Wasilko v. United States
| Decision Date | 17 July 1967 |
| Docket Number | Civ. A. No. C 62-470. |
| Citation | 300 F. Supp. 573 |
| Parties | Helen WASILKO, individually and as Executrix of the Estate of Edward G. Wasilko, Deceased, and as Administratrix of the Estate of Edward A. Wasilko, Plaintiff, v. The UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
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Theodore E. Wolcott, New York City, and John M. Reardon, Cleveland, Ohio, for plaintiff.
Philip Silverman, Dept. of Justice, Washington, D. C., for United States.
Invoking the Federal Tort Claims Act, Title 28 United States Code, § 1346(b) (1964), this action for wrongful death is brought against the defendant United States of America by the plaintiff Helen Wasilko, individually, and as executrix of the estate of Edward G. Wasilko, her husband, and as administratrix of the estate of Edward A. Wasilko, her ten-year-old son. In May 1966 the plaintiff dismissed the complaint as to defendant Trans World Airlines, Inc. (TWA) only. In the early evening of October 27, 1961, Edward G. Wasilko piloted a single-engine Beechcraft Bonanza which crashed and burned at Cleveland Hopkins International Airport shortly after takeoff. Injuries received on ground impact by Edward Wasilko and his son, a passenger in the plane, were immediately fatal.
In her complaint the plaintiff asserts that the defendant United States:
operated and controlled the civil airways and airspace over the United States of America * * * and regulated, operated and controlled the control towers and control centers, airport traffic control installations, communications and facilities near the Cleveland Hopkins airport, and regulated, directed and controlled the movement of all aircraft, civil and military at said airport, including the takeoff and flight of the TWA flight #224 * * * Lockheed 1049G 4-motor Super Constellation * * * and the takeoff and flight of the Bonanza aircraft * * *.
The complaint further states that the Beechcraft Bonanza took off "pursuant to instructions of the tower and following the aforementioned Lockheed aircraft crashed and burned on said airport." It is claimed that:
such crash, injuries and deaths of plaintiff's decedents were caused by * * * the negligent and wrongful acts and omissions of the agents, servants and employees of the defendant, including among other things the * * * guidance, control, instruction to and separation of said aircraft, and was in no wise contributed thereto by plaintiff's decedents.
Summarizing her view of the trial evidence and her claims of negligence plaintiff argues:
The overwhelming evidence is to the effect that the Beechcraft was cleared to take off from an intersection at night immediately following a TWA Super Connie 224; that said Connie left turbulence in its wake over the runway; that the Beechcraft was caught in said turbulence and that no warning was given to the Beech nor was sufficient separation provided between the two by the tower controllers; that the Beechcraft was caught in the wake turbulence caused to crash, killing its occupants, Edward G. Wasilko, the owner-pilot and his son, Edward A. Wasilko.
Central to the plaintiff's cause of action is the claim that the single-engined Beechcraft Bonanza crashed because of an intrail encounter with wake turbulence shed from the wings of the departing four-engined Lockheed Super Constellation. In the testimony several terms are used interchangeably. These include "wake turbulence," "wing-tip vortices," "vortex turbulence," "trailing vortices," "vortex systems," and other variations.
The defendant United States of America, in its answer, denies all claims of negligence. It is claimed as affirmative defenses that the damage complained of by the plaintiff "was directly and proximately caused by * * * negligent * * * acts or omissions of plaintiff's decedents;" and that the plaintiff's decedent "assumed the risk of the happening of the alleged accident as well as the consequences of such accident."
Appraising the evidence before the court the defendant denies:
that the separation was improper and that any act or omission on the part of the controller or any other employee of the United States was responsible for the crash of Bonanza 71 Alpha.
Defendant also denies "that the crash was caused because of an encounter with wing-tip or vortex turbulence." To explain the crash the defendant offered evidence that the plane caught fire in the air.
Jack Harrington, Civil Aeronautics Board (CAB), Air Safety Investigator, and Norman W. Johnson, Federal Aviation Agency (FAA), General Aviation Operation Inspector, investigated the crash of 71 Alpha (the shortened radio call of the Wasilko Beechcraft Bonanza). A Cleveland Hopkins Airport chart inscribing some of their findings was received in evidence and is incorporated in this opinion as Figure 1. Red marks
placed on an aerial photograph (Government's Exhibit A) by eyewitness Martin Sommers have been copied on Figure 1 and designated as S-1, S-2, S-3, and S-4. A later summary of his testimony will explain these marks.
Runway 23L, traversed by TWA 224 and then by 71 Alpha, is the left runway of two parallel runways bearing the number 23, each with a compass heading of 230 degrees. Runway 23L is 9,000 feet long. The approach of Runway 23L is crossed by Runway 27 (bearing 270 degrees or due west). No witness testified as to where the planes lifted off Runway 23L. Based on standard performance, Figure 1 assumes that TWA 224's takeoff roll began at the threshold of Runway 23L and that its liftoff began approximately at the intersection of Runway 23L and Taxiway S. This intersection is 2,100 feet from the threshold of Runway 23.
Figure 1 records the taxi route of 71 Alpha along Taxiway S from a parking area (called "itinerant") which is west of the left concourse of the air terminal. Presumably 71 Alpha's takeoff roll on Runway 23L began at the intersection of Taxiway S where it was cleared for takeoff. Based on standard performance it is assumed that 71 Alpha became airborne about 900 to 1,000 feet from Taxiway S. As shown on Figure 1, the Bonanza crashed 3,150 feet from Taxiway S (5,250 feet down Runway 23L) between Runways 23L and 23R. The investigators found that the first point of impact was a ground scar of the right wing tip, located 25 feet from the right edge of Runway 23L.
On the date of crash, October 27, 1961, Martin Sommers (at that time known as Egon Jabs) and his wife landed their Piper plane at Cleveland Hopkins Airport and tied it down in the quad area. It was dark, "around seven o'clock or so." The quad area (permanent parking lot of light aircraft) is on the west side of the airport, north of the end of Runway 23R. Mr. Sommers estimated the quad area as being 1,500 feet from the west end of Runway 23L, a little over a mile to the Tower, and about a half mile to the crash site.
Walking from the quad area, Sommers testified that he and his wife had reached a point fairly close to their automobile. Its parking place is marked on Figure 1 as "A (S-3)." Coming through the gate of the quad area he had turned left. As he was walking towards the "rear end" (west end) of Runway 23L "the big plane was coming by." He thought it was a four-engine airplane "because the engine exhaust showed up quite clearly at takeoff." He saw it in the air above Runway 23L. He marked this point on the aerial photograph with a large "X" (S-1 on Figure 1). Measured proportionately, this "X" appears to be approximately 1,250 feet from the west end of Runway 23L.
Sommers says that his car was just a few parking spaces from the gate. As he went around the car next to his to go to the door of his car, he faced forward toward the front of Runway 23L. At this point he spotted the small plane taking off on Runway 23L. Concerning his ability to see the small plane, he insisted that he had "a clear view all the way." He did not see where it had started its takeoff roll. He said:
just what caught my attention at first it seemed to be moving slowly in the air but then his lights started to waver around, and that caught my attention, and I watched it after that * * *.
The unusual movement of the plane's wavering lights he pictured in these words:
the lights were wavering * * * I mentioned to her his wife * * * it looks like there are two planes going next to each other * * * they were wavering around, going like back and forth, and up and down, and then suddenly both of them — I was able to see both the red and green light — they seemed to go up and then one light dropped down, the other one went up and then I saw them both slant down toward the ground.
Summarizing the attitude of the plane as it crashed he said: "I think the right wing went down and left wing up * *." Then against the lights of the airport he thought he remembered "for a moment seeing the plane stand on its nose." What then happened he thus described:
Well, being a pilot and knowing where the lights are positioned I knew that when this one light went up, and the other one down that the plane was on its side, and then when it came down I could see what the plane is doing, that is, when it hit the ground the lights went off, and well, I was looking at it, we were staring, didn't really know what was going on, then suddenly a small flame spurted up, and then a big fire ball, well then we knew that that plane had crashed.
Asked if he made "an observation as to the approximate interval of time that elapsed between the time the aircraft first struck the ground and the time that you saw flame appear," he answered:
I would say about five seconds because I think that is what I told the FAA at the time too. Five seconds from the time the airplane lights went out, I assume at that time the plane crashed. About four or five seconds or so after the plane crashed then I saw that small flame come up.
His identification of the point where the aircraft struck the ground...
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