Safeco Ins. Co. of America v. City of Watertown

• Decision Date: 31 December 1981
• Docket Number: Civ. No. 77-1012,81-1015.
• Citation: 529 F. Supp. 1220
• Parties: SAFECO INSURANCE CO. OF AMERICA, Plaintiff, v. CITY OF WATERTOWN, SOUTH DAKOTA, A Municipal Corporation, Defendant. SAFECO INSURANCE COMPANY OF AMERICA, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Dakota

529 F. Supp. 1220

SAFECO INSURANCE CO. OF AMERICA, Plaintiff, v. CITY OF WATERTOWN, SOUTH DAKOTA, A Municipal Corporation, Defendant.

SAFECO INSURANCE COMPANY OF AMERICA, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. Nos. 77-1012, 81-1015.

United States District Court, D. South Dakota, N. D.

December 31, 1981.

Russell B. Holloway, Holloway, Dobson, Hudson & Bachman, Oklahoma City, Okl., Glen H. Johnson, Banks & Johnson, Rapid City, S. D., for plaintiff.

Kathlynn G. Fadely, Trial Atty., Torts Branch, Civil Div. U. S. Dept. of Justice, Washington, D. C., for defendant USA.

William A. Hackett, Austin, Hinderaker & Hackett, Watertown, S. D., for defendant City of Watertown, S. D.

MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

CASE SUMMARY

Plaintiff, as subrogee of its insured, Kerr-McGee Corporation, brought these actions, (consolidated for trial) to recover for property damage to a twin jet Kerr-McGee aircraft which crashed on take-off from the Watertown Municipal Airport. Jurisdiction of plaintiffs' tort action against the City of Watertown, owner and operator of the airport, is grounded in diversity, 28 U.S.C. § 1332(a). Plaintiff sued the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.; jurisdiction lies under 28 U.S.C. § 1346(b). After trial to the court, on the merits, this Court finds from all the evidence, and adjudges (1) that the negligence of defendant City was the proximate cause of the loss; (2) that plaintiff was not contributorily negligent; and (3) that the United States is not liable under the Federal Tort Claims Act.

FACTUAL BACKGROUND

A Saberliner jet aircraft owned by the Kerr-McGee corporation arrived at the airport in Watertown, South Dakota, at approximately 11:00 a. m. on Saturday, June 14, 1975. At approximately 4:30 p. m., the airplane, piloted by Kerr-McGee's chief pilot, Jack Irwin, and co-piloted by Ralph Hill, began its departure. They were informed by employees of the Federal Aviation Administration (FAA) in the Flight Service Station (FSS) at the airport that the visibility was about a mile and a quarter (the day was rainy) and that because of the prevailing wind, the "favored" runway was 17-35, running north-south.

The Saberliner taxied to the north end of 17-35, turned, and started its take-off roll. About 3,000 to 3,500 feet down the 6,900 foot runway, the aircraft reached take-off speed and lifted off. Almost immediately, and while at an altitude of 25 to 100 feet, the plane encountered a flock of Franklin gulls. Some of the gulls were ingested into the airplane's two jet engines, all power was lost, and the pilot made an emergency landing in a field south of the airport. The pilot and co-pilot and one passenger received some injuries; the Saberliner was a total loss. The parties have stipulated the loss to be $1,787,872.00.

I.

Duty of the United States under 14 C.F.R. Part 139.

Plaintiff's first ground for recovery against the United States is that the FAA negligently certificated the Watertown airport under 14 C.F.R. Part 139, and thereafter was negligent in failing to enforce its regulations under that Part. The certification process, which was initiated in 1973, required that no person could operate an airport "serving any CAB-certificated air carrier operating aircraft into that airport, ... without .. an airport operating certificate."¹ 14 C.F.R. § 139.3 (1975). As the regulations state, an airport is eligible for a certificate if the FAA "after investigation, finds that the applicant is properly and adequately equipped and able to conduct a safe operation in accordance with this part, and approved the airport operations manual submitted with and incorporated in the application." 14 C.F.R. § 139.11(b)(1975). Among many other requirements for the preparation of the airport operations manual, the "applicant ... must show that it has established instructions and procedures for the prevention or removal of factors on the airport that attract, or may attract, birds. However, the applicant need not show that it has established these instructions and procedures if the Administrator finds that a bird hazard does not exist and is not likely to exist." 14 C.F.R. § 139.67 (1975).

When Watertown submitted its airport operations manual in compliance with these regulations, it stated, under the category of "Birds", that there were "no problems at present time." The FAA accepted this statement and, without an independent inspection of the Watertown airport, approved the manual and issued a certificate to the airport in March, 1973. The FAA thereafter conducted annual inspections of certificated airports, 14 C.F.R. § 139.5 (1975). The Watertown airport's 1975 FAA inspection took place on June 4, ten days prior to the Saberliner accident. The report of this inspection, in a letter of June 6, 1975, from the Chief, Airport Certification Staff to the Watertown airport manager found "no discrepancies or violations to Federal Aviation Regulation Part 139."

Plaintiff alleges that the FAA knew or should have known that the Watertown airport did in fact have a bird problem, that the FAA was negligent in allowing Watertown to have a valid certificate without requiring it to embark on a bird control program, and that the FAA was negligent in later failing to discover the bird problem and in not thereafter requiring a bird control program. To make out a cause of action under the Federal Tort Claims Act (FTCA) using this theory, plaintiff must overcome the authority of a number of cases, including Davis v. United States, 395 F.Supp. 793 (D.Neb.1975), aff'd, 536 F.2d 758 (8th Cir. 1976). In Davis, an OSHA inspector issued a citation for a dangerous trench, but never made a follow-up inspection. A short time later, plaintiff's decedent was killed at the site of the inspection when a trench collapsed on him. An action was brought alleging negligence on the failure to follow up. The United States raised the defense it raises here — that since the law of the state in which the accident occurred, Nebraska, placed no duties on private persons like the duties undertaken by OSHA inspectors, the complaint did not state a claim under the FTCA.² The court granted defendant's motion to dismiss, saying that OSHA's "thrust is to require designated federal officers to investigate, issue citations, and apply for enforcement orders by a federal court. Nothing resembling those duties devolves on a private person under OSHA.... To the extent that the complaint ... is rooted in federal law as a source of duties of the United States or its compliance officer, it must fall." 395 F.Supp. at 795-96. The case was distinguishable from cases in which persons who controlled dangerous operations were held to have a duty to protect workers; "here the federal compliance officer was not in control, either actually, contractually, or otherwise. He performed inspection duties solely because of the federal laws and cannot be said by the common law of Nebraska to have been `responsible' for or in `control' of the project." 395 F.Supp. at 796.

This ruling was consistent with Kirk v. United States, 270 F.2d 110 (9th Cir. 1959), where the plaintiffs alleged that the United States had been negligent in failing to carry out an accident prevention and rescue program for the employees of one of its independent contractors at a dam site. This duty, the plaintiffs contended, was enjoined by statute and regulations. The Kirk court found that the plaintiffs had "utterly failed to establish the existence of the legal duty upon which they rely.... The general rule is that a statute which does not purport to establish a civil liability, but merely makes provision to secure the safety or welfare of the public as an entity, is not subject to a construction establishing a civil liability." 270 F.2d at 117. See also United States v. Smith, 324 F.2d 622 (5th Cir. 1963); Gelley v. Astra Pharmaceutical Products, Inc., 610 F.2d 558 (8th Cir. 1979); In re Franklin National Bank Securities Litigation, 478 F.Supp. 210 (E.D.N.Y.1979); Mercer v. United States, 460 F.Supp. 329 (S.D. Ohio 1978); Thompson v. United States, 592 F.2d 1104 (9th Cir. 1979): ("the mere provision for government safety inspections, or the ability to stop an activity for failure to comply with safety standards, does not impose liability on the government for failure to do so. A government safety manual or safety program does not impose a special duty on the government." 592 F.2d at 1110).

Both plaintiff and defendant United States urge the case of Clemente v. United States, 567 F.2d 1140 (1st Cir. 1978), as persuasive authority, and to varying degrees it does support both parties' positions. Clemente arose out of the crash of a private plane, with plaintiffs alleging that the crash had been caused by the negligence of the FAA in failing to warn the passengers that the aircraft was overweight and lacked a proper flight crew. Plaintiffs argued that the duty to warn had been imposed on the FAA by an order issued by the FAA Director of the Southern Region. Analyzing the issue, the Clemente court observed that:

not all acts and orders of the United States government are so sovereign that they must be treated as commands which create legal duties or standards, the violation of which involves breaking the law. A considerable part of the government's conduct is in the context of an employer-employee relationship, a relationship which includes reciprocal duties between the government and its staff, but not necessarily a legal duty to the citizenry. 567 F.2d 1144.

Clemente, however, seemed to suggest that liability could be imposed on the United States under certain factual circumstances, particularly those falling within the "Good Samaritan" doctrine and Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955).³ "When the government gratuitously undertakes to perform a service upon which members of the...