Neff v. United States
| Decision Date | 28 March 1968 |
| Docket Number | Civ. A. No. 354-65. |
| Citation | 282 F. Supp. 910 |
| Parties | Joan S. NEFF, Administratrix of the Estate of John W. Neff, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Columbia |
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Richard W. Galiher, Galiher, Stewart & Clark, Washington, D. C.
Charles J. Steele, Whiteford, Hart, Carmody & Wilson, Washington, D. C., for plaintiff.
John F. Murray, Philip Silverman, Department of Justice, Washington, D. C., for defendant.
This is an action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1964). Plaintiff is the administratrix of the estate of John W. Neff, his surviving spouse and mother and next friend of his five minor children. Neff was the First Officer of a Martin 404 operated by Mohawk Airlines that crashed immediately following takeoff from the Rochester, New York, Airport on the afternoon of July 2, 1963. He was killed in the crash, together with Captain Dennis, the pilot, and some of the passengers. The liability of the United States is based on its operation of the control tower and related weather facilities. It is asserted that the control tower was negligent in authorizing the plane to take off when a thunderstorm was on the field and in failing to provide accurate complete current weather information to the crew after the plane left the ramp. The United States denies any negligence and alleges that in any event plaintiff is barred from recovery by reason of First Officer Neff's contributory negligence. Detailed evidence was taken during a trial lasting six days and the matter was then fully argued and briefed by counsel.
The Rochester Airport control tower was about 40 feet above the ground and had a clear unobstructed view to the east, north and west. Situated on the southern portion of the field, it looked across the field to the north, where the terminal was located. The airport weather station facilities were located at ground level in a building close to the tower and were connected to the tower by an instant "hot line" which made immediate communication either way possible.
The main runway, No. 28, runs approximately east and west halfway between the tower and the terminal. Landings and takeoffs are normally from the eastern end of the runway and such was the case on the afternoon of the accident.
The sequence of events and principal weather developments which occurred on July 2, 1963, preceding the accident, and the general background against which the issues of negligence alleged by both parties must be determined are set forth immediately below.
3:13 p. m. Captain Dennis and First Officer Neff took over the Martin 404, a twin-engine piston-type aircraft, at Ithaca and left for Rochester. There was a line of "quite intense" thunderstorms having the appearance of a "squall line" running NE to SW about 75 miles from Ithaca toward Rochester. Captain Dennis and First Officer Neff were aware of this condition.
3:40 p. m. The plane arrived at Rochester from Ithaca. There was a little more than a one-hour layover at this point before Mohawk flight 112 using the same plane and the same crew was scheduled to originate and depart Rochester at 4:45 p. m. for White Plains, New York, and, ultimately, Newark, New Jersey.
3:50 p. m. The crew went to the Operations Office in the terminal and spent some time reviewing the weather and flight information available.
Mohawk's customer service agent at Rochester spoke to Captain Dennis and First Officer Neff and mentioned an aviation severe weather forecast. All current weather, including a 4:00 p. m. hourly weather report set out below, came to the attention of the crew. Captain Dennis did not seek any additional weather data, relying on what was made available. The following weather reports were posted and known to the crew:
4:30 p. m. Captain Dennis signed the flight plan for flight 112. The flight plan is not in evidence.
4:40 p. m. Thunder was officially heard at the airport weather station causing Chapman, who was then on duty, to make a special weather observation, set forth immediately below. This may be considered the official beginning of the thunderstorm near the field.
About this time the crew and passengers boarded the aircraft. When flight 112 was being loaded it is not clear to what extent thunder and lightning were noticed at that point on the field. Some passengers and the stewardess heard thunder and saw lightning. All agree that the sky was dark and getting darker. While the wind was generally mild, there were strong gusts from time to time.
Another Mohawk plane coming from Buffalo which had landed at Rochester on runway No. 28 at 4:38 p. m. taxied to a gate near flight 112. The pilot of the incoming flight saw a thunderstorm somewhere to the west that looked like any other storm. He saw no rain or lightning coming in.
4:43 p. m. The first engine of flight 112 was started. Chapman at the weather station of the airport, having heard thunder and seen lightning, made the following special observation, acting pursuant to weather regulations:
This observation was sent immediately to the tower at about 4:44 p. m. by a device called a TelAutograph, which provides instant reception at the other end. The observation was not passed on to the crew of flight 112 by the tower, as will appear later in more detail.
4:44 p. m. The second engine of flight 112 was started and the crew asked the tower for taxi instructions.
At this same moment an American Airlines flight was cleared for takeoff from runway No. 28. This flight's destination was Buffalo. The crew of flight 112 was undoubtedly aware of the takeoff clearance given the American Airlines plane. Flight 112 could have seen the takeoff and could even have heard contacts between the tower and American. There is no way of definitely determining whether this occurred.
4:45 p. m. The American Airlines flight took off from runway No. 28. This was also the time Mohawk flight 112 was scheduled to leave the gate and the plane started to taxi from the terminal to the runup area at the end of runway No. 28, having received the required clearance from the tower.
While taxiing to runway No. 28 rain began to fall and became quite heavy at times so that the plane's windshield wipers were operating. Wind was gusty at times but generally mild. There was a swirl dust storm east of the start of runway No. 28 noticed by one observer not in the plane.
When flight 112 reached the runup position there was some thunder, rain, and lightning off the field, and a bit of hail had fallen. All of these weather manifestations are typical of thunderstorms.
When flight 112 stopped just off the runway in position to move immediately into takeoff position, the rain was increasing. Runway lights were on. Visibility was still over one-quarter of a mile down the runway from the plane's cockpit. About halfway down the runway, approximately 2,700 feet and almost directly opposite the tower, there appeared to be a dark wall of rain moving from west to east up the runway toward the plane. This could be seen from the plane and the tower.
4:46 p. m. The tower authorized the...
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