Reminga v. United States

631 F.2d 449
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 2, 1980
DocketNo. 78-1154
StatusPublished
Cited by38 cases

This text of 631 F.2d 449 (Reminga v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reminga v. United States, 631 F.2d 449 (6th Cir. 1980).

Opinion

LIVELY, Circuit Judge.

In this Federal Tort Claims Act1 case the district court entered judgment for the plaintiffs upon a finding that acts and omissions of two federal regulatory agencies were negligent. The plaintiffs are the widows and executrices of two passengers in a small private airplane who were killed when the plane struck a guy wire which supported a tall television tower. The district court found negligence and proximate cause in three agency actions and omissions: (1) the government was found negligent for publishing a “sectional chart” which showed the TV tower in the wrong location; (2) the Federal Aviation Administration (FAA) was found negligent in issuing a “no hazard determination” when construction of the tower was proposed; and (3) the FAA and the Federal Communications Commission (FCC) were found negligent for failing to require additional lighting or marking “so as to safeguard pilots who are in the area from striking the guy-wires of such a tower, or at least to have inquired into the feasibility of marking the wires.” Reminga v. United States, 448 F.Supp. 445, 469 (W.D.Mich.1978).

I.

The decedents were returning to their homes in Michigan from a hunting trip in Wisconsin when the fatal crash occurred. Though both were licensed pilots, the district court found that the plane was being operated by the third occupant whose father’s business owned it. This finding is [451]*451supported by the evidence. The plane took off from the Land O’Lakes Airport near Rhinelander on November 17, 1968 at approximately 2:30 p. m. and crashed at approximately 2:52 p. m. some seventeen miles south-southeast of the airport. None of the occupants of the plane was licensed for instrument flying and the flight was to be conducted under Visual Flight Rules (VFR). The “flight mínimums” for the trip were that the area be free of clouds and that the pilot have one mile visibility as long as he flew outside of controlled airspace. 14 C.F.R. § 91.105(a). The district court found that though the weather was “marginal,” conditions were above the mínimums at the time of take off. The plane reported to the airport when it was 12 miles south that it was flying at 600 feet with about 3 miles visibility.

The district court found that a mixture of rain and snow was falling and the plane was flying in and out of clouds just before the crash. The court also found that the top of the 1720-foot tower was obscured at the time of the collision and that the plane struck a guy wire approximately 450 feet above the ground and approximately 1850 to 1900 feet from the base of the tower itself. The tower was supported by three guy wires which extended laterally approximately 2500 feet from the base of the central structure. Though the tower itself was painted and illuminated in accordance with FCC regulations (47 C.F.R. Part 17, Subpart C), there were no lights or other markings on the guy wires.

II.

A.

The government issues sectional maps or charts for various areas of the country. The district court found that the occupants of the plane were using the Green Bay sectional map. It is undisputed that the location of the TV tower was shown inaccurately on this chart. The map showed the tower west of the town of Starks, Wisconsin and soüth of nearby railroad tracks whereas its actual location was north of Starks and north of the tracks. The district court found that this displacement would create a problem for a VFR pilot who would normally use a railroad line as a visual reference point. This finding was supported by the testimony of an experienced pilot, Richard G. Hartman, who was called by the defendant. Hartman testified that knowing where things are “is number one” in importance for a pilot and it is very important that obstructions to navigation be put on a map correctly.

The government contends the finding that the occupants of the plane relied on the Green Bay sectional map is clearly erroneous. The circumstantial evidence would support a finding that the pilot was actually using an aeronautical map of the State of Wisconsin issued by a private publisher rather than the Green Bay sectional chart. Nevertheless, there was evidence from which the district court could have found that the government chart was being used. On this record we are unable to conclude that the district court’s finding is clearly erroneous. Having determined that the finding of reliance on the Green Bay sectional map was not clearly erroneous, we do not reach the district court’s alternate finding that the Wisconsin map, which also misplaced the tower, was merely copied from the sectional map.

B.

The government also contends that the displacement of the symbol for the TV tower could not have been the proximate cause of the crash. It is contended that sectional charts are intended for use by pilots to determine their “general location by reference to objects on the ground,” and that “a pilot cannot rely on any map to visually thread his way through the needles which would be encountered by flying under 500 feet in uncontrolled and unnavigable airspace in bad weather.” This argument overlooks the district court’s finding that although the plane took off with legal mínimums and had three miles visibility when 12 miles from the airport, deteriorating weather (mixed rain and snow) caused the pilot to descend further to be able to fly [452]*452according to VFR. As he approached the point of collision, the top of the tower was hidden and the pilot was moving in and out of clouds. In this situation it was essential that the pilot know the correct location of obstructions to navigation. We cannot say the district court was clearly erroneous in finding that the issuance of the map which showed the location of the tower in the wrong place was the proximate cause of the crash.

Though not required by law to do so,2 when the FAA arranges for the publication of aeronautical navigation charts and engenders reliance on them, it is required to use due care to see that they accurately depict what they purport to show. Failure to show the location of the tower accurately rendered the United States liable for injury to those who relied upon the chart. See Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955); Ingham v. Eastern Airlines, Inc., 373 F.2d 227, 236 (2d Cir.), cert. denied, 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967).

C.

The government contends vigorously that recovery in this case is precluded by the Michigan rule of contributory negligence. The district court, applying Michigan law, recognized that at the time of the fatal crash contributory negligence was an absolute bar to recovery. The government contends the weather was so unsuitable for VFR flying that it was negligent to begin the trip, and negligent not to turn back when the weather worsened. However, the court found no contributory negligence. Since all three occupants of the plane were licensed pilots and there was evidence that more- than one engaged in inquiries about the weather before their departure, the court found that all participated in the decision to take off.

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631 F.2d 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reminga-v-united-states-ca6-1980.