Neher v. United States

• Decision Date: 13 January 1967
• Docket Number: No. 3-64-Civil 149.,3-64-Civil 149.
• Citation: 265 F. Supp. 210
• Parties: Arlene A. NEHER, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Minnesota

265 F. Supp. 210

Arlene A. NEHER, Plaintiff, v. UNITED STATES of America, Defendant.

No. 3-64-Civil 149.

United States District Court D. Minnesota, Third Division.

January 13, 1967.

Johnson, Essling & Malone, St. Paul, Minn., for plaintiff.

At the trial William W. Essling and Charles H. Williams, Jr., St. Paul, Minn., appeared for plaintiff.

Patrick J. Foley, U. S. Atty., Minneapolis, Minn., for defendant.

At the trial J. Charles Kruse, Washington, D. C., and Lt. Col. Fielding Washington appeared for defendant.

MEMORANDUM DECISION

LARSON, District Judge.

This is an action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), §§ 2671-2680, and the Tucker Act, 28 U.S.C. § 1346(a), in which plaintiff seeks recovery from defendant United States for alleged damage to property caused by sonic booms generated by Air Force B-58 planes. The case was tried to the Court without a jury on August 11 and August 12, 1966. William W. Essling, St. Paul, and Charles H. Williams, Jr., appeared for plaintiff. J. Charles Kruse of the Department of Justice, Civil Division, and Lieutenant Colonel Fielding Washington of the Office of Judge Advocate General, Air Force, appeared for defendant.

FACTS

Plaintiff Arlene Neher is the owner of a four story apartment building in St. Paul, Minnesota, located at 61 South St. Albans, a neighborhood composed primarily of apartment buildings. The Neher building is approximately sixty-five years old, constructed of brick and stone facing. There are eight apartments in the building, two on each floor. The interior walls are plaster on top of wood lathing, and the floors and main stairway are oak wood.

In September, 1960, plaintiff Arlene Neher moved into Apartment F of this building. Prior thereto the apartment was completely redecorated, including patching and filling plaster cracks, painting, and wall papering in some rooms of the apartment. Two other apartments —D and G—were also redecorated, sometime from November, 1960, to January, 1961, including repair of plaster cracks. Plaintiff inspected Apartment H, but no replastering was done. No structural repairs were made to the building but plaintiff did replace all broken and cracked windows at the time she took up residence in the building.

From April 5, 1962, through August 6, 1962, B-58 Air Force planes operating out of the United States Air Force Base at Bunker Hill, Indiana, made forty-one supersonic flights over the Minneapolis-St. Paul area. A supersonic flight is one in which the aircraft travels at speeds in excess of the speed of sound. Mach I designates the speed of sound, which varies depending upon factors such as altitude. At 40,000 feet it is approximately 600 miles per hour. Most of the flights in question were at Mach II, or twice the speed of sound. In general, that would be 1,200 miles per hour. Altitudes of the flights in question, as recorded in Exhibit D—the Sonic Boom Log from Bunker Hill—ranged from 30,000 to 50,000 feet.

The supersonic flights over the Minneapolis-St. Paul area generated sonic booms. These are the shocks, pressures and noises caused by the dispersion of air when a plane travels at supersonic speeds. Since air travels only at the speed of sound, it cannot move quickly enough to avoid the path of a plane traveling in excess of the speed of sound. Thus the air piles up in a "shock front" preceding a plane traveling at supersonic speeds and is then dispersed, traveling continuously behind the plane while it is proceeding supersonically. The strength of a sonic boom varies, depending upon such factors as design of the aircraft, its speed and altitude, among other factors. Computation of a boom's strength can be accomplished by applying the Free Field Equation (Exhibit H, p. 23), and is expressed in terms of pounds per square foot (p. s. f.).

In 1962 Bunker Hill Air Force Base was training crews to become combat ready with the B-58 plane. The training included flying missions during which supersonic runs were made, lasting from five to eight minutes. During the supersonic run a simulated bomb release was performed in which a ground radio site determined whether the theoretical target had been hit. Supersonic training missions from Bunker Hill were conducted to meet the requirements in the Strategic Air Command Training Manual for supersonic missions and supersonic simulated bomb releases. The manuals are issued from Strategic Air Command Headquarters and the missions are planned on the base level to accomplish the items outlined in the manual. Colonel Frank Scurlock, Director of the Programs and Scheduling Branch of the 305th Bomb Wing at Bunker Hill in 1962, testified that all the supersonic flights in question were routine missions with the supersonic activity confined to a designated corridor, the aircraft flying straight and level.

A supersonic corridor is a theoretical avenue in the air, normally twenty nautical miles wide and from 300 to 600 nautical miles long. Such corridors are adopted by the Strategic Air Command in conjunction with the United States Air Force. Colonel Scurlock testified that the corridors could be laid out almost anywhere, including over the ocean or other unpopulated areas. During the spring and summer of 1962 one such corridor was located over the Twin City area, known as the Minneapolis corridor (Exhibit B). It began in Minot, North Dakota, and terminated just beyond Minneapolis, with an extension that continued into the Milwaukee corridor (Exhibit C). Plaintiff's building is located from eight to ten miles west of the center line of the Minneapolis corridor.

On several days during the summer of 1962 (June 5 and 6; July 6, 12, 13, 16, 25 and 26), plaintiff specifically noted the occurrence of sonic booms over the property, marking the dates on a calendar (Exhibit 5). During this period tenants in the building, including plaintiff, noticed the appearance of plaster cracks and broken windows. Subsequently plaintiff became aware of squeakiness in the floors and stairway that had not existed prior to the booms. One tenant testified to noticing squeaky floors immediately after the booms, while another tenant did not recall squeakiness until October, 1965. According to plaintiff, the squeakiness became more apparent in the winter of 1962-1963. In addition to the squeaky floors, plaintiff attributes other structural damage to the sonic booms, including cracked oak pillars, settling of floor boards under radiators, sagging doors, and a damaged drainpipe.

Various test programs have been conducted by agencies of the United States to study the sonic boom phenomena. Witness Dr. Wiggins was Technical Director of the White Sands Program (Exhibits I and J) and was also responsible for analyzing data from a program at Oklahoma City (Exhibits F, G, H and K). Dr. Wiggins testified that the White Sands Project established that (1) structures work elastically under sonic boom pressure, returning to their original shape after the pressure subsides, rather than having any type of permanent set; (2) that the threshold level of pressure for plaster cracks and glass breakage was ten pounds per square foot, except that predamaged glass might crack at six or seven pounds per square foot. Calculating the pressure of the sonic booms over plaintiff's property on the basis of the Free Field Equation (Exhibit H, p. 23), Dr. Wiggins reached a maximum of 1.8 p. s. f. and a minimum of 1.56 p. s. f. On the basis of the calculated overpressure and the test experience at Oklahoma City where the average boom was 1.5 p. s. f., Dr. Wiggins concluded that the sonic booms could not have caused any damage to plaintiff's property.

Sonic boom intensities vary over a wide range in a random pattern (Exhibit J, pp. 123, 176). Measurements of overpressure at lateral distances of five or more miles from the center of a supersonic track have a wider range of variation than directly on the track (Exhibit K, p. 1). According to the Oklahoma report (Exhibit F, p. 221), "current prediction methods tend to overestimate overpressure values occurring at 5 and 10 miles away from the flight path." Wind and other atmospheric conditions also have a marked effect on overpressure (Exhibit J, pp. 173, 176). The White Sands and Oklahoma City tests determined the effect of wind, temperature, pressure and lateral spread only within broad limits (Exhibit H, p. 13).

Test House Number 5 in the Oklahoma project was over fifty years old (Exhibit F, p. 17). The average overpressure in Oklahoma City was 1.5 p. s. f. (Transcript, p. 131). It was concluded that low relative humidity had a relationship to paint and plaster cracking, but that sonic booms accelerated the occurrence of paint cracking over nail heads and at corners (Exhibit F, pp. 220, 222). Damage to plaster surfaces was considered negligible. In general, windows were not damaged, but sonic booms such as those generated at Oklahoma City "constitute potential hazard to an indeterminate number of sub-standard or improperly installed glass installations." (Exhibit F, p. 221). No significant damage was caused to structural framing, floor slabs or floors. The Oklahoma report (Exhibit F, p. 219) expressly limits the conclusions to that area, stating that "Projection of these findings to different types of structures or to different geographical areas, or to other types of sonic boom shock waves should not be undertaken without exercising considerable care and caution."

In St. Louis, Missouri, ten supersonic test flights were conducted by B-58 air-craft at altitudes of 31,000, 35,000 and 41,000 feet and Mach speeds of 1.5 and 2.0. (Exhibit G, p. II-1). Overpressures generated were under 3 p. s. f. The report of that test concludes that sonic booms can trigger structural failures (Exhibit G, p. IV-1) the same as other types of phenomena such as a thunderstorm. Dr. Wiggins agreed with this (Transcript, p. 217). With respect to plaster, the St. Louis report indicated that...