Reminga v. U.S.
| Decision Date | 28 October 1980 |
| Docket Number | No. 78-1154,78-1154 |
| Citation | 631 F.2d 449 |
| Parties | Gertrude REMINGA, Executrix of the Estate of Thomas H. Reminga, Deceased, and Barbara Sue Breeden, Executrix of the Estate of James Robert Breeden, Deceased, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James S. Brady, U. S. Atty., Robert C. Greene, Asst. U. S. Atty., Grand Rapids, Mich., Ronald R. Glancz, Frederic D. Cohen, Michael J. Pangia, Asst. Chief Counsel, Litigation Division, Federal Aviation Administration, Washington, D. C., for defendant-appellant.
Russell H. Volkema, Volkema & Pees, Columbus, Ohio, for Reminga.
Richard Walsh, Kalamazoo, Mich., for Breeden.
Before EDWARDS, Chief Judge, LIVELY, Circuit Judge, and PHILLIPS, Senior Circuit Judge.
In this Federal Tort Claims Act 1 case the district court entered judgment for the plaintiffs upon a finding that acts and omissions of two federal regulatory agencies were negligent. The plaintiffs are the widows and executrices of two passengers in a small private airplane who were killed when the plane struck a guy wire which supported a tall television tower. The district court found negligence and proximate cause in three agency actions and omissions: (1) the government was found negligent for publishing a "sectional chart" which showed the TV tower in the wrong location; (2) the Federal Aviation Administration (FAA) was found negligent in issuing a "no hazard determination" when construction of the tower was proposed; and (3) the FAA and the Federal Communications Commission (FCC) were found negligent for failing to require additional lighting or marking "so as to safeguard pilots who are in the area from striking the guy-wires of such a tower, or at least to have inquired into the feasibility of marking the wires." Reminga v. United States, 448 F.Supp. 445, 469 (W.D.Mich.1978).
The decedents were returning to their homes in Michigan from a hunting trip in Wisconsin when the fatal crash occurred. Though both were licensed pilots, the district court found that the plane was being operated by the third occupant whose father's business owned it. This finding is supported by the evidence. The plane took off from the Land O'Lakes Airport near Rhinelander on November 17, 1968 at approximately 2:30 p. m. and crashed at approximately 2:52 p. m. some seventeen miles south-southeast of the airport. None of the occupants of the plane was licensed for instrument flying and the flight was to be conducted under Visual Flight Rules (VFR). The "flight minimums" for the trip were that the area be free of clouds and that the pilot have one mile visibility as long as he flew outside of controlled airspace. 14 C.F.R. § 91.105(a). The district court found that though the weather was "marginal," conditions were above the minimums at the time of take off. The plane reported to the airport when it was 12 miles south that it was flying at 600 feet with about 3 miles visibility.
The district court found that a mixture of rain and snow was falling and the plane was flying in and out of clouds just before the crash. The court also found that the top of the 1720-foot tower was obscured at the time of the collision and that the plane struck a guy wire approximately 450 feet above the ground and approximately 1850 to 1900 feet from the base of the tower itself. The tower was supported by three guy wires which extended laterally approximately 2500 feet from the base of the central structure. Though the tower itself was painted and illuminated in accordance with FCC regulations (47 C.F.R. Part 17, Subpart C), there were no lights or other markings on the guy wires.
The government issues sectional maps or charts for various areas of the country. The district court found that the occupants of the plane were using the Green Bay sectional map. It is undisputed that the location of the TV tower was shown inaccurately on this chart. The map showed the tower west of the town of Starks, Wisconsin and south of nearby railroad tracks whereas its actual location was north of Starks and north of the tracks. The district court found that this displacement would create a problem for a VFR pilot who would normally use a railroad line as a visual reference point. This finding was supported by the testimony of an experienced pilot, Richard G. Hartman, who was called by the defendant. Hartman testified that knowing where things are "is number one" in importance for a pilot and it is very important that obstructions to navigation be put on a map correctly.
The government contends the finding that the occupants of the plane relied on the Green Bay sectional map is clearly erroneous. The circumstantial evidence would support a finding that the pilot was actually using an aeronautical map of the State of Wisconsin issued by a private publisher rather than the Green Bay sectional chart. Nevertheless, there was evidence from which the district court could have found that the government chart was being used. On this record we are unable to conclude that the district court's finding is clearly erroneous. Having determined that the finding of reliance on the Green Bay sectional map was not clearly erroneous, we do not reach the district court's alternate finding that the Wisconsin map, which also misplaced the tower, was merely copied from the sectional map.
The government also contends that the displacement of the symbol for the TV tower could not have been the proximate cause of the crash. It is contended that sectional charts are intended for use by pilots to determine their "general location by reference to objects on the ground," and that "a pilot cannot rely on any map to visually thread his way through the needles which would be encountered by flying under 500 feet in uncontrolled and unavigable airspace in bad weather." This argument overlooks the district court's finding that although the plane took off with legal minimums and had three miles visibility when 12 miles from the airport, deteriorating weather (mixed rain and snow) caused the pilot to descend further to be able to fly according to VFR. As he approached the point of collision, the top of the tower was hidden and the pilot was moving in and out of clouds. In this situation it was essential that the pilot know the correct location of obstructions to navigation. We cannot say the district court was clearly erroneous in finding that the issuance of the map which showed the location of the tower in the wrong place was the proximate cause of the crash.
Though not required by law to do so, 2 when the FAA arranges for the publication of aeronautical navigation charts and engenders reliance on them, it is required to use due care to see that they accurately depict what they purport to show. Failure to show the location of the tower accurately rendered the United States liable for injury to those who relied upon the chart. See Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955); Ingham v. Eastern Airlines, Inc., 373 F.2d 227, 236 (2d Cir.), cert. denied, 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967).
The government contends vigorously that recovery in this case is precluded by the Michigan rule of contributory negligence. The district court, applying Michigan law, recognized that at the time of the fatal crash contributory negligence was an absolute bar to recovery. The government contends the weather was so unsuitable for VFR flying that it was negligent to begin the trip, and negligent not to turn back when the weather worsened. However, the court found no contributory negligence. Since all three occupants of the plane were licensed pilots and there was evidence that more than one engaged in inquiries about the weather before their departure, the court found that all participated in the decision to take off. Nevertheless, the court stated: 448 F.Supp. at 465.
There was evidence from which a finding of contributory negligence might have been made. However, the district court, as trier of the facts, found evidence to the contrary more persuasive. Though the weather was marginal at take off, several witnesses who were pilots testified that they had flown in such conditions. The radio report from 12 miles out indicated that the weather was improving. Thus, there was no duty to turn back. Eyewitness accounts of the crash established that there were low-lying clouds in the immediate area of the tower. The plane was flying south. The sectional chart showed the tower west of Starks and south of the railroad tracks. In approaching the area, the pilot could reasonably expect to see the railroad tracks before he came upon the tower. We cannot say it was negligent for the pilot to fly within 1900 feet of the tower while still north of the tracks. If the tower had been accurately located on the chart there would be some force to the government's argument that the pilot was negligent in flying so close to it. Not knowing its true location, and flying in and out of clouds, however, he may not be charged with negligence on this score. The finding of no contributory negligence was not clearly erroneous.
The district court premised liability on two other grounds, both involving alleged improper actions and failures of regulatory agencies. We reject these determinations for the reasons hereinafter set forth.
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