helicopter carried registration number N6728D and the Cessna carried registration number N48864 NTSB Factual Report, at 4, Plaintiffs' Exhibit (hereinafter "P.E.") 27; Rudich testimony, Excerpt of Trial Transcript, at page 17, lines 14-17 (hereinafter "Tr. page:lines").

5. KEIJI NAKAJIMA died on August 31, 1987, as a result of injuries sustained in a mid-air collision between the Bell 47G Helicopter (the "helicopter"), which he was piloting, and a Cessna 152 fixed wing aircraft (the "Cessna"). Both the helicopter and the Cessna were performing training exercises in patterns around the vicinity of the airport traffic area known as "Area Alpha" at the Opa Locka Airport, Opa Locka, Florida. The collision occurred in plain view of the Opa Locka Airport air traffic control tower when the Cessna performed a simulated "dead-stick" or power-off emergency landing procedure and cut off the helicopter in its normal "Alpha pattern". The Cessna overtook the helicopter from above and from the rear, in effect rear ending the helicopter from its "blind spot". The evidence admitted to reconstruct the accident, including pertinent and credible portions of the NTSB Factual Report and transcript of the tape of Tower Control transmissions with the aircraft, establishes that neither the helicopter nor the Cessna saw each other as the Cessna descended and came closer and closer until its nose strut shattered the helicopter's main rotor causing the helicopter to crash to the ground. The Cessna was able to land without injury to its occupants.

6. The control tower at Opa Locka Airport is operated by the Federal Aviation Administration, an agency of the United States. It operates on a part-time basis and was operating at the time of the accident. (NTSB Factual report, P.E. No. 27, at p. 7)

7. Opa Locka Airport is host to numerous flight schools and was recognized by the tower personnel as a training facility (trial testimony of Moten, Wills and Brannon). The U.S. Coast Guard has a permanent facility utilizing Falcon Fan Jets and helicopters to support their search and rescue missions. (NTSB Factual Report, P.E. No. 27, at p. 82)

8. The Opa Locka tower is a level II VFR facility which operates the airport from 7:00 a.m. to 11:00 p.m. daily. (NTSB Factual Report, P.E. No. 27, at pp. 7 and 82).

9. Opa Locka Airport consists of six runways, three of which lie east/west, two north/south and one southeast/northwest. The longest runway is 9L. All runways are served by taxi ways. (NTSB Factual Report, P.E. No. 27, at pp. 7 and 82)

10. In addition to the Opa Locka Airport runways, certain area adjacent to the runways are designated for use by rotocraft (helicopters). (NTSB Factual Report, P.E. No. 27 at p. 7) Two of these helicopter pads are located in "Area Alpha" which is south of runways 09R.27L. See Excerpt from Flow Bulletin 20.

11. In addition to the local controller, Mr. Coy Moten, other tower personnel on duty on August 31, 1987 were Ms. Christine Brannon, in charge of flight data and Ms. Christy G. Wills, in charge of ground control/clearance delivery. (NTSB Factual Report, P.E. No. 27, at p. 85)

12. Early morning traffic was slow and all operations in and around the tower were routine. (NTSB Factual Report, P.E. No. 27, at p. 86)

13. At approximately 7:54:20 a.m., N48864, a Cessna 152 aircraft made initial contact with the Opa Locka ground controller. (NTSB Factual Report, P.E. No. 27, at p. 81) This was an instructional flight operated by a student pilot and an instructor. The local controller was aware that the Cessna would be engaging in training exercises (trial testimony of Moten).

14. At approximately 8:09:04 a.m. on August 31, 1987, the Cessna was cleared by the Opa Locka Airport local controller for take-off on runway 9L to enter the down wind position for Runway 9R for "touch and go" practice landings. (Transcript of recorded air traffic control communications between Opa Locka Airport local controller and local air traffic. (NTSB Factual Report, P.E. No. 27, at pp. 6 and 111)

15. Visual meteorological conditions prevailed at the time and no flight plan was filed for the instructional flight. (NTSB Factual Report, P.E. No. 27, at p. 4) The weather was VFR, the visibility was good and the wind was out of the east at 8 to 10 knots. (NTSB Factual Report, P.E. No. 27, at p. 95)

16. At approximately 7:59:11 a.m. on August 31, 1987, N672AD, the helicopter contacted ground control at the Opa Locka Airport requesting taxi to "Area Alpha", the helicopter operating area adjacent to runway 9R. (NTSB Factual Report, P.E. No. 27, at p. 19) The local controller also was aware that the helicopter was to engage in practice exercises.

17. At 8:15:49 a.m., Mr. NAKAJIMA, in the Bell Helicopter requested take off clearance from the local controller for a touch and go landing at Area Alpha. The flight was cleared for this procedure by the local controller in the Opa Locka control tower. (NTSB Factual Report, P.E. No. 27, at pp. 19 and 102)

18. At 8:15:49 a.m., the Bell helicopter was issued a traffic advisory which notified the pilot that a Cessna aircraft was in a touch and go landing pattern for runway 9R. (NTSB Factual Report, P.E. No. 27, at pp. 19 and 103)

19. At 8:17:21 a.m., local controller Moten issued a traffic advisory to the Cessna. The Cessna was notified that a helicopter was operating in Area Alpha just south of runway 9R at an altitude of 500 feet and below. (NTSB Factual Report, P.E. No. 27, at p. 103)

20. At 8:18:34 a.m., the Cessna was cleared for a third touch and go landing to runway 9R. This time, however, Mr. Moten did not inform the Cessna about the Bell Helicopter which was still operating in the area. (NTSB Factual Report, P.E. No. 27, at pp. 6 and 104)

21. At 8:20:40 a.m., the Bell Helicopter requested and was cleared for a second touch and go landing in Area Alpha. However, local Controller Moten did not inform the Bell Helicopter about the Cessna which was still operating in the area. (NTSB Factual Report, P.E. No. 27, at pp. 6 and 104)

22. Subsequent to the Bell Helicopter's acknowledgement of touch and go clearance at 8:20:46 a.m., the tower radio transcript indicates a lull in radio activity. The tower engaged in no radio communications between 8:20:53 a.m. and 8:22:05 a.m. (NTSB Factual Report, P.E. No. 27, at p. 105)

23. At 8:22:05 a.m., the control tower initiated clearance to the Cessna for a fourth touch and go landing pattern. Once again, the controller did not inform the Cessna that the Bell Helicopter was still operating in the area. (NTSB Factual Report, P.E. No. 27, at pp. 6 and 105) Again there followed a complete lull in radio activity by the local controller, Mr. Moten.

24. At 8:22:09 a.m., the Cessna acknowledged clearance for touch and go landing at Runway 9 right. The pilot did not inform the controller that he was performing a short approach simulating engine failure to his student. (NTSB Factual Report, P.E. No. 27, at pp. 6, 7 and 105)

25. Subsequent to clearance from the Opa Locka tower for a further touch and go at 8:22:05 a.m., when the Cessna was abeam of the touch down area, instruction pilot Bedoya reduced the power of the aircraft to idle and told student pilot Losado to simulate a forced landing. The Cessna, with student pilot Losado at the controls, turned from a westerly heading to a northerly heading toward Runway 9 right. As it was turning from the base leg to the final approach over Red Road, the Cessna descended and overtook the Bell helicopter colliding with it from above and from the rear. (NTSB Factual Report, P.E. No. 27, at pp. 5 and 20)

26. At 8:23:54 a.m., the Cessna transmitted to the tower: "Opa Locka tower Cessna 864 in real emergency what happened?" (NTSB Factual Report, P.E. No. 27, at pp. 7 and 105) At 8:24:58 a.m., Controller Moten replied, "Cessna 864 ah you hit the helicopter that's what happened!" (NTSB Factual Report, P.E. No. 27, at pp. 7 and 105) At 8:24:03 a.m., the Cessna replied to the tower: "But you cleared me for touch and go." (NTSB Factual Report, P.E. No. 27 at p. 105) At 8:24:06 a.m., Controller Moten replied, "I suggest you make a full stop Cessna...