Sellfors v. U.S.

Decision Date16 February 1983
Docket NumberNo. 80-7897,80-7897
Citation697 F.2d 1362
PartiesMarilyn Joyce SELLFORS, Etc., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Robert W. Patrick, Gary M. Cooper, E.A. Simpson, Jr., Atlanta, Ga., for plaintiff-appellant.

Cecile Hatfield, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN, * District Judge.

PITTMAN, District Judge:

This action was commenced by the appellant, Marilyn Joyce Sellfors, against the United States of America under the Federal Tort Claims Act (FTCA), 28 U.S.C.A. Secs. 1346(b), 2671-80, for damages due to the loss of life of her husband, Ernest F. Sellfors, who was killed on February 26, 1973, when the Lear Jet aircraft he was piloting crashed shortly after take-off from the DeKalb-Peachtree Airport in Chamblee, Georgia. The crash resulted from a sudden loss of power during take-off when the aircraft's engines ingested birds on the take-off from the runway. The source of the birds' attraction to the vicinity was a county landfill situated adjacent to the runway on county property.

Appellant alleges that the United States was negligent, through the acts or omissions of its agent, the Federal Aviation Administration (FAA), in failing to perform claimed statutory obligations under the Airport and Airway Development Act of 1970, 49 U.S.C.A. Secs. 1701 et seq. (AADA). Appellant also alleges negligence on the part of the FAA air traffic controllers on duty at that time in failing to observe and warn her husband of the presence of birds in close proximity to the runway.

At the conclusion of the trial, the judge ruled from the bench that the air traffic controllers were not negligent in failing to warn the deceased pilot of the birds prior to take-off. The court found that there was no evidence presented that the controllers had sighted any birds immediately prior to the mishap. The district court subsequently issued a written order dismissing the cause of action finding that the AADA obligations would not support a claim under the FTCA. It is from these rulings that the plaintiff-appellant appeals.

We affirm.

DeKalb County, Georgia is the owner and operator of both the airport and the contiguous landfill. The county airport was a recipient of federal funds under the AADA and the runway from which the ill-fated aircraft took off was constructed with such funds. As a statutory prerequisite to receiving funds for airport development, the sponsor entered into some six contracts (grant agreements) with the FAA assuring the agency that any existing hazards to air navigation present at the airport would be eliminated or corrected. The grant agreements further promised that future hazards would be prevented.

The first birds appeared at the airport in 1969. Their number has increased each year, becoming most plentiful in the winter months. Flocks of great numbers of these birds have been sighted from time to time alongside and flying across the runways. The record reflects FAA knowledge of the hazard in 1972. The agency conducted investigations, negotiated with the county and applied friendly coercion in an attempt to eliminate the problem.

The deceased pilot was fully aware of the hazardous situation regarding birds at the DeKalb-Peachtree Airport as it was his home base. The fatal crash occurred on Mr. Sellfors second flight from the airport that day. Additionally, the aviation flight charts (Jeppeson charts) in Mr. Sellfors' possession when he crashed contained a warning of danger from birds.

At approximately 9:00 a.m. the day of this crash, birds were sighted in the grass adjacent to Runway 16. The air traffic controllers, as well as the airport manager, were alerted to their presence.

The manager, using a shotgun, managed to kill or frighten off these birds. While out on the airport perimeter he inspected the active Runway 20 left and observed no birds near that runway. The tower reported seeing no birds in that area at any time on that morning.

There was substantial activity on Runway 20 left throughout the morning and at no time were there reports of bird sightings in that area. The pilot which preceded Mr. Sellfors testified that he saw a small flock of birds in the grass alongside the left or eastern edge of Runway 20 left, but did not report this to the tower. The location he described was approximately 1000-1500 feet from the control tower and about one- half mile from Mr. Sellfors, awaiting on the taxi pad. Another aircraft landed before Mr. Sellfors began his take-off. The pilot of that plane did not report seeing birds.

The trial judge, in his order of September 30, 1980, found that there was no evidence that the air traffic controllers had sighted any birds immediately prior to the accident. These findings will not be disturbed unless clearly erroneous. North River Energy Corp. v. U.M.W.A., 664 F.2d 1184 (11th Cir.1981). A thorough review of the evidence in this case did not reveal anything to dispute the above findings. The substantial evidence, in fact, provides clear support that the air traffic controllers were not negligent in failing to warn Mr. Sellfors of the hazard.

The court next addresses appellant's contentions as to the liability of the FAA for failing to enforce compliance of the county's contractual assurances entered into pursuant to the AADA. A particular subsection of the Act directs the Secretary of Transportation to obtain assurances from the government entity seeking federal airport development funds that existing hazards to air navigation will be removed and that further hazards will not thereafter be established. 1

The United States contends that the FAA owed no duty of care towards the appellant's husband as a result of the requirements of this statute, but that even if such a duty did exist, the acts or omissions complained of fall within the discretionary function exception to the FTCA. 28 U.S.C.A. Sec. 2680(a). See generally Annot., 47 A.L.R.Fed. 85 (1980), see also Hawaiian Airlines, Inc. v. United States, No. 80-170-ORL-CIV-Y, slip op. (M.D.Fla. May 7, 1981); Safeco Ins. Co. v. United States, No. 81-1015, slip op. (N.D.S.D. Dec. 31, 1981).

Section 1346(b) of the FTCA waives the sovereign immunity of the United States for injuries

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.

See Brown v. United States, 653 F.2d 196, 201 (5th Cir. Unit A 1981).

The district court correctly held that the determining factor does not consist of a duty arising from a statute, but whether a private person would be liable under Georgia law for the same acts or omissions. The FTCA was not intended to redress breaches of federal statutory duties. See Baker v. F & F Investment Co., 489 F.2d 829, 835 (7th Cir.1973); Devlin Lumber & Supply Corp. v. United States, 488 F.2d 88, 89 (4th Cir.1973); Davis v. United States, 395 F.Supp. 793, 795 (D.Neb.1975), affirmed per curiam, 536 F.2d 758 (8th Cir.1976). As further support, the Supreme Court has determined that Congress, in drafting the FTCA, was concerned primarily with providing redress for the garden variety common law torts recognized by state law. See Dalehite v. United States, 346 U.S. 15, 28, 73 S.Ct. 956, 97 L.Ed.2d 1427 (1953). See also United States v. Smith, 324 F.2d 622, 624-25 (5th Cir.1963).

The analysis herein involves two separate inquiries: (1) does the AADA of 1970 create a statutory duty on the part of the United States owing to third parties using federally funded airports and (2) do the acts or omissions complained of constitute a common law tort cognizable under state law?

The AADA was passed for the principal purpose of providing "for the expansion and improvement of the Nation's airport and airway system." 1970 U.S.Code Cong. & Ad.News 3047, 49 U.S.C.A. Sec. 1701. This was necessitated by the burgeoning United States economy and population which suffered from the lack of a national system of adequate airport facilities. Id. at 3049-59, 3083. Neither the legislative history nor the AADA itself reflects any congressional intent that the Act create duties on the part of the federal government owing to private individuals using sponsored airport facilities. The purpose of the Act is to provide federal funds for use in developing and modernizing airports and related facilities in conjunction with a national transportation policy and other national concerns of efficient and nondiscriminatory use of such monies. It was not intended to regulate the operation of airports. City of Dallas, Texas v. Southwest Airlines Co., 371 F.Supp. 1015, 1024-25 (N.D.Tex.1973), affirmed 494 F.2d 773 (5th Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974).

The legislative history shows no intent of Congress to impose a legal duty on the FAA, running to each user of a federally funded airport, to insure the absolute safety of each facility constructed or maintained with federal funds. The Supreme Court has not considered the issue. In Miree v. DeKalb County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977), plaintiffs claimed that the Airport and Airway Development Act of 1970 provided an implied civil right of action to recover for death or injury due to violation of the Act. The Court declined to consider the argument because it had not been pleaded, argued or briefed before the district court or the Court of Appeals. The Court noted, "The fact that this asserted basis of liability is so obviously an afterthought may be some indication of its merit ...." 433 U.S. at 33, 97 S.Ct. at 2495. See Miree...

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