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MANOS v. TRANS WORLD AIRLINES

January 11, 1971

PETER MANOS, ADMINISTRATOR OF THE ESTATE OF MIKE MANOS, DECEASED, PLAINTIFF,
v.
TRANS WORLD AIRLINES, INC., A CORPORATION, AND BOEING COMPANY, A CORPORATION, DEFENDANTS. WALTER A. SCHANKE, AS THE HEIR AT LAW AND NEXT OF KIN OF ELLEN C. SCHANKE, PHILIP SCHANKE, ELAINE M. SCHANKE AND PAUL EUGENE SCHANKE, AND WALTER A. SCHANKE, AS ADMINISTRATOR OF THE ESTATES OF ELLEN C. SCHANKE, PHILIP SCHANKE, ELAINE M. SCHANKE AND PAUL EUGENE SCHANKE, PLAINTIFF, V. BOEING COMPANY, A CORPORATION, DEFENDANT. LORETTA GARTLEY, PLAINTIFF, V. BOEING COMPANY, A CORPORATION, DEFENDANT. ELIZABETH NESSLER, AS ADMINISTRATOR OF THE ESTATES OF KEITH BURRUSS TROTTER, DECEASED, PATRICIA FAYE TROTTER, DECEASED, BONNIE LOU TROTTER, DECEASED, JANET ANN TROTTER, DECEASED, AND KEITH BURRUSS TROTTER, JR., DECEASED, PLAINTIFF, V. BOEING COMPANY, A CORPORATION, DEFENDANT. BRYAN R. MCCARTHY, AS ADMINISTRATOR OF THE ESTATE OF ELEANOR W. FLEGAL, DECEASED, AND BRYAN R. MCCARTHY, AS EXECUTOR OF THE ESTATE OF DOROTHY A. FLEGAL, DECEASED, PLAINTIFF, V. BOEING COMPANY, A CORPORATION, DEFENDANT. GWENDOLYN HEURTEVANT, AS WIDOW OF FRANCIS MICHAEL HEURTEVANT, DECEASED, MICHAEL HEURTEVANT, A MINOR, BY GWENDOLYN HEURTEVANT, HIS MOTHER AND NEXT FRIEND, MARC HEURTEVANT, A MINOR, BY GWENDOLYN HEURTEVANT, HIS MOTHER AND NEXT FRIEND, AND JAMES OTIS AS ADMINISTRATOR OF THE ESTATE OF FRANCIS MICHAEL HEURTEVANT, DECEASED, PLAINTIFFS, V. BOEING COMPANY, A CORPORATION, DEFENDANT. JOSEPH SAINTON, PLAINTIFF, V. BOEING COMPANY, A CORPORATION, DEFENDANT. EDWARD PFEFFER, AS ADMINISTRATOR OF THE ESTATE OF EDWARD C. DALY, PLAINTIFF, V. BOEING COMPANY, A CORPORATION, DEFENDANT. PAUL W. HANS, AS ADMINISTRATOR OF THE ESTATE OF JOSEPH J. SONDAG, PLAINTIFF, V. BOEING COMPANY, A CORPORATION, DEFENDANT. JOHN TSAMANIS FOR THE USE AND BENEFIT OF EMMANUEL I. TSAMANIS, DAPHNE TSAMANIS, JOHN TSAMANIS, SOPHIA PAPAGAORGIOU AND ELIZABETH ANGELINARAS, THE HEIRS-AT-LAW AND NEXT OF KIN OF PETER TSAMANIS, DECEASED, PLAINTIFFS, V. BOEING COMPANY, A CORPORATION, DEFENDANT. NATHAN GRANSTEIN, AS EXECUTOR OF THE ESTATE OF GEORGETTE GRANSTEIN, DECEASED, PLAINTIFF, V. THE BOEING COMPANY AND ALITALIA AIRLINES, INC., DEFENDANTS. JOHN M. XIFARAS, ADMINISTRATOR OF THE ESTATE OF IRENE SAKELLARIOS, PLAINTIFF, V. BOEING COMPANY, A CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Robson, Chief Judge.

    DECISION ON THE MERITS

These twelve cases were brought against Trans World Airlines (TWA) and The Boeing Company (Boeing) for damages suffered by certain passengers of a Boeing aircraft owned and operated by TWA, which exploded and burned after striking a piece of construction equipment during an aborted take off at Leonardo da Vinci Airport near Rome, Italy, on November 23, 1964. TWA is no longer a party to the action, and the court has consolidated the twelve cases for trial on the sole issue of Boeing's liability. Plaintiffs and Boeing having waived a jury trial, a bench trial was held on this issue.

The Fourth Amended Complaint, which is directed solely to the issue of liability for purposes of the trial, contains three counts. Count I charges that the thrust reverser system of the aircraft in question was defective and unsafe in violation of express and implied warranties of Boeing, the manufacturer. The court has previously held that the law of the State of Washington, the place of delivery of the aircraft to TWA, governs this issue. Manos v. TWA, 295 F. Supp. 1170, 1176 (N.D.Ill. 1969).

Count II charges that Boeing was negligent in several respects in the design and manufacture of the thrust reverser system. The court has held that the law of Italy, the place of the tort, governs this issue. Manos v. TWA, supra, at 1173.

Count III alleges gross negligence and seeks punitive damages. The court will reserve ruling on this count for consideration with other damage issues.

Boeing's motions, made both during and after trial, to strike and dismiss Counts I and II and to dismiss the entire cause on the ground that plaintiffs have shown no right to relief, have been taken with the case for ruling. Certain evidentiary objections, aside from lack of foundation, have also been reserved for ruling at this time.

Having considered the trial testimony and the briefs, together with all the relevant documentary evidence and depositions, the court is of the opinion that judgment should be rendered for the plaintiffs.

I. EVIDENTIARY RULINGS

Boeing has first objected to documents of Boeing, TWA, and the Federal Aviation Administration (FAA) which contain, in whole or in part, evidence of post-accident modifications or changes on the ground that they are irrelevant. (Exhibits 13, 86, 88, 89, 91, 92, 96, 124, 128, 87, 90, 93, 101, 127, 129 77A-D, 78, 79, 83, 84, 157-60, 176, 177, 177A, 178, 178A, 179, 185, 186, 284, 291, 292, 118, 188, 189, 192.) Plaintiffs state that all post-accident evidence is offered solely for the purpose of showing the feasibility of changes and not as proof of negligence. The court, sitting without a jury, will overrule Boeing's objections and admit the documents on this basis. See Boeing Airplane Co. v. Brown, 291 F.2d 310, 315 (9th Cir. 1961); Brown v. Quick Mix Co., Division of Koehring Co., 75 Wn.2d 833, 454 P.2d 205 (1969).

Boeing has also objected to Exhibits 76A-D, 78, 80K, 80K1, 153, 154, 168, 191, and 256 on grounds that they evidence post-delivery technological improvements irrelevant to the negligence issue. Plaintiffs offer the documents, which pre-date the accident, as proof of Boeing's knowledge of the defects in its fittings. On this basis, the court will admit the documents and overrule Boeing's objections. Cf. Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451, 453 (2nd Cir. 1969).

Boeing finally objects to Exhibits 118, 184, 188, and 189 on the grounds that they are Boeing intra-company memoranda, which do not speak for the company. It is clear to the court that these are carefully prepared engineering reports which are admissible as business records of Boeing under 28 U.S.C. § 1732, and the objections are therefore overruled.

Plaintiffs object to several TWA documents — Exhibits 34, 39, 114, AB, AF-AN, BZ, 15, and AE — on hearsay grounds. Exhibits 34, 39, 114, AB, AF-AN, BZ, and 15 will be admitted as declarations against interest by TWA as well as Exhibit 17 offered by plaintiff in response. Exhibit A is clearly hearsay and will not be admitted. In light of this ruling, Exhibits 22-25 will be considered withdrawn by plaintiffs.

Plaintiffs object to all FAA certification and testing documents — Exhibits W, CE, CF, CG1, CG2, CL, CM, CN, CP, and CX — on relevancy grounds. The objection to these documents goes primarily to their weight, and the court, sitting without a jury, will admit them into evidence.

Plaintiffs object to Boeing documents, Exhibits 193, 194, and 297, on the grounds that they are self-serving hearsay opinions of Boeing. The documents are business records under 28 U.S.C. § 1732, and the objections go primarily to the weight of the evidence. The court will therefore admit them into evidence and overrule the objections.

Plaintiffs have lastly objected to Exhibit DJ, a letter from the FAA to the Civil Aeronautics Board (CAB). It is admissible under 28 U.S.C. § 1733, and plaintiffs' objection is overruled.

Boeing's objection to Exhibit 125 for lack of foundation has been withdrawn, and this document is therefore admitted into evidence.

II. FINDINGS OF FACT

A. The Occurrence

1. On November 23, 1964, at approximately 1300 Greenwich Mean Time (2:00 P.M. local time), a BOEING 707/331 four engine commercial jet transport, owned and operated by TWA and carrying the markings N769TW, was departing from the Leonardo da Vinci Airport, near Rome, Italy, on TWA's regularly scheduled Flight No. 800/22 destined for Cairo, Egypt, with an intermediate stop at Athens, Greece. (Final Pretrial Order, pp. 4-5.)

2. Aircraft N769TW had been designed and manufactured by Boeing and delivered to TWA on May 9, 1960, in Renton, Washington. (Final Pretrial Order, p. 4.) The engines were Pratt and Whitney JT-4 engines, the thrust of which had been increased by TWA since delivery within Boeing stated design limits. (Exhibits C4, DS, DV; Morelli Dep. 73.)

3. The aircraft was designed and manufactured in conformity with a Type Certificate issued by the FAA on July 15, 1959, and the engines in conformity with a Type Certificate issued by the FAA on March 15, 1957. (Exhibits CX, CN; Neuhart Dep. 33; Fisher Dep. 151.)

4. Certificate of Air Worthiness AC-358 was issued the N769TW by the FAA on May 10, 1960. (Final Pretrial Order, p. 5; Exhibit W.)

5. At the time of the takeoff, the weather was fair and clear. The aircraft was taking off from east to west on a compass heading of approximately 250°. The wind at the time was from 230° at 3 knots, the temperature was 64° F., the altimeter setting was 1023 millibars, the runway was dry and the weight of the aircraft was 214,393 pounds. (Exhibits CD, OP. 3; 40.)

6. Runway 25 was normally 8,612 feet long, but due to construction work in progress near its west end, as the crew had been informed, its legal length had been reduced to 6,562 feet, which was sufficient for the takeoff under the conditions stated. (Final Pretrial Order, p. 5; Lowell Dep. p. 117.)

7. At the time of the takeoff, the aircraft was under the command of Captain Vernon W. Lowell who was sitting in the forward left-hand seat of the cockpit. He piloted the aircraft along the taxiways from the TWA boarding gate and onto Runway 25 "at a couple of miles per hour" until just prior to the application of takeoff power. (Lowell Dep. 33, 44.) A rolling type takeoff was initiated with First Officer William A. Slaughter who was sitting in the forward right-hand seat at the controls. (Lowell Dep. 41, 45.) This procedure is common and is a recognized and acceptable practice for takeoffs. (Adkins T. 809, 862.)

8. The V1 speed, that is the maximum air speed at which the takeoff could be safely aborted without taking into account the use of reverse thrust, was 124 knots. (Exhibits CD, OP. 2; Frier Dep. 73; King T. 553; Lowell Dep. 41-43.)

9. During the takeoff run, Captain Lowell operated the nose wheel steering and called out the speed of 80 knots when the aircraft reached that speed. At that approximate time, the Flight Engineer called out and at the same moment Captain Lowell observed that the No. 4 engine EPR (engine pressure ratio) gauge had dropped off to a point of near zero reading. A few seconds after this, the No. 2 engine thrust reverser indicator warning light came on. (Lowell Dep. 45, 48; Exhibits CD, OP. 4-5.)

10. Captain Lowell decided to abort the takeoff after the appearance of these two abnormal indications involving two separate engines. Shortly after the appearance of the No. 2 thrust reverser warning light, Captain Lowell took over the controls of the aircraft from First Officer Slaughter and initiated the abort maneuver. One of the procedures followed by Captain Lowell in aborting the takeoff was the use of reverse thrust. (Lowell Dep. 49, 52-53, 203-04; Exhibit CD, OP. 4-5.)

11. Captain Lowell made the decision to abort the takeoff and commenced the abort at a speed below the V1 speed of 124 knots, and the decision to abort in light of threatened engine failure was thus proper under all the circumstances. (LeClaire Dep. 76-80; Lowell Dep. 70; Exhibits 295, 296, V, 205, P3; CD, OP. 5.)

12. During the abort, Captain Lowell saw heavy equipment operating on both sides of the runway and across it beyond its legal length. (Lowell Dep. 80.)

13. A road roller was about 150 feet to the right of the centerline of the runway proper at approximately the 7,530-foot point. Barber-Greene machinery was on the runway, about 86 feet to the left of the centerline at approximately the same distance. (Exhibit 204; Schepisi Dep. 167-69.)

14. Shortly after Captain Lowell commenced the abort maneuver, the aircraft began to yaw to the right. He attempted to counteract this right-hand yaw by the use of differential braking. In using differential braking Lowell applied heavy braking on his left tires and light or no braking on his right tires. (Lowell Dep. 71-74; Wall T. 323-24; Exhibits C-P, CV, 204, 205, p. 3.)

15. After the aircraft yawed to the right, it first veered toward the right-hand edge of the runway, then followed a path approximately parallel to the right-hand edge of the runway, and then veered to the right a second time. During this second veering of the aircraft to the right, the No. 4 engine which was the right-hand outboard engine, struck the road roller which was 20.5 feet to the north or off the right-hand edge of the runway and approximately 1,000 feet beyond the designated legal end of the runway. The path followed by the aircraft during the abort was as shown in Exhibit 204. (Lowell Dep. 72-74; Wall T. 328-31; Exhibits 204, 307, C-P, CV.)

16. As a result of the collision with the road roller, a large section of the No. 4 engine was knocked to the pavement and fuel being pumped out from a ruptured fuel line ignited and caused a fire. (Exhibits 17(4); CD, OP. 5.)

17. After the impact with the road roller, the aircraft continued to travel forward without further yawing or slippage to the right and stopped about 850 feet from the point where it had collided with the road roller. After the aircraft came to a stop, there were a series of explosions in the aircraft's fuel tanks, which caused the destruction of the aircraft and the deaths and injuries involved in this suit. (Lowell Dep. 90-91; Exhibits 204; CD, OP. 5-6.)

B. Subsequent Investigations

18. The physical evidence (i.e., tire marks) left by the plane on its course down the runway, (Exhibits C-P, CV, 5-12) the subsequent flight recorder readout by the Civil Aeronautics Board (Exhibit CW), and a study of that readout by Boeing and TWA (Exhibit BW) indicate that the aircraft made several heading changes during the abort. The first major yaw of the aircraft was to the right. This occurred at 4250 feet down the runway and continued until 5900 feet when the airplane then yawed to the left until the 6500-foot point. At the same time that the plane was yawing to the left from the 5900-foot point to the 6500-foot point, it was side slipping toward the right-hand edge of the runway. At approximately the designated legal end of the runway about the 6500-foot point, the aircraft yawed to the right a second time and then veered further toward the right-hand edge of the runway. (Exhibits 307, 204; Kovitz T. 131, 136, 138; Schepisi Dep. 24-26.)

19. The tire marks on the runway also indicate that from the location where Captain Lowell first commenced using differential braking until shortly before the aircraft struck the road roller, Captain Lowell used heavy left-hand differential braking almost continuously in an effort to bring the aircraft back to the center of the runway. (Exhibits 5-12, C-P, CV; Lowell Dep. 71-75; Kovitz T. 141, Wall T. 323-24.)

20. The flight recorder readout and analysis indicate that the maximum speed attained by the aircraft was 131 knots at about the 4250-foot point, and that the speed of the airplane did not noticeably decrease until about the 5300-foot point. (Exhibit BI.)

21. The first physical evidence of any effort to decelerate the airplane through the use of wheel brakes was at about the 4500-foot point on the runway. (Exhibits CD, OP. 8; BI, BB.)

22. After the accident, the remains of the No. 4 engine and the EPR gauge were checked. No fault was found to account for the gauge having dropped to zero. (Plaintiffs' Admission 34.)

23. It was found after the accident that the thrust reverse switch for the No. 2 engine had been marginally rigged by TWA at the last overhaul of the engine: it had been set to activate the light in 1/16" distance compared to the 3/8" distance specified in the Boeing drawing. (Wood T. 1053, Schepisi Dep. 42; Plaintiffs' Admission 35.)

24. It was further found after the accident that the B-nut fastening the pneumatic air supply line for the No. 2 engine thrust reverser at the ground air shuttle valve had backed off and that the pneumatic air supply line for the No. 2 engine had separated from the ground air shuttle valve. Fire markings revealed that it had been so separated before fire reached it. (Final Pretrial Order, p. 6.)

25. The end of the particular tube assembly found separated consisted of a tube with a preset sleeve over which a B-nut was fastened to connect the tube to the shuttle valve. (Exhibit CC.) The sleeve on the end of the tube that had separated was later found to be out of round as shown by elliptical scoring marks on the tube. (Exhibits CC, 273, 279; van der Velder T. 1232-33.)

26. No other discrepancies in the thrust control linkage of the No. 2 engine, and no failure of its interlock system were discovered. (Exhibit DH; Morelli Dep. 88.)

C. The Thrust Reverser System

27. The aircraft and engines of N769TW were manufactured and assembled to plans and specifications of the Boeing Company providing for the use of a reverse thrust system which Boeing states was available for use when the airplane was to be decelerated during ground operations. Boeing specified in the Operations Manual which it furnished to TWA for the model 707/331 aircraft that the use of reverse thrust for an aborted takeoff could be used if desired, and TWA in its Operating Manual and Flight Handbook for this aircraft specified the use of reverse thrust as one of the ...


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