Home/D. Colorado/DeWeese v. United States

DeWeese v. United States

419 F. Supp. 147
CourtDistrict Court, D. Colorado
DecidedAugust 12, 1974
DocketMDL-88-1. Civ. A. Nos. C-3097, C-3799
StatusPublished
Cited by9 cases

This text of 419 F. Supp. 147 (DeWeese v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeWeese v. United States, 419 F. Supp. 147 (D. Colo. 1974).

Opinion

MEMORANDUM OPINION

WINNER, Judge.

Deweese v. United States was originally filed in this court. Frizzell v. United States was filed in the United States District Court for the Northern District of California, and venue was changed to Colorado. Each of these cases was handled through completion of discovery procedures as a multi-district case [MDL-88-1] in conjunction with Reisinger v. United States, filed in the United States District Court for the Northern District of Iowa, and Vesey v. United States, filed in the United States District Court for the Central District of California. The two cases in this district were consolidated for trial on the issue of liability, and, during the course of the trial, on plaintiffs’ motion, the single action against Beech Aircraft Corporation was dismissed with prejudice. This, then, left the cases as Federal Tort Claims actions, and it is under the Federal Tort Claims Act [28 U.S.C. § 1346 et seq.] that the Court has jurisdiction. Trial and post trial briefs total almost 400 pages, and decision of the cases has been forced to await preparation of a reporter’s transcript and the filing of the many briefs, but at long last the cases are ready for determination. As Federal Tort Claims Act cases, trial was of course to the Court, and this memorandum opinion contains the findings, and conclusions required by Rule 52.

On October 3,1969, Metro Commuter Airlines was operating an air taxi service to and from Denver and points in Wyoming. *149 On that date, James Leonard Faull, the husband of plaintiff Alva Jolyn Faull, was the pilot and Floyd Wayne Frizzell, the husband of plaintiff J’ette Marie Frizzell, was the co-pilot of a Beech Queen Air [Metro 201] operated by Metro Commuter Airlines in its air taxi business. Robert E. Deweese was a fare paying passenger on the flight of Metro 201 on October 3, 1969. The plane crashed on Lowry Air Force Base while attempting a landing at Stapleton International Airport in Denver. The pilot and co-pilot were killed and, although Deweese survived, he was seriously injured. Plaintiffs claim negligence on the part of the air controllers at Stapleton, and defendant charges negligence, contributory and sole, on the part of the pilot and co-pilot. By third party complaint, defendant asserts a negligence claim against Metro Commuter Airlines, Inc. and its officers in permitting operation of the plane.

Deweese was returning from a hunting trip near Saratoga, Wyoming. He boarded Metro 201 at Rawlins, Wyoming, and, as the sole survivor of the crash, his testimony is of the utmost importance. I adopt the following facts testified to by him. In doing so, I recognize that he is not exactly a millrun plane passenger in that he was employed as a director of Flight Operations, had over 4,000 hours in the air as a pilot and was a licensed commercial pilot. When he boarded the plane, he occupied the third seat on the left hand side of the plane which put him two seats behind the pilot. The plane proceeded to Laramie, Wyoming, in a routine flight, but when it landed at Laramie, the left wheel ran through a puddle of water, and the left engine stopped. The plane remained on the ground for approximately 45 minutes while the crew checked Denver weather and waited for acceptable mínimums. Both engines were started without unusual difficulty, and the flight departed for Denver. There were clouds encountered during the trip, but there were no problems until the plane’s descent towards Stapleton. During this time, Deweese was monitoring the instruments and observed nothing out of the ordinary. It had been snowing, and while the plane was descending onto Stapleton, the left engine quit. When the plane reached a point estimated by Deweese to be about 300 feet above the ground, power was added to the right engine, (the only engine then functioning) and a left turn was commenced. With his extensive pilot’s experience, Deweese concluded that there had been a missed approach, and, realizing the seriousness of the situation, he intensified his observations. The conduct of the pilot and co-pilot he described as having “all appearances [of] professional bravery.” The testimony of Deweese continued: 1

“Q. Now, did there come a time when you saw the ground?
A. Yes.
Q. Will you tell us about that?
A. Shortly after the power had been attempted to be added to the right engine and the plane began a gradual left turn, shortly after that time, I became aware that they were contact (sic) and this is the first time on the approach that I became aware of being in contact. I saw snow on the ground, and it appeared to be a fiéld, an open field, an open field with some terrain. The aircraft—
Q. You. were looking out that same left window?
A. Still looking out the left window, yes.
Q. All right.
A. We continued in these conditions of no precipitation, no clouds. We were completely (in) contact, had good visible contact with the ground, and the next thing I noticed was an airport on my left.
Q. Can you orient yourself, then, in what direction were you going then?
*150 A. At this time were going in a southerly direction.
Q. And with reference to this airport you saw, what side of it were you on?
A. We were on the right side of it.
Q. It would be the west side of the airport?
A. That’s right.
Q. —heading south
A. Yes.
Q. —or generally southerly?
A. Generally southerly.
Q. What did you observe, if anything, about that airport?
A. Well, I could see the runways, and I could see ‘X’s’ on the end of the runways.
Q. What does that mean?
A. That means that the field is closed.
Q. All right. Go ahead and tell us what else you observed.
A. I don’t remember observing anything other than runways and the ‘X’s’ on them.
Q. All right, what’s the next thing that occurred?
A. I went back to monitoring the instruments, and either we were in some form of precipitation or clouds again. At this time — let me go back just a moment. When the runways were in sight, I looked around the horizon that was visible to my view, and I noticed there was a jagged ceiling. There were quadrants where the clouds came lower, and it was like a pocket right there where we were. And as we continued, I believe that we entered some part of that jagged ceiling area, and the next I remember coming in contact was just shortly before the crash.

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Bluebook (online)
419 F. Supp. 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deweese-v-united-states-cod-1974.