The opinion of the court was delivered by: ZAVATT
At 12:30 on the morning of June 27th, 1958 a United States Air Force jet tanker airplane, designated as a KC-135A, (hereinafter referred to as KC-135,) took off from Westover Air Force Base, Massachusetts on what was hoped to be a record-breaking, round-trip, non-stop, non-refueling flight. The gross weight of the plane as its brakes were released for the beginning of the takeoff ground run was approximately 290,500 pounds including approximately 184,500 pounds of fuel. Although it became airborne, it struck treetops (16 ft. above runway level) approximately 4,050 feet beyond and in a line in continuation of the takeoff end of the runway; struck another tree 700 feet beyond; severed six high-tension wires (below runway level) each approximately 3/4' in diameter and burst into a ball of fire; the left wing tip struck the ground at the airport side of the Massachusetts Turnpike; the plane cartwheeled across the Turnpike and came to rest, a complete wreck, on the opposite side. All on board died instantly.
Fifteen persons were aboard the ill-fated plane -- seven crew members, two National Aeronautics Administration representatives and six representatives of news gathering agencies, i.e., Associated Press, News World, Time Magazine, Boston Herald and United Press International. Norman J. Montellier, plaintiff's intestate, was aboard as representative of United Press International. He was survived by his widow, Maureen A. Montellier, and two infant children -- Kathleen, born April 8, 1949, and Peter, born August 21, 1950 -- all of whom were residents of this district and citizens of New York State on June 27th, 1958 and at all times thereafter to and including the time when the present action was instituted.
The plaintiff has brought this action, in her own behalf and in behalf of said children, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674 and the Massachusetts Death Act, Ann.Laws of Mass., Ch. 229, § 2C, in which she seeks to recover damages in the sum of $ 350,000. The Government denies liability and has raised to following threshold questions of law:
(1) That the plaintiff, not having been appointed administratrix by a Massachusetts court, but rather, by the Surrogate's Court of Queens County, New York, is not a proper party plaintiff; that she lacks legal capacity to bring this action founded upon the Massachusetts Death Act;
(2) That the decision that the flight be made and the execution thereof were made by a federal agency or an employee of the Government in pursuance of a discretionary function and that, therefore, the plaintiff may not recover under the Federal Tort Claims Act; that everything relating to this flight comes within the exceptions to the Act specified in 28 U.S.C. § 2680(a);
(3) That Norman Montellier assumed all risks of the flight by boarding the plane and by executing and delivering a release running to the Government; that these acts constitute a complete bar to this action, even assuming that the plaintiff has the legal capacity to sue and that the Government would otherwise be liable.
(4) The Government contends, further, that Norman Montellier was a mere licensee, not an invitee and, therefore, that the plaintiff may recover only upon proof of gross or wanton negligence.
(5) At the trial, the Government contended that, even if the plaintiff were entitled to recover, damages must be limited to $ 20,000 by the terms of the Massachusetts Death Act. In its posttrial memorandum, the Government appears to have abandoned this contention.
Plaintiff Has Legal Capacity To Sue
The complaint was filed April 21, 1959; issue was joined July 26, 1959. The complaint alleged that this court has jurisdiction of the subject matter (paragraph 'First';) that the plaintiff is the duly appointed administratrix of the goods, chattels and credits of Norman J. Montellier, deceased (paragraph 'Second';) that the plaintiff has the right to bring this action (paragraph 'Sixth'.) The answer merely denied 'knowledge or information sufficient to form a belief' as to plaintiff's allegations in paragraph 'Second' of the complaint. As to her allegations that the court has jurisdiction and that she has the right to bring this action the defendant pleaded that 'The allegations set forth in paragraphs of the complaint designated 'First' and 'Sixth' set forth a question of law and is submitted to the court for determination.' Following a pretrial conference on December 7, 1960, a pre-trial order (approved in writing as to form and substance by the attorneys for all parties) was made. Among other things, it contains the stipulation of the attorneys that 'Plaintiff is the duly qualified administratrix of the goods, chattels and credits of Norman J. Montellier, deceased, and is authorized to proceed in the capacity in which she sues.' This stipulation was read into the record, without objection, on the opening day of the trial. The matter of jurisdiction or capacity to sue in this action was never again raised during the eighteen full days of trial between May 1st and June 19th, 1961. Not until September 15, 1961, when the defendant filed its posttrial memorandum, were these questions raised.
To countenance such tactics would make a mockery of Rule 16 of the Rules of Civil Procedure, 28 U.S.C., and federal pre-trial practice, the purpose of which is to define the claims and defenses of the parties in order to eliminate unnecessary proof and issues, lessen the opportunities for surprise and thereby expedite the trial. Rosden v. Leuthold, 107 U.S.App.D.C. 89, 274 F.2d 747 (1960). Further, the defendant ignores Rule 9 of the Rules of Civil Procedure. A plaintiff is not required to aver capacity to sue. One who desires to raise the issue must do so by specific averment supported by particulars within the pleader's knowledge.
This the defendant failed to do. The answer to paragraph 'Sixth' of the complaint did not satisfy the requirements of Rule 9(a) and, therefore, failed to raise an issue as to plaintiff's capacity to sue. Kucharski v. Pope & Talbot, Inc., 4 F.R.D. 208 (S.D.N.Y.1944). Failure to comply with Rule 9(a) precludes the defendant from raising the issue at the conclusion of the trial. Waldrip v. Liberty Mutual Ins. Co., 11 F.R.D. 426 (W.D.La.1951); Coburn v. Coleman, 75 F.Supp. 107 (W.D.S.C.1947). Failure to raise this issue by motion or answer constitutes a waiver. Coburn, v. Coleman, supra; Trounstine v. Bauer, Pogue & Co., 144 F.2d 379 (2nd Cir. 1944), cert. denied 323 U.S. 777, 65 S. Ct. 190, 89 L. Ed. 621 (1944).
The defendant also ignores Rule 17(b), Federal Rules of Civil Procedure. Here is a specific rule precisely on point which makes it crystal clear that the law of Massachusetts, as to what representative of a decedent may sue in the courts of that Commonwealth, has no bearing upon the capacity of the plaintiff to sue the defendant in this court in her representative capacity as administratrix appointed pursuant to the law of New York State, in which this district court is held.
Under the law of New York, an administratrix appointed in New York has the capacity to sue in New York under a foreign death statute, even though that statute requires that, if such an action is brought in the state where death occurred, it may be brought only by an administratrix qualified under the law of that state. Meehan v. Central Railroad Company of New Jersey, 181 F.Supp. 594, 606 (S.D.N.Y.1960); Jongebloed v. Erie Railroad, 180 Misc. 893, 42 N.Y.S.2d 260 (1943), aff'd, 266 App. Div. 960, 44 N.Y.S.2d 681 (1943).
I conclude that the plaintiff has capacity to sue the defendant in this action in this court.
28 U.S.C. § 2680(a) Does Not Absolve the Government From Liability.
28 U.S.C. 2680(a) provides that the Federal Tory Claims Act does not apply to 'Any claim based upon an act or omission of an employee of the government * * * based upon the exercise or performance or the failure to exercise or perform a discretionary duty or function on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.'
Prior to the decision in Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955), the precise application of section 2680(a) was described as an area pervaded by judicial inconsistency and confusion. Note, 66 Harv.L.Rev. 488 (1953). The legislative history of the section has been described as being of little or no help in determining its application. Hernandez v. United States, 112 F.Supp. 369 (D. Hawaii 1953). However, in the lower federal courts a distinct line of cases developed supporting the view that, where simple negligence is the gravamen of the complaint, there is a point at which discretion ceases and liability for negligent conduct ensues. Thus, while the decision to engage in a particular activity may not be actionable, although negligent, the negligent conduct of the activity itself is actionable. In United States v. Gray, 199 F.2d 239 (10th Cir. 1952), in which a mental patient in the absence of her guard hurled herself through a window and injured herself, the court pointed out that although the hospital in the exercise of its discretion could have refused to admit her as a patient, once it chose to admit her it was bound to exercise due care for her protection. And in Somerset Seafood Co. v. United States, 193 F.2d 631 (4th Cir. 1951), the court stated that, even if the marking of a wreck at sea was a matter of discretion, nevertheless liability existed for negligence in the actual marking once the decision to mark had been made. Further support for this analysis may be found in the district courts. E.g., Hernandez v. United States, 112 F.Supp. 369 (D.Hawaii 1953); Worley v. United States, 119 F.Supp. 719 (D.Ore.1952); Toledo v. United States, 95 F.Supp. 838 (D.Puerto Rico 1951).
Language in Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), possibly suggested that the discretionary function exemption might perhaps be somewhat larger than the above cases indicated. However, prior to Indian Towing, supra, the lower courts did not so interpret the Dalehite opinion. In Pierce v. United States, 142 F.Supp. 721 (E.D.Tenn.1955), aff'd, 235 F.2d 466 (6th Cir. 1956), in which the defense relied on Dalehite, the court held that, once the decision to construct an electrical substation and transmit power to it had been made, all discretion had been exercised. All that remained was for the Government, its agents and employees to exercise due care in executing the decision. Similarly, in Penn. R.R. Co. v. United States, 124 F.Supp. 52 (D.N.J.1954), the decision of the Coast Guard to suspend certain restrictions on the loading of explosives was not actionable since it was made in the exercise of a discretionary function. But the negligence of the Coast Guard loading supervisory detail was actionable on the ground that they had no discretion to exercise, their only task being the performance of their duty. See also White v. United States, 211 F.2d 79, 82 (9th Cir. 1954); Guy F. Atkinson v. Merritt, Chapman & Scott, 126 F.Supp. 406 (N.D.Cal.1954). The soundness of lower court interpretations of the Dalehite case was made explicit in Indian Towing, supra. That case involved negligence by the Government in the operation of a lighthouse. The court pointed out that the Government need not undertake to provide lighthouse service, but having done so it must act with due care. Thus the demarcation separating liability from non-liability is that drawn between the planning and operational levels of governmental function. The court further stated that 'the broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable * * *.' Since Indian Towing, the courts have hewn to the distinction between planning and operations implicit in that decision. Thus, in American Exchange Bank v. United States, 257 F.2d 938 (7th Cir. 1958), in which the plaintiff suffered injury because of the lack of a railing on the steps of a post office, the failure to provide the rail was held to be on the level of operations and liability ensued. There the planning level was described as the decision to erect the post office. To the same effect, Foster v. United States, 183 F.Supp. 524 (D.N.M.1959), aff'd, 280 F.2d 431 (10th Cir. 1961). Similarly in Jemison v. The Duplex, 163 F.Supp. 947 (S.D.Ala.1957), involving a wharf owner's suit for damages to its wharves caused by a Government contractor's dredging below the level of the wharves, the court held the Government to be negligent in defectively planning the operation. Discretion was exercised when it was decided to deepen the channel in question, but the engineer's negligence in drawing the plans was on the operational level. To the same effect, McCormick v. United States, 159 F.Supp. 920 (D.Minn.1958).
Clearly the reasoning of this entire line of cases is applicable to the case at hand. While no liability can be predicated on the decision to make the flight, this being on the planning level of governmental function and thus exempt under § 2680(a), clearly once this decision was made there was no further room for the exercise of discretion. All that remained was the duty of the Government and its employees to use due care in its execution. I conclude that 28 U.S.C. § 2680(a) is not a bar to this action.
The Release Executed by the Decedent is Not a bar to This Action
On the day of and shortly before the takeoff, Norman Montellier executed and delivered at Westover Air Force Base in Massachusetts a release as follows:
Westover AFB Mass (Place) 26 June 1958 (Date)
'KNOW ALL MEN BY THESE PRESENTS: WHEREBY I Norman Montellier am about to take a flight or flights as a passenger in certain Army, Navy, and/or Air Force aircraft on 26, 27 June 1958; and whereas I am doing so entirely upon my own initiative, risk, and responsibility; now, therefore, in considation of the permission extended to me by the United States, through its officers and agents to take said flight or flights, I do hereby, for myself, my heirs, executors, and administrators, remiss, release and forever discharge the Government of the United States and all its officers, agents, and employees, acting officially or otherwise, from any and all claims, demands, actions, or causes of action, on account of my death or on account of any injury to me or my property which may occur from any cause during said flight or flights or continuances ther(e)of, as well as all ground and flight operations incident thereto. I did not receive formal training in altitude indoctrination; however, I have been thoroughly briefed on use of the equipment necessary for high altitude flight, as well as possible effects of such flights. I fully understand that I am waiving altitude indoctrination.
'(S) Norman J. Montellier (Signature) '(S) Thomas B. Ulaori (Witness) (S) Wilbur W. Wiley (Witness) 'Mrs. Maureen Motellier (Name of person to be notified in emergency) 62-62 Woodhaven Blvd., Rego Pard 74, New York (Address of person to be notified in emergency) (Hickory 6-6343)'
The defendant contends, in effect, that this release is a bar to this action; that plaintiff is bound by the release because Montellier -- had he survived and sued to recover for personal injuries -- would have been bound by his release. In other words, defendant contends that the rights of the plaintiff are derivative; that they derive from Montellier's rights and that since the release would have barred a suit by him it bars this suit. A consideration of this point requires an understanding of the rights granted by the Massachusetts Death Act and a determination as to what law applies, i.e., the law of Massachusetts or general federal law, if any.
Not all state death acts are the same. Some grant to survivors of a decedent a derivative right; some grant them a right that is independent of the right of the decedent -- had he survived and sued to recover for personal injuries; some provide for compensatory damages, either limited or unlimited as to amount; others limit the amount of recovery and are punitive in nature rather than compensatory.
The first death act was Lord Campbell's Act, Stat. 9 & 10 Vict.Ch. 93.
It created a derivative right to damages for wrongful death. New York created this type of right for wrongful death. It too is derivative.
The Massachusetts Death Act in effect on the date of death of Montellier, Mass.Ann.Laws 1955, ch. 229, was not derivative, e.g., Oliveria v. Oliveria, 305 Mass. 297, 301, 25 N.E.2d 766 (1940); Shapiro v. Lyon, 254 Mass. 110, 49 N.E. 543 (1925). It contained specific sections relating to 'Damages for Death from a Defective Way,' § 1; 'Damages for Death by Negligence, etc., of Common Carrier,' §§ 2 and 2A; 'Damages for Death of Employee by Negligence, etc., of Employer, etc.,' § 2B, and 'Damages for Death by Negligence, etc.; General Provisions,' § 2C. This case falls within § 2C
because the law of the state where the alleged act of negligence or the alleged wrongful act or omission occurred is applicable in Federal Tort Claims Act suits, 28 U.S.C. § 1346(b), which makes the Government liable for such acts or omissions 'if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'
It was settled law in Massachusetts that a release signed and delivered by a decedent was of no effect against plaintiffs in an action brought under the Massachusetts Death Act in effect prior to January 1, 1959.
Oliveria v. Oliveria, supra; Wall v. Massachusetts, etc., Ry., 229 Mass. 506, 118 N.E. 864 (1918); Doyle v. Fitchburg Ry., 162 Mass. 66, 37 N.E. 770, 25 L.R.A. 157 (1894). The rationale of these cases is that, since that Death Act created a right in the survivors which did not arise until the wrongful death, the deceased had no power to barter it away and his execution and delivery of a release was nugatory as to his survivors.
The court concludes that the release executed and delivered by the decedent is not a bar to this action nor is it a valid defense.
Decedent Did Not Assume Risks of the Flight by Executing the Release.
The defendant pleaded as affirmative defenses the contributory negligence of the decedent and that the decedent 'assumed the risks of the happening of the alleged accident' (paragraphs 'Fourth' and 'Fifth' of the answer). At the pretrial conference defendant withdrew the defense of contributory negligence. This withdrawal is incorporated in the pretrial order dated December 7, 1960 which was approved as to form and substance by the attorneys of both parties and is noted in the record. At the trial no evidence was offered to establish contributory negligence, nor did the defendant argue that the release was evidence of assumption of risk in the sense of contributory negligence. Nevertheless, in its post-trial memorandum the defendant argues assumption of risk and contributory negligence are synonymous; that the Massachusetts Death Act conditions recovery by this plaintiff on 'the exercise of due care' by decedent; that despite the non-derivative nature of plaintiff's claim she is foreclosed from recovering because decedent assumed the risks of this accident which assumption is tantamount to contributory negligence which, in turn, was a failure by the decedent to exercise the due care required by the Act.
Assumption of risk is a term which has been surrounded by much confusion because it has been used by the courts in at least four different senses and the distinctions are seldom made clear. Since defendant here has not specified the exact sense in which it is invoking the defense, the court will consider all of them. In its simplest sense the doctrine means that plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and has agreed to take his chance of injury from a known risk. A second meaning is that plaintiff, with knowledge of the risk, has entered voluntarily into some relation with the defendant which necessarily involves danger of harm from a known risk, and thus impliedly consents to take his own chances. In a third sense, the plaintiff may act entirely reasonably but, by voluntarily encountering a known risk which defendant has negligently allowed to come into being, he relieves the defendant of liability. In the fourth sense of assumption of risk, plaintiff's conduct is itself unreasonable and amounts to and is the equivalent of contributory negligence. Prosser, Torts, 303-04 (1955).
At the outset we are presented with the question of whether or not the section of the Massachusetts Death Act requiring the decedent to exercise due care as a condition of recovery allows the raising of an assumption of risk defense. The Massachusetts courts do not appear to have considered the question directly, although dictum in Hall v. Henry Thayer & Co., 225 Mass. 151, 113 N.E. 644 (1916) suggests that it may. Were the Massachusetts courts to consider the point directly, insofar as assumption of risk means an express assumption of risk founded on an agreement between the parties, it appears probable that, in light of the Massachusetts cases holding a release signed by the decedent in his lifetime to be no defense in a wrongful death action, they would reject it. Oliveria v. Oliveria, supra; Wall v. Massachusetts N. St. Ry. Co. supra; Doyle v. Fitchburg Ry., supra. In Friedman v. Lockheed Aircraft Corp., 138 F.Supp. 530, 536 (E.D.N.Y.1956), a case involving a release almost the exact duplicate of the one at hand, the court rejected the contention that the execution of the release by decedent amounted to an implied assumption of all risks incident to his ride in an ill-fated jet fighter plane.
To the extent that assumption of risk is used in the sense that decedent's conduct in encountering a known risk was itself unreasonable and amounted to contributory negligence, the court finds that the defense of assumption of risk was waived by defendant at the pre-trial conference and cannot be revivified at this late date. To hold otherwise would allow the utilization of finespun niceties of pleading in such a way as to mislead both the court and opposing counsel and as such must be disapproved.
Whether or not assumption of risk in its second and third meanings may be raised under the provision of the Massachusetts Death Act requiring the decedent to have exercised due care as a condition precedent to recovery in a wrongful death action, presents a closer question. Weighed against the statements by the Massachusetts courts to the effect the Massachusetts Death Act is non-derivative we must balance the fact that insofar as contributory negligence is concerned the act is clearly derivative Compare Oliveria v. Oliveria, supra, with Sullivan v. Hamacher, 339 Mass. 190, 158 N.E.2d 301 (1959). The court doubts that assumption of risk, in the sense that one may act entirely reasonably but nevertheless is barred from recovering due to his voluntary encounter with a known risk, could be raised under Ann.Laws of Mass. c. 231 § 85 since reasonable action necessarily precludes the absence of due care. If, however, the Massachusetts court were to allow assumption of risk as a defense in this type of case it would be an affirmative defense not only to be pleaded but also proved by the defendant, since Ann.Laws of Mass. c. 231, § 85 provides that lack of due care, the generic term which would have to be found to subsume assumption of risk, is to be so established. Sullivan v. Hamacher, supra. In the absence of such pleading and proof the decedent 'shall be presumed to have been in the exercise of due care.' Both assumption of risk and contributory negligence present questions of fact to be resolved by the trier of fact. Hall v. Henry Thayer & Co., 225 Mass. 151, 113 N.E. 644 (1916).
The major factor in determining the existence of assumption of risk is the state of knowledge of the decedent. Ordinarily one does not assume risks of which he is ignorant. Furthermore, in order to assume the risk of a particular act or condition one must know and appreciate the danger itself, not just the facts which constitute it. Generally the state of decedent's knowledge is a question for the trier of fact. Prosser, Torts 309-10 (1955). In determining the state of decedent's knowledge it is especially relevant to inquire into the information he received from the Government, since this would appear to be his main, if not the only source from which he could learn of any dangers involved. Montellier received his first knowledge of the flight on June 26th, 1958 when his superior at United Press International, Mr. Donald Dillon, an editor in the New York office, received a call from his superior to the effect that the flight was going to occur and that the man UPI had originally planned to send, one Joe Morgan, would be unable to go. In the course of this conversation Dillon's superior asked him if he had anyone to replace Morgan. Dillonthen asked Montellier, who was sitting at the desk across from him, if he was interested. Montellier told Dillon that he'd like to 'find out about it.' Montellier then walked across the room and spoke to Morgan, came back to Dillon and told him that he was interested, but would like to check with his wife. Sometime later in the day Montellier told Dillon that he would go and Dillon passed this information on to his superior. Thus it appears that before he arrived at Westover Montellier can have known little more than that the flight would occur.
Montellier's only opportunity to be apprised of any particular risks involved in the handling of the plane was on June 26th, 1958 at Westover Air Force Base. The members of the press began to arrive at Westover at about midday and continued to arrive throughout the remainder of the day. In addition to dining at the officers' mess (there is no evidence as to what happened at the officers' mess) the newsmen attended three briefing sessions. If Montellier was to receive any knowledge of any of the particular risks of this flight it would seem that it would have to be presented at these briefing sessions, if at all. The first briefing session that the newsmen attended was a personal equipment briefing, held only for the members of the press. It does not appear whether or not the men designated as 'timers' also attended. At this briefing the newsmen were issued and fitted with helmets, oxygen masks and parachutes and instructed as to their use. The mere issuance of such equipment can in no way have apprised Montellier of the particular dangers involved in the improper handling of a KC135 under novel conditions. Rather, Montellier might well infer that the Air Force was taking special precautions for his safety and that on that basis he could with confidence place his well-being in the hands of the Air Force, its men and its equipment. From eight to eight-thirty on the evening of June 26th the newsmen, together with the crews, staff officers and others, attended the final crew briefing. The crews received the briefing as if the reporters were not present. However, the reporters could see and hear the entire session. At this session the takeoff and flight data, including weight, weather, routing, landing field diagrams and flap setting, were discussed and pertinent slides were projected on a screen. Communication and navigation information was also discussed. The crews were asked to see if they had checked the most recent bulletins in the flight safety book, which contains data on the plane's functioning and performance. Those present were also told that no flight record is worth losing a plane and that safety was a prime consideration. Nothing presented at this session was of a nature which would bring any sense of particular danger to the mind of one of ordinary sensibilities. Rather, the stress on safety and careful planning would assure one going on the mission of the care and precaution exercised in his behalf.
This feeling of confidence which the Air Force engendered in those to be on board was further strengthened at the final 'news story' briefing held only for the press sometime after the final crew briefing. The major part of this session was devoted to a discussion of the contents of the press kit prepared by the Office of Information, Headquarters Eighth Air Force, Westover Air Force Base and given to all the newsmen. The materials in this kit placed great stress on past Air Force accomplishment and expected Air Force achievements. Nowhere therein can be found any intimation of anticipated danger. Incorporated therein were biographies of General Sweeney, Commander of the Eighth Air Force, and General Saunders. Both of these men appear to be credits to their country. Nothing in their records would lead to a conclusion other than that these men knew their jobs and had records of proven accomplishment. This press release also presents us with the fine record of the Eighth Air Force in making long distance flights. To their credit are the first non-stop flight around the world by a combat aircraft, March 2, 1949; the then longest jet flight on record (21,163 miles) November 17-19, 1954; the first non-stop around the world flight by jet aircraft, January 18, 1957; and other outstanding flights of a similar nature. It is reasonable to conclude that Montellier, on being presented with this record of proven accomplishment, would feel assured that the flight involved no unusual peril. Indeed, one part of this press kit is entitled 'Existing Records and New Records to be Accomplished.' Nor would any knowledge of risk seem to flow from the fact that the flight was to be made on the KC-135, for this type of aircraft also presented an outstanding record in flights of this type, which were enumerated in the press kit. This type of plane, already in service with regular Strategic Air Force units, had won the 1958 Harmon Trophy for one of its flights. To the credit of the KC-135, prior to the accident date, were non-stop flights without refueling between Westover Air Force Base and Buenos Aires and return, November 12, 1957, a distance of 6,350 miles; a non-stop flight which set a speed record between Tokyo and Washington, D.C., April 7, 1958, a distance of 6,769 miles, in which the plane continued nonstop to the Azores, for a total distance of 10,233 miles. On June 13, 1958, a KC-135 set an unofficial coast to coast speed record of three hours, forty-two minutes, forty-five seconds. On being presented with a listing of these fine achievements one would expect the decedent's reaction to have been confidence in his safety in an aircraft to be flown by men of the Eighth Air Force. The balance of the 'news story briefing' was devoted to the signing of the release referred to supra. It should be noted that we are here dealing with the release only insofar as it may have conveyed knowledge of any particular dangers to the decedent. The only specific risks which the release mentions are those attendant upon high altitude flying which are in no way relevant here since the plane was never more than one hundred feet above the ground, if that high. It cannot be said, in light of the general impression of careful planning and precaution created by the Air Force, that the mere signing of the release or anything that may have been said with reference thereto was sufficient to convey knowledge of the particular risks involved in the fatal take-off.
A survey of recent aviation accident cases establishes that the defense of assumption of risk now receives only a limited acceptance. It is by now well settled that merely by boarding the plane commercial airline passengers no longer assent to encountering a known danger either with respect to the plane itself or its operation. Urban v. Frontier Airlines, 139 F.Supp. 288 (D.Wyo.1956); Lopez v. Resort Airlines, 18 F.R.D. 37 (S.D.N.Y. 1955). In the area of passengers on private planes a similar result has been reached. Boise Payette Lumber Co. v. Larsen, 214 F.2d 373, 46 A.L.R.2d 1038 (9th Cir. 1954). There the defense was not available in an accident caused by the pilot's inadequate night flying training, since the decedent did not know the pilot prior to the day of the accident and had no knowledge whatsoever as to his lack of training. In Bruce v. O'Neal Flying Service, 231 N.C. 181, 56 S.E.2d 560, 12 A.L.R.2d 647 (1949) involving a stunt plane at an air show the court, in rejecting assumption of risk as a defense, found that the evidence showed the plane in which the demonstration took place to have been fit for the purpose and the stunt maneuver to have been normal and safe in the hands of a careful pilot. The only recent case supporting assumption of risk as a defense involved the very different situation of an instructor in a dual control plane injured when a student pilot with only thirty-five hours flying time froze at the controls. Massey v. United States, 198 F.2d 359 (4th Cir. 1952).
I find that the decedent did not assume the risks of this flight. Further, I conclude that the facts in this case do not warrant a conclusion that the decedent assumed the risks of this flight, as a matter of law.
The Decedent was an Invitee.
The parties devoted a substantial portion of the trial time of the case to the question as to whether the decedent was a mere licensee or an invitee. The defendant contends that on the answer to this question hinges the degree of care owed to the decedent by the defendant and the quantum of negligence to be proved by the plaintiff as a prerequisite to recovery. The Federal Tort Claims Act, under which this action is brought, provides at 28 U.S.C. § 2674 that, in a tort claim action such as this, the United States 'shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances * * *.' The claim having arisen in the State of Massachusetts, the substantive law of that state governs; the status of the decedent as an invitee or a licensee depends upon Massachusetts law. Restatement, Conflicts, § 378. Counsel have not cited nor has independent research by the court revealed any Massachusetts cases dealing with the status of persons aboard airplanes as either invitees or licensees.
This question has arisen in Massachusetts with reference to automobile passengers in private behicles. Massachusetts law is stated definitively in a leading automobile case, Taylor v. Goldstein, 329 Mass. 161, 107 N.E.2d 14 (1952). There, the plaintiff was a passenger in the defendant's car for the purpose of being driven by the defendant to a warehouse where the plaintiff had a suitcase which he had agreed to lend to the defendant. In finding that the plaintiff was an invitee, the court, summarizing a long line of prior Massachusetts cases, stated:
'The rule deducible from these decisions is that a plaintiff acquires the status of an invitee if he is riding with the defendant for the purpose of conferring a benefit in the performance of something in which the defendant has an interest provided the benefit is other than 'those intangible advantages arising from mere social intercourse.' O'Brien v. Shea, 326 Mass. 681, 683, 96 N.E.2d 163, 165 (1951); that the benefit need not be of a pecuniary nature; and that it need not arise from a contractual relationship. * * *' Accord, Wolfson v. Fox, 338 Mass. 603, 156 N.E.2d 422 (1959).
In Wolfson, supra, it was held that the principle of the Taylor case, supra, is not rendered inapplicable to an automobile trip made not only for the benefit of the defendant but also for the benefit of the plaintiff. There the plaintiff and the defendant were business associates who were riding in a car owned and operated by the defendant for the purpose of viewing property (in which both had an interest) which had been damaged by fire. It was held that the plaintiff was an invitee within the rule laid down in the Taylor case, supra.
There are two Federal Tort Claims Act cases, decided by district courts of this Circuit, on the substantive law of New York, involving civilians aboard a military aircraft, which are worthy of mention insofar as they relate to the status of two persons aboard the same military aircraft, one of whom was held to be aboard for the purpose of conferring a benefit upon the Government, the other of whom was held to be on board for purely personal reasons. In Rogow v. United States, 173 F.Supp. 547 (S.D.N.Y.1959), the status of the plaintiff's decedent was of importance in determining, under New York law, whether the release executed by the decedent was a bar to the plaintiff's claim. In New York such a release is a bar if the transportation of the decedent was a gratuitous benefit. And since, in New York, the plaintiff's claim based upon the New York Wrongful Death Act is derivative, the release would be a bar to a plaintiff's claim under that Act, if it were a bar to a claim by the decedent for damages had he survived.
In New York the test as to whether the release was a bar is not stated in terms of an invitee or licensee status, but rather, in terms of whether the plaintiff's decedent, at the time of the accident, was conferring a benefit upon the defendant. This test, it is to be noted, is the test by which the courts of Massachusetts determine whether one is an invitee or a licensee. Rogow was a script writer employed by an advertising agency which had a contract with the United States Air Force to produce a recruiting film. The Air Force suggested that Rogow visit various Air Force bases and that he travel mostly by military aircraft. Pursuant to the suggestion of the Air Force, Rogow boarded a B-25 at Mitchell Air Force Base destined for Wright-Patterson Air Force Base, Dayton, Ohio. The plane crashed shortly after take-off in New York State and all hands on board were killed. Before the take-off Rogow executed and delivered a release identical in form to that involved in the instant case except that it did not contain the following sentence found in the release executed by Montellier:
'I did not receive formal training in altitude indoctrination; however, I have been thoroughly briefed on use of the equipment necessary for high altitude flight, as well as possible effects of such flights. I fully understand that I am waiving altitude indoctrination.'
Since the KC-135 involved in the instant case never reached an altitude of one hundred feet above the runway at West-over Air Force Base, this portion of the release executed by Montellier has no bearing. As a practical matter, therefore, the releases in Rogow and the instant case are identical. The court concluded that the flight was not a gratuitous benefit to Rogow (an employee of a company that had a contract to produce films for the Air Force -- presumably at a profit to Rogow's employer):
'The only purpose for the trip was the gathering of material for the preparation of a script for the Air Force film. Rogow changed plans for commercial air travel and accepted the suggestion of the Air Force the he fly on its craft. He discommoded himself to suit the convenience of the Air Force. As a result of defendant's suggestion Rogow subjected himself to the dangers and discomforts of military flying to further a project of considerable interest to the Air Force. It is realistic to believe that one of the reasons for the suggestion by the Air Force that decedent travel by bomber was to provide him with an opportunity at the earliest possible moment to observe Air Force personnel in action and to thus give him a 'feel' for the subject matter about which he was to write. In short, the main benefits resulting from the flight were those flowing to the Air Force. Rogow benefitted only incidentally. As a writer of considerable repute, he had an interest in producing the best possible script. But, in the main, there can be little doubt that the principal beneficiary of Rogow's military travel was the Air Force, because the trip would enable Rogow to give them a more meaningful script at an earlier date. It can hardly be said that an individual (1) traveling in furtherance of an Air Force project; (2) in a manner suggested by the Air Force and (3) whom the Air Force is in any event obligated to reimburse for his travel costs, is nevertheless the recipient of Air Force largess in the form of a 'free ride.' I, therefore, conclude that the flight was not a gratuitous benefit to Rogow.' Rogow v. United States, supra, 173 F.Supp. at 553.
A companion case, Fass v. United States, 191 F.Supp. 367 (E.D.N.Y.1961), involved the same flight as in Rogow, supra. A retired Army officer, Maurice I. Fass, requested transportation via military aircraft for the purpose of going to the Air Force Center at Denver, Colorado, to 'straighten out his records.' He was permitted to board the same military plane pursuant to the authority contained in Air Force Regulations 76-6. The court found that this journey was made by Fass 'for personal reasons' and that he was a licensee, not an invitee; that the Government owed him (pursuant to New York law) the duty to exercise ordinary and reasonable care and to apprise him of any danger of which it was aware; that the Government was not liable to a licensee for a mechanical defect in the plane, not known to it, even though by inspection it or its agents might have discovered the defect; that the accident was caused by an engine failure due to an oil leak not known to the Government; that, therefore, the plaintiff could not recover.
In Massachusetts one owes to a licensee the duty to refrain from acts constituting gross negligence.
An injured licensee must prove that the defendant violated this duty, i.e., that the licensee's injuries were caused by the gross negligence of the defendant, e.g., Meredith v. McLaughlin, Mass., 174 N.E.2d 651 (1961); Holiday v. First Parish Church of Groton, 339 Mass. 692, 162 N.E.2d 48 (1959); Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002 (1934). Although the majority of Massachusetts cases state this to be the law, there is a line of cases to the effect that the only duty owed to a licensee is to refrain from wilful, wanton and reckless conduct
tending to injure a licensee, e.g., Baines v. Collins, 310 Mass. 523, 38 N.E.2d 626, 138 A.L.R. 1123 (1942); Romana v. Boston Elevated Railway Co., 218 Mass. 76, 82, 105 N.E. 598, L.R.A.1915A, 510 (1914); West v. Poor, 196 Mass. 183, 185, 81 N.E. 960, 11 L.R.A.,N.S., 936 (1907). Under either of these two lines of cases, a licensee suing in Massachusetts may not recover upon proof of only ordinary negligence.
It does not follow, however that the rules of liability stated in these cases apply where the suit is brought not by the injured licensee but, rather, by the widow of a deceased licensee who sues under the non-derivative Massachusetts Death Act and in which she does not seek damages for any pain and suffering of the deceased licensee. In Gallup v. Lazott, 271 Mass. 406, 171 N.E. 658 (1930) it was held that, in an action under the Massachusetts Death Act to recover for the death of the plaintiff's intestate, 'the statute 'requires proof only of ordinary negligence." In Shapiro v. Lyon, 254 Mass. 110, 149 N.E. 543 (1925) it was held that 'although the intestate was a guest, his administratrix, in an action for death under G.L. c. 229, was bound to prove only ordinary negligence of the defendants Sughrue v. Booth, 231 Mass. 538, 121 N.E. 432 (1919); and not gross negligence of the defendants as would have been required had the action been by the intestate, or by the administratrix to recover for the conscious suffering of the intestate.'
In Massachusetts, one owes a duty to an invitee to refrain from acts or omissions which amount to ordinary negligence. Thus, the plaintiff in the instant case, suing under the Massachusetts Death Act,
may recover upon proof that the death of the intestate was due to ordinary negligence on the part of the defendant, whether the intestate was a mere licensee or an invitee.
Nevertheless, I find that the plaintiff's intestate was an invitee, not a licensee. When Russia launched its first Sputnik into outer space, our government felt the need to demonstrate to the world America's technical achievements. Operation Topsail was planned by the Air Force as a demonstration of the long-range striking capabilities of its KC-135 aircraft. This type of airplane is a refueling tanker craft used mainly in support of the B-52 Bomber, the then major long-range air force weapon. The opportunity to make such a demonstration presented itself when invitations were received by the Chief of Staff of the United States Air Force from the Chiefs of the Belgian and Netherlands Air Forces, on December 9, 1957, to participate in the Liege, Belgium and Soisterburg, Netherlands International Air Meets. The invitation from the Netherlands Air Force specifically requested a demonstration of the capabilities of the KC-135. After receiving the approval of the Department of Defense and the Department of State, the Air Force accepted the invitations. Thereupon, the project entered the planning stage in which various members of the Air Force staff participated, including representatives of Information Services, Operations and Materiel. The resulting plan was submitted to and approved by the Air Force Chief of Staff. The State Department was anxious to counteract the unfavorable publicity the United States had received because of the Russian Sputnik satellite; desired publicity which would portray the United States defense effort in a more favorable aspect. In accord with this desire, speed runs to Buenos Aires and Tokyo were made by KC-135s. It was decided that the Liege Air Show would be the occasion for the European world class event in this series of record flights. Since the Eighth Air Force was the only air force equipped with KC-135s and had made the Buenos Aires and Tokyo flights, it was designated to conduct Operation Topsail. Westover Air Force Base being headquarters of the Eighth Air Force and one of the only two air force bases equipped with KC-135s, it was decided that the flights should originate from Westover Field. Operation Topsail contemplated flights by four KC-135s -- two of which were to fly non-stop from Westover Field to London in an attempt to establish a transatlantic speed record; two of which were to fly from Westover Field (non-stop, non-refueling) to London and return to Westover and to Freindship Airport, Baltimore, Maryland, respectively.
Final approval of Operation Topsail had to be obtained from the Department of Defense. The Chief of Staff of the Air Force submitted the proposed plan to the Department of Defense. A directive of that Department required that, before final approval of speed runs may be given by the Assistant Secretary of Defense for Public Affairs, an advisory committee (composed of the Assistant Secretary of Defense for Public Affairs and two representatives of each of the armed services) must pass upon the plan. After the advisory committee gave its approval to Operation Topsail, the Deputy Assistant Secretary of Defense for Public Affairs referred the proposed plan to the Defense Department Operations Coordination Board in order to ensure that the flight was in the national interest and not merely in the interest of a particular service. Following approval of Operation Topsail by this Board, the Deputy Assistant Secretary of Defense for Public Affairs gave his approval on June 24, 1958, thus authorizing the Air Force to proceed with the planned flights.
To the operations plan submitted to the Department of Defense for approval was appended an information plan. The operations plan itself stated that 'there is a continuing obligation on the part of the United States Air Force to demonstrate United States Air Force capabilities to the general public from time to time. This action contributes immeasurably to public confidence in its armed forces as well as the peace of mind and sense of security of the citizens of the nation.' The information plan stated that 'maximum publicity consistent with public interest and within command resources is desired on all record results. * * * The Director of Information Services, Office of the Secretary of the Air Force, will actively participate in publicizing these events. * * * Every effort should be made to attract grass roots attention. Home-town releases, local and regional radio and TV interviews and other devices of promoting local interest will be pursued to the fullest extent.'
That favorable publicity was the major objective of Operation Topsail is borne out by the fact that the offices and divisions of the governmental agencies most concerned with planning these flights have publicity as their major function. Thus, the Air Force Office of Information Services, the agency most concerned with planning these flights, has as one of its major functions the collecting, analyzing and disseminating to the public, unclassified information pertaining to the Air Force and its activities, based upon the principle that the full record of the Air Force should be available to the American people and that the Air Force has a responsibility to report to them. A.F.R. 190-6, December 6, 1957. The theme of publicity was carried on by the Defense Department's handling of Operation Topsail through its Under-Secretary for Public Affairs, whose office has as its basic functions to keep the public informed and to provide liaison and co-operation with information media representatives. Department of Defense Directive No. 5122.5, August 17, 1957. Colonel Henson, attached to the Office of Information Services, testified that, in light of the primary publicity purpose of Operation Topsail, ...