Swanson v. United States

• Decision Date: 06 January 1964
• Docket Number: No. 40167.,40167.
• Citation: 229 F. Supp. 217
• Court: U.S. District Court — Northern District of California
• Parties: Eunice L. SWANSON, individually and as Guardian ad Litem of Michael R. Swanson and Franklin R. Swanson, minors, Plaintiffs. v. UNITED STATES of America, Defendant.

229 F. Supp. 217

Eunice L. SWANSON, individually and as Guardian ad Litem of Michael R. Swanson and Franklin R. Swanson, minors, Plaintiffs. v. UNITED STATES of America, Defendant.

No. 40167.

United States District Court N. D. California, S. D.

January 6, 1964.

Ryan & Ryan, Thomas C. Ryan, San Francisco, Cal., and George E. Dilley, Santa Rosa, Cal., for plaintiffs.

Cecil F. Poole, U. S. Atty., Robert S. Marder, Asst. U. S. Atty., San Francisco, Cal., for defendant.

ZIRPOLI, District Judge.

This is a civil action brought by Eunice L. Swanson, individually, and as Guardian ad Litem of Michael R. Swanson and Franklin R. Swanson, minors, against the United States under the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The plaintiffs seek to recover damages for the wrongful death of their husband and father, Franklin R. Swanson, Sr., killed on March 22, 1961 in the crash of an Air Force Lockheed Constellation (C-121) at Gridley, California. Mr. Swanson, a technical representative of the Lockheed Aircraft Corporation, was stationed at McClellan Air Force Base near Sacramento, California. The crash, which left no survivors, occurred while the plane was making a flight which had for its purpose a maintenance check and the testing of a modification in the elevator control mechanism of the tail assembly.

The elevator mechanism is functionally similar to the rudder, except that instead of being used to change the direction of the plane, it is used to change altitude. The pilot alters the angle of the elevator by means of an hydraulic and electrical system. If the pilot changes the angle of the elevator so that it forms an angle above the horizontal, the plane will ascend; if he changes it to form an angle below the horizontal, the plane will descend.

The modification was an attempt to provide a "fail-safe" system in case the normal system failed. The modification would not be in use during normal flight, but in case of an emergency, the pilot could switch to the modified system, hence the name "fail-safe".

The flight plan for the test flight called for a two hour flight. The pilot was to proceed immediately after take-off to an altitude of 15,000 feet to begin testing. The plane took off according to plan. No radio communications were established between the plane and the ground during the testing. One hour and forty-two minutes after take-off, the plane crashed. No one survived. Ground witnesses estimated that the altitude of the plane was between 2,000 and 3,500 feet when the plane nosed over suddenly and dove to the earth.

There are three principal issues before the Court:

(1) Is the Court without jurisdiction because the acts complained of come within the discretionary function exception to the Court's jurisdiction pursuant to 28 U.S.C. § 2680(a)?

(2) Have the plaintiffs proven that the proximate cause of Swanson's death was due to negligence of the defendant?

(3) Was there such an assumption of risk on the part of Swanson as to preclude recovery by plaintiffs?

For the reasons hereinafter stated, the Court concludes:

(1) That the discretionary function exception to its jurisdiction does not apply;

(2) That the doctrine of res ipsa loquitur applies to the facts proven in the instant case, and that the most reasonable inference which can be drawn from all the proven probabilities points to negligence of the defendant as the proximate cause of the crash and Swanson's death;

(3) That the evidence fails to prove that Swanson had such actual knowledge of the specific danger involved as to constitute an assumption of risk.

JURISDICTION OVER THE SUBJECT MATTER: THE DISCRETIONARY FUNCTION EXCEPTION.

Jurisdiction in this matter is based on 28 U.S.C. § 1346(b), and the Tort Claims Act, 28 U.S.C. § 2671 et seq., which provides that the federal courts shall have jurisdiction of cases against the government for the negligent acts or omissions of its agents and employees.

The government contends that this case falls within the exception to the Tort Claims Act for conduct involving the exercise of a discretionary function. The relevant code section, 28 U.S.C. § 2680(a), provides in pertinent part, as follows:

"The provisions of this chapter and section 1346(b) of this title shall not apply to —

"(a) Any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

In defining the meaning of "discretionary function", the Supreme Court in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), adopted a distinction between decisions made on the "planning level" and those made on the "operations level". Although portions of the Dalehite opinion are no longer controlling, see Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), the planning level-operations level distinction has been adopted by several circuits. United States v. Hunsucker, 314 F.2d 98 (9th Cir., 1962); American Exchange Bank of Madison, Wisconsin v. United States, 257 F.2d 938, 78 A.L.R.2d 879 (7th Cir., 1958); Eastern Air Lines v. Union Trust Company, 95 U.S.App.D.C. 189, 221 F. 2d 62 (1955).

In a strict sense, every action of a government employee, except perhaps a conditioned reflex action, involves the use of some degree of discretion. The planning level notion refers to decisions involving questions of policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy. For example, courts have found that a decision to reactivate an Air Force Base, United States v. Hunsucker, supra, or to change the course of the Missouri River, Coates v. United States, 181 F.2d 816 (8th Cir., 1950), or to decide whether or where a post office building should be built in Madison, Wisconsin, American Exchange Bank of Madison, Wisconsin v. United States, supra, are on the planning level because of the necessity to evaluate policy factors when making those decisions.

The operations level decision, on the other hand, involves decisions relating to the normal day-by-day operations of the government. Decisions made at this level may involve the exercise of discretion but not the evaluation of policy factors. For instance, the decision to make low level plane flights to make a survey, Dahlstrom v. United States, 228 F.2d 819 (8th Cir., 1956), or the operation of an air traffic control tower, Eastern Air Lines v. Union Trust Co., supra, or whether a handrail should be installed as a safety measure at the United States Post Office in Madison, Wisconsin, American Exchange Bank of Madison, Wisconsin v. United States, supra, involve the exercise of discretion but not the evaluation of policy factors.

The discretionary function exception applies when the plaintiff claims that conduct at the planning level is the cause of his injuries. Conversely, the exception does not apply when the plaintiff complains of conduct at the operations level, even though such conduct is required for the execution of a planning level decision. For example, in United States v. Hunsucker, supra, the plaintiff complained of negligent failure to provide the proper drainage from an Air Force Base, which resulted in damage to the plaintiff's adjoining land. The failure to provide adequate drainage was one of many construction activities involved in reactivating Oxnard Air Base in California. The Court of Appeals for the Ninth Circuit held that the discretionary function exception did not apply because the plaintiff claimed that the wrongful act was the failure to provide adequate drainage, rather than the decision to reactivate the Air Force Base. On the other hand, in Coates v. United States, supra, the plaintiff alleged that the decision to change the course of the Missouri River was the negligent conduct, rather than alleging negligence in the day by day construction of the change. Consequently, the Court applied the discretionary function exception.

In the present case, the test flight was the final step of a Material Improvement Project, initiated by Headquarters, Military Air Transport Service (MATS) to develop a fail-safe system for the elevator mechanism of the C-121. MATS, by letter of May 29, 1959, requested the opening of the project by the Sacramento Air Materiel Area. The project was forwarded through the engineering organization at McClellan Field to the In-Service Engineering Department, where it was assigned to a project engineer, Roy Kurosawa. Kurosawa developed a design which was subsequently subjected to two bench tests and a ground test before the fatal flight test. After all testing had been completed, the "complete engineering package" was to be submitted to the Air Force Configuration and Control Board for approval. At the time of this project, 50 to 60 engineering projects a year regarding airplane modifications and maintenance were in progress at McClellan Field; however, only three or four per year required test flights.

At this juncture it is appropriate to note what the plaintiffs are contending and what they are not contending. The plaintiffs claim that the Government was negligent either in the method of designing or the method of installing the modification. They do not contend that the decision of MATS to develop the fail-safe system was the negligent act.

In reply the Government urges for consideration the following three cases: Toledo v. United States, 95 F.Supp. 838 (D.Puerto Rico 1951); Barroll v. United States, 135 F.Supp. 441 (D.Md.1955); and Bartholomae Corp. v. United States, 135 F.Supp. 651 (S.D.Cal.1955).

In the Toledo case, the plaintiff sued for damages to his parked automobile when a tree that had rotted fell on it. The tree was one of several tropical trees involved in an experimental project conducted at the United States...