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Montellier v. United States

March 22, 1963

MAUREEN A. MONTELLIER, AS ADMINISTRATRIX OF THE GOODS, CHATTELS AND CREDITS OF NORMAN J. MONTELLIER, DECEASED
v.
UNITED STATES OF AMERICA



Author: Hays

Before LUMBARD, Chief Judge, HAYS, Circuit Judge, and DIMOCK, District Judge.

HAYS, Circuit Judge: Plaintiff, as administratrix, sues under the Federal Tort Claims Act*fn1 to recover damages for the death of her husband, Norman J. Montellier, who was killed in an airplane crash at Westover Air Force Base in Massachusetts. The district court awarded plaintiff damages in the amount of $168,000 in a judgment from which the United States appeals. We affirm the judgment.

Montellier, who was a correspondent for United Press International, was invited by the Army Air Force to participate, together with a number of other newspaper representatives, in what was planned as a record breaking series of flights to London and return. The plane on which Montellier was a passenger crashed within thirty seconds of take-off and all aboard were killed instantly.

The district court found that the fatal crash resulted from the negligence of those in charge of the flight, in that (1) the pilot took off with wing flaps set at 40 degrees, (2) an unqualified person occupied one of the pilots' seats in the cockpit and (3) the plane was mishandled after take-off. Since we are persuaded that there is sufficient evidence to support the district court's finding as to the first of these specifications (Fed. R. Civ., P. 52 (a)), we find it unnecessary to consider the second and third specifications.

There are a number of principles of aerodynamics which are thought to have a bearing on the causes of the accident. They are ably described and discussed in the opinion of the district court. 202 F.Supp. 384. It is sufficient here to point out briefly the function of the wing flaps of a plane.

Flaps are used to enlarge the area of the wings and thus to provide greater lift capacity at lower speeds. They are used at take-off and landing where lower speeds are required by reason of the limited length of the runways. Once the plane is airborne the flaps create drag and the greater the flap extension the greater the drag. Drag reduces the capacity of the plane to attain altitude and the flaps are therefore retracted as soon after take-off as is safely possible.

There is no dispute that the flaps were set for 40 degrees for the flight in question. The issue is whether this flap extension constituted negligence.

The evidence which we find sufficient to support the district court's determination showed that:

No plane of the type on which Montellier was to fly had ever before taken off from the air field at Westover with flaps at 40 degrees, nor had the use of such flaps ever been tested there.

The manual with which the pilot, Colonel Broutsas, was provided called for the use of 20 degree and 30 degree flaps for take-off and for 40 degree flaps for landings. As the district court said, "Several of the charts in the manual (including climb-out) gave no data for 40 degree flaps." 202 F.Supp. at 410.

The manual warned, however, that high flap settings would reduce climb-out performance. It stated that the "urgency of some missions may demand a reduction in the level of safety during take-off" and thus justify the use of higher flap settings. (There was, of course, no urgency in respect to Colonel Broutsas' mission.) The manual advised that the "smallest flap setting consistent with the available field length should be used".

Colonel Broutsas had never experimented with 40 degree flaps nor had any other flight officer. Broutsas had an understanding with his wing commander that 40 degree flaps would not be used.

One of the government's experts testified that, "pending tests," Broutsas should not have taken off with 40 degree flaps. Broutsas' instructions for the flight in question provided that no new or unusual procedures were to be employed. Safety was to "receive priority above all other considerations."

The pre-flight briefings were all based upon the use of 30 degree flaps. The performance engineer computed all take-off data on the basis of 30 degree flaps. He testified that he would have been "concerned" if he ...


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