The opinion of the court was delivered by: DOOLING
The infant plaintiff, Vincent Dennis Wrynn, sues under 28 U.S.C.A. 1346(b), 1402(b) 2412(a) and 2674 for personal injuries allegedly sustained through defendant's negligent operation of an Air Force helicopter in aid of a State Sheriff's search for an escaped prisoner of the State. His father, Vincent W. Wrynn, sues to recover medical expenses and for the loss of his infant son's services. The United States denies that the helicopter caused Wrynn's injuries, denies that it was negligent, denies that the use of the helicopter was authorized, and alleges that Wrynn was contributorily negligent.
On July 22, 1958 two prisoners escaped from the Suffolk County Penal Farm at Yaphank, New York. Sheriff Charles Dominy of the County of Suffolk and Acting Captain Jacob T. Baczensky of the Brookhaven Town Police instituted a search; by five-thirty in the afternoon of July 23d one prisoner had been apprehended in the wooded South Setauket area. The search for the second prisoner continued in the same area.
The Setauket Volunteer Fire Department had offered, and Sheriff Dominy had requested the Centereach Volunteer Fire Department, to help in the search. The Sheriff used words of request, not of command, in securing men from the two Fire Departments but he was conscious that he had the power to command assistance (New York Judiciary Law, McKinney's Consol.Laws, c. 30, 400, N.Y. Constitution, Art. IX, 5, Cf. Isereau v. Stone, 207 Misc. 941, 948-950, 140 N.Y.S.2d 585, 592-594 (Sup.Ct.1955), aff'd in part and rev'd in part on other grounds, 3 A.D.2d 243, 160 N.Y.S.2d 336 (1957)). He did not formally deputize the firemen who joined the search, but informed the heads of the fire departments that their men participating in the search were specially deputized for his assistance.
A little after five-thirty in the afternoon of July 23d, Sheriff Dominy asked the Suffolk County Air Base and the Nike Base at Shoreham for men to join the search party. The Air Force Base responded by dispatching some men and asking Sheriff Dominy whether he wanted a helicopter; the Sheriff said he would 'love one' and the Base dispatched a helicopter to the search area.
The pilot in command of the helicopter was Lieutenant Pickering, the co-pilot, Lieutenant (now Captain) Jackomis and the crew chief, Airman Battaini. Both pilots were trained for helicopter service and each had 100 or more air hours in the particular type helicopter used in the search mission. Both pilots were assigned to rescue duty and had participated in rescue operations. Their experience included landing in unprepared areas. Their continuing training at the Air Force Base included making landings in unprepared areas two to three times a month. Both had landed helicopters on public highways in the course of their duties before July 23, 1958.
The general instructions of the Base to Lieutenant Pickering were to report at the disposal of the Sheriff of Suffolk County to aid in the search for the escaped prisoners. Sheriff Dominy, in appealing to the Air Force Base, did not conceive that he was commanding its help in his authority as Sheriff; he did not believe that he could give orders to the military.
The helicopter initially flew search patterns under hand signals given to it from the ground by uniformed policemen. At about six-thirty the helicopter landed at the intersection of Norwood Road and Route 80, a four lane east-west highway in the Setauket area, to establish better contact with the Sheriff's party. Lieutenant Pickering left the helicopter, conferred with representatives of the Sheriff's office and of the Brookhaven Town police to get information and instructions about further prosecuting the search and, without talking to the Base about the propriety of it, arranged at the Sheriff's request to take aboard the helicopter Chief Deputy Sheriff Corso, Brookhaven Town Police Detective Stanton and a two-way police radio set.
The helicopter took off with its augmented crew of five and traversed two different search areas indicated by the police. While the flight continued the airborne police communicated on the police radio directly with the Sheriff's party on the ground. The helicopter maintained contact with the Suffolk Air Base Tower through its own radio. The Base Tower could communicate with the Riverhead communications center of the Sheriff's office and through it, as a relay point, establish communication between the Sheriff's ground search party and the helicopter crew.
The ground search party moved about while the helicopter was aloft; it changed its command base to the intersection of Route 80 and Horseblock Road in the South Setauket area some time before seven-thirty in the evening.
The infant plaintiff, Wrynn, had learned of the search and, with a companion, went by automobile some time after seven o'clock to the intersection of Route 80 and Horseblock Road while the helicopter was aloft. He asked the Sheriff whether he could join the search party and the Sheriff told him that, at seventeen, he was under age; the Sheriff thought the escaped prisoner was unarmed but could not be certain of that Wrynn and several companions then drove around the periphery of the search area and back to the intersection of Route 80 and Horseblock Road. Wrynn stayed there, standing on the grass mall dividing Route 80's two pairs of traffic lanes; he stood very near Sheriff Dominy's car, at a point about sixty feet east of the easterly edge of the intersection.
Shortly before eight o'clock in the evening Lieut. Pickering was advised by the Air Force Base that the weather was deteriorating. It was still daylight, visibility and ceiling were still adequate, and there was a light easterly wind; dusk was approaching and further search from the air seemed futile. Lieut. Pickering told Detective Stanton on the interphone that the helicopter should return to its Base in view of the weather and asked Stanton where he and Corso wanted to be set down. Stanton asked that they be set down near the Sheriff's party, if possible, rather than at the Norwood Road intersection, three to four miles distant, at which they had been picked up. Lieut. Pickering assented and prepared to land near the intersection of Route 80 and Horseblock Road.
At the point of prospective landing Route 80 is a four-lane, black-top highway; the pairs of lanes are divided by a grass planted mall 30 feet wide; each pair of lanes is 25 feet 5 inches wide and has 9 foot shoulders; the total width of the highway, including the shoulders, is 98 feet 10 inches. On the Route 80 mall east of the Horseblock Road intersection were two saplings; they were over 402 feet from each other and distant easterly of the east edge of the intersection some 273 feet 6 inches and some 675 feet and 6 inches respectively. The sapling nearer the intersection was offset somewhat from the center of the mall toward the north (westbound) pair of lanes, and the sapling 402 feet farther along eastward was correspondingly offset somewhat from the center of the mall toward the south (eastbound) pair of lanes. The saplings were not more than 20 feet tall.
There were at the time twenty or more people in the intersection area, all near the intersection; they included bystanders not engaged in the search. There were at least five vehicles in addition to the cars of Sheriff Dominy and Acting Captain Baczensky. The two police cars were parked on the center mall near the eastbound lanes within about sixty feet of the east edge of the intersection; there were two fire engines that were or had been parked on the mall near the police cars. Three private cars were standing east of the intersection, just off the shoulder of the eastbound traffic lanes. The most easterly of these private cars, a brown station wagon, was about 300 feet east of the intersection; the more westerly of the two saplings was another 40 or 50 feet east of the brown station wagon.
Sheriff Dominy and Acting Captain Baczensky, both of whom were at the intersection, were advised of the helicopter's plan to land near the intersection and Lieut. Pickering asked that the area be cleared for landing and traffic stopped. Acting Captain Baczensky went to the intersection and stopped the eastbound traffic at that point. Apparently the westbound traffic was also stopped by a police car block a quarter ...