Reminga v. United States

• Decision Date: 19 January 1978
• Docket Number: No. K60-71 C.A.,K60-71 C.A.
• Citation: 448 F. Supp. 445
• 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, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

448 F. Supp. 445

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, v. UNITED STATES of America, Defendant.

No. K60-71 C.A.

United States District Court, W. D. Michigan, S. D.

January 19, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Volkema & Pees, Russell H. Volkema, Columbus, Ohio, of counsel, Walsh & Barnes, Richard C. Walsh, Kalamazoo, Mich., of counsel, for plaintiffs.

Robert C. Greene, Asst. U. S. Atty., Grand Rapids, Mich., for defendant.

OPINION

FOX, Chief Judge.

This case is brought under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. The action arises out of an accident which occurred on November 17, 1968, when plaintiffs' decedents died in a crash caused by their light aircraft flying into a guy-wire of a tall television broadcasting tower located near Rhinelander, Wisconsin. Plaintiffs are Gertrude Reminga, wife of Thomas H. Reminga and executrix of his estate; and Barbara Sue Breeden, wife of James Robert Breeden and administratrix of his estate.

The respective claims herein were timely filed with the appropriate federal agency. Final administrative action was taken on these claims, and this action was timely filed in accordance with 28 U.S.C. § 2675, therefore giving this court jurisdiction of this action.

Plaintiffs base their claim for recovery on several different grounds:

(1) The United States was negligent in that it improperly marked the tower in question on the official sectional air map.

(2) The government failed to issue a Notice to Airmen (NOTAM) warning pilots of the alleged misplacement.

(3) The government improperly granted permission for the construction of this tower.

(4) The government failed to issue a NOTAM warning that the tower in question had "unusually long" guy-wires.

(5) The Federal Air Administration (FAA) and the Federal Communications Commission (FCC) failed to require proper marking of the television tower.

The Government asserts that plaintiffs failed to meet their burden of proof in several respects concerning duty, breach thereof and proximate cause, and that allegations concerning the failure to regulate fall within the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a).

The Government further asserts that the sole proximate cause of the accident was the negligence of all of the occupants of the airplane in commencing and continuing the flight in dangerous weather conditions, and that such conditions were the cause of their inability to see and avoid the obstacle in question.

After extensive discovery, the matter was set for bench trial on November 15, 1976. The parties filed both pre-trial and post-trial proposed findings of facts and conclusions of law. At the close of trial the record was left open so that the parties could take and submit the depositions of two young eyewitnesses to the accident. This step was necessary to prevent prejudice, as neither party had fully complied with the court's pretrial order to list witnesses to be advanced at trial. These depositions were filed December 13, 1976. Based upon the testimony given at trial, the evidence introduced, and the stipulated facts presented to this court by the parties, I make the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

I. Facts Surrounding the Crash.

1. Gertrude Reminga is the Executrix of the Estate of Thomas H. Reminga, deceased; she is the widow of Thomas H. Reminga, deceased, and Thomas H. Reminga was the father of three children, whose ages at the time of death were as follows: Thomas—21 years; Susan—17 years; and Mary—15 years.

2. Barbara Sue Breeden is the Executrix of the Estate of James Robert Breeden, deceased; she is the widow of James Robert Breeden, deceased, and there is no issue from this marriage.

3. Thomas H. Reminga was 44 years of age at the date of his death, and his life expectancy, according to life tables of the United States Vital Statistics, was 28.2 years.

4. James Robert Breeden was 29 years of age at the date of his death, and his life expectancy was 41.7 years.

5. Thomas H. Reminga and James Robert Breeden were citizens and residents of the State of Michigan at the time of their deaths, and their respective families were likewise residents of the State of Michigan.

6. During the course of their business Thomas H. Reminga and James Robert Breeden had dealings with the Cadillac Company, Inc. (now Shustrom Company, Inc.). This company owned a Mooney M-20C, single engine, four seat aircraft, which was primarily for the use of the company owner's son, Mr. Jerome Shustrom, who like Mr. Reminga and Mr. Breeden held a private pilot's license.

7. None of the three men were instrument rated; that is, none of the men were qualified and certified to fly an aircraft using only instruments for navigation. 14 C.F.R. 91.115-91.129. Neither Mr. Reminga nor Mr. Breeden was checked out (and hence neither was qualified) to be a pilot in command of the above aircraft.

8. At the time of the accident, Mr. Thomas H. Reminga held a private pilot's license and had accrued approximately 1000 hours of flying time. He was a military pilot during World War II and had a commercial pilot certificate with a multi-engine rating. James Robert Breeden held a private pilot's license with a single-engine rating. Additionally, he had attended commercial ground school and had his commercial pilot's rating almost completed. He had accumulated 515 hours of flying time. Jerome Shustrom held a private pilot's license with a single-engine rating, and had accumulated approximately 187 hours of flying time.

9. Plaintiffs' decedents and Jerome Shustrom had flown to Wisconsin on a hunting trip. They departed from Land O'Lakes Airport in Wisconsin on November 17, 1968 at approximately 2:30 P.M. C.S.T. intending to return home to Kalamazoo, Michigan. This flight was to be conducted in accordance with Federal Aviation Administration General Operating and Flight Rules, 14 C.F.R. 91.-91.51 and Visual Flight Rules (VFR), 14 C.F.R. 91.115-91.129.

10. Jerome Shustrom occupied the left front seat, commonly known as the pilot's seat, Thomas H. Reminga was in the right front seat, and James Robert Breeden was in one of the rear seats when the men departed from Land O'Lakes Airport. Because Mr. Shustrom was sitting in what is commonly acknowledged as being the pilot's seat, because his father's business owned the aircraft, and because neither of the plaintiffs' decedents was checked out to fly the aircraft, the preponderance of the evidence points to the fact that Mr. Shustrom was in fact the pilot of the airplane.

11. Seventeen miles south-southeast of the airport the airplane carrying the three men collided into a guy-wire of a 1720 foot broadcasting tower. The guy-wire was struck at an approximate altitude of 450 feet above ground level, and about 1850-1900 feet from the base of the central part of the structure. As a result of this collision, the airplane crashed, and plaintiffs' husbands were killed. The accident occurred at approximately 2:52 P.M. C.S.T.

12. The center part of this television broadcasting tower was lighted, but the guy-wires were neither lighted nor marked. The tower was not a free-standing tower; it was supported by guy-wires that extended in three directions from near the top of the 1720 foot tower to anchors approximately one-half mile away from the base of the tower.

13. Federal Aviation Regulation (FAR) 91.3, 14 C.F.R. § 91.3, states that the pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft. Since it has been determined that Mr. Shustrom was the pilot of the plane involved in this action, he assumed this responsibility.

14. In executing his responsibilities under FAR regulations, the pilot in command has certain limitations within which he must operate his aircraft. He is under greater restrictions within a control zone than he is outside such zone. In either case he must adhere to the flight minimums set forth by the FAR regulations, unless he is faced with an emergency, whereupon he must use his best judgment.

15. The flight minimums which Mr. Shustrom had to comply with in order to be legal were: (1) be free of clouds, and (2) have one mile visibility, so long as he flew outside of controlled airspace:

"Outside controlled airspace at an altitude of 1,200 feet or less above the surface, unless the aircraft is clear of clouds.

"Outside controlled airspace, unless flight visibility is at least one statute mile." (F.A.R. § 91.105(a) (Emphasis added).

Mr. Shustrom was flying less than 1,200 feet at the site of the accident and the flight was outside of controlled airspace. (FAR 91.105; 14 C.F.R. 105). Further, the tower structure was located outside of the control zone of the Rhinelander Oneida County Airport control zone.

16. 14 C.F.R. 91.5 states that a pilot in command shall, before beginning the flight, familiarize himself with all available information concerning that flight, including available weather reports and forecasts and alternatives in the event the planned flight cannot be completed.

17. The weather conditions, as shown by the weather reports, the defendant's answers to plaintiffs' requests for admissions, and the testimony of Mr. Leslie N. Krosschell, were above the minimums required by the regulations at takeoff.

Prior to the flight at 1:37 P.M. C.S.T., an occupant of the airplane, who identified himself as a pilot, called the flight service station at Wausau, Wisconsin for flight information and a weather briefing; during this call the flight service station at Wausau, Wisconsin asked the caller if he could make the flight under instrument flight rules, to which the caller replied, "No." During this call to the flight service station at Wausau, Wisconsin, the person who...