Thinguldstad v. United States

• Decision Date: 01 May 1972
• Docket Number: Civ. A. No. 68-243.
• Citation: 343 F. Supp. 551
• Parties: Ruth E. THINGULDSTAD, Individually and as Executrix of the Estate of Arthur M. Thinguldstad, Deceased, Plaintiff, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

343 F. Supp. 551

Ruth E. THINGULDSTAD, Individually and as Executrix of the Estate of Arthur M. Thinguldstad, Deceased, Plaintiff, v. UNITED STATES of America et al., Defendants.

Civ. A. No. 68-243.

United States District Court, S. D. Ohio, E. D.

May 1, 1972.

Robert A. Batross, Miller, Pfiefer, Burkhart & Batross, Zanesville, Ohio, Charles E. Brown, Crabbe, Brown, Jones, Potts & Schmidt, Columbus, Ohio, for plaintiff.

Thomas W. Reilly, Trial Atty., Federal Aviation Administration, Washington, D. C., William W. Milligan, U. S. Atty., Columbus, Ohio, Gary Brinsfield, Asst. U. S. Atty., Trial Atty., Columbus, Ohio, Herbert L. Lyons, Aviation Unit, Tort Section, Civil Division, Department of Justice, Washington, D. C., for defendants.

OPINION AND ORDER

KINNEARY, District Judge.

Plaintiff, Ruth E. Thinguldstad, brought this action individually and as executrix of the estate of Arthur M. Thinguldstad, deceased, against the United States under the provisions of the Federal Tort Claims Act. The jurisdiction of this Court was invoked under the provisions of Title 28, United States Code, Section 1346(b).

As required by Title 28, United States Code, Section 2402, this action was tried to the Court without a jury. As required by Rule 52, Federal Rules of Civil Procedure, the Court's findings of fact and conclusions of law shall appear in this opinion.

Plaintiff commenced this action against the United States and others who were dismissed as party defendants prior to the trial of this action. At the time of trial only the claim against the United States remained for adjudication. Plaintiff alleges that the United States, by and through its agents, employees of the Federal Aviation Agency, was negligent in the manner in which they controlled and directed the movement of an aircraft piloted by Arthur M. Thinguldstad and a T.W.A. Constellation, Flight 383, which were utilizing the facilities of the Port Columbus International Airport at Columbus, Ohio, on or about 6:45 p. m. on September 28, 1966. It is plaintiff's position that due to the negligence of the F.A.A. employees at the Columbus Control Tower, plaintiff's decedent, Arthur M. Thinguldstad, while operating a Piper-Cherokee aircraft, encountered wake turbulence caused by a T.W.A. Constellation and that such encounter caused the Piper-Cherokee aircraft to crash, resulting in the death of Arthur M. Thinguldstad.

The specific acts of negligence alleged will appear in the Court's discussion of the evidence in this case.

Title 28, United States Code, Section 1346(b) states that the United States shall be liable, "in accordance with the law of the place where the act or omission occurred." Because the alleged acts of negligence and the crash and consequent death of plaintiff's decedent occurred in Ohio, the law of Ohio governs the liability of the United States in this wrongful death action under the Federal Tort Claims Act. However, although the law of Ohio governs with respect to questions of negligence and proximate cause, the liability of the United States may also be affected by federal regulations which impose duties or standards on the conduct of the employees of the United States. Gill v. United States, 429 F.2d 1072 (5th Cir. 1970).

It is a matter of well established law that the United States can be liable in tort in an aircraft crash case if any negligent act of government personnel is a proximate cause. Gill v. United States, 285 F.Supp. 253 (E.D. Tex.1968); Sawyer v. United States, 297 F.Supp. 324 (E.D.N.Y.1969). Under Ohio law an action for negligence involves three essential elements: first, the existence of a duty owing by the defendant to the plaintiff; second, defendant's failure to discharge that duty; and third, injury to the plaintiff proximately resulting from such failure. 39 O.Jur.2d Negligence, Section 9. Plaintiff must establish each of these elements, and in the event that the cause of injury to the plaintiff may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant. See, 39 O.Jur. 2d Negligence, Section 139, p. 712, n. 5.

Findings of Fact

It is plaintiff's position that the plane piloted by the deceased, Arthur M. Thinguldstad, crashed because it encountered wake turbulence while on approach for landing at Port Columbus International Airport.

The phenomenon of wake turbulence is also known as wing tip vortices. The phenomenon is described in the case of Lightenberger v. United States, 298 F. Supp. 813, 823 (C.D.Calif., 1969) as follows:

. . . the passage of the wings of a heavy aircraft through the air causes a roll-up of the air mass at the tip of each wing. The air mass continues to swirl much in the same manner as a tornado, except that its position in the air is horizontal. The force of the resulting tornados is proportional to the weight, wing span and speed of the aircraft.

In September of 1966 when this crash occurred, the phenomenon of wake turbulence or wing tip vortices was well known and had been the subject of warnings to pilots of small aircraft for a number of years. The evidence established that wake turbulence can be a hazard to small aircraft. Upon encountering wake turbulence a small aircraft might experience violent pitching or rolling or a sudden gain or loss in altitude. The encounter with wake turbulence can be extremely dangerous to a small aircraft on takeoff or landing when the aircraft is operating at a very low altitude. Wake turbulence of such violence as to be a hazard to small aircraft is generated behind and slightly below heavier aircraft.

It is the plaintiff's theory that the aircraft piloted by the plaintiff's decedent encountered the wake turbulence generated by a T.W.A. Constellation shortly after the Constellation flew over the Thinguldstad aircraft. Plaintiff's allegations of negligence on the part of employees of the United States are predicated on the theory that the air traffic controllers at the Port Columbus International Airport Control Tower were negligent in sequencing the arriving aircraft so that the T.W.A. Constellation would fly over, down and in front of the light aircraft piloted by Arthur Thinguldstad. Plaintiff also alleges that the air traffic controllers were negligent in failing to give Mr. Thinguldstad a timely and proper warning of wake turbulence, in failing to maintain a proper separation in time and distance between the T.W.A. Constellation and the Thinguldstad aircraft, in failing to properly communicate between the radar room and the tower, and in failing to properly communicate with the aircraft involved.

The evidence clearly established that both the T.W.A. Constellation and the Thinguldstad aircraft were approaching the Port Columbus International Airport with a view to landing on runway 28-L. At a point about seven miles from the end of runway 28-L the T.W.A. Constellation overtook and flew over the Thinguldstad aircraft. About twenty seconds later the local controller at the Columbus tower resequenced the Thinguldstad aircraft to land behind the T.W.A. Constellation. Prior to that resequencing, the Thinguldstad aircraft had been No. 2 to land behind another small aircraft. As part of the same transmission in which the aircraft were resequenced, the Columbus tower presented to Pilot Thinguldstad a choice of runways. About thirty seconds later, the local controller again asked Pilot Thinguldstad whether he wanted to follow the Constellation in on runway 28-L, or whether he wanted runway 31. Pilot Thinguldstad answered this question with the word "affirmative", and the Columbus tower responded, "All right, sir. Plan your approach for 28-left, follow that T.W.A. Constellation." No warning of possible wake turbulence was given until about two minutes later, or at about the time that the Thinguldstad aircraft crashed.

Attorneys for the plaintiff and Mr. Francis M. McDermott, a witness for the plaintiff, have been diligent and even creative in their efforts to call the Court's attention to various provisions, regulations and procedures which plaintiff claims were violated by the air traffic controllers. The Court has carefully considered all of the alleged violations of provisions, regulations and procedures and has determined that even if the conduct of the air traffic controllers could be said to have violated the various regulations cited by the plaintiff, these violations of operating procedures were not a proximate cause of the air crash.

Plaintiff's case is predicated on an encounter with wake turbulence which encounter plaintiff alleges was inevitable due to the negligent sequencing of the aircraft involved. Based on the evidence adduced at trial, the Court determines that (1) plaintiff has not shown by a preponderance of the evidence that there was actually an encounter with wake turbulence, (2) even assuming that there was an encounter with wake turbulence, plaintiff has not shown by a preponderance of the evidence that such encounter resulted in the crash of the Thinguldstad aircraft, and (3) the defendant has introduced sufficient evidence to establish an explanation for the crash of the Thinguldstad aircraft which explanation the Court determines to be as plausible as that advanced by the plaintiff.

I

At the time of the crash, Pilot Thinguldstad was flying from Zanesville, Ohio to Port Columbus International Airport at Columbus, Ohio. There was evidence adduced from which the Court could infer that Pilot Thinguldstad was flying an airway designated as Victor 214. A T.W.A. Constellation was also flying on Victor 214. To a pilot flying a plane equipped with a V.O.R. receiver, the boundaries of an airway are demarkated by a radio beam. The airway was approximately eight miles wide. See, 14 C.F.R. § 71.5(b) (1). A pilot could be flying four miles to either side of the radio...