Tilley v. United States, 10732.

• Citation: 375 F.2d 678
• Decision Date: 03 April 1967
• Docket Number: No. 10732.,10732.
• Parties: Gordon TILLEY, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

375 F.2d 678 (1967)

Gordon TILLEY, Appellee, v. UNITED STATES of America, Appellant.

No. 10732.

United States Court of Appeals Fourth Circuit.

Argued January 11, 1967.

Decided April 3, 1967.

Kathryn H. Baldwin, Atty., Dept. of Justice, (John W. Douglas, Asst. Atty. Gen., Morton Hollander and Edward Berlin, Attys., Dept. of Justice, and Terrell L. Glenn, U. S. Atty., on brief), for appellant.

Henry Hammer and Harold C. Seigler, Columbia, S. C. (Charles D. Davis, Columbia, S. C., on brief), for appellee.

Before BOREMAN and WINTER, Circuit Judges, and KAUFMAN, District Judge.

BOREMAN, Circuit Judge:

Gordon Tilley sued the United States under the Federal Tort Claims Act and Delta Airlines for damages for injuries suffered when a Delta jet plane in which he was a passenger skidded off the paved portion of a runway into soft ground. The action against Delta, tried before a jury, resulted in a verdict in favor of Delta Airlines. In the action against the United States, tried on the same evidence and at the same time before the court pursuant to 28 U.S.C. § 1346(b) and § 2402, the court held the United States liable to plaintiff for negligence of the tower controller, a Federal Aviation Agency (FAA) employee, in failing to follow applicable regulations, in failing to anticipate and prevent an emergency situation and in issuing orders to the Delta pilot. Upon a finding that a pre-existing back injury had been aggravated Tilley was awarded $17,500. The Government appeals and contends that since the primary duty for operating an aircraft rests in the pilot the District Court erred in holding the United States liable for plaintiff's injuries. We feel compelled to reverse the judgment below.

The evidence at trial disclosed that on August 25, 1962, Tilley was a passenger aboard a Delta DC-8 which was preparing to take off from Kennedy International Airport (then Idlewild) in New York bound for Atlanta, Georgia. The weather was clear, the runways were dry and visibility was from ten to twelve miles. Consequently, Visual Flight Rules (VFR) were in use. The plane proceeded to taxi onto the strip adjacent to runway 13-R preparatory to using 13-R for takeoff. At this point the Delta pilot, Captain Knight, could see a Sabena jet preparing to land on runway 13-R, and an Air France jet which was some five miles away but also in the landing pattern for the same runway. Immediately after the Sabena had touched down but prior to its exiting from 13-R runway the Delta was authorized by the tower controller, Charles Endy, to taxi onto this runway and hold its position there.¹ The Delta pilot followed this instruction and maneuvered the plane to the center of the runway. In this position Captain Knight no longer was able to observe the pattern and activities of Air France but he had his radio tuned to the same frequency being used by Air France, Sabena and the tower controller, in the manner of a four-way telephone conversation. The Sabena, which normally would have used one of the first three exits from the runway, passed these early exits and continued down the runway. It was then the controller realized that there would not be sufficient time to permit Delta to take off and Air France to land on the same runway as contemplated. The controller had to quickly decide whether (1) to have the Delta aircraft make a left turn of 180° from the runway back onto the taxiway and permit Air France to land; or, (2) to request Air France to continue in flight and circle the airport until after Delta had departed. This latter alternative would have required Air France to travel an additional eighty miles while the first choice would have delayed Delta a mere fifteen or twenty seconds. Accordingly the controller instructed Delta to clear the runway and return to the taxiway. The evidence established that in order to execute this maneuver and make the 180° left turn from the center of the runway 76 feet 11 inches of runway are required. The width of 13-R runway is 200 feet, 150 feet of concrete and 25 feet of asphalt on either side. With its nosewheel on the center line of the runway the Delta had 23 feet 1 inch more of the paved portion than required for making the turn. The pilot in executing this maneuver applied an excess of power which caused the nosewheel to skip. As a consequence of this skipping and the pilot's attempt to straighten the nosewheel the aircraft went off the paved portion of the runway into the soft dirt and skidded to a stop. Tilley, who had his safety belt fastened, testified that he was jolted forward and was injured. Captain Knight, Delta's pilot, testified that he detected a tone of excitement and urgency in the controller's voice but had no doubt the maneuver could be executed with safety. There were no other injuries and three passengers testified that the plane seemed to come to a normal stop. The aircraft was in no way disabled and was permitted to take off later that day.

The District Court found that the United States was negligent in that its employee, the controller: improperly spaced the aircraft at the landing strip; failed to anticipate the activities of the Sabena; failed to inform the Delta pilot of the proximity of Air France; created an emergency; violated "Air Traffic Control Regulations"; failed to issue timely instructions to Air France and Delta 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. Such regulations have the force of law. United States v. Schultetus, 277 F.2d 322, 327, 86 A.L.R.2d 375 (5 Cir.), cert. denied, 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56 (1960). Part 400 of the Air Traffic Control Procedures describes the duties of the controller generally to provide traffic service, clearances and other information to assist pilots.² Section 419 provides, inter alia, that the controller should inform pilots of taxiing aircraft as to positions to be taken and furnish other information to assist pilots in taxiing.³

Section 60.2 of the Civil Air Regulations, Air Traffic Rules, describes the duties of a pilot in command of the aircraft and vests him with final authority as to operation of the aircraft.⁴

Delta pilot, Captain Knight, upon cross-examination admitted that under Civil Air Regulations while a pilot is subject to the instructions of the local tower controller, such instructions may be disregarded if the pilot feels that execution thereof would jeopardize the safety of the aircraft and its passengers. He stated that in his opinion it was perfectly safe and proper for the controller to have instructed him to turn onto the runway while the Sabena was still there. Furthermore, he testified that it was proper, even if an emergency existed, for the controller to have instructed him to remove the plane from the 13-R runway. He stated that he had no doubt as to his ability to accomplish this maneuver safely and that if he had such doubt he could have radioed the tower and refused to follow the instruction.⁵ However, he stated further that he thought the instruction was given in an urgent voice tone and that because of such tone he believed an urgent situation existed.⁶ Charles Endy, the controller who issued the order, repeated the order in court as part of his testimony. The content of the instruction was "Delta 821, taxi back to the run-up block." Mr. Endy testified that there was nothing which would indicate that there was any immediacy or urgency in the situation.

Edmund Burke, an FAA employee who had a great deal of experience as tower controller at major airfields, testified that the instruction given and the choice made by Endy in this situation followed usual and common practice. He further stated that he had experienced situations in which the departing aircraft was unable to be cleared for take-off from a runway while an arriving aircraft was approaching and that the "simplest solution" in such a situation was to request the departing aircraft to taxi off the runway. This procedure, he stated, is more desirable than asking the arriving aircraft to circle because it prevents traffic congestion in approaches.

The Government's major contentions may be stated as follows: Under FAA rules and the decisions of the courts, the pilot, not the tower controller, is primarily responsible for the safe operation of the aircraft; the large numbers of aviation accidents have given rise to a substantial amount of litigation from which has evolved a body of law establishing the respective duties of the tower controller and the pilot under VFR conditions; it is well settled that under VFR the primary duty for the safe operation of the aircraft rests with its pilot, Civil Air Regulation 60.2, (n. 4), United States v. Miller, 303 F.2d 703, 710 (9 Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 507, 9 L.Ed.2d 502 (1963), United States v. Schultetus, supra, 277 F.2d at 326-27, Hartz v. United States, 249 F.Supp. 119, 125 (N.D.Ga.1965), Wenninger v. United States, 234 F.Supp. 499, 517 (D.Del. 1964); in cases where the tower controller's breach of duty was far more flagrant than any alleged or proved here the courts have steadfastly held that the pilot was primarily responsible.

In United States v. Miller, 303 F.2d 703, supra, the Ninth Circuit reversed a decision of the District Court which held that the United States was negligent because the tower controllers, Government employees, had cleared, for landing, a Beechcraft in which plaintiffs were riding, at a time when the controllers knew that a Cessna was practicing landings. After the clearance the Beechcraft came over a hill and began its descent from an altitude of eleven hundred feet. The Cessna, executing a take-off, had made a 90° turn and was leveling off when the planes collided. The Beechcraft was...