Wenninger v. United States

• Decision Date: 14 September 1964
• Docket Number: Civ. A. No. 2207.
• Citation: 234 F. Supp. 499
• Parties: Mary Ann Sigmund Miller WENNINGER, widow of William W. Miller and co-administratrix of the Estate of William W. Miller, and Lindley C. Miller, co-administrator of the Estate of William W. Miller, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Delaware

234 F. Supp. 499

Mary Ann Sigmund Miller WENNINGER, widow of William W. Miller and co-administratrix of the Estate of William W. Miller, and Lindley C. Miller, co-administrator of the Estate of William W. Miller, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 2207.

United States District Court D. Delaware.

September 14, 1964.

Edmund N. Carpenter, II, and E. Norman Veasey, of Richards, Layton & Finger, Wilmington, Del., for plaintiffs.

Stanley C. Lowicki, Asst. U. S. Atty., Wilmington, Del., and Philip Silverman, Trial Atty. Dept. of Justice, George H. Foster, Jr., Federal Aviation Agency, and George H. Gibbons, Lieutenant-Colonel, Judge Advocate General's Office, Tax and Litigation Div., Washington, D. C., for defendant.

STEEL, District Judge:

Plaintiffs, the widow and co-administrators of the estate of decedent, William W. Miller, have sued the United States for damages for decedent's death and the destruction of an aircraft which he owned. Decedent was killed and his Piper Tri-Pacer was demolished on September 23, 1958, at approximately 2:00 P.M. when an inflight failure occurred to the Tri-Pacer while being operated by decedent at a point several miles north of the Dover, Delaware Air Force Base.

Plaintiffs contend that the failure of the Tri-Pacer was due to its encountering vortex turbulence generated by a C-124 owned by the United States, which was being operated in connection with the Dover Air Force Base. Plaintiffs assert that in 1958 C-124s from the Dover Base had been crossing Airway Victor 16 from all directions in the vicinity of the Kenton VOR in connection with their use of the VOR as a navigational aid, for extensive practice and actual instrument approaches, for holding patterns, and for instrument training by "tracking" in on the VOR. These actions, plaintiffs assert, exposed other users of the air space, including decedent, to an unreasonable risk of harm. Plaintiffs claim that the Commander of the Dover Air Force Base was negligent in permitting the C-124s to engage in these activities, and that both the Commander and the Civil Aeronautics Authority (CAA)¹ were negligent in failing to warn civilian flyers of such activities, either by the issuance of a NOTAM ("notice to airmen"), the standard method of warning pilots of unusual flight hazards, or in some other appropriate manner. These acts of negligence are alleged to have been the proximate causes of the accident. Plaintiffs also assert that the accident was caused by the negligent operation of the C-124 by its pilot.

Defendant denies that the proof is sufficient to establish that vortex turbulence caused the accident, asserts that if it is, the proof is inadequate to establish that it was generated by a Government airplane, and that in any event, negligence on the part of the Government and its causal relationship to the accident have not been proven. Additionally, defendant contends that if its negligence was a proximate cause of the accident, plaintiffs cannot recover because decedent was contributorily negligent. Finally, the defendant argues that the activities which plaintiffs claim constituted negligence on the part of the Commander and the CAA, were either matters of discretionary judgment or constituted misrepresentations that Victor 16 was safe when in fact it was not, and that 28 U.S. C. § 2680(a) and (h) deprive the Court of jurisdiction. Defendant admits, implicitly at least, that jurisdiction exists, insofar as plaintiffs' cause of action is based upon the negligence of the Government pilot.²

The law of Delaware governs the substantive rights of the parties. Where there is no Delaware decision in point or suggestive of the answer to a particular problem, what appears to be the soundest view ascertainable from all relevant authorities will be adopted as indicative of what the Delaware law would be if the issue had come before its Courts. See Wright on Federal Courts, § 58, pp. 205-206.

Plaintiffs have the burden of establishing that the accident was proximately caused by the negligence of the defendant, and defendant has the burden of proving that the negligence of the decedent was a proximate cause of the accident.

The evidence is largely circumstantial, and it is impossible to resolve with certainty many of the important fact issues. It is not necessary, however, for the parties to eliminate every conclusion other than the ones which they espouse. It will be enough if they establish by a preponderance of the evidence as a whole that their contentions are in all probability correct. See Noel v. United Aircraft Corporation, 219 F. Supp. 556 (D.Del.1963).

BACKGROUND FACTS

Decedent's aircraft was a light, single-engine fixed wing aircraft with a maximum allowable gross weight of 2000 pounds and a maximum cruising speed of 135 miles per hour.

On September 23, 1958, the Dover Air Force Base was owned and operated by the United States principally as a base for the Military Air Transport Service. It was the headquarters for the 1607th Air Transport Wing (H). The Wing included Transport, Maintenance and Air Base Groups. The Transport Group was composed of six Squadrons. All of the Squadrons, with one exception, were assigned to fly the C-124 type aircraft. The other was assigned to fly the C-133 type aircraft.

On September 23, 1958, the C-124 type aircraft at the Dover Air Force Base was a four-engine military transport, with a wing span of approximately 174 feet, a length of approximately 130 feet, and a height of approximately 48 feet. The C-124 had a minimum empty (without cargo and only minimum fuel load) gross weight of approximately 110,000 pounds. The maximum take-off gross weight, fully loaded with fuel and cargo, was approximately 195,000 pounds.

On September 23, 1958, the weather at the Dover Air Force Base at 1300 EST on the surface was clear, visibility 15 miles, surface winds west at 4 knots. At 1400 EST the surface observation indicated high, thin, scattered clouds, visibility 15 miles, surface winds west-northwest at 6 knots. Winds aloft were light and variable below 2000 feet MSL. The winds at 1000 feet MSL would have been approximately 050°, 10 knots.

At the time of the accident, decedent was operating his aircraft under VFR (visual flight rules) as he was entitled to do under the conditions which prevailed.

At the time of the accident, decedent was on a flight from Zahn's Airport, Amityville, New York, to Charlottesville, Virginia. He was flying Victor 16 and using as a navigational aid a radio beam transmitted from the Kenton VOR (visual omni range) located about seven miles north of Dover in the center line of Victor 16.

Victor airways were established by the CAA and are based upon very high frequency navigational aids called VOR stations or VHF omni directional radio range stations. VOR stations which facilitate navigation on Victor airways are located on the ground at various points along the center line of Victor airways.

A VOR serves as a reference point for an airplane trying to get to an airport in the vicinity of the VOR as well as a navigational aid to airplanes en route to another destination.

Victor 16 is the standard route for northeast-southwest bound traffic. On September 23, 1958, Victor 16 was one of the major traveled routes to the southwest. The actual crash site was about 1 4/10 miles south of the Kenton VOR.

JURISDICTION

Jurisdiction exists under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) unless, as defendant argues, it is excluded by 28 U.S.C. § 2680. The latter provides that the provisions of § 1346(b) 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.

* * * * * *

"(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."

Whether the Court has jurisdiction to entertain the action depends upon the meaning of these two provisions.

Section 2680(a)

Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) delineates in general terms the type of discretion which, if abused or negligently exercised will, and the type which will not, support an action against the Government in the federal court. The discretion protected, the Court said, is that of "the executive or the administrator to act according to his judgment of the best course, * * *". 346 U.S. at 34, 73 S.Ct. at 967. The protected discretion (pp. 35-36, 73 S.Ct. p. 968):

"includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion." id at 35-36, 73 S.Ct. at 968.

On the other hand, when discretion at the "operational level" is abused or negligently exercised, it is not protected by § 2680(a). id at 42, 73 S.Ct. 956. Thus, Dalehite is said to have established "planning-operational" distinction. Mahler v. United States, 306 F.2d 713, 723 (3rd Cir. 1962), cert. denied, 371 U.S. 923, 83 S.Ct. 290, 9 L.Ed.2d 231 (1962).

In many cases, the line of demarcation between discretionary acts which are actionable and those which are not, is difficult to draw. Here, it is clear that, but for the terms of the Air Force Regulations hereinafter discussed, the Commander of the Air Base would have been exercising a discretion in the planning area when he determined the manner, extent, and time when the Dover-based pilots should use the Kenton VOR. In United Air Lines, Inc. v. Wiener, et al, 335 F.2d 379 (9th Cir. June 21, 1964), it was stated as a general proposition that "instrument approach training is an Air Force activity...