MARLENE J. BROCK, Etc. v. UNITED STATES OF AMERICA DONNA M. KRESHECK, Etc. v. SAME

MARLENE J. BROCK, Etc. v. UNITED STATES OF AMERICA  DONNA M. KRESHECK, Etc. v. SAME

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United States District Court for the Eastern District of Virginia.

1977 U.S. Dist. LEXIS 13192; 14 Av. Cas. (CCH) P18,246

November 1, 1977. 

CORE TERMS: aircraft, altitude, controller, radar, flight, feet, clearance, radial, pilot, terrain, crew, arrival, chart, descent, airport, vector, traffic, heading, crash, air, miles, vectoring, distance, airborne, mountainous, runway, station, manual, last clear chance, warning

COUNSEL:  [*1]  Healey & Farrell, and George Farrell, 1101 17th Street, N.W., Washington, D.C., for Plaintiffs.

Mark A. Dombroff, for Defendant.

OPINION BY: BRYAN

 OPINION

BRYAN, District Judge: These are actions against the United States for the alleged wrongful death of the pilot and co-pilot of a Trans World Airline (TWA) Boeing 727-231 aircraft, being operated as TWA Flight 514 (TWA 514) which crashed during an instrument approach to the Dulles International Airport (Dulles) on December 1, 1974.  All aboard the aircraft were killed.  The action is brought under the Federal Tort Claims Act, 28 U.S.C.  ß 2674, et seq.  Jurisdiction is premised upon 28 U.S.C.  ß 1346(b).

The actions, consolidated for trial on the issue of liability only, ¹ were tried to the Court on September 20th and 21st, 1977.  Designated portions of depositions and specific exhibits have since been considered by the Court as well as the parties’ post-trial briefs and objections.

1 The actions were transferred to this Court on June 9, 1977, pursuant to 28 U.S.C.  ß 1404(a), from the Central District of California.  Actions arising out of the same crash have previously been assigned to this Court pursuant to 28 U.S.C.  ß 1407. All passenger cases so assigned have been disposed of by settlement or trial.  All crew cases except the instant cases have been disposed of by settlement.

[*2]  It is plaintiffs’ contention that the United States, through its air traffic controllers acting in the scope of their employment, was negligent in (1) failing to provide terrain clearance by failing to follow the provisions of the Terminal Approach manual of the Federal Aviation Administration (FAA) regarding “radar arrival” aircraft, which required the controller to defer issuance of an approach clearance if the terrain did not permit unrestricted descent to the lowest published altitude specified in approach procedure prior to final approach descent, or required the controller to issue altitude restrictions with the approach clearance specifying when or at what point unrestricted descent could be made (Ex. 2002.1, p. 183), (2) in failing to issue a safety advisory warning to TWA 514 that it had descended below the FAA’s minimum safe vectoring altitude of 4000 feet, (3) by further failing to issue a safety advisory to TWA 514 when radar observations revealed it had further descended to the dangerous altitude of 2000 feet, and (4) that the United States had the “last clear chance” to prevent the crash and deaths.

The government denies any negligence on the part of the FAA Air [*3]  Traffic Controllers and alleges that the cause of the accident and the resulting deaths of plaintiffs’ descednents was their own negligence.  It also disputes the applicability of the “last clear chance” doctrine to this case.

On December 1, 1974, TWA 514 was operating as a scheduled passenger flight from Indianapolis, Indiana, to Washington National Airport, with an intermediate stop at Columbus, Ohio.  Subsequent to takeoff from Columbus, the aircraft diverted to Dulles International Airport because of the weather conditions existing at Washington National Airport.  TWA 514 on December 1, 1974, was the inaugural flight for TWA of its Indianapolis-Washington service,………….