Norwest Capital Management & Trust Co. v. U.S.

• Decision Date: 18 September 1987
• Docket Number: Nos. 86-5267,86-5268,s. 86-5267
• Citation: 828 F.2d 1330
• Parties: NORWEST CAPITAL MANAGEMENT & TRUST COMPANY as Administrator of the Estate of Louis M. Altringer, Deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1330

828 F.2d 1330

NORWEST CAPITAL MANAGEMENT & TRUST COMPANY as Administrator of the Estate of Louis M. Altringer, Deceased, Appellant, v. UNITED STATES of America, Appellee.

Nos. 86-5267, 86-5268.

United States Court of Appeals Eighth Circuit.

Submitted March 11, 1987.

Decided Sept. 18, 1987.

Dennis Hill, Rapid City, S.D., for appellant Bobbie F. Largent.

Patrick M. Ginsbach, Hot Springs, S.D., for appellant Norwest Capital Management & Trust Co.

Tara C. Neda, Dept. of Justice, Washington, D.C., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

LAY, Chief Judge.

This federal tort claim suit arises out of the February 13, 1980, crash of a twin engine airplane near Hot Springs, South Dakota. The airplane, owned and piloted by Charles M. Largent, crashed shortly after takeoff from the Hot Springs airport with three passengers aboard, one of whom was Louis Altringer, a business associate of Largent. All aboard the plane were killed. The estates of Largent and Altringer brought this action against the United States, alleging that the government negligently failed to warn Largent of adverse weather conditions that led to structural icing causing the plane to crash.

The district court ¹ found that the government was negligent but that icing did not cause the crash and entered judgment for the United States. The court also found that Largent was contributorily negligent and that his negligence was more than slight, barring his claim under the South Dakota comparative negligence statute. See S.D.Codified Laws Ann. Sec. 20-9-2 (1979). It further found that Altringer was engaged in a joint enterprise with Largent in the operation of the aircraft, thus barring Altringer's claim through the doctrine of imputed contributory negligence. The estates of Largent and Altringer appeal.

Facts

Charles Largent was the president, manager, and a shareholder of Fall River Feedlots, Inc., a corporation headquartered in Hot Springs, South Dakota. Louis Altringer was the assistant manager and a shareholder of Fall River Feedlots. On February 13, 1980, Largent, Altringer, and two officers of the First National Bank of Hot Springs planned to fly in Largent's twin engine Beech Baron aircraft from Hot Springs to Modesto, California, to inspect some cattle.

Government Negligence

At 4:16 a.m., Mountain Standard Time, from his home in Hot Springs, Largent telephoned the Flight Service Station (FSS) in Rapid City, South Dakota, and spoke with FSS Specialist Charles Shields. An FSS is a Federal Aviation Administration air traffic facility that provides services to airmen such as weather briefings, receiving and processing flight plans, and communicating with airborne aircraft. Because Hot Springs had no FSS facility, it was the practice of Hot Springs pilots to telephone the Rapid City FSS to obtain weather briefings and flight clearances and to file flight plans.

Largent identified himself to Shields as Baron 8592R, informed Shields that he would be departing from Hot Springs at 6:00 a.m. destination Modesto via Casper, Rock Springs, Salt Lake City, and Reno, and asked for a weather briefing. Shields gave Largent general weather information such as cloud densities and ceilings at all points along Largent's intended route. Largent also asked for and was provided with winds aloft information. Largent then filed his flight plan (it is customary to do this over the phone), Hot Springs direct to Casper direct to Rock Springs, and requested an altitude of 8,000 feet mean sea level (MSL). At the end of the fifteen-minute conversation, Shields informed Largent that Rapid City had been IFR (Instrument Flight Rules, i.e., overcast) all night, and the cloud ceiling had dropped to about 700 feet within the last three hours. Largent informed Shields he would call again just before takeoff to get a clearance void.

Shields did not inform Largent of an area forecast that warned of icing over South Dakota and eastern Wyoming. Shields testified that this forecast had been issued at 5:40 p.m. on February 12 and would expire at 6:00 a.m. on the thirteenth; thus, he believed it was no longer accurate. Shields knew that Largent would be calling back at 6:00 a.m., just before departure, and he thought he would have a new forecast by then. If icing was still forecast, he could inform Largent of these conditions at that time. ²

However, when Largent again called Rapid City FSS just before 6:07 a.m., he did not speak with Shields but with specialist Paul Kasen, who had come on duty just two minutes before. Kasen did not know that Shields had postponed warning Largent of the icing forecast. Largent requested his flight clearance and after receiving it, asked Kasen, "What have you got up there?" Kasen informed Largent that Rapid City had light snow showers with broken clouds at 700 feet, overcast at 3,000 feet, and visibility of three miles. Largent also asked for conditions in Casper and Rock Springs. Kasen gave a statement to investigators that he observed in the FSS pre-flight briefing log that Shields earlier had given Largent a complete weather briefing and that Kasen therefore only provided the information specifically requested.

The district court found that Shields was negligent, but that Kasen was not. The court noted that the FSS handbook does not permit specialists to amend forecasts, which is essentially what Shields did by disregarding the icing forecast. The court also found that Kasen was not negligent because Largent informed Kasen that he was calling for a takeoff clearance and did not mention a weather briefing.

The record reveals that at 5:40 on the morning of the flight, the National Weather Service issued a Kansas City area forecast, which covered Largent's route of flight. The forecast was effective from 6:00 a.m. to midnight of February 13, and called for moderate mixed icing in the clouds over southwestern South Dakota and generally deteriorating weather conditions through the morning hours. It is unclear exactly when this forecast was received at the Rapid City FSS, but Shields testified that it should have been received at 6:00 a.m. Had it not been received at this time, he stated, it would have come in on a teletype scan at 6:40 a.m. The government's expert meteorologist testified that at this time, the National Weather Service was converting to a new communications system, occasionally causing delayed transmissions. There is no evidence of whether Rapid City FSS received the new forecast at 6:00 a.m. It is not disputed that Kasen did not give Largent the new icing forecast.

The district court declined to speculate as to whether Kasen had received the updated forecast by the time Largent spoke to him. The court found that Kasen was under no duty to give Largent another weather briefing under the guidelines in the FSS handbook because "Largent was calling for his clearance, and not a weather briefing." We deem this finding clearly erroneous. The facts are undisputed that after receiving his clearance, Largent specifically inquired into weather conditions along his route of flight by asking Kasen, "What have you got up there?" Kasen understood this question to be weather-related as indicated by his answer, "Oh we've got the sky partially obscured estimated seven hundred broken three thousand overcast three miles. Light snow showers." Largent then asked for conditions reported in Casper and Rock Springs and asked Kasen to recheck winds aloft at 9000 feet. By inquiring into these weather conditions, Largent went beyond a mere request for clearance, as the district court characterizes the conversation with Kasen, and thus imposed an additional duty upon Kasen to provide him with pertinent weather conditions relative to his flight, especially adverse and potentially dangerous conditions such as icing.

Whether Kasen had received the updated forecast from Kansas City is immaterial. He knew by looking at the briefing log that if Shields did convey to Largent the icing forecast, that forecast was ten hours old at the time Largent would have received it. He also knew that Kansas City would have issued a new forecast twenty-five minutes before his conversation with Largent. Kasen knew the old forecast was to expire at 6:00 a.m. that morning. Had Kasen been exercising due care, Largent's request for further weather information should have prompted Kasen to at least report in full the old forecast including icing warnings and to ascertain whether the old forecast which expired at 6:00 a.m. had been updated. Kasen must have known that the weather conditions had been deteriorating in the area. The Sixth Circuit has held that "[s]ince the FAA has undertaken to advise requesting pilots of weather conditions, thus engendering reliance on facilities such as the Indianapolis FSS, it is under a duty to see that the information which it furnishes is accurate and complete." Pierce v. United States, 679 F.2d 617, 621 (6th Cir.1982). Complete information means current information. Even had the updated forecast not been received in Rapid City, a simple telephone call by Kasen to the weather service would have provided him with the updated forecast. We hold that the district court's finding that Kasen was not negligent is clearly erroneous. Both Shields and Kasen as flight service specialists were grossly negligent in failing to provide Largent with accurate weather information. The evidence is undisputed that the government agents deprived Largent from having the correct weather information so as to allow him to make the critical judgment as to whether to fly the plane into icing conditions. If the proper forecast of current icing conditions had been given to Largent it is beyond speculation that he would have chosen not to take off in an aircraft that was not equipped with de-icer equipment.

Largent's Negligence

The government contends, and the district court alternatively...