Mrs. Menetta G. Neal, as Administratrix of the Estate of Wallace C. Neal v. United States ( 1977 )

MORGAN, Circuit Judge:

Menetta G. Neal, representing the estate of her deceased husband, Wallace C. Neal, brought this action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346 (1976), seeking to recover damages for fatal injuries to her husband allegedly caused by the negligence of air traffic controllers, employees of the defendant, the United States. Defendant appeals from a verdict awarding plaintiff damages in the amount of $536,-222.95.

The trial judge in this non-jury trial made the following findings of fact. The decedent Wallace C. Neal, and his copilot, also deceased, were flying from Columbus, Georgia to Lexington, Kentucky, in a jet airplane [hereinafter referred to by its FAA Registration Number, N100RC], owned by their employer. Both were killed when N100RC crashed following an encounter with wake turbulence generated by Southern Airlines Flight 930 [hereinafter SO930], the plane which landed immediately prior to NIOORC’s approach. An encounter with the turbulence created by SO930 was made possible by the failure of the Air Traffic Control personnel to maintain sufficient separation between the two aircraft and by their failure to issue a wake turbulence caution to N100RC. Defendant challenges the finding of a wake turbulence encounter, the finding of negligence by the air traffic controllers, the finding of no contributory negligence by Neal, and the amount of the award.

The most difficult question raised in this appeal concerns the finding that N100RC encountered the wake turbulence of SO930. The difficulty is caused by the lack of physical evidence concerning the crash and the uncertainty of the behavior of wake turbulence or, more precisely, wing-tip vortices. This particular type of turbulence is caused by the uneven flow of air around the wings and flaps of airplanes and can be quite dangerous to smaller planes. For a complete explanation of wing-tip vortices, see Dickens v. United States, 545 F.2d 886, 890 (5th Cir. 1977).

Despite extensive study, the behavior of these vortices cannot be predicted with certainty. At trial defendant presented several expert witnesses who testified about the behavior of wing-tip vortices. Accepting the proposition that the location and duration of wing-tip vortices are generally determined by the existing weather conditions, defendant’s witnesses testified that the combined effect of the meteorological factors on the day of the crash would be to push the vortices below and to the side of the point of their original generation along the glide slope of SO930. The slope of S0930 placed it approximately 1045 feet above ground level when it was 3.3 miles from the end of the runway; 600 feet above ground level at 2 miles from the end of the runway; 50 feet above ground level over the end of the runway; and touching the ground 1250 feet beyond the end of the runway. N100RC, following S0930 by one minute and 48 seconds, was to follow the same glide slope. The defendant argues that since the vortices would have moved below and to the side of the glide slope of SO930 during the interval between the two planes, in order for N100RC to have encountered the turbulence, it would have to have been below the glide slope of SO930. Plaintiff, trying to suggest that at some point N100RC was below the glide slope of S0930, attempted to show that a prudent pilot, flying a plane similar to N100RC under the same weather conditions, would have attempted to land as close to the end of the runway as possible and not 1250 feet beyond the end as did SO930.

The two eyewitnesses to the crash are in substantial agreement. They testified that the first time N100RC became visible it was at an approximate altitude of 600 feet above ground level somewhere over the first half of the runway, placing it above the glide slope of SO930, and slightly to the side of the runway. Both testified that they saw the plane roll 240° in a period of three or four seconds, between 60° and 80° per second, placing N100RC in an inverted position from which it never recovered, crashing 2400 feet beyond the approach end of the runway. Several witnesses testified that the rapid roll of N100RC was the type of maneuver that would occur if N100RC had encountered wake turbulence; however, defendant’s experts testified that such an encounter would have been highly unlikely considering the relative positions of the aircraft and the existing meteorological conditions. Plaintiff also offered evidence which tended to exclude other possible causes of the accident. Pilots testified that it would have been impossible to cause such a violent roll by maneuvering the controls. Other evidence tended to negate the existence of any meteorological activity which could have caused the crash. Based on the above, the trial court found that N100RC had encountered the wake turbulence generated by SO930. It is this finding which defendant contends is erroneous.

Findings of fact by a trial judge sitting without a jury “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed.R.Civ.Pro. 52(a). 28 U.S.C.A. Thus this court may not reverse except “(1) where the findings are without substantial evidence to support them; (2) where the court misapprehended the effect of the evidence, and (3) if, though there is evidence which if credible would be substantial, the force and effect of the testimony considered as a whole convinces that the finding is so against the great preponderance of the credible testimony that it does not reflect or represent the truth and right of the case.” Western Cottonoil Co. v. Hodges, 218 F.2d 158, 161 (5th Cir. 1955), Sanders v. Leech, 158 F.2d 486, 487 (5th Cir. 1946). A careful review of the record leads us to the conclusion that the finding of the trial judge on this point is not clearly erroneous.

In Kentucky, a verdict based on circumstantial evidence must be based on more than mere speculation; however, where the plaintiff has offered evidence “that the facts sought to be proved are true . [and which tends] to lexclud[e] all reasonable conflicting hypotheses’ ” the verdict is based on sufficient evidence. United Electric Coal Companies v. Brown, 354 S.W.2d 502 (Ky.1962); Huffman v. S. S. Mary & Elizabeth Hospital, 475 S.W.2d 631 (Ky.1972); Texaco, Inc. v. Debusk, 444 S.W.2d 261 (Ky.1969). In the present case, plaintiff’s evidence has eliminated other reasonably likely causes, leaving it for the trier of fact to resolve the conflict between the eyewitnesses and defendant’s experts. It was not clearly erroneous for the trial court to give more weight to the testimony of the former than to the testimony of the latter.

Defendant’s other contentions with respect to the sufficiency of the evidence lack merit for similar reasons. The testimony concerning the respective duties of the air traffic controllers and the pilot of N100RC was conflicting and thus the trial court was free to give more weight to plaintiff’s evidence. Since the trial court found that the air traffic controllers negligently failed to take necessary precautions against a wake turbulence encounter and that N100RC in fact encountered the wake turbulence of SO930, defendant’s argument that causation was not established is similarly without merit.

Defendant’s final contention relates to the calculation of damages. As with all other questions of fact, the amount of damages found by the trial court to have been sustained by a plaintiff is not to be overturned unless clearly erroneous. Fed.R.Civ.Pro. 52(a), 28 U.S.C.A.; Mitsui O.S.K. Lines, K.K. v. Horton & Horton, Inc., 480 F.2d 1104 (5th Cir. 1973). Under the Federal Tort Claims Act, determination of damages is governed by the law of the state in which the wrongful act occurred. 28 U.S.C. § 1346(b); Hartz v. United States, 415 F.2d 259 (5th Cir. 1969). Thus, the propriety of the trial court’s award must be determined with reference to Kentucky law.

The measure of damages for loss of life in Kentucky is the destruction of the decedent’s power to earn money. Spangler’s Administrator v. City of Middlesboro, 301 Ky. 237, 191 S.W.2d 414 (1945). It is decedent’s potential for earning money which must be determined and not just the loss of salary for decedent’s employment at the time of death. Roland v. Beckham, 408 S.W.2d 628 (Ky.1966). Therefore, wages being earned at the time of death are not determinative, but are merely one factor to be considered. West Kentucky Coal Co. v. Shoulder’s Administrator, 234 Ky. 427, 28 S.W.2d 479 (1930). Because of the degree of speculation involved, “[u]nder the Kentucky rule of damages a great deal of latitude must be allowed.” Amerco Marketing Co. of Memphis v. Myers, 494 F.2d 904, 913 (6th Cir. 1974).

Defendant argues that the method used by the trial court in reaching its award was erroneous. The trial court relied primarily on decedent’s loss of future earnings reduced to present value, with further reductions for personal expenses of the decedent and income taxes. While we agree that the methods used below do not lend themselves to mathematical precision, it is clear that such precision is not required in Kentucky. See Humble v. Mountain State Construction Co., 441 F.2d 816 (6th Cir. 1971). It is sufficient that the trial court took into consideration the factors. which must be considered under Kentucky law. Hartz v. United States, 415 F.2d 259 (5th Cir. 1969). Accordingly, this court finds that the damages awarded in this case were not excessive. See United States v. Becker, 378 F.2d 319 (9th Cir. 1967). The judgment below is

AFFIRMED.