Burger,* Tamm and Leventhal, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
On the afternoon of July 2, 1963, Mohawk Airlines Flight 112 took off from Rochester-Monroe County Airport in Rochester, New York, carrying forty passengers and a crew of three. Moments after it lifted from the runway, Flight 112 flew head-on into a violent thunderstorm, veered out of control, and plunged to earth; seven persons perished in the crash. One of the deceased was John W. Neff, an employee of Mohawk Airlines and the First Officer on Flight 112. Neff's widow, who is the administratrix of his estate and a resident of the District of Columbia, brought an action for wrongful death in the District Court under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1964), claiming that the United States was negligent in operating the control tower and related weather facilities at the Rochester Airport. The trial court held that the control tower personnel were negligent in failing to warn the crew of Flight 112 that a thunderstorm was on the field at the time when they attempted to take off, *fn1 and that "First Officer Neff was not contributorily negligent in fact or in law" (App. 39). Accordingly, a judgment was entered for the plaintiff in the amount of $334,149.21, and the United States subsequently appealed that judgment to this court. We reverse.
The appellant suggests numerous possible reasons for reversal, including four grounds for holding that First Officer Neff was contributorily negligent: (1) he attempted to take off into a known thunderstorm; (2) he failed to use the weather radar on board the airplane; (3) he piloted the airplane during takeoff, despite the fact that he was not formally qualified to act as Captain of that type of aircraft under company regulations; and (4) he failed to abort the takeoff before the aircraft encountered the thunderstorm then advancing down the runway. Since we have concluded that First Officer Neff's attempt to take off into an obvious thunderstorm constituted contributory negligence as a matter of law, we need not pass upon the merits of the appellant's other contentions.
Under the Federal Tort Claims Act, the existence of a right to recovery is determined by state law -- in this case, by the law of New York, the situs of the accident. In New York, the plaintiff in a negligence action normally has the burden of showing that he was free from contributory negligence, as an element of his cause of action; the New York wrongful death statute is an exception to this general rule, however, and it imposes on the defendant the burden of pleading and proving contributory negligence as an affirmative defense. *fn2 Thus, as the trial court observed, the United States had the burden of showing that First Officer Neff was contributorily negligent (App. 39). We think that the facts found by the District Court reveal that the Government fully discharged this burden.
Appellee cites a number of New York cases which stand for the propositions that contributory negligence is an issue which is largely within the province of the trier of facts, and that "contributory negligence as a matter of law is usually established only upon unusual or exceptional factual situations." Greelish v. New York Central R. Co., 29 App. Div. 2d 159, 286 N.Y.S. 2d 61 (1968); see also Tyrell v. New York, 6 App. Div. 2d 958, 176 N.Y.S. 2d 530 (1958). In the instant case, however, much of the evidence adduced at trial consisted of depositions; thus, the trial judge's advantage of being able to assess demeanor and credibility is less compelling than usual. Moreover, we do not take issue with the evidentiary facts -- the sequence of events -- found by the trial court; we merely conclude that the ultimate finding on the issue of contributory negligence was erroneous. It is well established that "contributory negligence may consist not only in a failure to discover or appreciate a risk which would be apparent to a reasonable man, . . . but also in an intentional exposure to a danger of which the plaintiff is aware." W. PROSSER, TORTS 434 (3d ed. 1964); see also Friedman v. Beck, 250 App. Div. 87, 293 N.Y.S. 649 (1937). Under this standard, First Officer Neff must be deemed guilty of contributory negligence. *fn3
Since the precise sequence and timing of events preceding the crash of Flight 112 is crucial to the issue of contributory negligence, we shall set forth substantial excerpts from the careful and detailed fact findings of the trial judge, together with relevant portions of the testimony offered at trial. The essential geographical features of the crash scene consist of the main runway, Number 28, which runs east and west, and the control tower and its adjacent weather station, which lie to the south of this runway, approximately halfway along its 5,500 foot length. The trial court found that the following events transpired there on the afternoon of July 2, 1963:
3:13 p.m. Captain Dennis and First Officer Neff took over the Martin 404, a twin-engine piston-type aircraft, at Ithaca and left for Rochester. There was a line of "quite intense" thunderstorms . . . running NE to SW about 75 miles from Ithaca toward Rochester. Captain Dennis and First Officer Neff were aware of this condition.
3:40 p.m. The plane arrived at Rochester . . . .
3:50 p.m. The crew went to the Operations Office in the terminal and spent some time reviewing the weather and flight information available.
Mohawk's customer service agent at Rochester spoke to Captain Dennis and First Officer Neff and mentioned an aviation severe weather forecast. All current weather [information], including a 4:00 p.m. hourly weather report set out below, came to the attention of the crew. . . .
Rochester -- ceiling 4,000 feet broken clouds, visibility 7 miles, . . . scattered thunderstorms. Possible briefly ceilings 500 feet, sky obscured 1/2 mile visibility, heavy thunderstorms, hail, wind from the west at 40 knots with gusts to 65 knots. Chance isolated tornado. . . .
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