SOMLO v. UNITED STATES

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 Government essentially replies that plaintiffs have failed to show that the Government owed any duty to them, or if a duty did exist, that the Government did not breach it. In addition, the Government charges that the pilot Somlo's negligence was solely responsible for the accident.

THE FACTS

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:

There is a crucial dispute in the evidence as to whether the above advisory was given to the pilot by Mr. Hamm. The Government's expert on flight traffic control, Mr. Ridgway, testified that it should have been given. Mr. Somlo denies that he received it. Mr. Hamm testified that he remembered furnishing it to the pilot. Although there is no transcript of communications between the pilot and the Flight Service Station, Somlo's plane's number N5338A, was noted by Mr. Hamm on the Bowling Green copy of the Advisory. Mr. Hamm testified that this was the way a record is kept of such information given to a pilot. In fact, numbers of other aircraft which were given the information were noted on the Advisory.

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:

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)

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 ...