Soldinger v. United States

• Decision Date: 19 November 1965
• Docket Number: Civ. A. No. 4251.
• Citation: 247 F. Supp. 559
• Parties: Harold SOLDINGER and Annette Soldinger, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

247 F. Supp. 559

Harold SOLDINGER and Annette Soldinger, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 4251.

United States District Court E. D. Virginia, Norfolk Division.

November 19, 1965.

Israel Steingold, Steingold, Steingold & Chovitz, Norfolk, Va., L. B. Sachs, Kanter, Kanter & Sachs, Norfolk, Va., for plaintiffs.

Roger T. Williams, Asst. U. S. Atty., C. V. Spratley, Jr., U. S. Atty., Norfolk, Va., for defendant.

WALTER E. HOFFMAN, Chief Judge.

This action, originally filed under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and the Fifth and Fourteenth Amendments to the Constitution of the United States, alleges that the plaintiffs owned the premises designated as 213 Rodman Road, Norfolk, Virginia, which property is situated on the opposite side of a small creek at the head of a runway used by jet aircraft operating from the Naval Air Station. It is contended that the deafening noises caused by low-flying aircraft have prevented sleep, disrupted the ordinary use of the home and its facilities, caused the wife to have a nervous condition, and aggravated a coronary condition from which the husband suffers. Damages for the unlawful taking are claimed in the sum of $24,250.00. Damages for injury to health, fright and mental anguish are stated to be in the sum of $50,000.00.

Because the amount claimed for the alleged wrongful taking of property was in excess of $10,000, the action was transferred to the Court of Claims by order dated March 24, 1964. On November 4, 1964, plaintiffs moved for an order remanding the case to this Court by reducing their claim to $10,000.00 for that portion of the case which is based upon a claimed taking of property under the Fifth Amendment.¹ Accordingly, the Court of Claims entered its order of November 12, 1964, remanding the case to this Court.

The United States has filed a motion to dismiss or, in the alternative, a motion for summary judgment as to the cause of action stated under the Federal Tort Claims Act.² From the depositions filed and the concessions of counsel, we know that no aircraft has ever actually fallen or dropped objects upon the plaintiffs or their property. The question thus presented is whether noise from a jet aircraft constitutes a physical invasion of the person as construed by Virginia law which governs the rights, if any, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

Without more than what the plaintiffs here assert, there can be no recovery for such items as noise, fright, and mental anguish allegedly caused by lowflying jet aircraft.

The husband testified that he had been treated for high blood pressure since 1953 and was last treated by a physician in the fall of 1963, prior to giving his deposition in January, 1964. The wife testified as to her nervousness and her fear for the safety of her three children but conceded that she had never been treated by a physician for such alleged nervousness.

Courts have recognized that aircraft flights which are so low and frequent as to be a direct and immediate interference with the enjoyment and use of land may amount to a compensable "taking." United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; 77 A.L. R.2d 1355. This is not to say that the act of flying jet aircraft over homes at a low altitude constitutes negligence which is the primary purpose for...