The opinion of the court was delivered by: MARSH
This action is grounded upon the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and arises out of the death of Richard Robert Kullberg, who perished together with Duane A. Rowe and William Lee Smith on January 8, 1961, when a single-engine Cessna Model 180 aircraft,
of which the three were the sole occupants, crashed during a radarassisted approach to Greater Pittsburgh Airport in this District.
Plaintiff, Kullberg's widow, seeks to recover damages against the United States on behalf of herself and her children, and, on behalf of her late husband's estate, 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 highspeed spiral; that the pilot lost control when he became disoriented upon entering a solid overcast and losing his visual references therein. Plaintiff vigorously contends that the Cessna's breakup resulted from paralysis or malfunctioning of flight controls caused by an encounter with icing conditions, but that, in any event, negligence on the part of the defendant and/or its employees led to the in-flight breakup and was therefore the proximate cause of the crash.
Plaintiff alleged multifarious acts of negligence on the part of Federal Aviation Agency (F.A.A.) employees of the defendant, to-wit: that Approach Control personnel at Greater Pittsburgh Airport (GPA) breached a duty owed to her decedent "in failing to warn the pilot of the hazardous weather conditions, in failing to direct the pilot to use his 2 1/2 hours of available fuel in seeking a safer airport, and in directing the pilot to descend to and hold at an altitude in the clouds where the turbulance and icing conditions were the worst";
that personnel at the Pittsburgh Flight Service Station breached a duty owed to her decedent by failing to give "weather information" to the pilot of the Cessna and to the approach controller; that the approach controller and sundry other government personnel failed to coordinate in ascertaining and advising one another of pertinent weather information by which to guide the Cessna; and that the approach controller "failed to use his best judgment in providing radar assistance to a VFR aircraft requesting same."
Plaintiff also alleged that the defendant itself was negligent in failing to provide a proper weather advisory system for light aircraft and failing to have detailed rules guiding controllers rendering radar assistance to VFR aircraft requesting the same.
Defendant denies that the alleged duties were owed under the circumstances of this case, and even if they were owed, that any of such duties were breached. Defendant denies any causal relationship between acts or omissions of its employees and the crash of the Cessna, and contends that even if some negligent act or omission on the part of its employees was a proximate cause of Kullberg's death, plaintiff should be barred from recovery because of contributory negligence on the part of her decedent.
After trial to the court without a jury, 28 U.S.C.A. § 2402, we make the following findings of fact and conclusions of law:
1. Plaintiff, widow of Richard Robert Kullberg, is the duly qualified Executrix of his Last Will and Testament.
2. As said Executrix, plaintiff seeks to recover damages in this action in behalf of herself and her minor children, and in behalf of the Estate of Richard Robert Kullberg, 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 Richard Robert Kullberg, if at all, within the borders of this, the Western District of Pennsylvania.
5. On January 7, 1961, plaintiff's decedent resided together with plaintiff and their children at 2711 Horton Road, Jackson, Michigan. Decedent owned 98% of the stock of Kullberg Drilling Company, Inc., a Montana corporation with activities then centered almost entirely in the State of Michigan. He was a director, the president, and the sole active managing officer of the corporation. His residence served as the offices of the corporation. The corporation had been formed solely to serve his business purposes and he and the corporation were to all intents and purposes the same entity.
6. Although N5138E was owned by Kullberg Drilling Company, Kullberg's control of that corporation enabled him to exercise complete dominion over the aircraft. The Cessna was solely and exclusively at his disposal and so utilized by him, and at all times he acted and was treated as the pilot in command and de facto owner thereof.
7. Kullberg possessed a private pilot's license, but was not rated for instrument flying in IFR (Instrument Flight Rules) weather conditions.
8. Kullberg took off alone in N5138E from Jackson, Michigan, at approximately 1:00 P.M., C.S.T., on January 7, 1961, bound for Pittsburgh, Pennsylvania, upon Kullberg Drilling Company business. By prearrangement, he stopped over in Chicago, Illinois, for a reunion with William Lee Smith. Kullberg was in Chicago for approximately ten (10) hours during this stopover.
9. The Cessna, with Kullberg, Smith, and one Duane A. Rowe as occupants, took off from Midway Airport, Chicago, at approximately 12:16 A.M., C.S.T., on January 8, 1961, headed for Pittsburgh.
10. Kullberg was the pilot of N5138E during the takeoff from Midway Airport,
and at all times relevant hereto.
12. Kullberg, as pilot upon take-off and as the pilot responsible to Kullberg Drilling Company for the operation and safety of N5138E, was the pilot in command
of N5138E during the entire flight from Chicago.
13. 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 such pilot 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.
14. 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 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. In accordance with F.A.A. regulations requiring dissemination of flash advisory forecasts to en route aircraft, N5138E was then given a flash advisory forecast for the northern third of Ohio, western New York, and western Pennsylvania of moderate to locally severe turbulence below 10,000 feet with moderate to occasionally heavy icing. The forecast covered the time required for the flight to reach Pittsburgh. At this point, the pilot of N5138E asked the Akron Station if the Greater Pittsburgh Airport (GPA) radar approach facilities were functioning. Akron contacted Approach Control at GPA, was advised that said facility's radar was indeed functioning, and so informed N5138E.
15. Approximately 30 minutes later, at 3:44 A.M., E.S.T., N5138E contacted the F.A.A. Pittsburgh Flight Service Station (PFSS) at Allegheny County Airport, Dravosburg, Pennsylvania. It reported its position as 12,500 feet over the Pittsburgh "Omni" or V.O.R. (Very High Frequency Omni (Directional) Range Radio Transmitting Station), which is just south of the Allegheny County Airport, and approximately 17 miles southeast of GPA. The flight advised that it desired radar landing assistance at GPA and requested the radio frequency of GPA's Approach Control. PFSS immediately informed Approach Control of the request and Approach Control suggested a radio frequency which N5138E acknowledged to be acceptable and subsequently utilized to contact Approach Control. During their brief contact, PFSS and Approach Control did not discuss or exchange weather data. There is no credible evidence that N5138E requested or was given any weather information by PFSS during their brief contact, or that PFSS then or at any other relevant time informed Approach Control of, or was requested by Approach Control to furnish, any information which it possessed relative to icing and turbulence and the height of the overcast. However, the Cessna, intending to land at GPA, was not at that late stage of its flight within the category of "en route" aircraft to which flight service stations were obligated by regulations to furnish the latest flash advisory forecasts. Furthermore, it is clear that the only weather information ("current" and "forecast") available to PFSS at the time of the contact was identical to that already furnished the Cessna by the Akron station.
16. Government Exhibit G, a certified typewritten transcript of the tape recording of the complete radio conversation between Approach Control and N5138E, accurately states that conservation.
17. The times stated in such transcript represent Greenwich Mean Time. Eastern Standard Time is determined by subtracting five hours from Greenwich Mean Time.
18. 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).
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. There was a solid overcast between 2,000 and 8,500 feet over GPA and the surrounding area.
25. At no time did the Capital flight report any icing, turbulence or other difficulty to Approach Control.
26. At 3:51:38, 10 seconds after the Cessna reported his altitude at 11,000 feet, the Cessna pilot specified the type of radar assistance he desired by acknowledging that he wished an IFR approach to GPA.
27. The request to advise leaving altitudes meant that the Cessna should have advised Approach Control as it cleared 11,000 feet, 10,000 feet, 9,000 feet, 8,000 feet and every additional 1,000 feet of altitude cleared on its descent.
28. The Cessna pilot never reported leaving his altitudes after 11,000 feet.
29. At 3:52:37, one minute after acknowledging he wanted an IFR approach, the pilot reported ...