Gill v. United States

429 F.2d 1072, 1970 U.S. App. LEXIS 8981
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 1, 1970
DocketNo. 26900
StatusPublished
Cited by88 cases

This text of 429 F.2d 1072 (Gill v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gill v. United States, 429 F.2d 1072, 1970 U.S. App. LEXIS 8981 (5th Cir. 1970).

Opinion

GODBOLD, Circuit Judge:

This is an appeal from a Federal Tort Claims Act1 judgment for the death of two passengers killed in the crash of a light, private airplane at Easterwood Airport, College Station, Texas. The case was tried without a jury and resulted in a verdict of $842,815 against the United States. Liability was based on findings that the crash was caused by extremely hazardous weather conditions at Easterwood Airport and that the government, through negligent weather reporting by its Federal Aviation Administration facilities, was responsible for placing the plane in a position of peril, which was the proximate cause of the deaths.

The issues on this appeal concern negligence of the government, proximate causation, contributory negligence of the pilot, whether the government was entitled to contribution from the estate of the pilot, and whether the District Court was required to credit against the judgment $120,000 paid to plaintiffs in state court settlements by the estate of the pilot.

We affirm in part and reverse and remand in part.

The factual issues are not simple. Many of the questions before us arise from absence of clear-cut findings and from differences of opinion about what the District Court did and did not find. In turn these spring from the entry of findings of fact in- the form of a generalized narrative statement, rather than by precisely targeted findings not subject to misunderstanding.

The aircraft concerned was piloted by Dr. Charles Bintliff on a flight from Texarkana, Texas to San Antonio. Gill and Barlow were passengers. Dr. Bintliff was licensed to fly only by Visual Flight Rules (VFR) which permitted him to fly only under prescribed conditions.2 He did not have an instrument rating. He filed a VFR flight plan at Texarkana and took off from there at 4:18 p. m. He flew a route generally southwesterly in the direction of Long-view-Waco-Austin-San Antonio. Before getting into difficulty he talked in flight with FAA facilities at Longview, Waco and Austin. After seeking to reach the Austin area, he turned east and, after numerous efforts to find a haven from [1075]*1075the bad weather in which he found himself, crashed at College Station at approximately 8:00 p. m.

1. Negligence

The District Court concluded that the government was negligent in furnishing to the plane, by Waco RAPCON (radar approach control), an FAA facility, in-flight weather information which was inexact, incomplete and in all reasonable probability misleading.3

The District Court correctly found that there was a duty of the government to those in the plane. The finding that the government was negligent by breach of that duty is not plainly erroneous, Fed.R.Civ.P. 52(a).

Under the Federal Tort Claims Act the liability of the United States for negligence must be determined in accordance with the law of the state where the asserted negligence occurred. 28 U.S.C. § 1346(b); Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed. 2d 492 (1962). While principles of Texas law control, federal regulations may impose duties and standards of conduct upon the actors. United States v. Schultetus, 277 F.2d 322, 326 (5th Cir.), cert. den. 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56 (1960) (FAA regulations).

The United States may be liable under the Federal Tort Claims Act for negligent provision of services upon which the public has come to rely. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). The government’s duty to provide services with due care to airplane pilots may rest either upon the requirements of procedures manuals spelling out the functions of its air traffic controllers or upon general pilot reliance on the government for a given service, Hartz v. United States, 387 F.2d 870 (5th Cir. 1968). That duty, in appropriate circumstances, requires due care in providing both current weather information, Ingham v. Eastern Air Lines, 373 F.2d 227 (2d Cir. 1967), and weather forecasts, Somlo v. United States, 274 F.Supp. 827 (N.D.Ill.1967).

A Federal Aviation Agency Manual, ATP 7110.1 A, spells out the controllers’ bad-weather function:

§ 352.1 Whenever storm areas such as apparent thunderstorms, rain showers, or squall lines can be discerned on the radar display, information concerning them shall be provided to pilots when considered advisable by the controller. When workload permits, the controller should volunteer vectoring service to assist the pilot to avoid such areas, or provide such service when requested by the pilot.

A government publication, titled “ATS Manual,” § 112, lists one of the controllers’ functions as “coordination with other individuals in regard to transfer of information,” and provides,

The functions of [RAPCON] include: * * * furnishing to pilots information concerning * * * weather conditions * * * and other information which may be of assistance to the pilot.

Government personnel manuals, GS-2152-8 and GS-2152-9, specify the following duties of the air traffic controllers :

Interpreting and adapting the latest weather information for the specific flight in addition to providing current and forecast weather at origination, along route, and at destination.
As necessary, suggesting appropriate flight routes and levels and alternate routes or destinations, such suggestions being based upon consideration [1076]*1076of weather, operating characteristics of the aircraft, navigation aids, terrain, etc.

The specifications of these manuals establish that the government has undertaken not only to provide weather services to pilots but also to suggest as necessary appropriate action to avoid storm areas. The Waco RAPCON controller who spoke to Bintliff agreed in testifying that “actually posing a route of flight or suggesting one is one of [my] functions as a control man.” Once he undertook to inform Bintliff, the government became liable for negligent furnishing of information. Somlo v. United States, supra.

There is little doubt that Waco RAPCON, in relaying to the plane weather data which it had secured from the FAA controller in Austin, gave an inexact and incomplete version. Austin described to Waco a “solid” east-west weather front extending “from Liberty Hill clear on over east of Taylor * * * east of Taylor way east of Taylor.” From Austin to Waco is a route generally south-southwest and passing just to the east of Taylor. Liberty Hill is west of Taylor. Thus the plane’s route would take it into the front as described by Austin.

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Bluebook (online)
429 F.2d 1072, 1970 U.S. App. LEXIS 8981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gill-v-united-states-ca5-1970.