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Berends v. City of Atlantic City

Decided: March 16, 1993.

THOMAS BERENDS, EXECUTOR OF THE ESTATE OF MARY GORRERA BERENDS; TIMOTHY BERENDS, AN INFANT BY HIS GUARDIAN AD LITEM, THOMAS BERENDS; AND THOMAS BERENDS, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
CITY OF ATLANTIC CITY; PAN AM WORLD AIRWAYS, INC.; INTERNATIONAL TECHNICAL AVIATION PERSONNEL, INC.; ROBERT C. BENTLEY; ARNOLD W. EBBERUP; EDWIN SAFER; XYZ COMPANIES AND JOHN DOES (IDENTITIES UNKNOWN), DEFENDANTS-RESPONDENTS. WILLIAM EAVERS; CHARLOTTE BOLANDER, AS EXECUTOR OF THE ESTATE OF RAYMOND BOLANDER; NOEL BOLANDER, AN INFANT, BY HIS GUARDIAN AD LITEM, CHARLOTTE BOLANDER AND MICHELE BOLANDER, AN INFANT BY HER GUARDIAN AD LITEM, CHARLOTTE BOLANDER; AND CHARLOTTE BOLANDER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, V. CITY OF ATLANTIC CITY; AND THEIR JOHN DOES, EMPLOYEES, AGENTS, SERVANTS AND CONTRACTORS 1 THROUGH 100; PAN AM WORLD AIRWAYS, INC., AND THEIR JOHN DOES, EMPLOYEES, AGENTS, SERVANTS AND CONTRACTORS; INTERNATIONAL AVIATION PERSONNEL, INC. AND THEIR JOHN DOES, EMPLOYEES, AGENTS, SERVANTS AND CONTRACTORS; ROBERT C. BENTLEY; ARNOLD W. EBBERUP; EDWIN SAFER; XYZ COMPANIES 1 THROUGH 25 AND RICHARD DOES 1 THROUGH 100 (IDENTITIES UNKNOWN), DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

Long, D'Annunzio and Keefe. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

In these consolidated death and personal injury actions, plaintiffs appeal from summary judgments in favor of all defendants.

On August 27, 1986, a small aircraft crashed killing the pilot, Raymond Bolander, and a passenger, Mary Berends, and seriously injuring William Eavers, another passenger. The pilot was attempting to land the aircraft at Bader Field in Atlantic City, New Jersey, on runway 11-29 somewhere between 12:02 and 12:25 a.m.*fn1 On the date of the accident, the pilot was a "low time pilot," with 130 hours of total flight time, 40 of which were logged at night while flying in and out of Bader Field. The pilot was operating under Visual Flight Rules (VFR).*fn2

According to the surviving passenger, William Eavers, as the pilot attempted to land the plane, he was able to keep the nose pointed towards the runway and the wings level. After the plane touched down, it bounced several times and began moving to the left to a point where the left wheel of the landing gear went off the runway. Apparently, the pilot then attempted to get the plane back on the runway, however, according to Eavers, it felt like the aircraft continued to be pushed off the runway. Halfway down the runway, the pilot aborted the landing and attempted a "go-around." The aircraft gained altitude, banked to the left and then suddenly headed nose down into the ground about one-half mile from the end of the runway.

Bader Field is a municipal airport owned by the City of Atlantic City. It has two runways, runway 11-29 and runway 4-22. At the time of this accident, runway 4-22*fn3 was closed and had been closed since May 17, 1986 following an aircraft crash that resulted in fatalities both on board the aircraft and on the ground. At the time of the accident in the present case, the pilot was aware that runway 4-22 was closed and that runway 11-29 was the only runway in use. Bolander's inability to keep his aircraft on the runway is attributed to a strong crosswind blowing out of the south, or slightly west of south. Bolander had landed on runway 11, i.e., a heading of 110 degrees. Thus, the crosswind would have struck the aircraft approximately perpendicular to its line of travel.

Dale Leppard, plaintiffs' liability expert, contended that defendants International Aviation Personnel (ITAP), Robert Bentley, Arnold Ebbenrup and Edwin Safer were negligent in their operation of the control tower. ITAP is a private air traffic control corporation which provides trained air traffic controllers at non-federally controlled towers. Robert C. Bentley is president of ITAP. Arnold Ebberup was manager of the control tower and Edwin Safer was the air traffic controller on duty on the night of the accident. The tower closed at midnight each day. Leppard contended that if Bolander had attempted to contact the tower before midnight and it had closed early, there should be liability on the part of the tower operators because if they had been there, they could have provided wind information which would have enabled the pilot to make a choice to land at another airport.

According to Eavers, Bolander contacted Bader Field for instructions when they were approximately ten to twelve miles

out.*fn4 Eavers did not remember what the response was from the tower.

Edwin Safer was on duty in the control tower on August 26, 1986 from 4:00 p.m. until midnight. Safer had no recollection of receiving any transmissions from the aircraft. The tower recording from the night in question was unavailable, apparently it had been destroyed by mice while in storage.

According to the report of the National Transportation Safety Board (NTSB) the extent of the pilot's communications during the flight were as follows:

The pilot, during this flight, did not file a flight plan, and had not made radio contact with any ground facility. His arrival at Bader Field was after the control facility at Bader Field had secured for the night. He did contact the fixed base operator, Butler Aviation, which by their corporate policy, is to only issue the runway that was in use after the control facility secures operation. They do not provide weather or wind information either to aircraft in flight or on the ground. Their night dispatcher stated that aircraft N4571Q had contacted Butler Aviation UNICOM, and was advised that the runway in use was Runway 11. The pilot acknowledged this information.

Leppard's second theory of liability concerns the City of Atlantic City and Pan Am. He contended that the accident was proximately caused by the closing of runway 4-22. In his report, Leppard stated:

In my opinion, the closing of Runway 4-22 created a dangerous condition, and therefore was the proximate cause of this accident. As a result of the proximity of the airport to the ocean, the direction of the prevailing winds was reasonably foreseeable. Due to the direction of the prevailing winds, Runway 4-22 would have been the normally preferred runway for takeoffs and landings, providing a much lower crosswind component.

In his deposition, Leppard testified that it was his opinion that had runway 4-22 been available for use by the pilot, the crosswind component would not have been a factor and this accident would not have happened. He testified that an airport should accommodate all pilots who may use it and if it does not

the airport is unsafe. According to Leppard, the fact that runway 4-22 was not available was a direct causal factor in the accident.

Nonetheless, Leppard did admit that he did not believe that all one-runway airports are unsafe. He further stated he was not contending that for an airport to be safe it must always have a runway to enable any student or pilot to land safely. Indeed, Leppard stated that:

A pilot has to make a judgment whether he can land safely or not, and he has to make that determination, and I believe that in this particular case that the pilot did make that determination that he could land safely and, in fact, he did land safely. It wasn't until . . . after he was on the ground that the unsafe condition became evident to him.

Leppard also conceded that the pilot "obviously made an error during the attempted go-around phase" which most likely caused an aerodynamic stall*fn5 and resulted in the crash. Further,

Leppard explained that he was not contending that Pan Am had the power to open or close the runway. It was his understanding that only the City of Atlantic City had the power to do so. He claims, however, that Pan Am should have been more insistent that the city reopen runway 4-22 because it would have made the airport safer.

Pan Am Management Systems, Inc. assumed control of the operations of Bader Field on June 1, 1986, pursuant to a contract with the city.*fn6 It was the understanding of Pan Am that runway 4-22 was to remain closed indefinitely. According to Stephen Williams, vice president of Pan Am Management Systems and project manager for the Atlantic City airports, the City Council Transportation Committee had indicated that Pan Am could not reopen runway 4-22 without the permission of the mayor or city council. It was his understanding when Pan Am took over operations on June 1, 1986 that runway 4-22 was shut down and not operational. However, he never received or saw anything in writing closing the runway.

After assuming operational control of Bader Field, Pan Am undertook an evaluation of the airport's parameters with the intention of making recommendations that would enhance the airport's safety. In a letter dated June 19, 1986, Frederick Ford, vice president of Pan Am World Services, Inc., wrote to

the mayor and members of the city's transportation committee. In his letter, he enclosed a summary of Pan Am's evaluation and recommendations to enhance safety at Bader Field, which were based on a 1983 Federal Aviation Administration (FAA) study. The letter proposed holding public hearings to solicit full public input. He also noted that this effort was particularly critical in light of the aircraft accident of May 17, 1986 and the shared concern about the safety of the airport's users and its neighbors.*fn7

We attach as an appendix to this opinion a copy of Pan Am's evaluation report titled Bader Field Operational Recommendations, consisting of six pages. Pan Am's recommendations included the exclusion of certain aircraft from Bader Field and shifting their operation to Pomona Airport, a larger facility located several miles away. These aircraft were multi-engine aircraft with approach speeds greater than 91 knots. Pan Am recommended reopening runway 4-22, but that runway 4 not be used for arrivals and that runway 22 not be used for departures.

By letter dated July 3, 1986, Richard Squires, Atlantic County Executive, informed Pan Am that he concurred with its recommendations for safety improvements at Bader Field. He also noted that he would support Pan Am's efforts to preserve and improve Bader Field provided the FAA and the N.J. Department of Transportation, Division of Aeronautics concurred with Pan Am's recommendations.

Public meetings were held on July 17, 21 and 22, 1986 at which Pan Am presented and discussed its "Proposal for a Safer and Quieter Bader Field." On August 6, 1986, Samuel Smith, General Manager of Pan Am, wrote to Mayor Usry summarizing the public and professional comments received on Pan Am's proposal to make Bader Field a safer and quieter

airport. In the same letter he also addressed a July 24, 1986 joint meeting held with the FAA and N.J. Division of Aeronautics. The FAA had expressed concern about opening only half of runway 4-22 as proposed by Pan Am. In addition, the FAA was independently reviewing the Bader Field situation and as such would offer additional recommendations in the future.

On August 29, 1986, two days after the Bolander crash, the FAA issued its final report titled "A Review of Safety Improvements at Bader Field, Atlantic City, New Jersey" which was prepared by the FAA in cooperation with the N.J. Department of Transportation, Division of Aeronautics and Pan Am. The FAA's position with regard to the use of runway 4-22 was as follows:

Atlantic City closed Runway 4-22 as a result of the public reaction to the May 17, 1986, accident. FAA is currently working with airport management to reopen the runway. (Certain damage caused by the accident must be corrected.)

As indicated on the attached proposal, Pan Am plans a preferential runway use program and a prohibition on takeoffs on Runway 22 and landings on Runway 4.

While FAA can concur with a continuance of a prohibition on Runway 22 takeoffs and Runway 4 landings by aircraft that are unable to demonstrate compatibility with its short runway length. . ., and restricted use by others in accordance with a preferential runway use program, all uses of Runway 4-22 must be made available to pilots when crosswinds are excessive on Runway 11-29.

By a September 3, 1986 resolution of the City Council of Atlantic City, runway 4-22 was reopened for limited use in accordance with Pan Am's recommendations.

The trial court, in granting summary judgment ruled that defendants' actions were not the proximate cause of the crash because the pilot broke the "causal chain" when he attempted "a go around." There is support for this ruling in federal aviation jurisprudence. See In re Air Crash at Dallas/Fort Worth Airport, 919 F.2d 1079 (5th Cir.), cert. denied, U.S. , 112 S. Ct. 276, 116 L. Ed. 2d 228 (1991); Wenzel v. United States, 419 F. 2d 260 (3rd Cir.1969); Stratmore v. United States, supra, 206 F. Supp. 665 (D.N.J.1962).

The court also determined that the city's decision to close runway 4-22 was cloaked with immunity as a discretionary decision under N.J.S.A. 59:2-3a, and that Pan Am enjoyed derivative discretionary immunity.

We now affirm the summary judgment in favor of Atlantic City.

Plaintiffs' theory of liability against the city is that the closing of runway 4-22 created a dangerous condition because runway 11-29 was subject to strong crosswinds, a condition which rendered it unsafe. In New Jersey, public entities are "liable for their negligence only as set forth in the Tort Claims Act." Pico v. State, 116 N.J. 55, 59, 560 A.2d 1193 (1989). N.J.S.A. 59:2-1 provides that a public entity is not liable for an injury "[e]xcept as otherwise provided by this act" and that "[a]ny liability of a public entity established by this act is subject to any immunity of the public entity."

Plaintiffs rely on N.J.S.A. 59:4-2 which defines public entity liability for a dangerous condition of its property. It provides:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

We address the last paragraph of this section which shields the entity from liability if its action or omission was not palpably unreasonable. We assume, but only for purposes of this analysis, that the unavailability of runway 4-22 created a dangerous condition as defined in N.J.S.A. 59:4-1a and as plaintiffs alleged. The issue then is whether the city's action in

not reopening runway 4-22 until September 1986 was palpably ...


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