Starr v. United States, No. CA 3-7519-C.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
• Writing for the Court: T. Alex Eastus & Lois Bacon, Asst. City Attys., Dallas, Tex., for city of Dallas
• Citation: 393 F. Supp. 1359
• Docket Number: No. CA 3-7519-C.
• Decision Date: 25 April 1975
• Parties: Ingrid STARR v. The UNITED STATES of America v. Howard Clifford ZIELKE et al.

393 F. Supp. 1359

Ingrid STARR
v.
The UNITED STATES of America
v.
Howard Clifford ZIELKE et al.

No. CA 3-7519-C.

United States District Court, N. D. Texas, Dallas Division.

April 25, 1975.

393 F. Supp. 1360

COPYRIGHT MATERIAL OMITTED

393 F. Supp. 1361

John H. McElhaney, Turner, Rodgers, Sailers, Jordan & Calloway, Jack Johannes, Johannes, Robertson & Wilkinson, Dallas, Tex., for plaintiff

393 F. Supp. 1362

Frank D. McCown, U. S. Atty., Kenneth J. Mighell, Asst. U. S. Atty., Dallas, Tex., for U. S.

Eugene Jericho, Strasburger, Price, Kelton, Martin & Unis, Dallas, Tex., for Zielke and Thomson.

T. Alex Eastus & Lois Bacon, Asst. City Attys., Dallas, Tex., for city of Dallas.

OPINION

WILLIAM M. TAYLOR, Jr., Chief Judge.

The unfortunate sequence of events which resulted in this lawsuit occurred on January 20, 1972. Juan Villaba, the 14-year old son of the plaintiff, and his brother Gustavo were riding their Honda motorcycle,¹ which the brothers had recently received as a Christmas gift. Neither of the brothers was licensed to operate the motorcycle on the public streets and highways and their parents had restricted their motorcycle riding to the premises of their apartment complex. The brothers lived with their mother and stepfather in an apartment complex, which was to the east of Hampton Avenue in the Oak Cliff section of Dallas. Juan and Gustavo were approached by two friends who offered to direct them to a motorcycle path, which was to the west of Hampton Avenue. The brothers were anxious to test their riding skills upon the path, about which they had heard much. Juan telephoned his mother, who was still at work, to advise her that the boys were going to ride their motorcycle. The plaintiff gave her permission without any inquiry as to where this riding would be done.

The motorcycle path, which the Villaba brothers were directed to, was on the premises of Redbird Airport. The other boys left, and Juan and Gustavo took turns riding the Honda. Gustavo waited at a point to the east of the airport's runway 17 while his brother took his tragic ride.

Redbird Airport is a municipal airport owned by the City of Dallas, Texas, Juan and Gustavo were both aware of the airport as they had been on the premises on other occasions. There were numerous "no-trespassing" signs posted at the entrance and at various points on the extremities of the airport.

In the meantime third-party defendants Howard Zielke and Richard Thomson had just finished installing a new battery in their Cessna 172. Zielke and Thomson were joint owners of the aircraft, which they maintained at Redbird Airport. They decided to charge the battery by flying the Cessna. Zielke and Thomson received clearance from the tower controller and proceeded to take off on runway 17 to the south. By this time it was early evening and totally dark. Zielke was piloting the aircraft in the left seat and Thomson was seated to his right. The plane climbed from the takeoff and turned left toward the east and thereafter made another left turn into the airport's regular traffic pattern to the north.

Just before turning to the left from this downwind leg of the traffic pattern to a westerly direction on the base leg, Zielke and Thomson noticed a reflection of a light on the ground somewhere in the vicinity of the north end of runway 17. The reflected light appeared to be moving slowly away from the runway area so the aviators quickly dismissed it from their attention.

After turning west onto the base leg, pilot Zielke set up his procedures for landing the aircraft. He was preparing to "land on the numbers". This type of precision landing requires touching down the airplane on the number "17" immediately adjacent to the north end threshold of runway 17.

After turning left to the south for the approach leg of the flight, the pilot

393 F. Supp. 1363

Zielke started the aircraft's descent. Approximately 161 feet from the threshold end of runway 17, Thomson saw a light intercepting the airplane's path from the right. Before either aviator could react, they heard a noise caused by the impact of Juan Villaba colliding with the aircraft. The boy was killed immediately

The plaintiff brought this action against the United States under the Federal Tort Claims Act.² The plaintiff's cause of action against the government is founded upon two theories of liability. She first contends that the government was specifically negligent in that Redbird control tower, which was manned and operated by the Federal Aviation Administration (F.A.A.), failed to warn the landing aircraft of the motorcyclist's presence on the airport's runway. Secondly, the plaintiff asserts that the defendant was generally negligent in failing to persuade the City of Dallas to abate the incidences of trespassing by young motorcyclists on the airport's premises. In her pleading the plaintiff characterized this second theory as one falling under the "attractive nuisance" doctrine.

The United States countered by filing a third-party complaint against Zielke, Thomson and the City of Dallas. The government contended that the primary negligence of these third-party defendants was the proximate cause of Juan's death and therefore the United States was entitled to indemnification or contribution in the event the plaintiff's main action was successful.

Upon the City of Dallas' motion, the impleader action against it was dismissed.³ Under Texas law,⁴ the operation of an airport by a municipal corporation such as the City of Dallas, has been declared to be a governmental function.⁵ Likewise under Texas law, a municipal corporation is not liable for torts arising out of the performance of a governmental function.⁶ In 1970 the Texas legislature enacted the Texas Tort Claims Act,⁷ which placed limitations upon this doctrine of immunity. These limitations are of no avail in this instance because Section 14 of the Texas Tort Claims Act provides that the Act shall not apply to "any claim based upon the theory of attractive nuisance". The City of Dallas cannot be held liable to the plaintiff. The defendant's third-party claim is derivative only and therefore it too is barred. The City's immunity from liability is not defeated because it is asserted in an impleader action for contribution or indemnity.

The evidence and testimony presented at trial and the parties' accompanying memoranda of law have presented the Court with three major questions. First is the issue of the United States' liability under either or both of the plaintiff's theories. Secondly, the defendant has raised the defense of contributory negligence and, finally, the question of third-party liability must be considered. I find that the government did breach its "look-out duty" which was owed to the plaintiff's decedent. However, the Court must also conclude that plaintiff's recovery is barred because of her decedent's contributory negligence. As recovery is barred, the issue of indemnity or contribution raised by the third-party complaint is mooted.

393 F. Supp. 1364

I. THE GOVERNMENT'S LIABILITY

The plaintiff's action against the defendant United States was bottomed on two theories of negligence. At trial...