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Somlo v. United States

September 10, 1969

THOMAS G. SOMLO, AND PROGRESS FOR VENDING, INC., AND THE EXCHANGE NATIONAL BANK OF CHICAGO, AS ADMINISTRATOR OF THE ESTATES OF GINETTE SOMLO, DECEASED, AND SUSAN MICHELLE SOMLO, DECEASED, AND THE EXCHANGE NATIONAL BANK OF CHICAGO, AS GUARDIAN OF THE ESTATE OF TERRI LYNN SOMLO, A MINOR, PLAINTIFFS-APPELLANTS
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE



Knoch, Senior Circuit Judge, and Fairchild and Kerner, Circuit Judges.

Author: Knoch

KNOCH, Senior Circuit Judge:

Plaintiffs-Appellants, Thomas G. Somlo and Progress for Vending, Inc., brought suit under the provisions of the Federal Tort Claims Act, Title 28 U.S.C. ยง 1346(b), charging that government employees were negligent in carrying out their duties with respect to a Cessna 310 Twin-Engine light aircraft, Registration No. N5338A, piloted by Mr. Somlo, and owned by Progress for Vending, Inc., as a proximate result of which the aircraft crashed.

The District Court granted the petition of Progress for Vending, Inc., an Illinois corporation and Progress Food Specialties, Inc., an Illinois corporation, for the use of The Home Indemnity Co. as successor to the Springfield Insurance Co., to intervene as plaintiffs.

The Exchange National Bank of Chicago, as Administrator of the Estates of Ginette Somlo and Susan Michelle Somlo, passengers who were killed in the air crash, and as Guardian of the Estate of Terri Lynn Somlo, a minor, another passenger who was injured in the crash, also brought suit against the United States of America, which was consolidated with the first action.

The other passengers, Mrs. Somlo's mother and a maid who were both killed in the crash, are not involved in this action.

The District Judge tried the issue of liability separately and found adversely to plaintiffs that the pilot's negligence was the proximate cause of the crash, thus foreclosing recovery from the government by any of the plaintiffs. The plaintiffs' appeal followed.

The District Court heard extensive evidence and made comprehensive findings of fact resolving several crucial disputed issues.

Plaintiff Thomas G. Somlo had for many years held a commercial pilot's certificate to fly single engine aircraft. He was not at the time of the flight in question authorized to carry passengers in a multi-engine plane but the District Court expressly found that Mr. Somlo's lack of a multi-engine rating was irrelevant except with reference to evaluating his credibility. In December, 1963, Mr. Somlo did get a multi-engine rating. Investigation of this accident by the Civil Aeronautics Board resulted in an order suspending Mr. Somlo's license for six months. That order was affirmed by this Court in Somlo v. Civil Aeronautics Board, 1966, 367 F.2d 791.

Mr. Somlo testified that about 9:00 A.M. CST, on January 2, 1963, he and the five persons who accompanied him on the flight left Naples, Florida, on a flight to O'Hare Airport, Chicago, Illinois, which was the home base of the aircraft and the place where Mr. Somlo had left his automobile. Prior to departure, Mr. Somlo said he telephoned Fort Myers, Florida, Weather Bureau Station and was told the weather along his route was such that the craft could be flown visually without instruments. He was cautioned that it was snowing in Chicago and that instrument flight conditions were in effect but that the snow was expected to stop early in the afternoon to permit landing under visual conditions at the estimated time of arrival about 4:30 P.M.

While in flight, Mr. Somlo requested weather information from the Tampa, Florida, and Atlanta, Georgia, Flight Service Stations and received essentially the same data.

Chester D. Ridgeway, an air travel control specialist-general, employed by the Federal Aviation Administration at Washington, D.C., testified concerning the records of the contact at Atlanta and the weather reports available at that time. He said the aircraft contact report indicated that the pilot requested Chattanooga, Bowling Green, and Chicago weather and the terminal forecast for the Chicago area. For Chicago the report was temperature 29, with snow ending around 3:00 P.M. and beginning again about 6:00 P.M.

The aircraft landed at Chattanooga, Tennessee, about noon EST, and before taking off again the pilot personally checked the weather at the Chattanooga Airport. It was still snowing at O'Hare with instrument conditions and skies expected to be overcast but with visual flight conditions by the time of Mr. Somlo's arrival.

At about 2:35 P.M. CST, Mr. Somlo radioed Bowling Green, Kentucky, Flight Service Station for the weather en route and at Chicago. Loy C. Hamm, air traffic control specialist employed by the Federal Aviation Agency at Bowling Green, testified that he was contacted by aircraft N-5338 Alpha (the registration number for the aircraft in question here) and gave the requested weather reports for Evansville, Terre Haute, Indianapolis, and O'Hare, Chicago, the designated destination, which last included light snow grains, temperature 31 degrees and dew point 26. The forecast for O'Hare, issued 12:40 P.M. CST, predicted ceiling 500 overcast, visibility 5 miles, light snow and smoke until 2:00 P.M. CST (which would be instrument conditions) then scattered clouds, visual conditions and overcast until 6:00 P.M. with light snow resuming then.

A primary conflict in the testimony concerned the vital issue whether Mr. Hamm also gave Mr. Somlo a light aircraft weather advisory issued at 1:25 P.M. CST "Advisory Delta" which was pertinent for the period from 1:25 to 5:25 P.M. CST and which included a warning of local moderate icing in clouds and precipitation over Wisconsin, northern Illinois, the southern 2/3 of Lake Michigan and the northern 1/3 of Indiana, and further cautioned against occasional light snow or freezing drizzle in northwestern Wisconsin and locally over north-central and northeastern Illinois, with a ceiling below 1000 feet and visibility below two miles in fog.

Mr. Ridgeway testified that this advisory should have been given to Mr. Somlo at Bowling Green and at Lafayette Flight Service Stations, but that so far as his investigation disclosed ...


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