Reidinger v. Trans World Airlines, Inc.

• Decision Date: 06 July 1972
• Docket Number: No. 71-1727 to 71-1735.,71-1727 to 71-1735.
• Citation: 463 F.2d 1017
• Parties: Lawrence REIDINGER, Jr., Admr., D.B.N., et al., Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., et al., Defendants-Appellants. J. Bruce MILLER, Admr. of the Estates of Jerry L. Rhodes, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. The CENTRAL TRUST COMPANY, Extr. of the Estates of Milton P. Link, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

463 F.2d 1017 (1972)

Lawrence REIDINGER, Jr., Admr., D.B.N., et al., Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., et al., Defendants-Appellants.

J. Bruce MILLER, Admr. of the Estates of Jerry L. Rhodes, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

The CENTRAL TRUST COMPANY, Extr. of the Estates of Milton P. Link, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Nos. 71-1727 to 71-1735.

United States Court of Appeals, Sixth Circuit.

July 6, 1972.

No. 71-1727:

John J. O'Hara, O'Hara, Ruberg & Cetrulo, Covington, Ky., Daniel J. O'Neill, Chadbourne, Parke, Whiteside & Wolff, New York City, on brief, for defendants-appellants.

James Q. Doran, Cohen, Todd, Kite & Spiegel, Cincinnati, Ohio, Marshall C. Hunt, Jr., Cincinnati, Ohio, on brief, for plaintiff-appellee.

Nos. 71-1728 to 71-1732:

Thomas C. Carroll, Louisville, Ky., for plaintiffs-appellants.

Leonard Schaitman, Department of Justice, Washington, D. C., Kathryn H. Baldwin, Department of Justice, Washington, D. C., L. Patrick Gray, III, Asst. Atty. Gen., Eugene E. Siler, Jr., U. S. Atty., on brief, for defendant-appellee.

Nos. 71-1733 to 71-1735:

John W. Beatty, Cincinnati, Ohio, William L. Blum, Cincinnati, Ohio, on brief, for plaintiffs-appellants.

Leonard Schaitman, Department of Justice, Washington, D. C., Kathryn H. Baldwin, Department of Justice, Washington, D. C., L. Patrick Gray, III, Asst. Atty. Gen., Eugene E. Siler, Jr., U. S. Atty., on brief, for defendant-appellee.

Before MILLER and KENT, Circuit Judges, and FEIKENS, District Judge.^*

FEIKENS, District Judge.

On November 20, 1967, a Trans World Airlines Convair 880 jet aircraft crashed while on final approach to a landing at Greater Cincinnati Airport in Kentucky. Sixty-five passengers and five crew members died. Ten passengers and two crew members survived.

This crash was the subject matter of a number of suits commenced in various United States District Courts. The Judicial Panel for Multi-District Litigation, in an opinion and order, transferred all these actions to the United States District Court for the Eastern District of Kentucky for pretrial proceedings and discovery. (Title 28 U.S.C. § 1407). The discovery phase produced voluminous interrogatories and answers, extensive discovery of documents, many admissions of fact, and the taking of seventy-four depositions from lay and expert witnesses.

Case No. 71-1727 involves suits by representatives of the estates of passengers against Trans World Airlines. Some passenger representatives additionally sued the United States (actions against the air traffic controllers at the Greater Cincinnati Airport) and some also sued General Dynamics Corporation (the manufacturer of the Convair) and Kollsman Instrument Company (the supplier of the aircraft's instruments).

Three suits, numbered 71-1733, 71-1734, and 71-1735, on behalf of two deceased passengers (hereinafter referred to as the Link plaintiffs) were continued against the United States only.¹

Additionally, there are suits on behalf of five crew members (numbered 71-1728 through 71-1732) against the United States.

Motions for summary judgment were filed by the passenger estates against Trans World Airlines on the issue of liability only; by the United States against the passenger estates and crew suits; by General Dynamics against the passenger estates suits and Trans World Airlines' cross claims and by Kollsman, third-party defendant, against the passenger estates suits and General Dynamics' third-party complaint.

The United States District Court for the Eastern District of Kentucky granted all motions.²

Trans World Airlines, the crew representatives, and the Link plaintiffs have appealed. Trans World Airlines was granted an interlocutory appeal, and all cases were consolidated for the purpose of this appeal. No appeal was taken from orders granting summary judgment in favor of General Dynamics and Kollsman.

All appellants contend that there are genuine issues of material fact (citing Federal Rule of Civil Procedure 56(c)) and that the grant of summary judgment was erroneous.

The United States District Court had earlier met this question head on. That court said: "From the various briefs and documents before the court it is clear that there is no genuine issue as to the facts material to the motions for summary judgment."³

Thus, the overriding question on appeal is: Can these tort cases be disposed of by summary judgment?

Trans World Airlines Flight No. 128 was regularly scheduled between Los Angeles and Boston, with stops enroute at Cincinnati and Pittsburgh. On November 20, 1967, it departed Los Angeles at 2:37 p. m. (PST) and flew across the country under control of various aircraft traffic control facilities. At 8:47 p. m. (EST), approximately thirty-five miles northwest of the Greater Cincinnati Airport, the aircraft came under the Cincinnati approach control. It was cleared for descent and an instrument landing system (ILS)⁴ approach to runway 18. This runway runs generally from north to south.

The aircraft crashed approximately 10,000 feet short of the approach to runway 18 at an elevation of 870 feet above sea level (which was about 15 feet below the elevation of runway 18).

The critical areas in contention on appeal concern at least five issues:

(1) Landing and weather information given to the crew;

(2) Whether runway 18 (a north approach) or runway 36 (a south approach) should have been used by the aircraft;

(3) The conduct of the crew;

(4) Whether or not instruments on the aircraft functioned correctly; and

(5) Proximate cause.

Findings of fact as to each of these questions and the interplay of these findings on conclusions as to negligence, breach of duty, and proximate cause are vital to the rights and liabilities of the parties.

It is at once apparent that the passenger representatives (other than the Link passenger representatives who have suits only against the United States) and the United States are satisfied with the rulings of the lower court and see no controversy in these facts. The crew member representatives and Trans World Airlines, as well as the Link passenger representatives, contend that there are many disputed questions of material fact.

The majority of passenger representatives contend that the facts show that only Trans World Airlines was negligent and that that negligence was the sole proximate cause of their decedents' deaths. The Link passenger representatives who sued the United States urge that the facts show that the air controllers were negligent and that their negligence was a proximate cause of their decedents' deaths. The crew members' representatives urge that the air controllers were negligent and that their negligence was the sole proximate cause of the crash; and finally, the United States claims that the facts show that the crew was negligent and that their negligence was the sole proximate cause of the crash.

Thus, we are required to scrutinize the facts as to weather and landing information, the use of a particular runway, crew conduct, and instrument function to determine whether there are genuine issues as to any material facts.

LANDING AND WEATHER INFORMATION

With regard to this issue, the crew representatives offer these facts: that the air controllers did not give altimeter information to the crew; that the controllers did not give the crew correct advice as to the weather; that the controllers did not establish reliable visibility check points; that while visibility was five miles at 8:40 p. m., it dropped to 1½ miles at 8:49 p. m. and was rapidly deteriorating because of heavy snow showers immediately prior to the crash and that this latter information was not given to the crew; that at 8:52 p. m. the local air controller questioned the approach controller whether flight 128 should land on runway 18 or runway 36 which, the crew representatives contend, shows air controller impropriety as to landing recommendations. Trans World Airlines and the Link passenger representatives join in these offers of proof.

In contrast, the United States relies upon the facts found by the lower court: that the Indianapolis air controllers gave flight 128 an altimeter reading at approximately 8:30 p. m.; that the Cincinnati air controllers gave a departing American Airlines aircraft an altimeter reading as Trans World Airlines flight 128 approached the Cincinnati airport; that the flight recorder on the aircraft which was recovered after the crash noted a crew voice saying: "Altimeter set and cross checked," which tended to show that the crew had the required altimeter reading; and that the recorded official weather data indicated that visibility was in fact 1½ miles with light snow and was given to the crew.

WHETHER RUNWAY 18 OR RUNWAY 36 SHOULD HAVE BEEN USED

Trans World Airlines and the crew representatives offer to show the following facts: The instrument landing system (ILS) at Greater Cincinnati Airport on November 20, 1967, for runway 18 (navigational aids which were working) consisted of an outer marker and locator and an ILS localizer. On runway 36, the instrument landing system which was working consisted of an outer marker, a middle marker, high-intensity approach lights, and an ILS localizer. Neither runway had a glide slope. The crew member representatives and Trans World Airlines contend that the failure on the part of the air controllers to give this data to the crew and to recommend a runway 36 landing is some evidence of their negligence. They are joined in that contention by some of the plaintiff passenger representatives. Trans World Airlines additionally offers to prove that the air...