Dyer v. United States

832 F.2d 1062
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 7, 1987
DocketNo. 85-4369
StatusPublished
Cited by20 cases

This text of 832 F.2d 1062 (Dyer v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dyer v. United States, 832 F.2d 1062 (9th Cir. 1987).

Opinion

GOODWIN, Circuit Judge:

Appellants sued under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1982), for a death resulting when the small airplane in which the decedent was a passenger crashed while landing shortly after a large Coast Guard helicopter landed on the same runway. In a nonjury trial, the district court found that the crash was the result of wake turbulence from the helicopter’s landing minutes before, and that the cause of the accident was the negligence of the aircraft pilot when he misjudged the precautions necessary to avoid the turbulence. The court found no negligence in the operation of the Coast Guard helicopter, 633 F.Supp. 750. We affirm.

Jon Keith Dyer, 28, was killed on March 14, 1981, when the Piper Turbo Arrow aircraft in which he was a passenger crashed at the Clatsop County Airport in Astoria, Oregon. The pilot, John R. Franklin, was a properly certified pilot, even though he was relatively inexperienced with approximately 300 hours of flight time.

At about the same time that the Piper Turbo Arrow was approaching the airport, a large HH-3 Coast. Guard helicopter weighing 17,800 pounds was also approaching the airport. The Clatsop County Airport is used both by general aviation aircraft and large military aircraft, such as the helicopter involved here. Because there is no control tower, the aircraft operate under visual flight rules and follow their own sequencing and separation. It is customary, although not required, in such uncontrolled locations for pilots to use a common radio frequency called UNICOM to make their flight intentions known to other pilots.

The co-pilot of the Coast Guard helicopter testified that he noticed a plane like the Piper Turbo Arrow to the west of the airport as the helicopter approached for landing. He testified that it did not appear to him that the plane was preparing to land because of its distance and direction heading away from the airport. He also testified that he heard no transmissions on UNICOM to indicate that the plane was intending to land.

Franklin, the airplane pilot, testified that he first saw the helicopter as the helicopter was approaching the end of the runway. Franklin testified that he purposely slowed down and extended his approach before turning toward the runway in order to avoid the helicopter’s wake turbulence. Franklin communicated with the Portland Flight Service Station on a radio frequency other than UNICOM.

The helicopter completed its left-hand approach crossing the threshold of the operative runway at approximately 55 knots, 350 feet above ground level. The helicopter steadily reduced its airspeed and altitude [1065]*1065and landed at the midpoint of the runway with virtually no forward speed. This maneuver is known as a “no hover” landing.

Approximately two minutes later, the Piper Turbo Arrow crashed while attempting to land on the same runway. Dyer was killed in the crash and the aircraft was damaged beyond repair. The appellants in this action are the decedent’s mother, Gladys Dyer, and the Central National Insurance Company of Omaha, Nebraska, the insurer of the plane.

I. Negligence Per Se Claim

Appellants’ first contention is that the trial court wrongly interpreted 14 C.F.R. § 91.89 (1987)1 in holding that operation of the Coast Guard helicopter did not constitute negligence per se.

Negligence per se liability is founded upon violation of a statute or safety regulation, which raises a rebuttable presumption of negligence if the violation results in injury to a member of the class of persons intended to be protected by the legislation, and the harm is the kind the regulation was intended to prevent. Brennen v. City of Eugene, 285 Or. 401, 412 n. 5, 591 P.2d 719, 725 n. 5 (1979).

A. Interpretation of “Flow” Under 14 C.F.R. § 91.89(a)(2)

On the day of the accident, both the airplane and the Coast Guard helicopter used a left-hand landing approach, meaning they both made all turns to the left toward the final approach over the runway. The first subsection of the regulation, 14 C.F.R. § 91.89(a)(1), requires that all airplanes use a left-hand landing approach at uncontrolled airports, unless the airport signals prescribe a right-hand approach, which was not the case here. The second subsection provides that all helicopters must “avoid the flow of fixed-wing aircraft.” § 91.-89(a)(2).

The appellants claim that the trial court wrongly interpreted the word “flow” in § 91.89(a)(2) in finding that the Coast Guard did not violate the regulation. The regulation is part of pilots’ “rules of the road” promulgated by the Federal Aviation Administration (FAA). In re N-500L Cases, 691 F.2d 15, 28 (1st Cir.1982). The question is troublesome because “flow” is not specifically defined in the Federal Aviation Regulations, and we know of no court or administrative agency decisions interpreting the meaning of “flow” as used in 14 C.F.R. § 91.89.

The trial court found that the airplane was not in the “flow” of fixed-wing aircraft at the time the helicopter crossed the threshold of the runway. Dyer v. United States, 633 F.Supp. 750, 757 (D.Or.1985). The trial court apparently agreed with the government that the term “flow” in 14 C.F.R. § 91.89(a)(2) connoted that traffic must be already present, and that because there was no traffic present in a landing pattern (i.e., no “flow”) when the helicopter crossed the runway threshold for landing, that the helicopter’s use of a left-hand approach did not violate 14 C.F.R. § 91.-89(a)(2). Id. at 756-57.

Appellants counter that it was negligence per se for the Coast Guard helicopter to use the left-hand landing pattern and the operative runway because the “flow” of fixed-wing aircraft should be deemed synonymous with the traffic pattern for airplane landings. Although “flow” is not defined in the regulations, appellants argue that “flow” should be defined by reference to its use in the definition of “traffic pattern.” See 14 C.F.R. § 1.1 (“ ‘[t]raffic pat[1066]*1066tern’ means the traffic flow that is prescribed for aircraft landing at, taxiing on, or taking off from, an airport” (emphasis added)). As a result, appellants argue, the proper interpretation of the regulation requires that helicopters avoid the standard traffic pattern for fixed-wing aircraft at all times, whether or not there are airplanes present in the traffic pattern.

The language of a regulation or statute is the starting point for its interpretation.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Turner v. United States
736 F. Supp. 2d 980 (M.D. North Carolina, 2010)
Wojciechowicz v. United States
576 F. Supp. 2d 241 (D. Puerto Rico, 2008)
Munoz v. England
557 F. Supp. 2d 1145 (D. Hawaii, 2008)
United States v. Deng
537 F. Supp. 2d 1116 (D. Hawaii, 2008)
Solis v. Saenz
60 F. App'x 117 (Ninth Circuit, 2003)
Kilpatrick v. Principi
16 Vet. App. 1 (Veterans Claims, 2002)
Micorescu v. Commissioner
1998 T.C. Memo. 398 (U.S. Tax Court, 1998)
United States v. Boyll
774 F. Supp. 1333 (D. New Mexico, 1991)
Wileman Bros. & Elliott, Inc. v. Leroy Giannini
909 F.2d 332 (Ninth Circuit, 1990)
Koegel v. R Motors, Inc.
448 N.W.2d 452 (Supreme Court of Iowa, 1989)
Rylewicz v. Beaton Services, Ltd.
698 F. Supp. 1391 (N.D. Illinois, 1988)
Dyer v. United States
832 F.2d 1062 (Ninth Circuit, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
832 F.2d 1062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyer-v-united-states-ca9-1987.