Wildwood Mink Ranch v. United States

• Decision Date: 08 March 1963
• Docket Number: No. 3-62-Civ. 87.,3-62-Civ. 87.
• Citation: 218 F. Supp. 67
• Parties: WILDWOOD MINK RANCH, a Minnesota corporation, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Minnesota

218 F. Supp. 67

WILDWOOD MINK RANCH, a Minnesota corporation, Plaintiff, v. The UNITED STATES of America, Defendant.

No. 3-62-Civ. 87.

United States District Court D. Minnesota, Third Division.

March 8, 1963.

R. Donald Kelly, of Donahue, Thompson, Kelly & Smith, St. Paul, Minn., for plaintiff.

Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., for defendant.

LARSON, District Judge.

The plaintiff brings this case under the Federal Tort Claims Act, which makes the United States liable under the local law of the place where the tort occurs, for the negligent or wrongful acts or omissions of federal employees within the scope of their employment "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C.A. §§ 1346(b), 2671 et seq.

FACTS

The facts as developed by the evidence at trial are contained in the Findings of Fact 43 in number and will not be repeated here. A controverted issue is the altitude of the two Navy planes in the flight over or near the area of plaintiff's mink ranch. Commander Knott, the lead pilot, did not testify. Captain McCaughey was the sole witness for the defendant.

There was credible testimony that the planes flew below 1,000 feet. Captain McCaughey admitted that it was possible that the two jet fighter planes flew over the mink ranch, but denied that they ever got below 1,000 feet until they entered the traffic pattern for landing. I have rejected Captain McCaughey's testimony for several reasons. The incident occurred a long time ago and the Captain has since made many flights into many cities. In this vein, it is worthy of note that Captain McCaughey did not recall crossing the large St. Croix River shortly before reaching the metropolitan area. Second, Captain McCaughey was the wing man and was thus required to keep close watch on the lead aircraft, leaving him little time for looking at his altimeter. The Captain undoubtedly was particularly concerned about the welfare of his teammate on the day in question. I am confident, however, that Captain McCaughey would neither misrepresent his knowledge of the facts nor knowingly violate flying regulations. He possessed a thorough knowledge of the latter and his general bearing and demeanor were unimpeachable. His conduct at the trial was such as to give pride to the Blue Angels, the Armed Services and his country.

LIABILITY

One of the arguments advanced by the plaintiff in this case is that the Government is liable under Section 360.012(4) of the Minnesota Statutes, which is as follows:

"Subd. 4. The owner of every aircraft which is operated over the lands or waters of this state is absolutely liable for injury or damage to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury or damage is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property damaged. * * *"

The Government argues that this provision is inapplicable for two reasons. The first is that the Congress has created public highways in the navigable airspace above the earth in this country and that this legislation confers a public right of freedom of interstate air navigation. See United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); Matson v. United States, 171 F.Supp. 283, 145 Ct.Cl. 225 (1959); 49 U.S.C.A. § 176 et seq. From this premise it might follow that the Congress had pre-empted the right of the States to legislate with respect to the navigable airspace, compare Garner v. Teamsters, Chauffeurs & Helpers Local 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953), or that such legislation unduly burdened interstate commerce. See e. g., Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). Although there is some indication that this latter proposition has been rejected by the courts in cases involving airplanes crashing into the ground, see e. g., Adler's Quality Bakery v. Gaseteria, 32 N.J. 55, 159 A.2d 97 (1960); Prentiss v. National Airlines, 112 F.Supp. 306 (D.N.J.1953); Annot. 81 A.L.R.2d 1058, 1059 (1960), there is no need to decide the question for the Government's second argument against absolute liability seems adequately persuasive. The case of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1952) seems to have decided that the Act "is to be invoked only on a `negligent or wrongful act or omission' of an employee" and not on the theory of absolute liability without fault. 346 U.S. at 44, 73 S.Ct. at 972, 97 L.Ed. 1427. Doubt is cast upon this principle by language appearing in United States v. Praylou, 208 F.2d 291 (4th Cir., 1953), cert. denied 347 U.S. 934, 74 S.Ct. 628, 98 L.Ed. 1085, but that case has been construed (properly, it would seem) to mean that the mere fact that absolute liability under State law may be imposed against individuals for certain dangerous activities does not relieve the Government from liability under the Tort Claims Act where the misfeasance thereby required is established. Barroll v. United States, 135 F.Supp. 441, 450 (D.Md.1955).

The Government strongly argues that there can be no negligence here for the reason that these pilots had no knowledge of this mink farm or of the whelping season and that no reasonable pilot similarly situated would have had such knowledge. As the Supreme Court emphasized in the Dalehite case supra, 346 U.S. at 42, 73 S.Ct. at 971, 97 L.Ed. 1427, "`There must be knowledge of a danger, not merely possible, but probable,' MacPherson v. Buick Motor Co., 217 N.Y. 382, 389, 111 N.E. 1050, 1053." The plaintiff relies on the fact that notice was given to the Navy of the location of the mink ranch and the onset of the whelping season and that the word MINK was prominently displayed on the ranch's barn. A word should be said about this sign first. These jets were traveling fairly fast when they approached this ranch. Their speed was not even close to that of which they were capable but it was probably such as to prevent their effectively maneuvering away from the ranch so as not to disturb the mink even if they saw the sign (which they never did). Thus it seems clear as a practical matter that if these jets were to have avoided this ranch, they would have had to know of its whereabouts before they got close to it and probably before they even left the ground. The wing man, Captain McCaughey, testified that neither he nor any of the team was briefed as to the location of mink ranches in the local area. The plaintiff argues that these pilots should have been so advised, but it is doubtful whether negligence can be posited on this basis. These pilots were not planning to fly in the local area; they planned to climb quickly to their cruising altitude and go on to Rhode Island. It was possible that these pilots would return to Wold-Chamberlain Field, but it was certainly not probable. The briefing officer probably felt that there was no need to tell these pilots of local hazards for the simple reason that they did not plan to fly locally. The precautions to be taken are a function of the risks likely to be incurred and the magnitude of those risks.

There is also the matter of the warning sign outside the briefing room which these pilots should have seen. The sign said to fly high and avoid the mink farms. Should this sign have prompted these pilots to go back into the briefing room and inquire as to the whereabouts of mink ranches? It would seem not. The sign implied that high flight would avoid the mink farms, and high flight is what these pilots contemplated. When these two pilots were returning to the field at a low altitude, should the leader have recalled the warning sign and inquired by radio as to the whereabouts of nearby mink ranches? These were pilots of the highest order; they were among the finest in their profession. It is arguable that they should be held to a high standard. But on the other hand the pilot of the lead aircraft had just gone through what must have been an extremely disconcerting experience. He had lost his cockpit heat and pressurization, subjecting him to extreme cold and forced breathing. He had very nearly lost his canopy and was perhaps concerned with other possible mechanical malfunctions of his aircraft. It is doubtful whether he should have recalled the mink warning sign — a sign which would not have alerted him to possible dangers at the time he saw it.

The plaintiff, however, advances another theory of negligence — namely that these jets violated a civil air regulation which has the force of a statute and was enacted to protect persons and property on the ground from the danger of lowflying aircraft. The plaintiff relies on Leisy v. United States, 102 F.Supp. 789 (D.Minn.1952), a case in which numerous Navy aircraft flew over the plaintiff's mink ranch at an altitude of 150 feet, causing damage similar to that in this case. The plaintiff's mink ranch was in an uncongested area and the pertinent civil air regulation proscribed flight at an altitude of less than 500 feet over sparsely populated areas. 40 C.F.R. § 60.17(c). Relying on this regulation and M.S.A. Section 360.012(3), Judge Donovan concluded that the plaintiff's damage was caused by the defendant's negligence.

That case seems dispositive of this one. 14 C.F.R. § 60.17(b) proscribes flight at less than 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft when over "congested areas of cities, towns, or settlements. * * *" These jets were traveling at a rate of over four miles per minute. Fifteen seconds prior to passing over the plaintiff's mink ranch these jets must have passed over either Mahtomedi or Willernie, either of which would have to be described as a settlement or town and perhaps a city. Within one minute after...