Pierce v. U.S., 81-5015

• Decision Date: 27 May 1982
• Docket Number: No. 81-5015,81-5015
• Citation: 679 F.2d 617
• Parties: W. Hobart PIERCE, Individually and as Administrator of the Estate of Richard L. Pierce, Deceased, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 617

679 F.2d 617

W. Hobart PIERCE, Individually and as Administrator of the Estate of Richard L. Pierce, Deceased, et al Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 81-5015.

United States Court of Appeals Sixth Circuit.

Argued March 16, 1982.

Decided May 27, 1982.

Thomas C. Binkley, Nashville, Tenn., Donald W. Madole, Juanita M. Madole, Washington, D. C., Glover McGhee, Atlanta, Ga., Glenn T. York, Cedartown, Ga., for plaintiffs-appellants.

Kathlynn Fadley, Civ. Div., U. S. Dept. of Justice, Washington, D. C., Gary Allen, F.A.A., Washington, D. C., for defendant-appellee.

Before LIVELY and KEITH, Circuit Judges, and PECK, Senior Circuit Judge.

LIVELY, Circuit Judge.

These consolidated actions were brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 (1976). The plaintiffs-appellants are the personal representatives of the pilot and passengers who were killed in the crash of a private airplane. Following a bench trial, the district court found that the plaintiffs had failed to carry their burden of proof and entered a judgment for the defendant in each of the actions.

I.

The pilot of the ill-fated plane was Richard Pierce who had a private license which required that he fly only under visual flight rules (VFR). VFR pilots are not permitted to fly under weather conditions which render it impossible to conduct the flight by visual references outside the airplane. When such weather conditions prevail, instrument flight rules (IFR) are in effect. In IFR conditions a pilot conducts the flight through the use of onboard instruments and communications with ground controllers. A VFR pilot is not permitted to fly under IFR conditions. A VFR pilot is required to ascertain that his entire route maintains VFR conditions or that detours therefrom permit him to proceed VFR. VFR conditions relate to cloud ceilings and visibility which must be at or above certain prescribed minima. For the area surrounding the crash site, flying at an altitude of more than 1,200 feet above the surface but less than 10,000 feet above mean sea level, outside controlled airspace, VFR conditions would require that there be visibility of one statute mile. 14 C.F.R. § 91.105. In addition, the regulations require that an aircraft maintain the following distances from clouds: 500 feet below, 1,000 feet above, and 2,000 feet horizontally.

On April 9, 1976 Richard Pierce flew five members of his family from Polk County, Georgia to New Castle, Indiana for a visit with other family members. The trip was made in a Cessna 210L airplane which Pierce had rented at Cedartown, Georgia. The trip to Indiana was uneventful, and the visitors planned to return to Georgia on Sunday, April 11th.

Since there was no flight service station (FSS) at New Castle, Pierce called the nearest such station, located at Indianapolis, for weather information during the afternoon of April 10th. Pierce was given a weather briefing by FSS Indianapolis in which he was told that a "marginal VFR situation" was forecast for the next day, but that if he planned an early departure on Sunday morning he should be able to get off and that he should have no problems through Kentucky and Tennessee, into Georgia and his destination: "They are figuring clear as a bell down in Georgia area, down through the state of Tennessee." The local area was rated marginal for VFR because a cold front was expected to move through Indiana on Sunday.

When Pierce called the Indianapolis FSS early on Sunday (5:32 a. m.) he was told that there were scattered rain showers with possible thundershowers throughout the area of central Indiana south to the Louisville, Kentucky area. Pierce then filed a flight plan which indicated that he would fly south to the Louisville area, then across Kentucky and Tennessee to Polk County, Georgia. The plan was to be activated when the local conditions at New Castle permitted a take off. During five additional conversations on Sunday the FSS operators continued to advise Pierce that his only problem was the cold front then moving southward through southern Indiana and that he would have VFR weather all the way to his destination after he passed beyond the front. In each of these conversations, except the final one, Pierce was told by FSS Indianapolis that VFR flight was not recommended because of adverse weather conditions in Indiana. He was consistently advised, however, that the weather was favorable for VFR flying at Louisville and beyond on his projected route of travel.

The final weather briefing took place at 3:06 p. m. on April 11th. Pierce was told that conditions at Bloomington, Indiana had improved from IFR to VFR and that Louisville had VFR conditions. He was advised that there was light rain in the area of Crossville, Tennessee and that a pilot had reported light to moderate turbulence at 4500 to 6500 feet in a line from Knoxville to Birmingham. The FSS operator told Pierce that he would probably penetrate the cold front in southern Kentucky and encounter scattered rain showers there. Further, he advised that there were no IFR surface reports, though there could be pockets of IFR weather between stations reporting VFR conditions. After again filing his flight plan Pierce prepared to leave.

At the time of Pierce's final weather briefing a weather advisory referred to as SIGMET ¹ Charlie 1 had been issued by the National Weather Service. This advisory stated: "Flight precautions in Tennessee for embedded thunderstorms; over Tennessee embedded thunderstorms with tops to 35,000 ft.; additionally thunderstorms occasionally forming lines or in clusters, maximum tops to 35,000 but activity increasing. Continued to 0000 GMT, April 12. (6:00 p. m. April 11, local time)." Other advisories then outstanding told of weather problems in southern Indiana and northern and eastern Kentucky. In addition a radar weather summary issued at 2:35 p. m. local time showed a wide coverage of rain and thunderstorms over Tennessee. The district court found it was probable that all of this information was available to the Indianapolis FSS at the time of Pierce's 3:06 briefing. He was not advised of any of it at that time or after he became airborne. The court also found that Pierce could have become aware of SIGMET Charlie 1 by turning up the volume on one of his receivers, since the existence of a SIGMET is broadcast every 15 minutes during the first hour of its effectiveness.

The Cessna took off at approximately 3:50 p. m., and Pierce called the Indianapolis FSS from the air to activate his flight plan. There were no more transmissions to or from Pierce between take-off and the time of the crash, approximately 11/2 hours later. The crash occurred when the left wing separated from the plane which went into a vertical dive near Allardt, Tennessee. The district court concluded that the immediate cause of the crash could not be determined conclusively because the horizontal stabilizers and elevators of the plane had not been preserved. Nevertheless, expert witnesses gave their opinions of the cause based on examination of parts of the plane which were available for examination, photographs, eyewitness accounts and records of weather conditions at the time of the crash. Two conflicting theories were presented. The plaintiffs contended that Pierce encountered an embedded thunderstorm which subjected the wings to a stress which was beyond their capacity, resulting in the left wing being torn violently from the plane. The defendant's theory was that Pierce attempted to penetrate an area of adverse weather associated with the cold front of which he had been advised, that he became disoriented and unintentionally put the plane into a spiral dive. When he emerged from the clouds, according to the defendant, Pierce overreacted and executed a movement which applied forces in excess of the structural design limitations of the plane.

In its memorandum opinion the district court concluded that the plaintiffs had not proved that atmospheric gusts caused the airframe failure and consequent crash and thus had failed to meet their burden of proof. Since the plaintiffs had failed to prove "actual causation" the district court found it unnecessary to make any findings with respect to negligence of the defendant or proximate cause. In a subsequent memorandum denying the plaintiffs' motion for reconsideration the district court wrote, "The plaintiffs have failed their burden of proving that weather as opposed to pilot error, caused the crash of N1649X."

II.

A.

Under the Federal Tort Claims Act governmental immunity is waived to the extent of permitting civil actions against the United States for money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The district court concluded that the substantive law of Indiana controls the issue of liability in the present case, and we agree. If there was any negligent act or omission by a government employee, it consisted of relaying inaccurate weather information to Pierce, or failing to relay available weather information which might affect his flight. These acts or omissions, if any, occurred at the Indianapolis FSS facility.

In Long v. Johnson, 381 N.E.2d 93, 100 (Ind.App.1978), the First District Court of Appeals of Indiana stated:

To establish a prima facie case of negligence, that is, to present sufficient evidence upon which the jury may return a verdict for the plaintiff, that party must introduce testimony or other evidence which shows: 1) a duty on the part of the defendant; 2) a failure to perform that duty; and 3) damages or injuries...