The opinion of the court was delivered by: Marovitz, District Judge.
This case, brought against the Government under the Federal
Tort Claims Act (28 U.S.C. § 1346(b)), arises out of the crash
of a Cessna 310, twin-engine light plane, which occurred in
Chicago on January 2, 1963, about eight miles east of O'Hare
Airport. The pilot in command was Thomas G. Somlo, one of the
plaintiffs. The plane was owned by Somlo's corporation, Progress
for Vending, Inc., another plaintiff herein. In addition to Mr.
Somlo, aboard were his wife Ginette, their two small children,
his mother-in-law, and the family maid. Only Mr. Somlo and his
younger daughter Terri survived the tragic accident. Subsequent
to the filing of suit by Mr. Somlo and his company (No. 64 C
2179), the Exchange National Bank of Chicago, acting as
administrator of the estates of Ginette Somlo, and daughter Susan
Somlo, and as guardian of the estate of Terri Somlo, also filed
suit against the United States (No. 65 C 5). The cases were
consolidated for trial, and the issues were tried at a relatively
lengthy trial concluded on May 12, 1967.
The crash occurred because of icing conditions in the
atmosphere, which caused a 1 1/2 to two inch crust of clear and
rime ice*fn1 to develop on the plane, and eventually caused it
to lose altitude and crash. The plaintiffs contend that employees
of the Federal Aviation Agency were negligent in allegedly
failing to furnish the pilot with weather information which would
have alerted him to the icing conditions prevailing in the
Chicago area.
The facts, as developed at trial, went into considerable
detail. It will be fruitful, in order to gain a proper
perspective of the issues herein, to set forth those facts.
The ill-fated plane departed from Naples, Florida, at
approximately 9:00 a.m. CST, on January 2, 1963, on a flight to
O'Hare Airport, Mr. Somlo's home base. Prior to departure, Mr.
Somlo telephoned to the Fort Myers, Florida, Weather Bureau
station to obtain the weather information for the area along his
route of flight and for the Chicago area. He was informed that
the weather along the route would be favorable with visual flight
conditions to prevail at each station on the way. He was told
that it was snowing in Chicago but that at the time of expected
arrival at Chicago, the weather would be clear with temperatures
at or below freezing, and that a landing could be made under
visual conditions.
While aloft, he requested weather information from the Tampa,
Florida, and Atlanta, Georgia, Flight Service Stations. He was
given essentially the same information as Fort Myers had
provided, except that from Atlanta, the 6:00 p.m. terminal
forecast for Chicago included a prediction of light snow. The
aircraft landed at Chattanooga, Tennessee, at noon (CST), for
gasoline, and lunch for the passengers. It was on the ground for
approximately an hour. Before taking off, Mr. Somlo personally
went to the Weather Bureau offices and checked the current
weather en route to Chicago and the terminal forecast for O'Hare
Airport. Favorable weather with visual conditions at O'Hare at
the estimated time of arrival was predicted.
The aircraft took off from Chattanooga under Mr. Somlo's
command with the same passengers aboard, and continued to proceed
under Visual Flight Regulations (VFR).
At approximately 2:35 p.m. (CST), the pilot contacted the
Bowling Green, Kentucky, Flight Service Station and requested en
route weather and the weather for the Chicago area. Mr. Hamm, the
Bowling Green attendant, an employee of the Federal Aviation
Agency, supplied the current weather information for Evansville,
Terre Haute, Indianapolis, and O'Hare, as well as the terminal
forecasts for Terre Haute and O'Hare. The current weather
sequence for O'Hare predicted snow grains and freezing
temperatures, the snow having begun at 1:38 p.m. The O'Hare
terminal forecast, which had been issued at 12:40 p.m., predicted
light snow for 6:00 p.m. although not for 2:00 or 4:00 p.m.
At that time there was a light aircraft advisory (hereinafter
called Advisory Delta) pertinent for the Chicago area between
1:25 and 5:25 p.m., which stated:
"Advisory for light aircraft Delta. Over Wisconsin,
northern Illinois, Southern 2/3 Lake Michigan, north
third Indiana local moderate icing in clouds and
precipitation. Tops of lower clouds western
Wisconsin, western Illinois 3000 to 5000 feet sloping
to 7000 and 9000 feet over eastern Wisconsin,
north-eastern Illinois, north third Indiana.
Northwestern Wisconsin and locally over north central
and north-eastern Illinois ceilings below 1000 feet
and visibilities below 2 miles in fog with occasional
light snow or freezing drizzle." (emphasis added)
The testimony indicated, and the parties do not dispute that
icing conditions are of grave concern to aircraft pilots, and are
considered one of the greatest weather risks to an in-flight
aircraft. The icing adds weight to the plane, in some cases of
such magnitude that airspeed cannot be maintained even with full
power, so that inevitably the plane is forced to the ground. The
evidence indicates that planes with de-icing equipment can fly
relatively unhindered in light icing conditions, but may
encounter trouble in moderate icing, and cannot stay airborne in
heavy icing conditions. Planes without de-icing equipment run
grave risks by flying even in light icing conditions.*fn2
Mr. Somlo's plane contained no deicing equipment. Thus if
Advisory Delta was given to him, it should have constituted a
clearcut warning to him to avoid the area covered thereby.
Furthermore, the last sentence of the Advisory, indicating a
ceiling under 1000 feet with occasional light snow or freezing
drizzle, would have been indicative, in and of itself, of
inclement weather, possible icing, and probable instrument flight
regulations (IFR).
After communicating with Mr. Hamm at the Bowling Green Flight
Service Station, Mr. Somlo continued to proceed under visual
flight conditions. At approximately 3:55 p.m., when in the
vicinity of Danville, Illinois, he made radio contact with the
Lafayette, Indiana, Flight Service Station and requested O'Hare
weather. He was given the current weather sequence for O'Hare,
which indicated a measured ceiling 600 feet broken, four miles
visibility in smoke, temperature of 31 degrees, dew point of 27,
and wind out of the south at 10 knots. Additionally, the sequence
indicated that the snow grains had ended at 2:07 p.m. (CST). The
Government also alleges that Mr. Somlo was advised of "freezing
precipitation" in the Chicago area, based on the sequence report
for Joliet, Illinois for 3:00 p.m. (CST). According to the
Government, the Joliet weather is normally included when weather
information for the Chicago area is furnished from Lafayette, and
it allegedly was communicated in this instance.
Mr. Somlo denies that Lafayette informed him of freezing
precipitation. Furthermore, he argues that at the time he
contacted Lafayette, there was a crucial amended forecast
available which predicted icing in the Chicago area, but which
was not given to him. The amended forecast read:
"Applicable 3:20 PM CST to 11:00 PM CST ORD (O'Hare)
ceilings 600 feet broken 2500 overcast visibility 4
miles in smoke occasionally 3 miles in freezing
drizzle * * * snow grains 9:00 PM CST ceiling 1200
feet overcast visibility 3 miles in fog and smoke
blowing rain fog and smoke". (emphasis added)
Nor according to Mr. Somlo, did the Lafayette attendant, Mr.
Caton, supply him with Advisory Delta, which was still in effect.
Mr. Ridgway, the government expert mentioned above, testified
that he had familiarized himself with the procedures and
regulations applicable at the time of the accident, and had
studied Government records with respect to the incident, and had
in this way conducted a personal investigation of the activities
of the Flight Service Stations in connection with this accident.
He testified that it was the duty of the attendant to give the
Advisory and amended forecast of freezing drizzle to the pilot if
he had them. He also testified that he found no reason to
conclude that Mr. Caton would not have had them. Mr. Caton was
not called as a witness by either side.
Apparently because of the likelihood of prevailing instrument
flight regulations from Danville to Chicago, Mr. Somlo filed an
instrument flight plan with the Lafayette Flight Service
Station.*fn3
From that point on, Mr. Somlo was subject to instrument flight
regulations (IFR). The written flight plan (Def. exh. R, and Pl.
exh. 22) was prepared by Mr. Caton on an official government form
provided for that purpose. It indicated an estimated true
airspeed of 150 knots, and destination O'Hare. The route of
flight was Victor Airway 171 to the Peotone "OMNI" (V.O.R.) (Very
High Frequency Omni) (Directional Range Radio Transmitting
Station), and from there via Victor Airway 53 to Midway Airport
in Chicago, and on to O'Hare, or "per ATC" (Air Traffic Control).
Estimated time en route was 48 minutes and three hours of fuel
was on board. The pilot's name is indicated as "Somlo P.". The
home address of the aircraft is listed as ORD (O'Hare), but the
number of persons aboard is stated to be "1". According to the
written plan the pilot was advised to report passing the Danville
V.O.R. to the Chicago Air Traffic Control Center (hereinafter
known as Chicago Center), which is located in Aurora, Illinois,
and which clears and directs aircraft into the Chicago
metropolitan area. There is no alternate airport listed on the
written flight plan.*fn4
Mr. Somlo, however, testified that he specified Rockford,
Illinois, as his alternate airfield to Mr. Caton, and that the
words "or per ATC" were not in accordance with his plan as given
to Mr. Caton by radio. "Or per ATC" meant that Chicago Center
could direct Mr. Somlo to O'Hare via his prescribed route, or via
any route that the controllers chose.
The conversation between Mr. Somlo and Mr. Caton was not
recorded but the written flight plan as prepared by Mr. Caton was
admitted into evidence as previously noted. The flight plan was
given to the Chicago Center by Mr. Caton via a radio frequency
not available to the
pilot. He said, inter alia: (transcription of the tape recording)
"LAF FSS: Nan Five Three Eight Alpha, a Cessna three
ten, speed a hundred and fifty, he's estimating
Danville on the hour, twenty two hundred. He's
presently VFR at three thousand requesting three
thousand over Danville, Victor one seventy one
Peotone and any routing you can give him after
Peotone, landing O'Hare. He says forty eight
minutes en route * * *
And he's got everything you can name aboard the
aircraft.
CHI ARTCC: Well that's good cause he may need it,
advise him to con-report passing Danville to
Chicago Center on one two one point four."
Plaintiffs contend that Mr. Caton gave an erroneous flight plan
to the Chicago Center which had the effect of clearing Mr. Somlo
only to Peotone, a point inside the instrument flight regulations
condition, and from there either via Victor 53 to Midway, or
anywhere he might be directed by the Chicago Center, rather than
only via Victor 53 to Midway and on to O'Hare.
There was no further contact with the Lafayette station, and
Mr. Somlo reported to the Chicago Center on the assigned
frequency at 4:03 p.m. while passing the Danville V.O.R.*fn5 He
was cleared to the Peotone OMNI on Victor 171 at 3000 feet by Mr.
Gustin of the Chicago Center and was advised to contact the
Center on another frequency. He did so and was directed by Mr.
Riddle of the Center to report passing Peotone.
Mr. Riddle observed a target on his radarscope approximately 3
1/2 minutes later which was in a position approximately five
miles north of the Peotone OMNI. He asked Mr. Somlo if he had
just gone by Peotone and was answered affirmatively. He then
directed Mr. Somlo to fly southeast and cleared him to the
Lowell, Indiana, intersection.*fn6
At approximately 4:34:50 p.m. (CST), Mr. Riddle gave Mr. Somlo
a clearance to climb and maintain 6000 feet. Mr. Somlo left 3000,
but approximately 45 seconds thereafter, between 4000 and 5000
feet, he reported that he was picking up ice very badly and
requested clearance to ...