The opinion of the court was delivered by: MARSH
This litigation is grounded upon the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and arises out of the deaths on January 8, 1961, of Duane A. Rowe and William Lee Smith who perished when a single-engine Cessna Model 180 aircraft in which they were passengers crashed during a radar-assisted approach to Greater Pittsburgh Airport in this District. The aircraft, Register No. N5138E, was owned by the Kullberg Drilling Company, Inc. and piloted by one Richard Robert Kullberg.
Plaintiffs, the widows of Rowe and Smith, seek to recover damages against the United States on behalf of themselves and their children, and on behalf of their late husbands' estates, in accordance, respectively, with the Wrongful Death
Acts of Pennsylvania.
The parties agree that the Cessna sustained in-flight breakup prior to crashing. Defendant contends that the breakup was due to the application to the aircraft of heavy aerodynamic forces most probably encountered while the aircraft descended out of control in a high-speed spiral; that the pilot lost control when he became disoriented upon entering a solid overcast and losing his visual references therein. Plaintiffs contend that the Cessna's breakup resulted either from pilot disorientation or from paralysis or malfunctioning of flight controls caused by an encounter with icing conditions; that, in either event, negligence of the defendant's employees was the proximate cause of the crash.
Plaintiffs allege various acts of negligence on the part of Federal Aviation Agency (F.A.A.) employees of the defendant, to-wit: that the Controller at Midway Airport in Chicago failed to transmit to the Flight Service Station at Pittsburgh, and/or to the Approach Controller at Greater Pittsburgh Airport (GPA), a visual flight plan filed by Kullberg prior to take-off from Midway; that Approach Control at GPA gave the Cessna compass headings and descent clearance "in utter disregard of the fact, which was known to the Approach Controller, that the pilot, following his direction would fly into conditions where he would encounter the risk of disorientation and of icing"
; that defendant failed to promulgate any procedure in its manual for air controllers which would instruct them in the furnishing of radar assistance to visual flight pilots; and that Approach Control at GPA failed to direct the pilot to a safer airport.
After trial to the court without a jury, 28 U.S.C. § 2402, we make the following findings of fact and conclusions of law:
1. The plaintiffs are the duly appointed administratrices of their decedents' estates.
2. As said administratrices, plaintiffs seek to recover damages in this action in behalf of themselves and their children, and in behalf of their decedents' estates, under 12 Purdon's Pa.Stat.Ann. § 1601 et seq. and 20 Purdon's Pa.Stat.Ann. § 320.601 et seq., which statutes are, respectively, the Wrongful Death and Survival Acts of the Commonwealth of Pennsylvania.
3. This action is brought pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., for damages allegedly caused by negligent and wrongful acts or omissions to act of employees of the defendant while acting within the scope of their office and employment, under circumstances wherein the United States of America, if a private person, would be liable to the claimant in accordance with the law of the place (Pennsylvania) where the acts or omissions occurred.
4. All of the allegedly tortious acts or omissions to act on the part of the defendant's employees caused harm to Duane A. Rowe and William Lee Smith, if at all, within the borders of this, the Western District of Pennsylvania.
5. The Cessna was owned by Kullberg Drilling Company, Inc., and its pilot and pilot in command
for the flight from Chicago to Pittsburgh was Richard Robert Kullberg.
6. Kullberg possessed a private pilot's license, but was not rated for instrument flying in IFR (Instrument Flight Rules) weather conditions.
7. The Cessna, with Kullberg as pilot and Smith and Rowe as passengers, took off from Midway Airport, Chicago, Illinois, at approximately 12:16 A.M., C.S.T., on January 8, 1961, headed for Pittsburgh, Pennsylvania.
8. Kullberg was cleared for take-off by F.A.A. Air Traffic Control at Midway and given course to fly to take him above the overcast. He reported VFR (Visual Flight Rules, i.e., he was flying by visual references) "on top" (of the overcast) at 6300 feet and was cleared to leave the Midway radio frequency.
9. Attributing a presumption of due care to Kullberg,
and considering the testimony of John Blasic, United States Weather Bureau pilot briefer at Midway during the evening of January 7, 1961, we find that Kullberg received from Blasic, prior to take-off, a weather forecast for Pittsburgh of overcast, light snow flurries, 15 miles visibility, tops of clouds at 5000-6000 feet, possibility of light to moderate icing, and en route ceiling of 2,000 feet minimum.
10. The flight was heard from en route at approximately 3:11 A.M., E.S.T., by the F.A.A. Flight Service Station at Akron, Ohio, to which it identified itself as "N5138E", reported its altitude as 11,000 feet "on top", and directed an inquiry as to the current weather at Pittsburgh. It was advised that current Pittsburgh weather was ceiling 2,000 feet overcast, visibility more than 15 miles, very light snow showers, temperature 34 degrees, dewpoint 24 degrees, wind W.N.W. 18. He was given a flash advisory forecast of moderate to locally severe turbulence in Western Pennsylvania below 10,000 feet with moderate to occasionally heavy icing. The flash advisory covered the time required for the flight to reach Pittsburgh. At this point the pilot also asked whether the Greater Pittsburgh Airport (GPA) radar approach facilities were in operation. Akron contacted Approach Control at GPA, was advised that said facility's radar was indeed functioning, and so advised N5138E.
11. Approximately 30 minutes later, at 3:44 A.M., E.S.T., N5138E contacted the F.A.A. Pittsburgh Flight Service Station, and reported its position as 12,500 feet over the Pittsburgh "Omni" or V.O.R. (Very High Frequency Omni (Directional) Range Radio Transmitting Station, located 17 miles southeast of GPA). It requested and received the radio frequency of Approach Control at GPA.
12. Plaintiffs' Exhibit 10, a certified typewritten transcript of the tape recording of the complete radio conversation between Approach Control and N5138E, accurately states that conversation.
13. The times stated in such transcript represent Greenwich Mean Time. Eastern Standard Time is determined by subtracting five hours from Greenwich Mean Time.
14. The Cessna initially contacted Approach Control at 3:47:03 A.M., E.S.T., reporting its position at 12,500 feet over the "Omni". At this time, it was actually 9 miles northeast of the Omni, and proceeding in a northeasterly direction. It had been "tracked" by means of Approach Control's surveillance radar scope from the time of its original appearance thereon (aircraft within a 30-mile radius of the appropriate radar screen at GPA would be seen upon the scope).
15. At 3:47:15 A.M., Approach Control inquired as to the type of assistance desired by N5138E and was eventually informed (3:47:33) that the flight desired radar assistance in let down. One type of radar assistance is "vectoring" (providing compass headings) for an IFR approach to a landing.
16. Approach Control then inquired as to the amount of fuel aboard and was advised (3:47:42) that the Cessna had fuel available for 2 1/2 hours of flying time. The inquiry was made for the purpose of ascertaining whether the Cessna required any priority treatment, and the response indicated to Approach Control that it did not.
17. The conversation between N5138E and Approach Control at 3:48:44 to 3:48:49 indicates that the flight was then VFR at 12,600 feet, on top of the overcast.
18. At 3:49:27, N5138E was cleared to descend to 6,000 feet and requested to advise leaving altitudes. At 3:49:33 Cessna started its let down from 12,600 feet. At 3:51:28, approximately two minutes later, it reported its altitude as 11,000 feet, established on a heading of 360 degrees.
19. A Capital Airliner had been transferred to the jurisdiction of Approach Control by the GPA traffic control center at an altitude of 5,000 feet shortly before N5138E's initial contact with Approach Control. The airliner was then in the overcast, and maintained its altitude while being observed and vectored by Approach Control. At 3:50:47, it reported ground contact at 3,500 feet MSL (2332 feet above GPA), and at 3:51:55 was turned over to the control tower frequency for its final approach.