Tilley v. Delta Air Lines, Inc.
| Decision Date | 01 February 1966 |
| Docket Number | Civ. A. No. AC-1489. |
| Citation | 249 F. Supp. 696 |
| Court | U.S. District Court — District of South Carolina |
| Parties | Gordon TILLEY, Plaintiff, v. DELTA AIR LINES, INC., and United States of America, Defendants. |
Charles D. Davis, and Harold Seigler, Columbia, S. C., for plaintiff.
Edward W. Mullins, Sr., Edward W. Mullins, Jr., and Claude M. Scarborough, Jr., Columbia, S. C., for defendant Delta Air Lines, Inc.
Wistar D. Stuckey, Asst. U. S. Atty., Columbia, S. C., Michael R. Wherry, and Thomas W. Reilly, Dept. of Justice, Washington, D. C., for defendant United States.
Action for recovery of damages for personal injuries sustained by the plaintiff, as a consequence of an airplane accident at John F. Kennedy International Airport (formerly Idlewild Airport), New York, and while a passenger on a plane of defendant, Delta Air Lines, Inc.
Suit is brought against defendant, United States of America (sometimes herein referred to as Government) under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), and 2402, and against defendant, Delta Air Lines, Inc., based upon diversity of citizenship and the amount in controversy. The action was tried before the Court and a jury beginning November 1, 1965. In accordance with the provisions of the Federal Tort Claims Act, all issues as to the United States were tried by the Court. The issues between plaintiff and Delta Airlines, Inc., were tried by jury which returned a verdict for that defendant on November 4, 1965.
On August 25, 1962, plaintiff, Gordon Tilley, boarded at John F. Kennedy International Airport (then Idlewild Airport), New York, New York, and became a fare paying passenger aboard Delta Airlines Flight 821, (sometimes hereinafter referred to as Delta) which was a scheduled flight from New York City to Atlanta, Georgia. Delta Air Lines Flight 821 was a DC-8 four engine jet aircraft manufactured by the Douglas Aircraft Company.
Plaintiff, holding a first class ticket, was seated in a window seat on the right hand side of the aircraft, approximately over the right wing. Delta 821 was piloted by Captain Reed Knight, an employee of Delta Air Lines, who at all pertinent times was acting within the scope of his employment.
Idlewild Airport was equipped with an air traffic control tower, operated by the Federal Aviation Agency, an agency of the United States. At all pertinent times Charles Endy was occupying the local control position in the tower and Thomas Forster was acting as tower cab co-ordinator, both of whom were employees of the United States acting within the scope of their employment.
Shortly before 4:30 P.M., local time Delta 821 departed the ramp area and taxied via taxiway Queen to the run-up area for Runway 13 Right (13R), the active runway then being used for takeoffs and landings. Runway 13R is 14,572 feet in length and has a total width of 200 feet, 150 feet of concrete surface bordered on each side by 25 feet of asphalt. Runway 13R runs in a generally south-easterly direction, having a magnetic heading of 130 degrees. The run-up area for Runway 13R is located immediately to the left of the threshold of that runway and while in the run-up area Delta 821 was positioned approximately 90 degrees to the runway heading.
Subsequent to conducting his preflight check in the run-up area, the pilot of Delta 821 was issued a clearance by the local controller to proceed into takeoff position on the runway; however, prior to entering onto the runway the Delta pilot observed a Sabena jet aircraft (hereinafter referred to as Sabena) to his left in the process of landing on Runway 13R; he also observed to his right a Boeing 707 jet aircraft (hereinafter referred to as Air France) in the landing pattern from Runway 13R.
At all pertinent times, Sabena, Delta and Air France aircrafts were under the "control"1 of employees of Federal Aviation Agency at air traffic control tower, Idlewild Airport, N. Y.
Mr. Endy, local controller directed Delta onto Runway 13R and the pilot of Delta proceeded into take-off position approximately 100 feet down the runway. In this position, the pilot of Delta could no longer see Air France continuing its approach for landing on 13R. The Sabena aircraft continued to taxi down the runway 13R and did not exit from the runway at either of the first three available taxiway turnoffs. The spacing between Delta and Air France was then rapidly closing. The local controller, in an excited voice and with a tone of emergency directed Delta to immediately clear the runway to the left. The pilot of Delta, not knowing the proximity of Air France, endeavored to maneuver his plane to the left in order to comply with instructions of the controller, applied power to his engines and in the process the nose wheel ran off the runway a distance of 10 to 15 feet, became imbedded in the dirt, and came to a sudden and jolting stop.
The local controller ordered Delta to clear Runway 13R for Air France to land when Air France could not land on runway 13R with Sabena still on that runway without violating air traffic control procedure regulations. Following the foregoing instructions to Delta, the local controller instructed the pilot of Air France to go around and not to land on runway 13R. Shortly after Delta's nose-wheel became imbedded in the dirt, Air France flew over Delta at a low altitude but did not then land on runway 13R.
The Government argues that a 180 degree left turn could have been made by Delta without the nose-wheel running off the runway and that the application of too much power by the pilot caused the nose-wheel to leave the runway and caused it to become stuck in the sand. The failure of the local controller to give Delta any information relative to Air France aircraft and the urgent and excited manner in which instructions were given to Delta to immediately clear the runway to the left caused the pilot of Delta to conclude that there was great urgency in clearing the runway immediately.
The local controller testified that he gave the instructions to Delta to clear the runway in order to prevent a dangerous situation. Proper spacing between the planes under the control of the local controller was not maintained. Air France was allowed to continue in the landing pattern without furnishing the pilot of Delta any information with regard to its position relative to Delta.
The sudden jolting stop of the aircraft threw plaintiff forward in his seat, causing him to suffer injuries to his back. Plaintiff, who had his seat belt fastened, immediately experienced pain in his back. He took the next available plane out of New York to Atlanta, Georgia, and arrived in Columbia, South Carolina, the next day. He continued to experience pain in his back and upon arriving in Columbia, he called his doctor, Dr. Emmett M. Lunceford, Jr.
Plaintiff had formerly had operations performed on his back, one in 1953, undergoing a disc and fusion operation. In May, 1961, a disc was removed from plaintiff's back and on July 5th, 1961, further spinal fusion was carried out. Plaintiff's recuperation appeared to be complete prior to the injuries of which he now complains. X-rays were taken of plaintiff's back in January, 1962, and evidenced good union at the operation site. He was last seen by his doctor in March, 1962, at which time he appeared to be doing well, having earlier returned to work and experiencing only intermittent pain and discomfort.
Immediately after plaintiff's first consultation with his doctor and after arriving in Columbia, he took prescribed medicines for pain, muscle relaxants and...
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Tilley v. United States, 10732.
...pilots; and, finally, issued the instructions to the Delta pilot to leave the runway in an excited voice and urgent manner. 249 F.Supp. 696, 700 (D.S.C. 1966). Certain air traffic procedure regulations promulgated by the Federal Aviation Agency were in effect at the time of this incident. S......
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