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April 1, 1979

INA AVIATION CORPORATION and Ina Marx, as the Executrix of the Estate of Eric Marx, Plaintiffs,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: BARTELS

This is a motion pursuant to Fed.R.Civ.P. Rule 56 for summary judgment by defendant United States in an action under the Federal Tort Claims Act, 28 U.S.C. ยง 1346(b), for personal injuries and property damage resulting from an airplane crash. The thrust of plaintiffs' complaint is that, applying either general negligence principles or the Missouri Humanitarian Doctrine, the crash was caused by the acts and omissions of defendant's employees. In considering the motion, the court thought it necessary to hear oral testimony to supplement the documentary materials submitted as permitted by Fed.R.Civ.P. Rule 43(e). Certain facts are undisputed but the inferences and legal conclusions to be drawn therefrom are not.


Plaintiff Eric Marx *fn1" was the Chairman of the Board, President and owner of plaintiff INA Aviation Corporation (INA), the registered owner of a twin engine Piper PA-31 Navajo aircraft bearing registration number N510BB. He was also the holder of an instrument pilot certificate issued pursuant to Instrument Flight Rules (IFR) which permitted him to fly a properly equipped aircraft in weather conditions not suitable for flight under Visual Flight Rules (VFR) and N510BB was equipped with the necessary instrumentation. On September 20, 1974, Marx was the pilot and sole occupant of the aircraft N510BB and in attempting to land his plane crashed approximately seven miles from the Joplin, Missouri airport. Since the crash occurred in inclement weather and plaintiffs charge defendant with negligence in failing to promptly notify Marx of changes in the weather conditions, a chronological account of the events preceding the crash is necessary.

 At approximately 11:30 P.M. (0530 Greenwich Mean Time (GMT)) on September 19, 1974, Marx telephonically filed with the Federal Aviation Administration (FAA) Flight Service Station (FSS) *fn2" in Albuquerque, New Mexico an IFR flight plan *fn3" advising of his proposed flight from Albuquerque to St. Louis, Missouri. Although advised by the FSS specialist there of potential thunderstorm activity along his proposed route, Marx departed Albuquerque for St. Louis shortly after midnight (0601 GMT) on September 20.

 At 4:09 A.M. Central Daylight Savings Time (1009 GMT) on September 20, 1974, after numerous deviations from his planned route of flight in order to avoid thunderstorms, Marx asked the controller at the Kansas City Air Route Traffic Control Center *fn4" how far he was from St. Louis. The controller, Gerald D. Hultgren, responded that Marx was 10 miles from Pittsburg, Kansas and 210 miles from St. Louis. Marx informed the controller that he had only an hour and a quarter or an hour and a half of fuel remaining and that he wanted to refuel at the closest airport on route. Marx asked how far he was from Kansas City and was told 80 miles. He then asked where he could obtain fuel within 50 to 80 miles. Controller Hultgren suggested Springfield, Missouri which was 60 miles away and asked Marx how much fuel he had.

 At 4:11 A.M. (1011 GMT), Marx repeated that he had an hour and 15 minutes of fuel remaining. Hultgren told Marx that there were no thunderstorms between his position and St. Louis and that he estimated that Marx could be in St. Louis in an hour and a half. Marx said it was "too close;" he could not take a chance on flying to St. Louis. Hultgren then asked Marx where he wanted to go. Marx said he wanted something on route, that is, not too far out of his way.

 At 4:13 A.M. (1013 GMT), controller Hultgren suggested Joplin, Missouri and told Marx it was 10 miles south. Marx said, "Okay vector me to Joplin Missouri." Hultgren instructed Marx to tune in on his instrument, the Automatic Direction Finder (ADF), for the outer marker *fn5" and gave him the proper heading. Rather than look it up on the charts which he was required to have in his possession, Marx asked the controller for, and was given, the Instrument Landing System (ILS) frequency for the localizer. *fn6"

 At 4:14 A.M. (1014 GMT), after Marx elected to go to Joplin, Hultgren called Joplin FSS to inform the specialist that Marx would land there and to ask for the present weather. The specialist, Richard L. Stein- kemp, gave Hultgren the regular, hourly weather observation *fn7" which had been taken and recorded by him 15 minutes earlier at 3:59 A.M. (0959 GMT). The recorded weather ceiling 400 feet overcast (totally covered by clouds), 4 miles visibility and very light rain and fog was above the minimum safe approach conditions specified by the FAA for ILS Runway 13 at Joplin.

 At 4:15 A.M. (1015 GMT), Hultgren told Marx the weather at Joplin and asked him if he had the approach plate, *fn8" cleared him to land at Joplin ILS Runway 13, and gave him the frequency of Joplin FSS. Marx missed his first approach to Joplin airport either because he failed to execute it properly or, as he testified at his deposition, *fn9" because the weather conditions were poor. Specialist Steinkemp informed Hultgren of the missed approach and sought and received clearance for Marx to attempt to land again at 4:33 A.M. (1033 GMT).

 At 4:35 A.M. (1035 GMT), Hultgren called Springfield and learned that the weather there was "300 broken 4000 overcast and 1 mile and fog," presenting worse instrument conditions than at Joplin. Hultgren then asked specialist Steinkemp whether conditions at Joplin had changed. Steinkemp answered that, as far as he knew, there was no change but, noting some deterioration, he would check.

 At 4:40 A.M. (1040 GMT), Hultgren completed a special weather observation, *fn10" recorded it and informed Marx of the changed weather ceiling 200 obscured, 3 miles visibility, drizzle and fog which, with respect to ceiling, was below the minimum safe approach conditions specified for Joplin. *fn11" This was the last contact with Marx.

 At 4:49 A.M. (1049 GMT), neither controller Hultgren nor specialist Steinkemp could get Marx on the radio and the controller could not "paint" him on radar. At his deposition, Marx testified that he attempted a second approach, again flew to the decision height and saw nothing. Believing it was his only alternative, Marx testified that he decided to attempt an off airport landing on a highway. In doing so, the wing of N510BB struck a bridge abutment and the aircraft landed in a field and burst into flames. Marx suffered injuries and the aircraft was totally destroyed.


 Defendant claims in this motion for summary judgment that it was not negligent in weather reporting but, on the contrary, plaintiff Marx was negligent in underestimating the distance from Albuquerque to St. Louis and the time and fuel required for such a flight and in striking a bridge while landing in foggy weather. Defendant asserts that, under Missouri law, *fn12" plaintiffs' recovery is barred by Marx's contributory negligence. Plaintiffs claim that defendant was negligent in issuing an untimely and inaccurate weather report which caused the accident and, ...

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