Yates v. United States, 73-1656.

• Decision Date: 29 April 1974
• Docket Number: No. 73-1656.,73-1656.
• Citation: 497 F.2d 878
• Parties: Charlotte Joan YATES et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. EAGLE STAR INSURANCE CO., LTD., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

497 F.2d 878 (1974)

Charlotte Joan YATES et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

EAGLE STAR INSURANCE CO., LTD., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 73-1656.

United States Court of Appeals, Tenth Circuit.

April 29, 1974.

James J. McCarthy of Magana & Cathcart, Los Angeles, Cal. (Avelino V. Gutierrez and Dennis M. McCary of Keleher & McLeod, Albuquerque, N. M., on the brief), for appellee.

Jean A. Staudt, Atty., Dept. of Justice, Washington, D. C. (Irving Jaffe, Acting Asst. Atty. Gen., Victor R. Ortega, U. S. Atty., and Robert Kopp, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Russell Moore, Albuquerque, N. M., for plaintiff-appellee Eagle Star Ins. Co., Ltd.

Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

Presented on appeal is an airplane casualty case, an action against the United States brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Following a trial to the court, judgment was entered in favor of the plaintiff, the widow of the pilot who died in the crash, in the total amount of $375,540, the same being loss of earnings and loss of services. Judgment in the amount of $8,500 was also entered for plaintiff Eagle Star Insurance Company, the insurance carrier on the airplane.

The crash of the airplane produced the death which occurred on August 3, 1969, at which time the pilot, Thomas A. Yates, was seeking to land a Cessna 172H at the Albuquerque, New Mexico airport. He had flown from Grants, New Mexico.

The evidence showed that although Yates was a fully licensed private pilot, he had logged only 100 hours of flight time and had executed some 150 landings and takeoffs. Yates was at the time of the crash involved in study looking to becoming a licensed commercial pilot. He had flown to Albuquerque from Grants, New Mexico for the purpose of meeting an employee of his instructor, Mr. Humphries. The Cessna 172H had been borrowed by Yates from Humphries.

On the night in question visibility was clear and extended for approximately 60 miles. Visual flight rules were in effect and air traffic at Albuquerque was said to be moderate. All aircraft was using a north-south runway, No. 17, due to the fact that the east-west runway was closed. Landings were being carried out from north to south on Runway 17 which is about 9,000 feet long. Yates had previously landed in Albuquerque on at least six occasions.

There existed an airport traffic control tower operated by the United States at the Albuquerque airport. It was manned by Federal Aviation Administration personnel. The approach control position in the radar room was handled by Donald J. Sanger and supervised by R. Nattress. The local air tower control position was manned by William H. Haines and the CAB coordinator's position was manned by William E. Moore.

Yates arrived in the Albuquerque area on August 3, 1969, at approximately 7:46 p. m. He contacted Albuquerque approach control and requested landing instructions. At that time he informed the radar controller that he was ten miles west of the Albuquerque Vortac station, the navigational aid located near the airport. The controller responded and directed the pilot to fly a right traffic pattern into the airport and land on Runway 17. Thereafter, at 7:53 p. m., the radar controller advised Yates to follow a TWA 707 aircraft which was then eight miles west of the airport and coming in for a landing. Yates was then given the location of the 707 and told to report when he saw it. Yates acknowledged this instruction and reported sighting it. Following this instruction, the Cessna was turned over to local approach control at the airport. The local controller can visually observe aircraft approaching the field with the exception of a blind zone in the tower which obscures the approach of Runway 17 for the first 1500 to 2000 feet. The controller told Yates to continue his approach and to follow the TWA 707 on the two mile final approach.¹ The speed of the 707 was 140 knots and that of the Cessna was 80 knots.

Next, the local controller, from a view of the flight pattern of the Cessna, noted that it was veering in a northern direction away from the runway and so he advised Yates to keep in close behind the TWA jet. The controller was aware also that there were other planes in the area and he advised the pilot "Cessna six two fox keep your traffic close behind the TWA jet, there are others behind you." In response to this Yates corrected his flight pattern turning east and slightly south so as to follow behind the 707. As the Cessna approached the runway, the local controller lost visual contact with it as a result of the blind zone in the tower. Prior thereto the Cessna had maintained an altitude above that of the TWA 707, but even though the controller had the Cessna monitored through a radar scope, he was incapable of determining the plane's altitude. The TWA 707 landed slightly long on the runway, touching down at approximately 4500 feet from the beginning of the runway. It taxied to the end of the runway and turned off toward the terminal. Simultaneously with the TWA landing, the Cessna was on a final approach to Runway 17, but had dropped its altitude to approximately 200-300 feet above the ground. At approximately 300 feet from the commencement of the runway, the Cessna encountered wake turbulence from the 707. As a result of this, the pilot lost control of the airplane and it crashed, killing him and destroying the plane.

The FAA inquiry concluded that the crash "was caused by a loss of control in flight due to an encounter with wake turbulence and insufficient altitude to recover before striking the ground."

In ruling for the plaintiff the trial court held that the United States is liable for the negligence of its airport control personnel. In particular, the court found that the negligence of the FAA controllers consisted of 1) failing to provide adequate separation between the decedent's aircraft and the preceding TWA 707 transport aircraft; 2) advising decedent to keep his aircraft in close behind the preceding 707 jet aircraft and telling him at the same time that there were other planes behind him; and 3) failing to advise decedent of the presence of the hazard of wake turbulence caused by the 707 jet transport.

Evidence at the trial, according to the court, showed that wake turbulence is generated behind and below heavier aircraft. This turbulence is invisible and moves in a circular fashion from a vortex. It is capable of remaining for periods ranging from 10 to 12 minutes. The paths from these vortices remain until they strike the ground and are disintegrated. A small aircraft flying at low altitudes encountering wake turbulence is in a very dangerous situation.

Although the government sought to establish that the Cessna crashed as a result of stalling, the overwhelming weight of the evidence disproved this. The evidence also showed that Mr. Humphries, the instructor, had talked to Yates on the subject of wake turbulence. Humphries said that Yates had more knowledge on the subject than most pilots. At the trial he amended this to more knowledge than most pilots of his (Yates') experience.

A trans-Texas Convair 530 Turboprop aircraft was following the Cessna in a landing pattern very closely behind the Cessna. The evidence also showed that the Cessna, after receiving the instruction to get in behind the 707, altered its flight pattern so as to come in close behind the 707.

In seeking a reversal the government, first, maintains that the trial court's finding and conclusion that the FAA controllers were negligent was clearly erroneous. They rely on the fact that the regulations establish that each pilot is in command of and responsible for his own aircraft and has the final authority with respect to its operation, and that it is up to the pilot to exercise his own judgment as to existence of hazard and to refuse to accept instructions which he considers increase his peril. The government says that Yates was guilty of either sole or contributory negligence in flying into the wake turbulence area regardless of whether the government instructed him to follow the TWA 707 and that the local controllers were not guilty of negligence in failing to maintain proper separation between the 707 and the Cessna.

Second, the government contends that the pilot was contributorily negligent. He was flying under visual flight rule conditions and there was flight visibility for a distance of at least three miles so that he could observe all other aircraft in the area. Under these conditions, according to the government, he is required to maintain his own distances in accordance with the rules governing all aircraft. They argue that even if the government may have been negligent, it is clear that the pilot was guilty of contributory negligence and is therefore barred from a recovery. It was the obligation, so the government argues, of Yates to maintain a landing pattern slightly above that of the preceding plane and to touch down on the runway at a point beyond the touch down point of the preceding plane. This, so it is argued, Yates did not do. The government cites and relies on Sanbutch Properties v. United States, 343 F.Supp. 611 (N.D.Cal.1972); Thingulstad v. United States, 343 F.Supp. 551 (S.D.Ohio 1972); Wasilko v. United States, 300 F.Supp. 573, (N.D.Ohio 1967) aff'd, 412 F.2d 859 (6th Cir. 1969).

Third, it was not negligence on the part of the controllers to fail to warn of the existence of wake turbulence.

The trial court has made extensive findings of fact and conclusions of law on the points which are advanced. To succeed, the government must, of course, demonstrate plain error.

I.

The tower is a circular glass-enclosed room allowing observation in all directions, and it is located at the top of the air control tower and is...